Friday, August 07, 2020

Standing for nothing

I agree with the majority of the en banc D.C. Circuit that the House has standing to enforce its subpoena against former W.H. counsel Don McGahn.

But it reaffirms how little sense standing makes as a threshold Article III inquiry. As Marty Lederman notes, more important questions remain about whether the House has a cause of action, whether there is testimonial immunity, and other executive-privilege objections to the subpoenas. But we now have spent 17 months fighting over this issue and are no closer to a resolution before January 3, when Congress ends, the subpoena expires, and the whole mess becomes moot.

Worse, some of the arguments and disagreement between majority and dissent conflate standing and merits, a common and unavoidable problem. For example, McGahn and Judge Griffith's dissent argue that the House lacks standing because the case raises separation of powers problems and separation of powers underlies standing (sort of). But those stand-alone S/P concerns go to the merits of the case--to whether the subpoena or something sought through the subpoena is valid or whether the executive/legislative balance protects against some disclosures. The result is an attempt at double-counting: Using the possible failure of the House subpoena on its merits with what is supposed to be, but is not, a distinct question.

The court also splits on questions of legislative/executive cooperation and bargaining and perverse incentives that arose in Mazars. The majority argued that without judicial enforcement, the executive would have no reason to bargain, because the House would have no alternative means to ensure compliance (the executive may not pursue contempt against itself and inherent contempt authority has fallen into disuse). The dissent argues that the House will run to the courts rather than negotiate (this is the same argument the Chief Justice used in Mazars).

Posted by Howard Wasserman on August 7, 2020 at 02:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, August 06, 2020

Anti-SLAPP fee-shifting in federal court

I have argued in prior posts that the solution to SLAPP suits is not the  heightened standards from state laws (which cannot apply in federal court) but attorney fee-shifting. The paradox has been that most fee-shifting provisions apply to actions disposed of under the statutory standard, but not under a different standard. Thus, if the state statutory standard does not apply and the case is resolved on a simple 12(b)(6), the fee-shift does not apply.

But not so with the Florida anti-SLAPP law, according to Judge Martinez of the Southern District of Florida. Florida law provides for fees for any action that is "without merit" and based on constitutionally protected speech. The determination that the action is without merit can be made under any procedural device, such as 12(b)(6) (as in this case). In other words, the statute is a garden-variety fee-shifting provision serving substantive policy ends, the same as other fee-shifting provisions held to apply in federal diversity actions. So an action dismissed on a 12(b)(6) can provide the basis for an award of fees.

This is unique to Florida's anti-SLAPP statute. But it produces a conclusion that balances the requirements of the REA/Erie/Hanna against First Amendment interests.

Posted by Howard Wasserman on August 6, 2020 at 03:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 05, 2020

Judge Reeves on qualified immunity

An opinion to behold from Judge Reeves of the Southern District of Mississippi. (H/T: Michael Masinter). the 72-pager includes a lengthy history of § 1983 from passage in 1871 to the creation of qualified immunity; it calls out racial bias in policing and in society at large (especially in Mississippi) to explain why a search was not consensual. It calls out appellate judges for creatively interpreting Reconstruction statutes to protect older white men while failing to protect African-Americans against government misconduct. It calls directly and explicitly on the Supreme Court to do something (while admitting to not knowing what that should be). And it uses a cute three-point Star Wars allusion to organize the opinion ("§ 1983: A New Hope;" "Qualified Immunity: The Empire Strikes Back;" and "The Return of § 1983"). All while granting the officer qualified immunity for an egregious Fourth Amendment violation (traffic stop and lengthy search with no cause to be found) because he has no choice under current law.

For those who believe in such a thing (I don't), is this judicial activism? Does the judge's role, especially a lower-court judge, include railing against the state of the law, its horrific incorrectness, and its negative effects, especially in such sharp terms? Judge Reeves "applied the law rather than making the law," so he behaved consistent with that typical definition. An opinion is an essay having no direct force or effect. But should judges use these essays for such a cri de coeur?

Posted by Howard Wasserman on August 5, 2020 at 03:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (21)

Monday, August 03, 2020

Competing views on the Biskupic articles

Josh Blackman sees this as a threat to the institution that the Chief must repair (through some actions that I am not sure the Chief, as "first among equals," can do) or resign. Dan Epps argues that more transparency is a good thing. Take your pick or land somewhere in the middle.

I will share and concur in a comment from the Conaw List Serv that the Biskupic stories were interesting, but not earth-shattering--some of it could have been gleaned from the opinions themselves or from what we already knew about the Court's operations.

Posted by Howard Wasserman on August 3, 2020 at 12:40 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Saturday, August 01, 2020

Judicial departmentalism and particularity on Twitter (Updated)

In 2019, the Second Circuit held that Donald Trump could not ban people from following him on Twitter for viewpoint-discriminatory reasons, affirming a declaratory judgment. Trump and Daniel Scavino, the aide who runs his Twitter account, unblocked the plaintiffs and many others. But they did not unblock two groups--those who had been blocked before Trump became President (where there was no First Amendment problem with blocking them because he was not a government official at the time of blocking) and those who cannot point to a specific tweet that caused them to be blocked (where there is no evidence of viewpoint discrimination).

The Knight Foundation on Friday filed a new lawsuit on behalf of those two groups, asking for a declaratory judgment and injunction ordering the unblocking of these new plaintiffs.

Once again, inefficient but appropriate. Trump unblocked the plaintiffs, as we was obligated to do by the judgment. He negotiated with the Knight Foundation to unblock others, not out of an immediately enforceable legal obligation but a recognition of what would happen if he did not unblock--a motion to extend the existing judgment to additional individuals, which would succeed and which would impose that legal obligation. But he identified two groups differently situated than the plaintiffs who, in Trump's view, have not suffered similar violations of their First Amendment rights. This requires new litigation, a new analysis of the First Amendment, and a new declaration of First Amendment rights, duties, and relations.

Update: A further thought on the process: We know the plaintiffs recognized the particularized scope of the original judgment by the fact that they filed a new lawsuit on behalf of these plaintiffs. Had the original judgment protected these non-parties to that action, they could have moved to enforce the judgment, to hold Trump or Scavino in contempt, or to convert the declaratory judgment into an injunction.

For better or worse, this how the process should work. And Trump should not be accused of disobeying a court order or otherwise ignoring the court.

Posted by Howard Wasserman on August 1, 2020 at 06:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Thursday, July 30, 2020

Biskupic, Part IV

All about the Chief cobbling together the largest possible majority in the subpoena cases. They were a contested 5-4 after conference, with Roberts assigning himself the opinion but no guarantee which of G/B/S/K would join his opinion and Gorsuch and Kavanaugh on the other side.

Posted by Howard Wasserman on July 30, 2020 at 05:21 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 29, 2020

Biskupic, Part III

Focuses on Justice Kavanaugh in June Medical, in which he tried to get people to go along with a remand for more fact-finding, and the subpoena cases, in which he raises the political-question issue. It also describes his efforts to adopt a softer tone towards the parties he rules against, such as DREAMERS or "gritty" LGTBQ individuals.

I think the spin on his moves in June is a bit disingenuous. Remanding for factfinding in these cases is often a delay tactic, a way to decide without deciding, when the trial court's fact-finding is clear and a remand serves no real purpose other than allowing the Justices to keep their hands clear (and make life less difficult for Susan Collins). The remand proposal recalls his dissent on the D.C. Circuit in the pregnant-unaccompanied-minors case, in which he called for giving the government more time to find a sponsor, as the 20-week state-law clock ran down.

Posted by Howard Wasserman on July 29, 2020 at 04:56 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, July 28, 2020

Biskupic, Part II

Here. The focus is on Bostock and its internal deliberations. The reveals include that the 6-3 breakdown was clear from the beginning (so Roberts, not Ginsburg, assigned the opinion to Gorsuch; that Kagan joined Gorsuch's draft immediately and Ginsburg, Breyer, and Sotomayor followed soon after; and that Alito was angry. There also was a leak in November about how conference had gone, which prompted some op-eds directed to moving Gorsuch away from Kagan.

Posted by Howard Wasserman on July 28, 2020 at 02:14 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 27, 2020

Biskupic on the internal workings of the Roberts Court

At CNN, Joan Biskupic has the first of a series of pieces on the internal workings of the Court and the Chief's place in control, both as the Court's median vote--allowing him to piss off or appease both sides--and as the one who runs proceedings. Tidbits in the piece include: Roberts not providing an obvious fifth vote with the conservative wing on the Second Amendment; Roberts agreeing that DACA rescission was procedurally unlawful from the outside, while refusing to find any equal protection problems (thus losing Sotomayor from a complete majority); some negotiations with the liberal wing over the COVID-voting petitions; and pushing through the remote-argument process (including resisting the push from some to do it by Zoom). She also reports that Roberts began in the dissent in the Georgia copyright case, with Thomas assigning the original opinion and someone (she does not say who) switching during the drafting process.

I hope the coverage describing Roberts as the "swing" vote does not conflate that with him being a "moderate" or ideologically varied--he is not White, Powell, or O'Connor.

And a question: When was the last time the Chief was also the median Justice whose position defined the winner in most 5-4 decisions? Maybe Hughes, but Owen Roberts often moved with him.

Posted by Howard Wasserman on July 27, 2020 at 03:44 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, July 24, 2020

Lawyers and judicial departmentalism

One thing keeping judicial departmentalism from diverging too far from judicial supremacy is DOJ and the role of government attorneys in the judicial process. Obligations to respect judicial authority, of candor to the court, and of being the government face in court compel attorneys to comply with judicial processes and not yield to the lesser impulses of the executive (which does not have a similar legal or ethical obligation of candor).

Yesterday's letter from the US attorney for SDNY to Judge Furman offers an example.

The attorneys acknowledged and apologized for inaccurate and misleading statements in the litigation (over New York's exclusion from the Trusted Traveler Program), which supported the (erroneous) litigation position that the AUSA was required to take on behalf of DHS. Irina Manta simplifies it. DHS made false statements in furtherance of its policy positions (restricting immigration), which it can do. But its power runs out when things enter court. DOJ attorneys serve as the go-between, the persons and institutions who must counsel the executive to change conduct when confronted with the judicial process. And they do that because they bear the brunt of the judicial wrath when the executive pulls stunts such as this.

Posted by Howard Wasserman on July 24, 2020 at 09:30 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, July 15, 2020

Anti-SLAPP law does not apply in Second Circuit

The Second Circuit has joined the chorus holding that state anti-SLAPP laws (in that case, California's) do not apply in federal court. The case arises out of a lawsuit against Joy Reid over two tweets with a photo of a woman in a MAGA hat interacting with a Latinx teen at a city council meeting; one tweet described the plaintiff as shouting epithets at the teen (who said their interaction was civil), while the other juxtaposed the infamous 1957 photograph of the screaming white teen in Little Rock.

The Second Circuit joins the Fifth, Eleventh, and D.C. Circuits in not applying them, compared with the Ninth and First that. The court followed the prevailing approach--FRCP 12 and 56 provide the standards for pre-trial resolution, leaving no room for state law. The court rejected the amici argument that the SLAPP law serves a "distinct function of protecting those specific defendants that have been targeted with litigation on the basis of their protected speech," supplementing rather than conflicting with the FRCP. But this is a policy argument, one that contradicts the policies underlying the FRCP themselves. The court also rejected the defendant's argument that she can recover attorney's fees under the statute for a 12(b)(6) dismissal; the statute allows fees when the defendant prevails on the statutory motion to strike, not on some other basis.

Tellingly, the four most recent cases have gone this way, while the First Circuit decision is from 2010 and the seminal Ninth Circuit cases is from 1999, with several Ninth Circuit judges calling for its reconsideration in 2013. The courts of appeals are congealing around the correct Erie answer and may not require SCOTUS resolution, one point of percolation.

But that might not be the correct answer as a matter of the First Amendment and the need to protect speakers, especially media, against frivolous lawsuits by powerful individuals designed to chill public criticism. (Query whether this is such a case, but bracket that for a moment). Many First Amendment advocates want a full federal anti-SLAPP statute. For the moment, I think a fee-shifting statute, combined with vigorous use of Twiqbal would be sufficient to get rid of cases early in the process and to protect defendants from the intentional imposition of litigation costs. But I need to look in greater detail at how federal courts have looked at defamation claims under that pleading standard.

SLAPP and Erie aside, this case may be more troubling for Reid going forward. The court held that the plaintiff (who spoke and was photographed at city council meetings advocating against sanctuary-city laws) was not a limited-purpose public figure; she lacked media access, did not thrust herself into a public controversy, and stepped forward for interviews only after the first alleged defamation. Thus, the plaintiff had to allege negligence, not actual malice. The court also rejected Reid's argument that the second tweet (juxtaposing the photos) was not an actionable assertion of fact, because a reasonable reader could understand it as equating the plaintiff's conduct with "archetypal racist conduct."

It is interesting that this case came to litigation. When the plaintiff's lawyer asked Reid to delete the posts, Reid did so and apologized, which would seem to suggest the absence of negligence. But the plaintiff sued anyway. And we continue forward.

Posted by Howard Wasserman on July 15, 2020 at 07:01 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, July 13, 2020

Universal v. Nationwide, Again

The Ninth Circuit affirmed an injunction prohibiting enforcement of DOJ's sanctuary-city regulations as to California and the City and County of San Francisco. This comes after the Second Circuit denied rehearing en banc of a panel decision declaring the regulations valid. We now have a clear circuit split, although I imagine nothing will happen at SCOTUS if Biden wins and the regulations go away.

The Ninth Circuit did narrow the injunction to prohibit enforcement within California but nowhere else. It did so in terms that seem to contemplate the distinction between the injunction's who and where:

Plaintiffs here, a state and a municipality, “‘operate in a fashion that permits neat geographic boundaries.’” . . . Because Plaintiffs do not operate or suffer harm outside of their own borders, the geographical scope of an injunction can be neatly drawn to provide no more or less relief than what is necessary to redress Plaintiffs’ injuries. This is distinguishable from a case involving plaintiffs that operate and suffer harm in a number of jurisdictions, where the process of tailoring an injunction may be more complex.

The court distinguished a case involving asylum organizations that operate in California and other states, where an injunction limited to California would not address the harm from losing a client in Texas.

On the other hand, the court "acknowledge[d] the 'increasingly controversial' nature of nationwide injunction," a framing that confuses the point. There should be nothing controversial about nationwide injunctions, which the court faced here--injunctions that protect the plaintiffs wherever they operate. The controversy is over universal injunctions--injunctions that attempt to protect beyond the plaintiffs. Still, we are slowly getting there.

Posted by Howard Wasserman on July 13, 2020 at 03:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Friday, July 10, 2020

The process of Mazars and Vance (Updated)

Some process questions following Mazars and Vance, less about what happens on remand in these cases* than about what happens in future cases.

[*] I agree with what I have seen as a prevailing consensus--Trump runs out the clock on these subpoenas for this term, but may be in for a world of hurt and embarrassment as a private citizen if he loses in November. If he wins in November, all bets may be off.

Mazars

1) Which way do the incentives cut following Mazars and how likely is litigation over future subpoena disputes? The Chief's premise is that these cases historically were handled through the hurly-burly of politics until inter-branch negotiation broke down here (with no mention of why inter-branch negotiation broke down during this administration and not before). But Congress' subpoena power cannot be too broad, otherwise "[i]nstead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court."

But then why had Congress never previously walked away from the bargaining table? The majority cites four examples--from Washington, Jefferson, Reagan, and Clinton--in which Congress has negotiated for and accepted some-but-less-than-all of what it requested. He cites no examples in which Congress walked away, despite precedent hinting at a broader subpoena power than what the Court recognized.

More importantly, what about presidential incentives? He holds the information and has no desire to give it up unless and until compelled to do so. Mazars offers a more beneficial standard (how beneficial is a subject of debate and must await future cases) that must be satisfied before he can be compelled to do so. So it seems to me that "instead of negotiating over information requests, [the President] could simply walk away from the bargaining table and compel [Congress to start the lengthy process to] compel compliance in court," where the President can try to avail himself of the new standard. Moreover, time is on the executive's side--if the litigation process takes a year or more (not unlikely if SCOTUS gets involved), the President can try to hold out to the next election or to the end of the Congress and the expiration of the subpoena.

2) The President's incentive to walk away is furthered by the Speech or Debate Clause, which prevents suit against Congress. The house or the committee must make the first move by bringing an action to enforce the subpoena or holding the President in contempt of Congress and seeking to enforce the contempt order (which requires the U.S. Attorney for D.C.). Either way, Congress is the first actor. The President's incentive is not to bargain, to run out the clock, and, perhaps, try to shift political blame onto Congress for escalating the political stalemate.

3) We see a stark contrast in what gets left to the hurly-burly of politics and what is appropriate for judicial refereeing. Whether members of the legislature can rig the design of legislative districts to (try to) ensure continuation in office of themselves and their party colleagues) is politics; how one branch engages in oversight of another branch requires judicial intervention. For present purposes, it does not matter which is correct; the point is an odd disparity.

Vance

4) The procedural issue in Vance involves Younger abstention. The state grand jury issued the subpoenas, Trump sued the DA in federal court, the district court abstained in deference to pending state proceedings, and the Second Circuit held that abstention was improper. Vance did not appeal the Younger ruling, so SCOTUS never had reason to decide it. But the Court said that a President could challenge in federal court a subpoena that attempted to influence or manipulate his official actions. Later, the Court says the President can raise "subpoena-specific constitutional challenges, in either a state or federal forum," such as claims of undue influence or undue interference.

But how does a case such as this fit into Younger? The typical framework for Younger goes as follows: 1) Whether the case falls within one of three classes of cases (including ongoing criminal proceedings; 2) consideration of the Middlesex factors of whether there is an ongoing proceeding, whether the proceeding implicates state interests, and whether the federal plaintiff can raise federal issues in state court; and 3) whether the case falls within an exception, such as bad faith, harassment, or "other exceptional circumstances."

The Second Circuit's analysis did not follow this framework. It instead held that Younger's underlying concerns for comity were not implicated in a case built around a federal-state conflict and raising "novel and serious" federal issues. It could have squeezed those concerns into the exceptions (this is what Trump argued in the complaint), but instead made them macro-level policy considerations that a court must consider before jumping into that framework.

5) What about Younger going forward, in this case or a future case? With respect to subpoenas for private documents, the President seems to be an ordinary citizen able to challenge a subpoena on state and federal grounds, including unique federal presidential grounds such as non-interference with Article II functions. Are those challenges automatically a basis for federal jurisdiction and non-abstention? Can ordinary state-law arguments against a subpoena, such as overbreadth, be a basis for federal jurisdiction? Do state-law arguments become Article II arguments when raised by the President? Must there be a federal forum for all Article II arguments, in a way there need not be a federal forum for First Amendment arguments?

6) The Court's resolution arguably alters the Younger analysis in this case. The Second Circuit rejected abstention because of the President's "novel and serious claims," specifically that the President is absolutely immune from state criminal investigation or that a unique standard applies. So the same questions apply: If the President is asserting micro challenges, many under state law, to specific pieces of the injunction, is a federal forum warranted? Can the lower court, having rejected Younger, find abstention appropriate given the changed nature of the case?

Posted by Howard Wasserman on July 10, 2020 at 03:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Wednesday, July 08, 2020

Universal v. Nationwide

A good illustration of why the nationwide/universal and where/who distinction matters for the scope-of-injunction question. Here is footnote 28 in Ginsburg dissent in Little Sisters:

Although the Court does not reach the issue, the District Court did not abuse its discretion in issuing a nationwide injunction. The Administrative Procedure Act contemplates nationwide relief from invalid agency action. See 5 U. S. C. §706(2) (empowering courts to “hold unlawful and set aside agency action”). Moreover, the nationwide reach of the injunction “was ‘necessary to provide complete relief to the plaintiffs.’ Trump v. Hawaii, 585 U. S. ___, ___, n. 15 (2018) (SOTOMAYOR, J., dissenting) (slip op., at 25, n. 13) (quoting Madsen v. Women's Health Center, Inc., 512 U. S. 753, 765 (1994)). Harm to Pennsylvania and New Jersey, the Court of Appeals explained, occurs because women who lose benefits under the exemption “will turn to state-funded services for their contraceptive needs and for the unintended pregnancies that may result from the loss of coverage.” 930 F. 3d, at 562. This harm is not bounded by state lines. The Court of Appeals noted, for example, that some800,000 residents of Pennsylvania and New Jersey work—and thus receive their health insurance—out of State. Id., at 576. Similarly, many students who attend colleges and universities in Pennsylvania and New Jersey receive their health insurance from their parents’ out-of-state health plans. Ibid.

Ginsburg is correct that protecting New Jersey and Pennsylvania is not bounded by state lines, given the number of employees, students, etc. likely to turn to the state for financial assistance. That is, the injunction should have been nationwide in where it protects the parties.  It should protect NJ and Pennsylvania and those people with some connection to NJ or Pennsylvania (on whose behalf NJ and Pennsylvania sued), regardless of where those people are.

But complete relief does not require that the regs be enjoined as to other states who may incur the same harm as NJ and PA or to individuals who might be denied coverage but have no connection to NJ and PA. That is, the injunction need not be universal (or non-particularized) in who it protects. Complete relief to NJ and PA does not require that the enforcement be enjoined as to California or those people who might turn to California for funding if denied coverage.

For what it is worth, the same should apply to the lawsuit Harvard and MIT filed to stop ICE from enforcing the rules with respect to student-visa holders and remote courses. Complete relief to Harvard and MIT does not require enjoining enforcement of the regulations as to other schools or students from schools other than Harvard and MIT. It only requires an injunction protecting Harvard and MIT and their students, regardless of where located. I recognize this is inefficient. But this is the scheme we have.

Posted by Howard Wasserman on July 8, 2020 at 01:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Monday, July 06, 2020

On invalidating laws and universal declaratory judgments

After the jump is FN 8 of Kavanaugh's plurality in Barr v. AAPC. As I said, I wanted to include this in its own post.

The term “invalidate” is a common judicial shorthand when the Court holds that a particular provision is unlawful and therefore may not be enforced against a plaintiff. To be clear, however, when it “invalidates” a law as unconstitutional, the Court of course does not formally repeal the law from the U. S. Code or the Statutes at Large. Instead, in Chief Justice Marshall’s words, the Court recognizes that the Constitution is a “superior, paramount law,” and that “a legislative act contrary to the constitution is not law” at all. Marbury v. Madison, 1 Cranch 137, 177 (1803). The Court’s authority on this front “amounts to little more than the negative power to disregard an unconstitutional enactment.” Massachusetts v. Mellon, 262 U. S. 447, 488 (1923).

JUSTICE THOMAS’s thoughtful approach to severability as outlined in Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–___ (2018) (slip op., at 2–6), and Seila Law LLC v. Consumer Financial Protection Bureau, ante, at 14–24, (joined by JUSTICE GORSUCH in the latter) would simply enjoin enforcement of a law as applied to the particular plaintiffs in a case. Under either the Court’s approach or JUSTICE THOMAS’s approach, an offending provision formally remains on the statute books (at least unless Congress also formally repeals it). Under either approach, the formal remedy afforded to the plaintiff is an injunction, declaration, or damages. One difference between the two approaches is this: Under the Court’s approach, a provision is declared invalid and cannot be lawfully enforced against others. Under JUSTICE THOMAS’s approach, the Court’s ruling that a provision cannot be enforced against the plaintiff, plus executive respect in its enforcement policies for controlling decisional law, plus vertical and horizontal stare decisis in the courts, will mean that the provision will not and cannot be lawfully enforced against others. The Court and JUSTICE THOMAS take different analytical paths, but in many cases, the different paths lead to the same place.

This is important in several respects.

It clearly explains that "invalidating" a law is merely "common judicial shorthand," that what the Court is really doing is holding that a provision "may not be enforced against a plaintiff." The Court does not say the law cannot be enforced at all or against all people, only against a plaintiff. But no matter what, the law remains on the statute books until Congress repeals it, a task only Congress can perform.

Kavanaugh perfectly describes judicial departmentalism: The injunction prohibits enforcement of the law against the plaintiff; the executive voluntarily respects decisional law in future enforcement efforts (but is not required to do so); and stare decisis means any enforcement fails in the courts. Under Kavanaugh's approach, by contrast, the declaration of a provision as invalid means it cannot be lawfully enforced against others. But Kavanaugh does not explain why this is so and I do not see why it should be. The statement conflicts with the Court's statement in Doran v. Salem Inn that a declaratory judgment does not stop a state government from enforcing a law against other persons and leaves government free to do so. And if declaratory judgment is a milder form of relief than an injunction, it should not have a broader party scope than an injunction.

Posted by Howard Wasserman on July 6, 2020 at 02:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Monday, June 29, 2020

Assignments and female voices

Someone pointed out that June Medical produced six opinions on the right to reproductive freedom, all by male Justices and none by any female Justice. But who is responsible for that?

The first question is who assigned the majority to Breyer. Assignment is by the senior-most Justice in the majority for a judgment/outcome at conference; that means the Chief assigned the opinion to Breyer, then declined to join and wrote on his own, leaving Breyer to write a plurality. But how specific do they get during the conference? Could it be clear at conference that his reasoning was so far from Ginsburg/Breyer/Sotomayor/Kagan that he was not part of that group? For example, suppose G/B/S/K made clear the view that the Louisiana law was broadly invalid while Roberts made clear that he was going along with Whole Women's purely on stare decisis grounds. How does that affect the assignment? This would have made Ginsburg senior-most, meaning she assigned the opinion to Breyer rather than keeping it or giving it to one of her female colleagues.

All three also chose not to write a separate opinion, I presume to maintain a clear plurality (if not majority) voice. Even at the loss of a female voice.

Posted by Howard Wasserman on June 29, 2020 at 08:48 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More on constitutional-litigation reform (Updated)

A law professor letter is circulating in support of the one-two punch of eliminating qualified immunity and overriding Monell  to make municipalities liable on respondeat superior. The move towards respondeat superior liability is in the Reforming Qualified Immunity Act, introduced by Sen. Mike Braun (R-IN)The letter is here, for those interested in signing.*

[*] I signed the letter, as it involves an issue on which I know something as a legal scholar, as opposed to as a citizen with a law degree.

Braun's bill also would revise, but not eliminate qualified immunity. He replaces it with a narrower immunity that protects an officer if he acts in good faith and either acted pursuant to a statute or regulation that had not been declared invalid or the conduct had not been declared invalid. In essence, the change to immunity flips the default--an officer is not immune if the law is uncertain, but becomes immune if the law is certain that his conduct is valid.

Full reform still requires two more steps. Section 1983 must be extended to states, which Congress can do by making clear that states are persons for § 1983 purposes. Otherwise, state police and sheriff's officers will be beyond these reforms, since they are not local officers. And something has to be done to codify the Bivens cause of action, otherwise federal officers will be beyond these reforms.

Update: A reader emails to offer another way to limit the effects of qualified immunity--overruling or overriding Mitchell v. Forsyth and eliminating collateral-order review of Q/I denials, which places Q/I at the heart of the case and moves cases quickly into the court of appeals and SCOTUS. Eliminating immediate review (or requiring judicial leave under § 1292(b)) would combine well with Braun's approach. I have not seen this as part of any proposals.

Posted by Howard Wasserman on June 29, 2020 at 01:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 26, 2020

Mootness, departmentalism, and universality

Here is an interesting mootness decision from the Third Circuit (written by Judge Bibas). A lot of good discussion of mootness, as it relates to my current interests in universality and departmentalism. I am not sure I agree with the conclusion, but the opinion is a great read.

The action is a challenge by a group of public-school teachers to Pennsylvania's agency-fee statute. While the action was pending, SCOTUS held in Janus that agency-fee schemes violate the First Amendment. The state and the union told school districts and other public employees to stop deducting fees and to refund fees collected to cover expenses from Janus forward. Although the state agency-fee law remains on the books and agency-fee provisions remain in the contracts, the union insists it has no intention to enforce either in the future. The district court held the case moot and the court of appeals affirmed.

• Bibas tweaks the common description of mootness as "standing set in a time frame," because they are not co-extensive. A plaintiff must show standing at the outset, but it is on the defendant (or someone else) to show mootness once the action has begun. Thus, under new circumstances, while the plaintiff might be unable to establish standing , that does not mean the defendant can establish mootness. As he puts it, "sometimes a suit filed on Monday will be able to proceed even if, because of a development on Tuesday, the suit would have been dismissed for lack of standing if it had been filed on Wednesday. The Tuesday development does not necessarily moot the suit." I am going to use that framing in class.

• He recasts "voluntary cessation" as "volitional cessation." Often, especially in constitutional cases, the government defendant continues to insist on the validity of its actions, even while agreeing to abide by an injunction or precedent knowing that the courts will rule against it. In other words, the cessation is not voluntary, because the government believes he can do something and should be able to do something, if not for some pesky hindrance (such as a court order). The issue is whether government can reasonably be expected to engage in the challenged behavior in the future. So the issue is not whether the cessation is voluntary but whether it is volitional, a deliberate act, regardless of its cause.

• The reasons for cessation are probative of the likelihood of re-engagement in the behavior. The court is more skeptical of a defendant who continues to insist on the validity of the conduct but yields in the face of a court order, while more forgiving of a defendant who yields to new precedent established in a different case. From a judicial-departmentalist standpoint, this gets it backwards. A defendant cannot ignore a court order in the instant case (without immediate consequence) even if it believes the basis for the order incorrect; that case should be moot because the defendant will not re-engage on pain of contempt. A defendant can ignore precedent from another case without immediate consequence, so a promise to abide by precedent should not moot the new case. I made this argument in using judicial departmentalism to justify voluntary cessation as a limit on mootness.

Moreover, if we accept particularity/non-universality as the norm for injunctions, there is no distinction between those situations. If the injunction binds the government only as to the plaintiff, then all future enforcement that is or is not likely to occur is in response to precedent rather than to a court order. There is no difference between Chicago promising not to enforce its law against Y following an injunction barring Chicago from enforcing against X and Chicago promising not to enforce its law against Y following a decision ordering Milwaukee not to enforce its identical law against M.

• Nonetheless, the court found this case moot. The unions conceded the invalidity of agency-fee requirements and forswore collecting fees and there was no indication they will not continue to abide by that position. That agency-fee provisions remain on the books and in the CBAs did not matter and did not create any  injury that a court could redress absent some indicia of intent to enforce.

The plaintiffs tried to avoid mootness by pointing to challenges to campaign-finance laws found not moot following Citizens United and challenges to marriage laws found not moot following Obergefell. The former was a complex decision targeting one campaign-finance provision, uncertain in its application to other laws and provisions. The latter did not address the incidents of marriage challenged in the other cases. Janus was simple--no agency fees allowed--and the case presented no additional issues not covered by Janus.

I think that is a cramped reading of the marriage case.The Eighth Circuit highlighted that Obergefell dealt with laws in states other than Nebraska (thus did not bind Nebraska in any way) and that the ban on same-sex marriage remained in the Nebraska constitution. The court understood, if implicitly, that there remained something for Nebraska to enforce and nothing, other than the state's voluntary (or volitional) acquiescence to stop that enforcement.

Perhaps the analysis is different when it is a private actor, such as the union, rather than a government with departmentalist powers. Others have argued that courts are too-quick to accept government representations of non-enforcement and moot cases. If so, this case gets the balance right--this case is moot based on the union's promise where it might not be moot if the government were making the same promises. Of course, perhaps that distinction collapses when the defendant arguably acts under color, as the unions likely do under these agreements.

• The plaintiffs argued that a live controversy remained based on their request for a declaratory judgment that Pennsylvania's statute is constitutionally invalid. But the union did not intend to enforce the law. And because the constitutional violation is the threat of enforcement rather than the existence of the law (or contract provision), the plaintiffs' rights were not violated and they had "nothing to fear."

The court captures this with a nice civics lesson:

It may seem odd that unconstitutional laws remain on the books. But until a party faces a real threat of enforcement, a statute is mere words on a page.

I like that framing (and added it to a current paper). We can go further: If this were not true, no constitutional action would become moot because no law declared constitutionally invalid disappears without further legislative action, so the threat of departmental enforcement remains.

Posted by Howard Wasserman on June 26, 2020 at 12:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, June 24, 2020

Mandamus issues in Flynn prosecution (Updated)

A divided D.C. Circuit panel granted Michael Flynn mandamus and ordered Judge Sullivan to remove the appointed amicus and to grant the government's uncontested motion to dismiss the charges. This is a brutal decision that leaves little meaning to the "leave of court" language in FRCrP 48(a), turns a presumption of regularity of prosecutorial decisions into a mandatory conclusion by precluding any inquiry into those decisions, and grants mandamus relief before the district court has had an opportunity to decide the motion or to do anything that might so imperil anyone's rights or interests. Mandamus is a weird duck, with judges reciting the high standard for granting, then finding that standard satisfied in the cases they want (but no others). The court also does not really address the unique element of this case--government dropping charges after the defendant twice pleaded guilty in open court--and how it might differ from a decision to drop charges at the outset. The decision also functionally prevents the district court from considering perjury charges against Flynn because there is no amicus to investigate.

My guess is that, like the decision on the tax subpoenas, the panel opinion will not survive long; the court will take it en banc and deny mandamus. Then on to SCOTUS?

Update: Orin Kerr compares this decision to Bush v. Gore for a variety of reasons, most prominently in telling a lower court to stop what it was doing, out of distrust that the lower court would conduct ordinary procedure in any appropriate way. I would add an additional similarity--both are "good for this trip only" decisions; I expect that in the next case, Judges Henderson and Rao will remind how extraordinary mandamus relief is and how high the standard is and how harm to non-parties is not a basis for relief.

Posted by Howard Wasserman on June 24, 2020 at 02:08 PM in Howard Wasserman, Judicial Process | Permalink | Comments (6)

Monday, June 22, 2020

No qualified immunity (updated)

The Court denied cert in Cooper v. Flaig, the 12th of the 13 petitions that were pending in mid-May. The remaining case is Davis v. Ermold, the sole case not arising from police misconduct. Not sure what they are waiting for on that one.

SCOTUSBlog's Petitions We're Watching includes three qualified immunity cases. One asks whether an appellate court can raise QI sua sponte and whether to overrule Pearson and another asks for clarification of the standard for how analogous precedent must be to clearly establish a right.

Posted by Howard Wasserman on June 22, 2020 at 09:59 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, June 15, 2020

Justice Kavanaugh foresees 2020 Blue Wave and other thoughts on Bostock

I have asked my colleague Kerri Stone to write something about today's decision holding that LGBTQ discrimination is sex discrimination; I hope to post that later today. I add a couple of points/questions.

The open question will be whether this means discrimination based on LGBTQ status is sex discrimination for purposes of the 14th Amendment (triggering intermediate scrutiny) and other statutes such as Title IX, Equal Pay Act, public accommodations, etc. The answer would seem to be yes; Gorsuch's major premise is that one cannot discriminate against a person on the basis of sexual orientation without discriminating against that person on the basis of sex. Even if the reason the employer targets the plaintiff because of who she is attracted to or her sex at birth, the mistreatment must pass through sex. And those other provisions protect individuals not groups, the other premise of Gorsuch's analysis.

That question could affect the outcome when an employer argues that the First Amendment or RFRA displaces Title VII, something the majority leaves for another day. If LGBTQ discrimination is sex discrimination deserving of greater scrutiny, does that mean the government's interest in preventing that discrimination (through Title VII) is compelling for RFRA purposes? Does it receive more deference than an interest in prohibiting a form of discrimination receiving rational-basis review? The assumption by even the SG in Masterpiece Cake Shop is that the religious-freedom argument could not fly as to race discrimination but it could as to LGTBQ discrimination because that received lower scrutiny. What happens in the middle?

Gorsuch's writing in this opinion reminds me of Kagan in its informality, with a lot of "imagine if you will" hypotheticals and illustrations.

A lot will be made of the Chief joining this opinion, especially in light of his dissent in Obergefell. He recognized the sexual-orientation-is-sex argument in that case, asking counsel about it during argument. But it did not persuade him with respect to marriage and he did not address it in his dissent. Did he change his mind? Does he see this statute as different than the Fourteenth Amendment (and perhaps other statutes)?

Two interesting theories floating around Twitter (which may fit together). Katherine Franke suggests that the original majority was the four liberals and Gorsuch and that the Chief joined so he could assign the case to Gorsuch and get a narrower opinion, rather than Ginsburg assigning the opinion to herself and producing something broader. Marty Lederman speculates (based on October case assignments) that the Chief kept this opinion for himself to rule against the plaintiffs, while Gorsuch was undecided; when Gorsuch would not join that opinion, he wrote his own going the other way and the Chief came on board. Both moves can be explained by the Chief's desire to hold the assignment. Of course, Ginsburg might have assigned the opinion to Gorsuch rather than keeping it for herself to reward him for the switch and to keep him on board (a very Brennan/Stevens move).

The Chief's switch from Obergefell to today may explain the final paragraph in Kavanaugh's dissent:

[i]t is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.

Compare this with the final paragraph of the Chief's Obergefell dissent:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Finally, the piece that prompts the title of this post: Here is the first paragraph in the conclusion to Kavanaugh's dissent:

It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.

This can be true only if "in the next few years" (meaning this year, really) the Democrats gain unified control of the political branches, including likely with a filibuster-proof Senate majority. No Republican-controlled body would pass and no Republican President would sign such a bill. I am certain Kavanaugh's does not want this to happen. But I hope he is right.

Posted by Howard Wasserman on June 15, 2020 at 02:24 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

SCOTUS not helping on qualified immunity

Eliminating qualified immunity does not alone solve the problem of police misconduct or within the criminal justice system, although it is a good start. It appears that start will not come from the Court. As of early May, 13 petitions challenged qualified immunity in application or in concept. The Court denied cert in three last month and denied cert in another eight on Monday. Baxter v. Bracey drew a solo dissent from Justice Thomas, repeating the arguments from his Ziglar concurrence on how neither the objective "clearly established law" or subject good faith matches 19th-century common law. Not even Justice Sotomayor, who has offered other objections to qualified immunity, joined Thomas or expressed disagreement with the denial.

Two cases remain from the original 13--police killing an unarmed man by tasing him nine times during an acute mental-health episode and Kim Davis refusing to follow Obergefell.

I wonder if the recent events and the introduction of legislation prompted the Justices to wait. Although they made this mess, Congress is moving to clean it up, letting the Court off the hook.

Posted by Howard Wasserman on June 15, 2020 at 10:24 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Thursday, June 11, 2020

Second Lafayette Square Lawsuit

A second lawsuit has been filed over the clearing of Lafayette Square on June 1. Plaintiffs are three individuals who were at the protests and plan to protest in the future. They have the benefit of one additional week of presidential statements and other developments to support allegations of retaliation, viewpoint discrimination, and the unreasonableness of the use of force.

This complaint has another wrinkle: A claim for violation of the Posse Comitatus Act for bringing forth military police and national guard troops in clearing the park. They claim "a non-statutory right of action to enjoin and declare unlawful presidential action that is ultra vires," then seek damages, a DJ, and an injunction. This seems weak for three reasons: 1) Any implied injunctive right of action cannot support a claim for damages; 2) I am not sure how they can show damages from the violation of Posse Comitatus, which requires showing some incrementally greater injury from the fact that military personnel might have been involved in the injurious First and Fourth Amendment violations; and 3) It seems unlikely that Trump will try to use military force again--thris morning's tweets about Seattle notwithstanding, the military has pushed back on this. Still, it is a cute theory for public consumption.

Posted by Howard Wasserman on June 11, 2020 at 05:39 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, June 07, 2020

What does Cohen v. California clearly establish? (Updated)

The stories are confused and seem incomplete. But apparently the sheriff of Lowndes County, Georgia confiscated from a protester in Valdosta a sign reading "Fuck Trump." Georgia law prohibits profanity in the presence of children under 14. (Update: A woman was arrested for violating the law with a different sign the following day. The article indicates the sheriff intends to continue enforcing the law).

The enforcement of the ordinance violates the First Amendment. Profanity is constitutionally protected and, at least outside of sexually explicit material on TV, adult speech cannot be reduced to what is appropriate for children. So although the Georgia Supreme Court declared that law valid in 1973, it cannot stand under modern doctrine.

The question is whether the First Amendment right to display a "Fuck ____" sign is clearly established--the constitutional question is beyond dispute so no reasonable officer could have believed seizing this sign was constitutionally valid. Is this like Johnson and flag burning? Or might a court actually say a jacket in a courthouse is different from a hand-made sign at a protest rally where children might be present?

Posted by Howard Wasserman on June 7, 2020 at 11:17 AM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, June 04, 2020

Lawsuit over clearing Lafayette Square

Complaint here. Plaintiffs are Black Lives Matter DC and five individuals who were at the protests on Monday and would like to return; defendants are Trump, Barr, Esper, the acting chief of the U.S. Park Police, director of Secret Service, commander of D.C. National Guard, U.S. Army Chief of Staff, 100 John Does (federal law enforcement), and 20 John Poes (non-federal law enforcement). Claims are for violations of First and Fourth Amendments and conspiracy under §§ 1985(3) and 1986.

My prior post showed the problems the lawsuit faces. The Bivens and immunity problems do not go away. But the complaint finds cute ways to try show standing for prospective relief. It highlights plaintiffs' intent to continue demonstrating; the new W.H. perimeter prevents access to Lafayette Square or any protest space within view of the White House; and 3) statements by Trump and others to deploy violence against protesters--all of which establishes an imminent threat of future violence if they return to protest. The complaint also compares Trump's statements supporting protesters he likes (such as those who stormed statehouses in search of haircuts) and calling to "dominate" protesters he does not like, as a way to show that the actions against the protesters were viewpoint- and content-based.

Posted by Howard Wasserman on June 4, 2020 at 09:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

What about Bivens? What about prosecutorial immunity? (Updated)

Rep. Justin Amash, the House member who left the GOP because of Trump, announced plans to introduce a bill (co-sponsored with Ayanna Pressley (D-MA) to eliminate qualified immunity. The bill would "explicitly not[e] in the statute that the elements of qualified immunity outlined by the Supreme Court are not a defense to liability." (Update: Draft text).

But what about Bivens, which has no statutory basis? Federal law enforcement officers assert qualified immunity in Bivens actions (over, for example, using definitely-not-tear-gas-irritant-agents to disperse peaceful protesters); many of the Court's early qualified immunity cases were Bivens rather than § 1983 actions. In Abbasi, the majority incorporated some immunity considerations (e.g., over-deterrence of officials) to the special factors counseling hesitation. But that will not apply in basic Fourth Amendment claims against domestic law enforcement; those officers still fall back on qualified immunity. I suppose that if Amash's bill were to pass, the Court might eliminate immunity to keep Bivens and § 1983 parallel.

And what of other extra-textual absolute immunities that the Court has super-imposed on § 1983 (and Bivens, by extension). Prosecutorial misconduct contributes as much as police misconduct to the racial problems in the criminal justice system (distinct from excessive-force); absolute immunity leaves prosecutors free to engage in blatant misconduct, often shifting the litigation focus back to the police, who then assert qualified immunity. In theory, appellate review, attorney ethics, and electoral checks remedy or deter such misconduct. It has done nothing in practice, given the high standards for showing constitutional violations on appeal, reluctance to sanction prosecutors, and the fact that elected prosecutors run on obtaining lots of convictions as a result of prosecutorial over-reach.

The point is that qualified immunity is bad and should go. But it is not the only cause within the constitutional-litigation framework. (And this does not consider causes outside of constitutional litigation, such as unions and employment practices). Targeting qualified immunity alone--and only in the specific context of § 1983--misses the bigger picture and the many moving pieces necessary for reform.

Posted by Howard Wasserman on June 4, 2020 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, June 02, 2020

Suing over Monday's crowd dispersal

Here is what we know happened around 6:35 p.m. Monday next to Lafayette Square: Federal law-enforcement officials threw something (dispute whether it was tear gas or a smoke bomb) and pushed throw to move the crowd out of the area. Prior to that point, the crowd was lawfully gathered in a space that has been held to be a traditional public forum, was engaging in peaceful expressive activity, and not engaging in unlawful conduct. Attorney General Barr ordered federal officials to move the crowd, so the space was clear for the President to have his photo opportunity in front of the church. This was captured live on TV, as well as recorded on numerous phones. Federal officials also moved church personnel off of church property through tear gas or other device, presumably at the AG's command.

It looks like a significant violation of the First Amendment. But:

• We do not know the individual officers who threw the smoke/tear gas and there were too many officers in the phalanx. I suppose video forensics and FOIA might be able to identify. But any lawsuit would involve many Doe defendants and discovery to determine their identities.

• The plaintiffs could sue the AG on the theory that he directly ordered the unconstitutional behavior. This runs into Abassi and Iqbal, which seemed to limit if not foreclose Bivens claims against high-ranking officials on a supervisory theory. This case is different than Iqbal in that the supervisory conduct was a direct order to engage in First-Amendment-violative conduct in a specific situation, rather than enactment of general policies, making the causal connection more direct. I doubt that distinction would fly.

• It is not clear there is a Bivens action for free-speech violations. SCOTUS has assumed it several times, while most circuits have held there is. The Court may say that this is a different context (First Amendment, presidential security, massive protests) and thus find special factors counseling hesitation (presidential security, high-ranking official, etc.).

• Barr and any individual officers can claim that the security concerns provide a compelling interest justifying clearing the public forum of peaceful protesters, although any compelling interest in clearing space for a photo opportunity is a weaker argument. The talisman of national security may be sufficient to defeat any substantive First Amendment right.

• Even if this conduct violated the First Amendment, any defendant is likely to get qualified immunity. There is no precedent that places "beyond doubt" that the First Amendment is violated by the use gas/smoke to clear out peaceful protesters in a period of massive demonstrations so the president can do a photo opportunity. There certainly is no precedent making it beyond doubt that it is a violation for the AG to do it. The Court pays lip service to the legal rule that precise precedent is not required and that a right can be clearly established as a matter of general principle, but recent cases have, in practice, found immunity in the absence of substantially similar precedent. The two cases (Hope and Lanier) that have found rights clearly established on general principles involved egregious facts and were two decades ago. Is "gassing peaceful protesters in a public forum to allow a presidential photo op" the equivalent of selling foster children into slavery (Posner's famous example)? Probably not.

• Because the facts are unique and the absence of precedent obvious, a court likely would not touch the merits and would grant qualified immunity.

• No plaintiff would have standing to obtain declaratory or injunctive relief. They could not show imminent injury because they could not show both a substantial (or at least reasonable) likelihood that they would protest again and that the AG or federal officials would repeat their actions.

As someone said on a list serv, I hate writing this. But it is the law that we have at the moment. Maybe this case illustrates the urgency of the Court doing something about qualified immunity, outside the Fourth Amendment context.

Posted by Howard Wasserman on June 2, 2020 at 06:56 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, June 01, 2020

"We have a different Court"

In an apparently unhinged Monday phone call with governors, the President urged states to enact new laws prohibiting flag burning. According to sources, the President said "We have a different court" and that "if you wanted to try a very powerful anti-flag burning law, we’ll back you.” (Not sure if that means the administration would not back a state that tried a moderately powerful law).

I know these are unserious ravings of an unserious person, but it does reveal how little he understands.

First, under judicial departmentalism, Trump's suggestion is lawful and consistent with his constitutional oath, as is action by any governor and legislature. If they believe these laws consistent with the First Amendment, they can act on that understanding.

Second, for what it is worth, new laws would be unnecessary in many states where anti-flag-burning laws remain on the books. They remain unenforced because state officials know what would happen if they tried.

Third, even if a logical solution to the problem of violent protests, it could not resolve the current situation (assuming these protests peter out after a few more days). Imagine a state enacted or announced plans to enforce a flag-burning law tomorrow. The law would be enjoined immediately by a district court and affirmed by a court of appeals, both bound by Johnson and Eichman. It would be awhile before it reached that "different Court." Alternatively, the right to burn a flag is one of the few clearly established rights, so no officer would attempt to enforce that law on pain of losing qualified immunity in a subsequent civil action.

But indulge the President's fantasies that "we have a different Court" (Kennedy was the last holdover from the Eichman Court) that would resolve the flag-burning question differently. Would it, writing on a clean slate? The Court has earned its reputation as extraordinarily speech-protective; no coherent theory of free speech can tolerate the viewpoint discrimination that would prohibit burning a flag in protest but allow wearing a flag as a shirt or altering a flag to create a different message. At worst, the Chief would join the liberals in another 5-4 decision. But Gorsuch appears as speech-protective as his former boss. Alito and Thomas have cited Johnson to support the principle of viewpoint neutrality (when other cases could have served the same purpose), which I would think they would not have done if they had the doctrine in their cross-hairs. Plus, this would provide an easy opportunity for Republican appointees to silence the "Court is political" voices by demonstrating that their jurisprudence does not inevitably and ineluctably lead to the Republican-preferred outcome. Justice Scalia got 30 years out of Johnson as pretty much the lone example of his originalism leading to a disfavored outcome. So perhaps the President is right--we do have a different Court and it would declare the law invalid by a 9-0 vote rather than a 5-4 vote.

Posted by Howard Wasserman on June 1, 2020 at 03:33 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Thursday, May 14, 2020

§ 1983 or the 11th Amendment

One of my pet peeves is confusion about why states cannot be sued in § 1983 actions: It often is short-handed as being about sovereign immunity depriving a court of jurisdiction, when doctrinally it is about states not being "persons" subject to suit under the statute and there being no cause of action against a state (or state agency).

This arose in Colorado Dept. of State v. Baca (over "faithless elector" laws)  through questions by Justices Breyer and Gorsuch suggesting that the parties colluded to maintain a meritless action in order to obtain a judicial ruling. It appears Baca sued the Secretary of State, then the parties negotiated to have the Department be named defendant and to not challenge its non-suability under § 1983. I would guess that proceeding against the state rather than the secretary was necessary for Baca to proceed with a claim for nominal damages, which was essential to establishing and maintaining standing. Counsel for both sides argued that the Court should not concern itself with this, that the availability of a cause of action is a non-jurisdictional issue that the parties can waive.* Gorsuch suggested that, even if waivable, it might be a basis to DIG the case.

[*] Scott Dodson blanched when he heard that.

I am glad both Justices used the appropriate terminology and framework and wish lower courts would follow suit. But it reveals how nonsensical it is to think of sovereign immunity (which has nothing to do with the text of the Eleventh Amendment) as a jurisdictional rather than merits limitation. Where Congress lacks power to abrogate (e.g., ADEA), the limitation is jurisdictional; where Congress has the power but declined to exercise it (e.g., § 1983), it is merits. Even if in both cases, a state is willing to be sued eo nomine.

Posted by Howard Wasserman on May 14, 2020 at 12:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (5)

Friday, May 08, 2020

Reuters on qualified immunity

Reuters on Friday published a multi-part series on qualified immunity. The center of the study is a empirical look at how Pearson v. Callahan and the Court's recent string of summary reversals changed how courts of appeals handle qualified immunity. Its findings:

  • In 2005-07, plaintiffs in excessive-force cases prevailed 56 % of the time; in 2017-19, defendants prevailed 57 % of the time.

EXfriNtWkAEsfGi

• This graph shows that the flip in plaintiff success is a recent development. From 2014-16, plaintiffs prevailed 52.2 % of the time; for 2017-19, it dropped to 43 %. Some of that might be traceable to the influx of Trump appointees (recognizing that some, such as Don Willetts of the Fifth Circuit, have criticized qualified immunity), as well as the hint from SCOTUS's summary reversals.

• The dark blue represents cases in which the court found no excessive force; the medium blue represents cases in which the court found excessive force but that it was not clearly established that the force was excessive; the light blue represents cases in which the court  skipped the merits question and found that it was not clearly established that the force was excessive. That third category has expanded the past two years.

• Courts (including SCOTUS) increasingly demand factual overlap with precedent before finding a right clearly established. Case in point: The Ninth Circuit granted qualified immunity because no precedent held that the Fourth Amendment was violated by police stealing private property while executing a search warrant.

• The latter two colors (which, on the eyeball test, appear to represent a bit less than half of the defendant victories) establish the new problem: Courts demand factual overlap for a right to be clearly established, then refuse to provide a precedential opinion that can serve to clearly establish that right going forward.*

[*] Courts seem more willing to reach the merits--so the right now is clearly established--in non-police, or at least non-excessive-force, cases.

• SCOTUS will review multiple petitions involving qualified immunity at its May 15 conference. These include the stolen coins, an officer who deployed a police dog on a non-resisting suspect, an officer who shot a child while attempting to shoot the non-threatening family dog, and Kim Davis trying to avoid damages for ignoring Obergefell (I used this in Civil Rights in the fall). Justice Thomas called for reconsidering qualified immunity in his concurring opinion in Ziglar v. Abbasi; this will be a chance to see if anyone else wants to follow him down that path.

Posted by Howard Wasserman on May 8, 2020 at 02:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Thursday, May 07, 2020

Courts should not reach out, unless they need to reach out

SCOTUS reached a strange resolution in United States v. Sineneng-Smith, arising from a conviction of an attorney for violating the federal law prohibiting encouraging or inducing non-U.S. persons to enter or remain in the U.S.

The Court vacated and remanded to the Ninth Circuit on grounds of the "principle of party presentation"--that courts must take and resolve cases as they come and are presented by parties represented by competent counsel--and that courts are "passive instruments of government."* And while there are exceptions (as shown in a two-page addendum** in which SCOTUS has appointed amicus or called for further briefing since 2015), the Ninth Circuit went beyond the pale in its management and resolution of the case, was unjustifed by any "extraordinary circumstances." The Court took issue with the court of appeals inviting specific amicus to brief and argue specific constitutional that were broader than what Sineneng's attorney had argued--that the law was overbroad and facially unconstitutional, as opposed to the defendant's arguments that she had a limited First Amendment immunity for her conduct. [I did not say it in the initial post, but I will say it now--the Court did not explain why what the Ninth Circuit did was more beyond the pail than what it does frequently].

[*] The partisan bend of that idea is fascinating, given the make-up of the federal courts and the evolving nature of constitutional and impact litigation.

[**] Any guesses as to why this was an addendum and not part of the opinion?

Justice Thomas concurred, but took the time (reached out, one might say) to explain why the overbreadth doctrine was invalid and should be rejected as unwarranted by text and history, inconsistent with the usual standards for facial challenges, and another improper application of the improper doctrine of third-party standing. He cites his dissent on third-party standing in Whole Women's Health and restates his distaste for this "handiwork of judges, based on the misguided 'notion that some constitutional rights demand preferential treatment.'" Query whether this hints at where the Court might be going on the standing questions in the Louisiana abortion cases.

Posted by Howard Wasserman on May 7, 2020 at 10:59 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Wednesday, May 06, 2020

Back to normal? And a question

I had wondered whether these telephonic arguments might sound more familiar when we hit a more charged case. Based on Wednesday's argument in Little Sisters of the Poor, the answer is yes. Justice Alito went quite Michael Fischer for Pennsylvania, with the Chief allowing what seemed like more leeway to ask further questions and push a particular point and for counsel to answer (not sure if it involved additional time). Justice Ginsburg's first question for Noel Francisco involved a lengthy recitation of the law of political accommodations, followed by a "what do you think" quasi-question. She also was in advocacy mode with repeated questions about the burden on women from these accommodations. And Paul Clement, availing himself of the Court's familiarity with him, at a several points talked over the question and over the Chief's efforts to stop an exchange and move to the next Justice.

The second case, Barr v. American Association of Polticial Consultants, challenged the prohibition on political robo-calls under the TCPA, including a focus (especially in questioning for the government) on severability. I imagine some people have spoken about this,  but I will raise it again: Would severability make more sense and be easier if the Court properly conceptualized the question as enjoining enforcement of a provision rather than "striking down" a provision so it is as if the provision was not enacted? Would we have the same problem of whether the hypothetical Congress would have enacted the law? Or would it be easier if the Court could say "the entire law remains on the books, but the executive cannot enforce this provision while it enforces other provisions"?

Finally, only Justice Thomas asked about universal injunctions (along with state standing). Francisco suggested it was especially inappropriate in this type of case; Clement had the longest screed about percolation and disagreement and the problem of district courts deciding for the country; and Fischer suggesting that broader preliminary relief might be more appropriate than final relief. Fischer also referred to the various amici on the subject to suggest that non-particularized relief (even if it was not called universal or nationwide injunction) was available when the APA was enacted.

Posted by Howard Wasserman on May 6, 2020 at 01:31 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, May 04, 2020

Oral argument

Aside from Justice Thomas asking two questions, the argument seemed typical. The exchanges between one justice and the attorney sounded the same. While the Chief was cutting people off after about 3-ish minutes, it seemed as if attorneys were better able to complete their answers before being moved to a different point. Individual justices let attorneys go a bit longer in answering their questions before following up or tweaking. Other than the Chief-controlled calling, I am not sure a case such as this would have sounded much different in-person.

The big difference is that the Justices were less the stars. Justice Breyer's questions were short and relatively coherent. And the argument lacked the practices of piling on and rescuing. The former is where one group of justices peppers one side with repeated questions; the latter is where a different justice helps an attorney who is struggling with an issue either with a softball  or a Jeopardy-style "Isn't the right answer  ____" question. The interesting thing is how it plays with other arguments this week and next, which involve more divisive issues that prompt a more-divisive Court to ask questions in this manner.

It also made clear that there is no rational reason not to have live audio (if not video) of regular arguments.

Update: I forgot about the best line of the argument, from Lisa Blatt arguing for Booking: Riffing off the government's argument that "Cheesecake Factory" is not a factory that makes cheesecakes, Blatt argued: "'Crab House' is not a little house where crabs live. They're actually dead and you eat them." I wonder if she lives in Maryland.

Posted by Howard Wasserman on May 4, 2020 at 11:44 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, April 10, 2020

University of Miami sued in South Carolina

A putative class action has been filed on behalf of all students against University of Miami, alleging breach of contract and unjust enrichment for sending students home and for teaching them remotely. A lot of people (especially Michael Abramowicz at Volokh) were anticipating such lawsuits and writing about whether schools will have a force majeure defense.

I find the case interesting because the action was filed in South Carolina (where the lead plaintiff lives), raising some jurisdiction and forum-selection problems. Too bad I wrote my exam, because this is a beauty.

Paragraph 8 lists a bunch of minimum contacts, including:

has solicited students residing in South Carolina to attend their institution;
has accepted money, including application and other fees, from students residing in South
Carolina; has participated in college sports competitions and/or academic competitions in
South Carolina; have websites accessible to students in South Carolina; have entered into
contracts with South Carolina residents; and generally have minimum contacts in South
Carolina . . .

A few potential problems.

Sports and academic competitions and an accessible web site are contacts with the state, but those contacts do not seem to "give rise or relate to" the breach of contract claim. That UM's women's basketball team plays Clemson once a year has no connection to whether the school breached its contract by teaching students on-line.

Entering a contract with a South Carolinian gives rise to the claim. But the claims of non-SC class members are not based on contracts entered into  in South Carolina; those contracts were entered into elsewhere. A claim should "relate to" contacts where the defendant engages in identical conduct in the forum state and outside the forum (this is the point in Ford, which was to have been argued at the end of the month). But Bristol Meyers rejected (although not in a federal class action) jurisdiction over claims by out-of-state plaintiffs over out-of-state conduct, even where that conduct is identical to the in-state conduct over which in-state plaintiffs sued. This is Bristol Meyers--identical contracts with SC and non-SC plaintiffs, all plaintiffs together in SC.

There was communication and engagement with South Carolina--soliciting, sending materials, accepting money. But the contract was "about Florida," in that this is where performance was to occur and the things for which plaintiffs paid--dorm space, campus spaces, parking--were in Florida.

If there is jurisdiction, there could be a strong transfer-venue argument, since Miami is the locus of performance of the contract and it is obviously not inconvenient for the plaintiff to travel there, even if she is home in her chosen venue.

One last point on the merits: What do the plaintiffs want and what do they believe the school should have done? They want room-and-board and other campus fees reimbursed, which makes some sense. But what about with respect to tuition? Full tuition reimbursement, even though the students are receiving some (if inferior) instruction? Reimbursement of the difference in value between on-line and in-person education (either for the entire semester or the pro rata portion that went online), however that can be determined? Suspend the semester with full reimbursement and a requirement that the students return for (and pay for) an extra semester at the tail end, thereby delaying graduation by 4-6 months? Or do they want reimbursement and a pass for the semester, so they graduate with only 7 1/2 semesters of course work. Paragraph 24 complains that "the value of any degree issued on the basis of online or pass/fail classes will be diminished for the rest of Plaintiff’s life." Would that be as true if the school awarded a degree with one less semester of work?

Posted by Howard Wasserman on April 10, 2020 at 02:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, April 09, 2020

Class certification in felon-disenfranchisement case

In February, the Eleventh Circuit declared invalid a Florida law that required released felons to pay court-ordered financial obligations before their voting rights could be reinstated, affirming an injunction prohibiting enforcement as to the 17 named plaintiffs. At the time, I wrote:

The question is what happens next. The state remains free to decline to enforce the payment law against anyone while it continues to fight this litigation, even if not enjoined from doing so. That avoids either new litigation and a new injunction involving new plaintiffs or the court certifying a 23(b)(2) class of all felons unable to pay LFOs and extending the existing injunction to the class.

We got the answer on Tuesday. The district court certified a 23(b)(2) class of all persons who would be eligible to vote but-for unpaid obligations and a sub-class of persons who would be eligible but-for unpaid obligations and who show a genuine inability to pay those obligations. The state opposed certification in part on the grounds that an injunction is unnecessary, because the state will abide by any ruling if the plaintiffs prevail on the merits. The district court responded:

Here, though, the Secretary’s promise to abide by any ruling is not enough. After entry of a preliminary injunction in favor of the 17 individual plaintiffs, the Secretary advised Supervisors of Elections throughout the state that the ruling applied only to the 17 individuals. The March 2020 elections went forward on that basiswithout any statewide effort to conform to the United States Constitution as interpreted by both this court and the Eleventh Circuit. Class members can hardly be faulted for asserting that, if the ruling on the merits ultimately is that they have a constitutional right to vote, the right should be recognized in an enforceable decision.

The district court properly nailed the state on its inconsistency--promises of future voluntary compliance with a particularized injunction are undermined by past refusal to voluntarily comply, making the next step of class certification necessary. This is perhaps how litigation should work--a particularized injunction for individuals, expanded to a class if the state chooses not to voluntarily change as to non-parties. This is how some of the marriage-equality litigation proceeded, notably in Alabama.

But the state's framing, at least as described by the district court, is circular: The state would "abide by any court ruling." But any court ruling is limited to the named plaintiffs, so not changing conduct towards non-plaintiffs is not a failure to abide by the ruling. We need a new concept to capture what we want the government to do in changing its enforcement behavior to persons not protected by the injunction. Perhaps we could think of it as abiding not by the injunction but by the law-declaratory aspect of the court's judgment--the signal from the court as to the state of the law, separate from the order compelling government to act or refrain from acting, that hints at what will happen if government continues (as it is free under the particularized injunction) to enforce its laws as to non-parties.

Posted by Howard Wasserman on April 9, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Wednesday, April 08, 2020

Universality in Texas

Following on Dan's post about the Tuesday's Texas abortion case and courtesy of Josh Blackman, there is FN 19 of the opinion:
 
Although not necessary to our decision, we note that the district court purported to  enjoin GA-09 as to all abortion providers in Texas. But Respondents are only a subset of  Texas abortion providers and did not sue as class representatives. The district court lacked authority to enjoin enforcement of GA-09 as to anyone other than the named plaintiffs. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (explaining “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs”). The district court should be mindful of this limitation on federal jurisdiction at the preliminary injunction stage.
This is obviously dicta, given how the case came out. But it illustrates two points about the scope-of-the-injunction issue. First, it is not limited to cases involving ederal law and certainly not limited to federal executive orders and regulations. Because the real issue is injunctions extending beyond the parties, it is present regardless of the source of law. Second, had the court come out the other way on the merits, this is a good example of a case in which the practical effect would be universality, either because the government will fall in line and not enforce against anyone or because it would be easy for other providers to join and have the injunction extended to them.

Posted by Howard Wasserman on April 8, 2020 at 01:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, March 23, 2020

States can pirate and plunder copyrighted material all they want

So said the Court in Allen v. Cooper, holding that states cannot be sued for copyright violations. Congress cannot abrogate under its Article I powers other than Bankruptcy Clause, which has "good-for-one-clause" support and the copyright act is not congruent-and-proportional because it reaches all infringements, not only intentional infringements for which states fail to provide adequate remedies. My SCOTUSBlog analysis is here. I got this one wrong after argument and need to stop making predictions based on questioning. I went lighter on the pirate puns because the Justices did it for me.

Some additional points to draw out:

Justice Kagan writes for a clear six (herself, the Chief, Alito, Sotomayor, Gorsuch, Kavanaugh). Justice Thomas writes an opinion concurring in part and concurring in the judgment. Justice Breyer (joined by Justice Ginsburg) writes an opinion concurring in the judgment. But the labels on the separate opinions are confusing. 

Thomas labels his opinion  "concurring in part and concurring in the judgment," while saying in the first paragraph that he "cannot join the Court’s opinion in its entirety."

A concurrence in the judgment usually means agreement with the result but not the legal analysis leading to the opinion. A concurrence means, in this context, that the author joins the opinion except for a few legal points that do not affect the majority's reasoning and path to the judgment.

Thomas identifies three points of disagreement and pieces with which he does not join: 1) The standard for stare decisis (the majority demands a special justification, while Thomas believes precedent can be overruled if is demonstrably erroneous), although everyone agrees that controlling precedent should not be overruled under either standard; 2) the majority's advice to Congress about how it can enact a valid abrogation, which is dicta; and 3) whether copyrights are property for due process purposes, a point the parties stipulate in this case. None of these points affected how the majority reached its conclusion. It thus makes no sense to label this a concurrence in the judgment; Thomas joined (or appears to have joined) all the parts of the opinion that led to the judgment. This should be a concurring opinion, with Thomas providing a seventh vote for the majority.

Breyer labeling his opinion as concurring in the judgment seems strange for a different reason. He agrees that Florida Prepaid resolves the case, although he disagrees with the Court's sovereign-immunity doctrine (for reasons described in his dissents in several of those cases, which he string cites). And writing on a clean slate, he believes abrogation is proper. But the majority opinion resolves the case as Breyer believes it must be resolved--applying Florida Prepaid. It thus seems the appropriate approach would have been to join the Kagan opinion but to write the opinion he did as a concurring opinion (not concurring in the judgment). It seems odd to concur in the judgment but not provide an alternative explanation or analysis for that judgment beyond "what the majority said, with which I disagree but with which I am stuck."

This seems like a half-measure version of Justices Brennan and Marshall in death-penalty cases. They dissented from every summary disposition and cert. denial on the grounds that capital punishment violates the Eighth Amendment, refusing to follow established precedent and insisting the case should come out the other way. Breyer wants to follow precedent, even precedent he sees as wrong. But that means he agrees with the majority's analysis applying controlling precedent, even if he would prefer to reject that precedent.

So at the end of the day, this is a 9-0 case--everyone agreeing that the statute is invalid in light of Florida Prepaid and three Justices expressing different views about the doctrine or pieces of the majority's analysis.

Finally, during SCOTUSBlog's live blog of opinions, Tom Goldstein identified a "generational divide" among the Court's liberals. The old guard of Ginsburg and Breyer--who were on the Court and dissented when this abominable line of precedent developed--continue to reject the doctrine. The new guard of Sotomayor and Kagan (who wrote the opinion) accept the current legal regime as correct. It is an interesting idea. Although query whether they regard it as correct as much as they recognize they are stuck with it and do not have the skin in the game to point to past dissents, as Breyer does.

Posted by Howard Wasserman on March 23, 2020 at 04:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Tuesday, March 03, 2020

The procedure of frivolous political defamation actions

The Donald Trump Campaign today sued the Washington Post in the District of D.C. over a June 2019 column by Greg Sargent. This follows the campaign's suit in New York state court against The New York Times. Meanwhile, Devin Nunes is up to seven lawsuits against various persons, bovines, and business entities.

This rash of lawsuits has many First Amendment advocates calling for more states and the United States to enact anti-SLAPP statutes. These suits represent the modern analogue to Southern officials' defamation campaign against northern media outlets in the 1950s and '60s. But I have been slow coming to the "anti-SLAPP is necessary" position; if the protections of New York Times were sufficient to stop the barrage 60 years ago, they should be sufficient now.

The answer comes from the latest episode of the All the Presidents Lawyers podcast. First Amendment advocate Ken (Popehat) White explains that the purpose of these lawsuits is not to win, because most of the suits are garbage under NYT and the plaintiffs and their lawyers know that. Rather, the purpose is to drag people into court and impose the time, burden, distraction, and cost of having to defend themselves, with the added benefit that it may make people and the press less willing to criticize these people. In theory, only an anti-SLAPP law--with its attorney's fees provision and expedited dismissal--addresses that problem. The alternative (in federal court) is sanctions under FRCP 11 and attorney's fees against counsel under § 1927. But courts may be reluctant to impose sanctions against a congressman, president, presidential campaign, or other powerful and famous plaintiff--especially to award attorney's fees as a sanction, which is the way to address the financial cost to the plaintiff that the lawsuit is intended to impose. Perhaps Nunes' seven nonsense lawsuits would indicate a sufficient pattern that a judge might find attorney's fees necessary for deterrence of client and attorney. But not in the mine run of cases.

Some commentators have suggested that the availability of an anti-SLAPP statute affects litigation choices. Nunes sued Twitter (a California company) and McClatchy Newspapers (publisher of the Fresno Bee) in Virginia, which lacks a strong anti-SLAPP law, rather than California, which has one. Both courts have declined to dismiss for lack of personal jurisdiction, with analysis revealing confusion over the newly narrowed scope of general jurisdiction. Some commentators have suggested that the choice of forum (federal over state court) or the choice of parties depends on whether the federal court would apply the state's anti-SLAPP law.

But we should be more nuanced on the question of anti-SLAPP laws in federal court. I have argued that the special SLAPP motion should not apply in federal court (the position of the D.C. Circuit, in which the new Trump Campaign action was field), because FRCP 12 and 56 cover the issue. (And a 12(b)(6) dismissal, in which the court considers whether the statements as pleaded are opinion, can get the defendant out of the case quickly enough). By contrast, the SLAPP attorney's fees provision should apply in federal court. Under the "relatively unguided Erie analysis," not applying the fee provision would cause a plaintiff to choose federal over state court and the attorney's fee provision is bound up with substantive state policy concerns for protecting the free speech rights of its citizens. If the real concern is the cost of having to defend even a nonsense suit, an attorney's fee provision addresses that.

Finally, it is notable that the Trump Campaign, rather than Trump, brought these two suits. I am not sure how the campaign can claim injury from statements about Trump. One commentator suggested the Campaign sued to get the WaPo case in federal court. The Campaign is a Virginia corporation with its principal place of business in New York; Trump, the commentator implies, is a D.C. domiciliary and thus not diverse from the Post.

This returns us to Where In the World Is Donald Trump? Trump was a New York domiciliary prior to January 20, 2017. In October, he (and Melania) renounced his New York citizenship and filed a Declaration of Domicile in Palm Beach County, Fla., establishing Mar-a-Lago as their permanent residence. Trump thus appears to be a Florida citizen--he has a residence there and expressed his intent to remain. Although Trump resides in D.C., he has not manifested an intent to remain there (unless he manages to get Republicans to repeal the 22d Amendment). So it is wrong to say the case could not be in federal court were Trump the named plaintiff--it would be an action between a citizen of Florida (alone or with a citizen of New York/Virginia) and wherever the Post is.

On that point, this case offers a different procedural lesson, because plaintiff counsel screwed up the jurisdictional statement with respect to the Post. Paragraph 10 reads:

On information and belief, defendant WP Company LLC d/b/a The Washington Post is a District of Columbia limited liability company with its principal place of business in Washington, D.C.

An LLC is a citizen of every state in which one its members is a citizen. So identifying an LLC as a party cannot establish jurisdiction because the LLC has no independent citizenship; you have to dig into the LLC's structure to identify individuals or corporations whose citizenship does not depend on someone else. Plaintiff did not bother doing that. I assume that some digging will lead to Jeff Bezos, who is a citizen of Washington state and/or some D.C. corporation. But the complaint, on its face, does not establish federal jurisdiction. And reflects the sort of bad (or disinterested) procedural lawyering I warn my students about. Curious if the Post will raise that or move on, knowing what jurisdictional discovery would reveal about its structure.

Posted by Howard Wasserman on March 3, 2020 at 04:35 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Saturday, February 29, 2020

Judge Sutton hates Rooker and Feldman--So now what?

The Sixth Circuit reversed a Rooker-Feldman dismissal of a Fair Debt Collection Practices Act action, challenging the interest rate included in state writs of garnishment. (H/T: Volokh's Short Circuit round-up). Judge Sutton writes a concurrence begging district courts to stop applying RF except to cases in which the district court is asked to rule that a final state supreme court judgment violates the Constitution.

Sutton insists that RF cannot be used to stop federal actions seeking to second-guess all state court rulings, such as an unappealed state trial-court ruling (whether interlocutory or final-and-appealable). Some courts had justified RF not only on § 1257, but also on § 1331's grant of original (rather than appellate) jurisdiction to district courts. If that also explains RF, then limiting it to final state supreme court decisions is too narrow, at least where the federal plaintiff truly claims constitutional injury arising from a state judgment.*

[*] The majority supported its no-RF conclusion in part because a writ of garnishment is not a judgment.

Sutton argues that such a case be handled by issue and claim preclusion. So does that work? Take the paradigm case of a state trial-court judgment stripping a father of visitation rights. If the father does not appeal to the state intermediate appellate court but instead runs to federal court, Sutton would say RF does not apply. But would preclusion bar that claim, as it must if district courts are not to become reviewing courts for state trial-court judgments.

I also would be concerned that the doctrine that will rise up to replace RF is not preclusion but Younger. A number of lower courts have used that doctrine halt these sorts of challenges where the state proceeding is pending. Except Younger should be limited to challenges to the underlying state law being challenged rather than to complaints about the state court decision itself.

Posted by Howard Wasserman on February 29, 2020 at 10:38 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Wednesday, February 26, 2020

YouTube not a state actor (Updated)

When SCOTUS decided Halleck last term and held that a private company managing public-access cable channels is not a state actor, it was obvious that this meant online platforms such as YouTube or Twitter were not state actors. And so the Ninth Circuit held on Wednesday in PragerU v. Google, a challenge to YouTube policies restricting or demonetizing certain videos. The court rejected the argument that YouTube performed a traditional-and-exclusive public function in managing a speech forum (the argument rejected in Halleck) or that YouTube's public declaration that it is committed to free expression changes its private nature.

This was easier than Halleck. There was something to the position that Justice Sotomayor took in her Halleck dissent that it was a delegation case rather than a public-function case--the government took on a responsibility then delegated it to a private entity. YouTube is an electronic version of the private comedy club discussed in Halleck.

This part of the opinion ended on an interesting point, telling everyone, in essence, to calm the f*&^ down:

Both sides say that the sky will fall if we do not adopt their position. PragerU prophesizes living under the tyranny of big-tech, possessing the power to censor any speech it does not like. YouTube and several amicus curiae, on the other hand, foretell the undoing of the Internet if online speech is regulated. While these arguments have interesting and important roles to play in policy discussions concerning the future of the Internet, they do not figure into our straightforward application of the First Amendment.

Posted by Howard Wasserman on February 26, 2020 at 06:00 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Tuesday, February 25, 2020

Time for Congress to Codify Bivens?

Bivens and its implication of a remedy to sue officers directly under provisions of the U.S. Constitution are on life support (see Howard's post). After Hernandez, is Congress ready yet to codify Bivens?

It’s a gross understatement to say that I’m no legislative lawyer. Nonetheless, here’s a quick draft based on the language of 42 U.S.C. § 1983:

Unless otherwise expressly provided by statute, every person who, under color of any statute, regulation, order, custom, or usage, of the United States government, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of the United States, or at its territorial borders, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. The availability of alternative remedies shall not preclude relief under this provision.

In any action to enforce the provisions of this section, the court may allow the prevailing party, other than the United States, a reasonable attorney’s fees as part of the costs.

For purposes of this section, “person” includes any natural person.

* * *

It would seem desirable too for any legislation to insist on a court first addressing the issue of whether there was a constitutional violation before reaching the question of any officer immunity. And while we're dreaming perhaps the bill could address the widespread dissatisfaction with current qualified immunity doctrine. Perhaps our commentariat can propose suitable language.

As for political realities, Howard notes conservative distaste for Bivens actions, but I can easily see federal employees unions being equally testy about the prospect of civil liability for their abuses. My sense is that conservative opposition principally originates from two places: (i) institutional concerns about competency for implying that right to sue, which a statutorily enacted right to sue addresses; and (ii) balancing security over individual liberty in security sensitive functions, including external relations. I could imagine compromise legislation conservatives could accept if they had carve outs.

What interesting coalitions could emerge to support this legislation? In 1946, the U.S. government felt enough public pressure to enact the Federal Tort Claims Act to waive federal sovereign immunity. Short of a bomber crashing into a skyscraper or citizens deluging Congress with private bills for wrongs suffered at the hands of federal officials, what would actually get Congress to address this problem?

P.S. I recognize the comparison to the FTCA and waivers of federal sovereign immunity is not on all fours with suits against officers and the creation of a federal statutory right to sue them for their actions, but it seems less remote than the circumstances motivating the enactment of 1983.

Posted by T. Samahon on February 25, 2020 at 02:21 PM in Judicial Process, Law and Politics | Permalink | Comments (4)

Bivens closer to death (and Thomas would kill it)

In one of the (unfortunately) least surprising decisions of the Term, SCOTUS held Tuesday in Hernandez v. Mesa that a Bivens claim was not available against a border-patrol agent who shot a Mexican national standing on the Mexico side of the border.

Justice Alito's opinion for five adopts the most restrictive view of Bivens, defining a new context to include virtually any identifiable factual distinction (here, the fact that the plaintiff was injured outside the U.S.), despite the right (Fourth and Fifth Amendment) and basic facts (excessive force by law enforcement standing on U.S. soil) being the same. Justice Thomas, joined by Justice Gorsuch, goes bigger--having cabined Bivens scope and limited its precedential value, the Court should "abandon the doctrine altogether." Justice Ginsburg wrote the dissent for Breyer, Sotomayor, and Kagan.

One notable point of departure between majority and dissent is how each reads Abbasi. The majority reads it as the latest in a 40-year line of cases rejecting Bivens claims, reaffirming the narrowness of past factual contexts and the newness (and thus inappropriateness of a Bivens suit) in other contexts.. The dissent emphasizes that Abbasi, while rejecting a Bivens action against high-level policymaking officials for national-security policy choices, "cautioned" against reading it to eliminate or limit core Bivens claims against rank-and-file law enforcement officers for unreasonable seizures.

If any case not on all factual fours with Bivens repesents a new context, the majority gets where Justice Thomas wants to go, without the political cost of overrulings. The "special factors" analysis will come around to congressional failure to authorize such a cause of action by pointing to § 1983 and the fact that it is limited to state (not federal) officials and plaintiffs within in the United States; that congressional failure will require judicial hesitation. The dissent's response--Congress enacted § 1983 in the middle of Reconstruction with a specific concern in mind and was not thinking about federal officials shooting people across borders--does not sway the rest of the Court. This factor always comes to conflicting views of what to do with congressional silence: The majority reads inaction as congressional intent not to reach the situation, while the dissent reads it as leaving the situation to Bivens (lest it create a situation in which it is "damages or nothing").

This decision is unsurprising, as conservatives have long hated Bivens. On the other hand, conservatives increasingly resort to the courts and constitutional litigation. What happens when conservative groups want to challenge ATF agents raiding their compounds?

Posted by Howard Wasserman on February 25, 2020 at 01:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Saturday, February 22, 2020

Scope of the felon-enfranchisement injunction

The Eleventh Circuit last week affirmed a district court judgment declaring invalid a Florida law that required released felons to pay restitution and other "legal financial obligations" before their voting rights can be reinstated.

For my purposes, the injunction is limited to the 17 named plaintiffs in several consolidated cases. The Eleventh Circuit describes the district court preliminary injunction as "requiring the State to allow the named plaintiffs to register and vote if they are able to show that they are genuinely unable to pay their LFOs and would otherwise be eligible to vote." And it ends the opinion as affirming "the district court’s preliminary injunction enjoining the defendants . . . from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations." No matter how some sources have read the order, the court of appeals is clear that this is a non-universal/particularized injunction, entitling the seventeen plaintiffs, but no one else, to vote.

The question is what happens next. The state remains free to decline to enforce the payment law against anyone while it continues to fight this litigation, even if not enjoined from doing so. That avoids either new litigation and a new injunction involving new plaintiffs or the court certifying a 23(b)(2) class of all felons unable to pay LFOs and extending the existing injunction to the class.

Posted by Howard Wasserman on February 22, 2020 at 02:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, February 21, 2020

Access to the Court

For the last ten years, I’ve taken groups of Villanova Law students to the Supreme Court of the United States almost annually to watch oral argument in cases, some relatively low profile, some blockbusters. We leave VERY early in the morning from Villanova Law (located in the greater Philadelphia area) to drive to 1 First Street NE in order to arrive by no later than 4:30 am. That timing is important because you need to secure a decent place in the public line to get in. The first 50 get in, 51 and later get rotated through for a few minutes of arguments.

Nowadays getting into the Court through the public line can be a bit like trying to get into a rock concert, especially with all the paid line standers — the going rate is about $50/hour, except when demand really surges  — camped out early on lawn chairs with blankets to cut the early morning chill. The line standers are often for interested lawyers who are not Supreme Court bar members. The Court polices the much shorter Supreme Court bar line, but only spontaneous order governs the public line -- a social norm of first in time with reasonable allowance for a tardy friend. Test that norm by bringing 10 friends, however, and you’re likely to risk triggering a Hobbesian state of nature. (During the U.S. v. Texas DAPA case, I witnessed a large group of uniformed private school students cut in line to join an adult claiming to "hold" a place for them. Those behind them were exceedingly unhappy; it almost escalated to violence.)

Once upon a time you could call the Marshal’s Office to ask for advance tickets, but in recent years I’ve had no success. Authoring an amicus brief or serving as counsel below doesn’t cut it for reserved seats - you get either the SCOTUS bar line or the public line. Still, when my bedraggled students and I finally get access to the courtroom (I typically remain with them in the public line in solidarity), we are always stunned at the (relatively) large number of people who arrive inside the Court at 9 am with ticketed seating and who are then seated preferentially. I’ve asked on occasion who these late ticketed arrivals are. Some have identified themselves as guests of the Justices and friends of friends of people connected to the Justices, such as students of prominent lawprofs who have clerked at the Court. Clerking on the Court confers big advantages that last a long time. It’s a nice privilege for those in the Club. For the have nots, though, access is stingy and ultimately discretionary. Perhaps, then, physical access to the Court isn't that different from legal access to it. It too is very limited, mostly discretionary, but greatly eased by knowing someone on "the inside."

UPDATE (March 2, 2020): The House has introduced legislation to make virtual Court access easier. Read the story at SCOTUS Blog.

Posted by T. Samahon on February 21, 2020 at 10:00 AM in Judicial Process | Permalink | Comments (6)

Wednesday, February 19, 2020

More on Dane on law clerks

Inspired by Paul's post, I read Perry Dane's piece on law clerks and their role in drafting opinions. And it seems to me that Dane's discussion meshes with Suzanna Sherry's argument for eliminating signed opinions (all majority opinions must be per curiam, no concurrences or dissents).

Both worry about the judge's-name-as-icon; the no-signed-opinions solution addresses their common worries. For Dane, the attachment between opinion and name is "why the contributions of law clerks to that work product raises such deep and uncomfortable questions."  For Sherry, the attachment between opinion and name creates the judge-as-celebrity culture that, she argues, has broken the Court. Eliminating signed opinions (which are neither required, inevitable, nor essential outside the U.S.) reduces the opportunities for judges to trade on their celebrity and play to their base. And it renders clerk ghost-writing less problematic because readers no longer read and interpret the opinion--the law--as the work of a named judge with an iconic identity.

Posted by Howard Wasserman on February 19, 2020 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink | Comments (3)

Monday, February 10, 2020

A Model of Constitutional Litigation

My new piece on universal injunctions has been published in Lewis & Clark Law Review. Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A Model of Constitutional Litigation joins three threads that I have been writing and blogging about here--the requirement of particularized injunctions, the distinction between precedent and judgment, and a model of departmentalism in which all branches are bound by judgments but only courts are bound by judicial precedent. The result is a model of how constitutional litigation functions in fact and should function in our understanding.

Abstract after the jump.

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” injunctions;

4) a judgment controls the parties to the case, while the court’s opinion creates precedent to resolve future cases; and

5) rather than judicial supremacy, federal courts operate on a model of “judicial departmentalism,” in which executive and legislative officials must abide by judgments in particular cases, but exercise independent interpretive authority as to constitutional meaning, even where those interpretations conflict with judicial understanding.

The synthesis of these five principles produces a constitutional system defined by the following features:

1) the judgment in one case declaring a law invalid prohibits enforcement of the law as to the parties to the case;

2) the challenged law remains on the books; and

3) the challenged law may be enforced against non-parties to the original case, but systemic and institutional incentives weigh against such enforcement efforts and push towards compliance with judicial understandings.

Posted by Howard Wasserman on February 10, 2020 at 07:15 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, January 31, 2020

Appellate argument (and law school), encapsulated (Updated)

From the Sixth Circuit argument in Higgins v. Kentucky Sports Radio, a lawsuit brought by a college referee who was attacked online by Kentucky basketball fans (particularly through harassing phone calls and negative reviews of his roofing business) following some controversial calls in a game UK lost. The defendants are the radio station and announcer who reported on and promoted the efforts, in a way the plaintiff alleges constitutes incitement and conspiracy to defame. (H/T: Regular reader and commenter Asher Steinberg).

In an argument that otherwise went well for the radio station, I loved this exchange (around 19:00) between the station's attorney and one judge (not sure who turns out to have been Judge Sutton), when the judge asked whether a more direct instance of incitement would have survived 12(b)(6):

Attorney: Your Honor, I'm hesitant to comment on hypotheticals. The point is that is not this case.

Judge Sutton: OK, wait. I hate to break it to you, particularly with some law students here. That is all we do. *** You want to win for your client today. And we do not want to issue a ruling that we will have to denounce tomorrow for the next case.

Posted by Howard Wasserman on January 31, 2020 at 08:33 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Monday, January 27, 2020

Thomas and Gorsuch on universal injunctions (Updated)

SCOTUS stayed pending appeal the injunction prohibiting enforcement of the Trump Administration's public-charge regulation, another example of the government seeking and the Court granting extraordinary relief to allow the administration to continue enforcing policies pending litigation where the lower court found the policies defective. Justice Gorsuch, joined by Justice Thomas, concurred in the stay, to take aim at universal injunctions (with citation to the work of Sam Bray and Michael Morley), properly defining them as injunctions protecting beyond parties rather than in geographic terms.

Unsurprisingly, I agree with Gorsuch's basic point against universal injunctions. I am not sure what it has to do with this case. Gorsuch would have granted this stay regardless of the injunction's scope. And I am sure he is waiting for the government to challenge a particularized Illinois injunction that (he acknowledges) remains in effect so he can stay that, as well.

Update: I wanted to come back to the question of whether the stay was proper. Given the make-up of the Court, it seems clear that, when the case comes to the Court on the merits, the majority will declare the policy valid. That aside, what about the stay? Where the district court granted an injunction, the question should be what will create more permanent and long-lasting chaos--staying the injunction (thus allowing enforcement of the underlying policy) or allowing the injunction to remain in effect (thus stopping enforcement of the underlying policy, allowing continuation of the primary conduct the regulation is designed to stop.

Today's order means the U.S. can deny status to certain people for the moment, although should the reg be declared invalid at the end of the day, those people could then reapply and be considered without the now-unlawful policy. Had the Court not stayed the injunction, people otherwise subject to the order could enter and/or gain status; if the order ultimately is declared valid, the government would have people in the U.S. or with status who otherwise should not have been permitted. It does not seem that the government could retroactively apply the regulation to remove presence or status already granted under the old rules. So as abhorrent as I find the policy, it seems a stay was appropriate. Where am I going wrong?

Posted by Howard Wasserman on January 27, 2020 at 01:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Saturday, January 25, 2020

Judge Easterbrook does judicial departmentalism

People are talking about Judge Easterbrook's opinion for the Seventh Circuit in Baez-Sanchez v. Barr, taking the BIA to task for not following the court's instructions on remand. Easterbrook is outraged about executive conduct that "beggars belief.' The court has "never before encountered defiance of a remand order,and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails."

Easterbrook then says the following:

A judicial decision does not require the Executive Branch to abandon its views about what the law provides, for the doctrine of offensive non-mutual issue preclusion does not apply to the United States. United States v. Mendoza, 464 U.S. 154 (1984). The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistakenthough it has been followed elsewhere, see Meridor v. Attorney General, 891 F.3d 1302, 1307 & n.8 (11th Cir. 2018). But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. See, e.g., United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

Although he does not use the term, this is a nice and succinct encapsulation of judicial departmentalism: The executive can disagree with and disregard a judicial decision it regards as mistaken in some other case. But the executive cannot disregard the court's mandate in the current case when that mandate has become final and unreviewable.

Posted by Howard Wasserman on January 25, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Immigration, Judicial Process | Permalink | Comments (6)

Tuesday, January 21, 2020

Defining a show trial

Some people are decrying-in-advance the upcoming Senate impeachment as a "show trial." At some level the term is apt. The factfinder seems to have its mind made up; the procedures in place do not seem calculated to discover the truth; and the proceeding will bear the cover of a judicial proceeding but serve as little more than a cover for the political decision of those in power.

But  think of "show trials" in the context of the Soviet Union or other totalitarian regimes, where the government uses the sheen of judicial process to purge and execute an enemy of the state, where a conviction is the pre-ordained result. This is going the opposite way--an acquittal is the pre-ordained result. The comparator is not Soviet or authoritarian show trials of ordained enemies. The comparator is state criminal proceedings against Klan members and other Southern whites charged with crimes against African-Americans (e.g., Byron De La Beckwith).

Does the term "show trial" still apply?

Posted by Howard Wasserman on January 21, 2020 at 03:10 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)