Thursday, May 12, 2022

More overlapping jurisdictional doctrines

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

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

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

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

Wednesday, May 11, 2022

Random reactions to some items in the news

My response to some random news items.

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

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

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

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

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

Tuesday, May 10, 2022

More confusion on legislative immunity

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

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

Monday, May 09, 2022

State Interests for Jurisdiction by Registration

This is the final post by Charles "Rocky" Rhodes and Cassandra Burke Robertson (Case) on next Term's personal jurisdiction case. They will be back for the argument.

Our last post maintained that some state interest in the litigation is necessary for a corporation’s registration to support jurisdiction. This may appear counterintuitive. After all, if a corporation decides to register to do business when the state’s registration scheme specifies the jurisdictional consequences of registration, shouldn’t the registration operate as other forms of consent to jurisdiction, such as forum selection clauses, which do not typically necessitate a state interest?

But we think that the state-interest question is important enough that instead of joining an amicus brief supporting either party, we are working to draft a brief that charts a narrower course. Both the petitioner’s position (that the state may condition registration on consent to jurisdiction without exception) and the respondent’s position (that the state may not condition registration on consent to jurisdiction at all) raise serious federalism concerns.

First, the risk of state overreach is real, especially in areas where state policies are both diametrically opposed and politically salient. Imagine that Texas adopted a consent-by-registration statute as broad as the Pennsylvania one. National drugstores like CVS would have to register to do business and submit to personal jurisdiction as a condition of registration. Would the registration statute then allow someone to sue CVS in Texas for filling a mifepristone prescription outside the state of Texas? The threat of jurisdictional overreach reinforces the need for a sovereign interest, and it suggests that legislative jurisdiction and adjudicative jurisdiction can't be wholly separated.

At the same time, however, forbidding the state from extracting jurisdictional consent kneecaps state power so severely that it also undermines the federalist system. This is especially apparent in products liability cases, where it's common to have a seller, manufacturer, component-part manufacturer, buyer, and the injury in different states (as happened in the Cooper Tire lawsuit). In such cases, there may be no single state where all defendants could be subject to either general or specific jurisdiction. The state’s power to extract consent as a condition of registration allows the parties to be brought before the court in a single lawsuit. As Alexandra Lahav has recently noted, restricting states’ power to exercise personal jurisdiction in products liability cases undermines state tort law and risks granting effective “immunity from suit for manufacturers” that is at odds with state substantive law.

Our position is therefore different from either of the parties before the Court in Mallory: we think that the state’s authority to extract jurisdictional consent is a legitimate exercise of sovereign authority, but that its legitimacy extends only as far as the state’s sovereign interest.

This middle position fits with procedural principles, historical practice, and constitutional doctrine.

Differences exist between consent through registration and consent by contract or waiver by litigation conduct. As Tanya Monestier observed, contractual or litigation-conduct submissions to jurisdiction are limited to identifiable parties or specific lawsuits—a provision in a contract between private parties governs the forum for their dispute, or litigation conduct in an existing suit waives an otherwise available jurisdictional objection. In contrast, consent through registration represents the corporation’s acceptance of an obligation to defend those claims the state demands to acquire the benefits of engaging in intrastate business under the state’s sovereign authority.

Even though the Supreme Court has long viewed such statutory exchanges of obligations and benefits as manifesting a valid form of consent, the exercise of state sovereign authority in exacting such an agreement implicates constitutional concerns. These concerns, though, as Aaron Simowitz explained, do not doctrinally mirror the restraints for contacts jurisdiction. Courts should evaluate the constitutionally permissible scope of consent through registration under the limitations that have developed surrounding this type of jurisdictional assertion and other analogous statutory exchanges between sovereign states and citizens.

As discussed in our first post, the Supreme Court in the nineteenth century consistently expressed that the permissible bounds of jurisdiction against an appointed agent under a registration statute extended only to suits related to the business conducted in the forum. Although one reading of Justice Holmes’ opinion in Pennsylvania Fire in the early twentieth century is that a corporate registration statute may authorize jurisdiction for even unrelated claims without any connection to the sovereign authority of the State, the Supreme Court just three years after Pennsylvania Fire cautioned that it did “not wish to be understood that the validity of such service . . . would not be of federal cognizance.”  The original understanding thus presupposes some potential constitutional limits on the extent to which a corporation may be required to consent to jurisdiction to obtain the benefits of conducting intrastate business activities.

Due process ensures the government’s compliance with fundamental notions of fairness with respect to any of exercise of its power. As we have argued, in analogous statutory exchange situations, such as conditions on a land-use permit or implied consent to blood-alcohol testing as a condition for the privilege of driving on the state’s roads, the Court has required a congruence between the scope of the consent granted and the state benefits obtained as part of the exchange. Jeff Rensberger similarly relied on analogies to waivers of constitutional objections to state-court proceedings, exactions in takings cases, and the unconstitutional conditions doctrine to urge that a state sovereign interest is necessary to satisfy constitutional limitations.

Requiring the corporation to consent to all-purpose dispute-blind jurisdiction, for any claim filed by any person arising anywhere in the world, transcends this congruence when the state has no sovereign interest in the proceeding. Without a sovereign interest in the proceeding, the state is leveraging its permission to conduct intrastate corporate activities to regulate the corporation’s global activities, a disproportionate “deal” as the state has no generic interest in regulating a foreign corporation’s out-of-state conduct. On the other hand, if a sufficient state interest exists in the dispute, the arrangement is proportional. In exchange for the state’s forbearance in excluding, or attaching additional conditions on, the corporation’s in-state conduct, the corporation is agreeing to its amenability to suit for claims that have some connection to a state sovereign interest.

Jack Preis has argued convincingly that the Due Process Clause is not the only limit on personal jurisdiction—the Dormant Commerce Clause must also be considered, as a plaintiff’s forum choice over out-of-state corporations may burden interstate commerce. Under the Dormant Commerce Clause’s demand that state laws cannot discriminate against or impose an undue burden on interstate commerce in the absence of a sufficient local interest, Jack contends that registration statutes cannot authorize jurisdiction when the state does not have a strong enough interest in the proceeding, such as an in-state injury or a state citizen injured outside the state, a perspective we have mirrored in our own work.

Our view, then, of the correct answer to the question presented in Mallory—whether the Due Process Clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state—is neither yes nor no, but sometimes, depending on the state’s sovereign interest in the case. Of course, both parties will see things differently, with Mallory arguing the answer is always no and Norfolk Southern Railway urging the answer is always yes. We’ll be back in the fall during the week of argument, thanks to Howard’s kind invitation, to discuss the parties’ positions in more detail as fleshed out by their merits briefing and the Court’s lines of inquiry.

Posted by Howard Wasserman on May 9, 2022 at 09:31 AM in Civil Procedure, Judicial Process | Permalink | Comments (0)

Tuesday, May 03, 2022

Who assigned this and why? (Update)

Who assigned Dobbs to Alito--the Chief or Thomas?

Assume the following at conference: Thomas, Alito, Gorsuch, Kavanaugh, and Barrett want to overrule Roe, declare the MS law valid, and enter judgment for the state; the Chief wants to declare the MS law valid as not imposing an undue burden  and enter judgment for the state. Who is the senior-most Justice in the majority? What is the "majority" when in Conference and before any opinions have been written--is it a majority for the judgment ("the law is constitutionally valid, plaintiffs lose, state wins") or is it majority for a rationale or an answer to a QP (Roe/Casey are overruled)? If the former, the Chief keeps the assignment; if the latter, Thomas gets the assignment.

I raised this question (without a satisfactory answer) over the now-meaningless June Medical, where four Justices (Breyer for Ginsburg, Sotomayor, and Kagan) declared the law invalid by balancing burdens and benefits under Casey and the Chief agreed the law was invalid but on the logic of WWH and considering only the burdens; did the Chief assign or did Ginsburg? Does the assignment work differently when there is a majority for a result but not for a rationale, as in June, as opposed to where there is a majority for a rationale plus extra votes for the result?

My best guess is Thomas assigned it. If so, I am impressed (and a bit curious) that he chose not to keep it for himself. Casey was decided during Thomas's first Term, meaning he has been waiting his entire time on the Court for this opportunity.

If Roberts assigned it, the choice of Alito creates all sorts of Kremlinology. If Roberts  (presumably) wanted to make the least noise, he would not have assigned it to Alito, knowing the likely tenor of the opinion. Or he assigned it to Alito intentionally, knowing he might draft an opinion (what my colleague called a "nuclear bomb overruling") that might scare off Kavanaugh or Barrett. In which case the "conservative leaker" theory makes sense as a counterpunch to that. Anyway, I doubt anyone thinks this way, which is why I believe the relevant majority was to overrule Roe and Thomas gave the opinion to Alito.

Update: This question was raised on the Con Law Prof listserv. No one knew for sure, although one former clerk says his understanding is that the majority is for the bottom-line disposition. This make some sense, the person argued, because some justices only have identified a conclusion but not a reason at conference. Alternatively, many cases may have a bottom-line majority but competing reasons, none garnering the initial support of any 5; the only way to identify a seniormost-in-the-majority is to go by majority for the judgment, meaning the Chief assigned Dobbs. It also would follow that the Chief, rather than Ginsburg, gave Breyer June Medical.

Posted by Howard Wasserman on May 3, 2022 at 11:37 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Of leaks and legitimacy

I am not as outraged by the leak as Paul is, although I agree it suggests something about the elevation of individual personalities over the institution. I want to weigh in on a couple points. (Update: Mark Graber argues that leaks, especially from the Court to the executive but also to the press, were common during the 19th century).

• Regardless of the source--Justice, clerk, court personnel--there are plausible arguments for the source coming from either side of the divide over reproductive freedom. A critic of the decision might leak hoping that public outrage might sway someone off the Alito opinion or, seeing that as a lost cause, to get an early start on generating political activism to prompt Senate action (a law codifying the right to reproductive freedom passed the House but is stuck behind the Senate filibuster*) or to get Democrats to the polls. A supporter of the decision might hope publicity surrounding the prospective opinion would shore-up Alito's majority; soften the public outrage when the opinion issues (closer to the election), so that the anger has dissipated by November; and distract from the story of the Court eliminating reproductive freedom (and perhaps other rights, more on that below) by offering the story of the leak, failed processes, and the Court-as-institution as a competing narrative. As a couple people have put it, the leak is a story, but not the story; the source might have hoped to make it the story, especially in the right-wing noise machine (which will suggest the source is from the other side). One person on the ConLawProf Listserv suggested Alito might be the source--knowing he will be forced to soften the language in the published opinion, he gets his raw thoughts into the world and becomes a Fed Soc rock star.

[*] Putting aside whether such a law is valid under the Commerce Clause or § 5, a question that the same five-Justice majority would likely answer in the negative two years from now.

• I do not understand the insistence that the decision is "illegitimate." I think it is wrong, uses (typically) bad history, and written with the usual Alito arrogance and causticity that grates on me (even when I agree with him). But it does not say anything that Roe/Casey critics have not been saying for years; it reads as the opinion overruling Roe that we have feared for years, at least as written by Alito or Scalia. But that should not make it "illegitimate" any more than Roe/Casey are illegtimate, as Alito suggests throughout the opinion.

What makes it illegitimate as a judicial decision--as opposed to wrong as a matter of substantive constitutional law--for people who do not subscribe to Eric Segall's view that the entire SCOTUS enterprise is illegitimate?

    1) It overrules precedent. No, because the Court has overruled or changed precedent in the past. It has standards for doing so. And disagreeing with how Alito applies those principles is a critique on the merits.

    2) It eliminates an existing constitutional right. That has never been part of the stare decisis or constitutional analysis. While perhaps a worthwhile constitutional principle (a judicial presumption of liberty, if you will), that again goes to correctness on the merits rather than structural legitimacy.

    3) Everything that went into how the five-Justice majority was formed--GWB and Trump losing the popular vote (such that 4/5 of the majority was appointed by a President who, at least initially, was a minority President); McConnell holding Gorsuch's seat open for more than a year; Kavanaugh perhaps perjuring himself; McConnell ramming the Barrett nomination through, Susan Collins Susan Collinsing, etc. But it seems to me that proves to much, rendering "illegitimate" any decision from this Court for the foreseeable future. And many might agree with that conclusion. But we cannot ignore the role of politics, a less "clean" process than the judicial is supposed to be, in the appointment process. Other Presidents and Congresses have gained or sought to gain political advantage through the Court. What makes this uniquely illegitimate.

I am not trying to downplay how bad this opinion is. I am concerned that "illegitimacy" is the new "judicial activism"--an illegitimate decision is any decision I disagree with written by a justice I do not like. That is not helpful to the discourse or to the functioning of any institution. Or it is the new obscenity--I know an illegitimate or judicial activist opinion when I see it (usually because I disagree with it).

• I cannot tell how much mischief the opinion can do in the future--whether it also takes out marriage equality, freedom of intimate association, contraception. Alito tries in several places to distinguish those rights as not involving potential life, although query whether that holds true for contraception, given some religious views about what constitutes abortion and the misunderstanding of how some contraception works. The rigid historical approach to substantive due process does not bode well for rights and interests that have developed in a modern, more open, more technologically advanced, and more accepting society.

Posted by Howard Wasserman on May 3, 2022 at 10:29 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, May 02, 2022

Why Mallory?

This is the second post on next Term's SCOTUS case on general personal jurisdiction by Rocky Rhodes (South Texas) and Cassandra Burke Robertson (Case).

As we mentioned in our last blog post, scholars and practitioners have been waiting a very long time for the Supreme Court to take up the question of the states’ power to require consent to personal jurisdiction as a condition of registration to do business. Another case, Cooper Tire & Rubber Company v. McCall, appeared to be a strong candidate for a cert grant. It attracted substantial cert-stage amicus support, and we predicted that the Court would be interested in it.

Instead, however, the Court granted certiorari in Mallory v. Norfolk Southern Railway Co. and appears to be holding Cooper Tire for the decision in Mallory.

Both the petitioner and respondent in Mallory argued that Mallory presents a cleaner legal issue. In some ways, the parties are right—but Mallory does have some quirks of its own.

What is cleaner in Mallory is the legal background. Pennsylvania’s long-arm statute is unique in that it explicitly provides that by registering to do business companies consent to general personal jurisdiction in the state. This transparency is important to the case in two ways.

First, in a case challenging the state’s power, it is helpful to have a clear statement of the state’s law. The Georgia law at issue in Cooper Tire was less clear; although the Georgia Supreme Court followed state precedent concluding that registration impliedly demonstrated all-purpose consent to personal jurisdiction, the court expressed some uncertainty as to whether that precedent reflected the legislature’s intent and recommended that the legislature clarify the long-arm statute.

Second, Pennsylvania’s clear statement is helpful in determining the scope of consent. That is, as Tanya Monestier has convincingly argued, implied consent is not consent at all—it is, instead, a trap for the unwary corporation that would have no reason to expect that business registration would give the courts of a state the authority to hear any and all claims against that business, including claims that have no connection at all to the forum.

Pennsylvania’s explicit statute, on the other hand, gives fair warning to corporations about the effect of their decision to register. In that sense, it makes registration-based consent mirror an arbitration clause in a contract of adhesion—not a term that the signing party necessarily wants, but one that the party is willing to accept to obtain the benefits of the contract. The Supreme Court, of course, has been highly deferential to contracts including arbitration and forum selection clauses, even in contracts of adhesion.

A clear long-arm statute and fair notice are helpful to enforcement. But are they enough? We have argued elsewhere that there is one more essential piece of the puzzle that makes state-required consent different from private agreements: a sovereign interest in the case. That is, the state can explicitly condition benefits on consent to jurisdiction—but only insofar as the state has a sovereign interest in the underlying case. Jack Preis and Jeff Rensberger have similarly separately argued that some state benefit or a state sovereign interest is required to satisfy constitutional limits on exacting consent through a registration statute.

On that point, Cooper Tire appears stronger than Mallory. The plaintiff in Cooper Tire was a passenger in a car that was involved in an accident in Florida. But the driver of the car, who was also a defendant in the suit, was a Georgia resident, as was the used-car dealer who sold the car and inspected the tire. Because the plaintiff wanted to sue the driver, the car dealer, and the tire manufacturer, it made sense to sue in Georgia. And Georgia has a clear sovereign interest in ensuring the safety of the cars sold in the forum as well as adjudicating the liability of state residents. Furthermore, it is not clear that any other forum would have had personal jurisdiction over all three parties—the used-car dealer, for example, seems to have no Florida contacts.

With Mallory, it is not evident that there is a sufficient state interest. The respondent has argued that there is no tie to Pennsylvania, but that is not entirely true—the plaintiff’s complaint notes that Mallory worked for Norfolk Southern in Pennsylvania for the last part of his career before retirement, although there was no allegation that any asbestos exposure took place in Pennsylvania. And by the time suit was filed, Mallory was living in Virginia, not Pennsylvania. Still, the employment connection may provide some basis for the state to have an interest in the outcome of the suit—the state would, after all, have at least some interest in the employment relationship within the state. But if the Supreme Court were to adopt our view of the importance of the underlying sovereign interest, it may need to remand the case for further fact-finding. Neither the plaintiff nor the defendant has fleshed out the state connection.

Posted by Howard Wasserman on May 2, 2022 at 09:47 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Private enforcement and the state court option

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

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

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

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

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

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

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

Thursday, April 28, 2022

Supreme Court to Address Jurisdiction through Corporate Registration

SCOTUS granted cert for in Mallory v. Norfolk S. Ry. Co., on whether a state can require businesses to consent to general jurisdiction as a condition of registration. Before co-authoring the authoritative works on SB8 with me, Rocky Rhodes (South Texas)  published several piece on jurisdiction and consent/registration with Cassandra Robertson (Case). They have agreed to write a few posts now and perhaps to come back when the case is argued next Term.

The Roberts Court is still interested in personal jurisdiction, despite already hearing seven such cases over the last eleven years. These cases have re-shaped adjudicative jurisdiction, substantially narrowing the fora where plaintiffs can bring suit. Now, with its cert grant this week in Mallory v. Norfolk S. Ry. Co., the Court is poised to reconsider its cryptic century-old holding that states can require corporations to consent to personal jurisdiction within the state—even for claims arising outside the state—as a condition of registering to do business.

The Court’s earlier holding on jurisdiction predicated on registration pre-dated the “minimum contacts” approach that the Court adopted in International Shoe Co. v. Washington (1945).  The issue of whether a corporation’s registration authorizes adjudicative jurisdiction was a difficult question after International Shoe, befuddling courts and commentators for generations. But the question has become especially salient—and even more difficult—after the Roberts Court’s increasingly restrictive approach to personal jurisdiction, so it is not surprising that the Supreme Court finally agreed to address the issue. We’re very grateful for Howard’s invitation to post on this grant and its importance.

Contacts Jurisdiction and Consent Jurisdiction

Scholars familiar with civil procedure and conflicts are well aware that the Roberts Court has curtailed the scope of a state’s adjudicative jurisdiction. The Court limited “general” or “dispute-blind” jurisdiction to the forum in which the defendant is “at home,” such as a corporate defendant’s place of incorporation or principal place of business, rather than allowing such jurisdiction in any forum in which the defendant conducts substantial, continuous, and systematic activities. The Court further limited “specific” or “forum-linked” jurisdiction, which arises in states connected to the dispute, by demanding a tighter showing that the defendant itself established purposeful contacts with the forum state, rather than the contacts being created by an intermediary or the plaintiff. While the Supreme Court’s decision last summer in Ford Motor Co. v. Montana Eighth Judicial District Court recognized that, if purposeful availment exists, the state can exercise jurisdiction even if the dispute merely “relates to” rather than “arises from” such contacts, the Court repeated its prior normative objection to forum shopping by plaintiffs. So, while Ford was a step in the right direction, the overall impact of the Roberts Court’s decisions has limited the available fora that plaintiffs may choose under the traditional “minimum contacts” analysis from International Shoe.

But there are alternative grounds to establish personal jurisdiction. One that has been long recognized is that defendants may consent to personal jurisdiction, either by contract or litigation conduct. Even if contacts jurisdiction is lacking, consent may provide another jurisdictional hook. Plaintiffs have sought to employ this alternative jurisdictional hook as the Roberts Court has restricted contacts jurisdiction, asserting that a defendant’s consent to jurisdiction is conferred when a defendant corporation registers to do business in the forum state, which is the issue squarely presented in Mallory. This jurisdictional basis has a long history, although it largely became unnecessary until the Supreme Court’s sharp curtailment of general jurisdiction.

State Corporate Registration Statutes

            Every state statutorily requires out-of-state corporations transacting in-state business to register with and obtain a certificate of authority from a designated official to do business in the state. Without obtaining the required authorization, a nonresident corporation cannot access the state’s judicial system under all or almost all these registration statutes, with many states also imposing fines and other penalties, including the restraint of further intrastate business transactions, for the failure to comply. The Supreme Court has consistently upheld the constitutionality of both these registration and authorization statutes and their associated consequences for non-compliant nonresident corporations.

            Not all corporate business transactions, though, can constitutionally trigger a registration responsibility in the absence of congressional approval. The dormant Commerce Clause prohibits states from placing, in the absence of congressional authorization, an undue burden on interstate or international commerce, thereby barring state-compelled registration or the accompanying burdens on out-of-state or international corporations not conducting local business operations within the state. General corporate registration statutes thus limit their application to those nonresident corporations that “transact business” in the state, which is typically statutorily defined by excluding those in-state activities that are not sufficient to transact business (such as interstate business activities, isolated in-state transactions, or mere solicitations). Only those corporations engaging in an ongoing and regular course of intrastate or local business activity must register and obtain a certificate of authority, which implicates the regulatory authority of the state to attach conditions on the terms under which the nonresident corporation operates within the state.           

            Historically, the primary purpose of such statutes was to provide a basis for service on an in-state agent within state territory that would authorize jurisdictional power over the nonresident corporation while comporting with the then-prevailing sovereignty limitations on adjudicative authority. States in the mid-nineteenth century began enacting such statutes compelling corporations, as a condition for transacting in-state business, to register with the state and appoint an agent for service of process, thereby ensuring the registering corporation’s amenability for its in-state obligations. The Supreme Court first upheld such a scheme in Lafayette Insurance Co. v. French (1856), reasoning that a corporation “must be taken to assent to the condition upon which alone such business could be there transacted.” Yet the Court explicitly limited its decision to situations in which the suits were related to the business conducted within the forum.

            Subsequent nineteenth-century cases from the Supreme Court continued to describe the permissible corporate consent for the privilege of conducting business as limited to actions related to the corporation’s conduct of business within the forum. As the corporate presence fiction developed, though, service on a statutory agent became a jurisdictional basis in early twentieth-century cases to adjudicate claims unrelated to the corporation’s activities within the state, with some cases indicating that service on a registered corporate agent within the state sufficed for amenability. Yet these cases were linked to the then-prevailing “presence” by “doing business” construct. The Court was hesitant to predicate a defendant’s amenability on serving a registered agent when the defendant no longer was conducting business within the forum, several times construing state registration statutes as not encompassing such a questionable jurisdictional reach.

            Yet if the defendant was conducting business in the forum, the Supreme Court did not need to evaluate the impact of registration on the defendant’s amenability under other jurisdictional doctrines that developed in the twentieth century, such as corporate presence and implicit consent through in-state activities. While these early twentieth-century fictions were cast aside by International Shoe in favor of a more realistic analysis of the reasonableness of the jurisdictional assertion in light of the defendant’s forum activities, the new Shoe paradigm precluded the need in most cases to evaluate the continuing relevance of jurisdiction predicated on corporate registration alone. This caused the Supreme Court to never return to the constitutionality of jurisdiction predicated on corporate registration except in dicta until its recent grant in Mallory.

            The Split in the Constitutionality of Jurisdiction by Registration

            The permissibility of such jurisdiction based on corporate registration depends on interpreting the state’s corporate registration statute while recognizing the constitutional limits that may exist.

            Existing state registration statutes rarely specify the jurisdictional consequences, if any, of a corporation’s in-state registration to do business. Most of these consequences have depended upon case law interpretation. In Georgia, for example, Cooper Tire & Rubber Co. v. McCall reasoned its earlier decisions had interpreted registration as authorizing general jurisdiction, even though the state registration statute did not specify such a jurisdictional consequence. Pennsylvania, on the other hand, is the only state with an unambiguous statutory provision that a nonresident corporation’s registration to do business “shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction . . . .”

            But the statutory or case law interpretation must also comply with constitutional limits. Before the Supreme Court limited general jurisdiction to only those locales where the defendant was “at home,” state and lower federal courts were hopelessly split on the constitutionality of state authorization of jurisdiction based on registration to do business. But there has been a definitive trend in the decisions of state supreme courts and the federal circuit courts since the Roberts Court explicitly limited general jurisdiction to a defendant’s home states in Daimler AG v. Bauman.  

            These courts have indicated that the continued constitutional validity of all-purpose jurisdictional assertions via corporate registration is doubtful after Daimler’s stated concerns with “grasping” or “exorbitant” jurisdictional rules. The Second Circuit, for example, argued that all-purpose consent from registration would subject every corporation “to general jurisdiction in every state in which it registered,” which would rob the “at home” requirement “of meaning by a back-door thief.” But rather than confronting the issue directly, state high courts and federal circuit courts have adopted statutory interpretations of the registration statutes to avoid the constitutional issue, even in jurisdictions such as Delaware, Nebraska, and New York that previously interpreted their registration statutes as authorizing all-purpose jurisdictional assertions.

            There are only two recent cases where a state supreme court did reach the constitutional holding: Mallory, declaring the Pennsylvania explicit statute unconstitutional, and Cooper Tire, upholding jurisdiction under past Georgia case law. The losing parties in both cases sought certiorari review at the Supreme Court, with Cooper Tire filed first and attracting all the attention of amici. Our next post will discuss some of the differences between the two cases, exploring why the Court might have chosen to grant Mallory as the vehicle to examine registration while presumably holding Cooper Tire.      

Posted by Howard Wasserman on April 28, 2022 at 01:26 PM in Civil Procedure, Judicial Process | Permalink | Comments (0)

Sunday, April 24, 2022

HB7 lawsuit

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

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

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

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

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

Thursday, April 21, 2022

Another SB8 funder suit

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

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

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

Wednesday, April 20, 2022

More universal injunctions

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

Finally, I co-sign Sam's conclusion:

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

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

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

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

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

Tuesday, April 19, 2022

Abstention is down on its luck these days

(Thanks to Gerard for the title):

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

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

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

Sunday, April 17, 2022

Judge Sutton on universal injunctions

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

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

Friday, April 01, 2022

"Don't say gay suit" filed

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

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

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

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

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

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

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

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

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

Monday, March 28, 2022

Cert denied in John Doe relation back

The Court denied cert (without noted dissent) in Herrera v. Cleveland. The Seventh Circuit held (consistent with every circuit to consider the issue) that John Doe claims do not relate back under FRCP 15(c)(1)(C), because intentionally pleading a Doe placeholder when the plaintiff does not know the defendant's name is not a mistake concerning the proper party's identity. Too bad. I thought this case had a chance to get to the Court. The approach to mistake is arguably inconsistent with the Court's broad take on relation back in Krupski and has adverse effects on civil rights plaintiffs. Civ Pro professors and civil-rights activists filed amicus in support of cert.

Posted by Howard Wasserman on March 28, 2022 at 04:36 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, March 26, 2022

Double it

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

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

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

Monday, March 21, 2022

Exclusivity and personal rights in bounty litigation

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

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

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

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

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

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

Wednesday, March 16, 2022

The Younger analysis was not much better

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

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

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

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

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

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

Monday, March 14, 2022

What is a SLAPP law?

The Southern District of New York denied Donald Trump's motion for leave to amend to add an affirmative defense and counterclaim under New York's amended (and-retroactive?) anti-SLAPP law. I will test on this case this year or next, because it discusses several elements of denying leave to amend--undue delay, dilatory motive, futility. The court called out Trump's incompetent newish attorney for insisting that leave should not be denied for futility because they should not have to defend every use of the SLAPP at this stage; that argument ignored (or did not understand) that futility applies a dismissal analysis at the amendment stage--the court explores whether an amendment can survive dismissal and if it cannot, the court denies leave. The case also raises a nice Erie question--Judge Rakoff in Palin held the SLAPP law is retroactive but an intermediate state court held it is not; what is a district court to do going forward?

For this post, I want to focus on the court's analysis of the SLAPP law as it affects the futility analysis, because I think people are confused as to what a SLAPP law is and does. Trump wanted to add an affirmative defense and a counterclaim under the SLAPP law. The court rejected both. I think it reached the right conclusion for the wrong reason as to the former and may have been wrong as to the latter.

Defense

The court rejected the affirmative defense as futile because the SLAPP does not create an affirmative defense. It does not involve new facts and does not "knock[] plaintiff out of court if all the allegations of her complaint are true." Instead, it provides for recovery of fees for success and changes procedures applied to state-law actions.

But this seems to hang on semantics. We typically think of two types of defenses--failure of proof (the plaintiff cannot prove her alleged, disputed facts) and affirmative (new facts preclude liability if the plaintiff proves her facts). The SLAPP law does require new facts--the speech sued on must have some "connection with an issue of public interest" to trigger special procedural protections or to make attorney's fees available; although it is not clear Trump's lawyer pleaded them in the proposed amended answer (a distinct basis for futility), they are additional facts. Without those new facts, the SLAPP law still provides some type of defense--a way to avoid liability for a claim.

If the court is correct that SLAPP is not an affirmative defense to be pleaded in an answer, how or when does a defendant raise an anti-SLAPP law? Perhaps the law comes into play by providing the legal standards and mechanisms when Trump moves to dismiss. It is not a distinct defense, but the legal standard governing dismissal. I am not sure that is right. A party can assert failure to state a claim as an affirmative defense in a pleading rather than via motion; the SLAPP law provides a different standard for deciding a plaintiff  fails to state a claim. We might think about it this way--would/could Trump have pleaded the SLAPP law as a defense in an original responsive pleading? If a defendant planned to ask for anti-SLAPP attorney's fees (which are available in federal court) should he prevail, would he include that among the defenses pleaded in the answer? If so, it is a defense that can be raised in an amended responsive pleading.

If the court is right, this decision does not hurt Trump. Without this new answer, he can move to dismiss the complaint (coming post-answer it would be a motion for judgment on the pleadings, but same difference for these purposes) and argue that SLAPP procedures apply to that motion. He will lose on that, as explained below; but he will be able to at least attempt to assert the law not as an affirmative defense but as the legal standard for attacking the validity of the claim.

If the court is wrong and the SLAPP law is a defense that can be raised in a pleading, the court correctly denied leave as futile for a different reason--the SLAPP law's procedural provisions (other than the fees provision) do not apply in federal court, where FRCP 12 and 56 provide the standards and mechanisms for pre-trial review and rejection of a state claim. The amendment would be futile because the new defense would not survive a Rule 12(f) motion to strike an insufficient defense.*

[*] Futility generally applies to new claims that cannot survive a motion to dismiss. But an affirmative defense, which involves new facts and new law in the same way as a claim, can be futile if it cannot survive a motion to strike (the counterpart to dismissal for a defense).

Counterclaim

The court held amendment was futile as to the counterclaim because the SLAPP law does not apply in federal court, so the counterclaim would not survive a motion to dismiss. This was wrong.

New York's amended SLAPP law allows a defamation defendant to recover compensatory and punitive damages on a showing of improper purpose in bringing the defamation action; it is analogous to the tort of abuse of process (which often is asserted as a counterclaim to a specious tort claim). A counterclaim cannot be swept aside on Erie/Hanna grounds. Used as a counterclaim, the SLAPP law does not dictate the manner and means for adjudicating substantive defamation rights in Carroll's claim (the manner and means derive from the FRCP); it provides a distinct set of state-law rights and remedies for Trump for a distinct injury. Regardless of the counterclaim's chance of success, it is different than ordinary procedural rules for defending the defamation claim and cannot be deemed categorically unavailable in federal court.

Again, I am criticizing the court's reasoning more than its conclusion to deny leave, which was probably correct. It might have found the amendment futile (and denied leave to amend) by focusing on other reasons  the counterclaim would not survive a motion to dismiss. Perhaps the SLAPP law is not retroactive; perhaps the proposed amended pleading did not allege facts showing improper purpose. Alternatively, the court may have rightly denied leave for reasons other than futility, such as undue delay--Trump waited more than 14 months before seeking leave without good explanation. But the court's reasoning in rejecting amendment is problematic.

Posted by Howard Wasserman on March 14, 2022 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, March 11, 2022

No offensive challenges to SB8 against licensing bodies

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

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

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

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

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

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

Monday, March 07, 2022

Disaggregating government and its employees

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

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

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

Thursday, March 03, 2022

If only they could sue the state

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

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

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

Heckling, counter-speech, and heckler's vetoes (again)

UC-Hastings Fed Soc invited Ilya Shapiro to speak, but he was shouted down by the audience (several videos in links). FIRE labeled this a heckler's veto. The Hastings administration condemned the students because "the act of silencing a speaker is fundamentally contrary to the values of this school as an institution of higher learning; it is contrary to the pedagogical mission of training students for a profession in which they will prevail through the power of analysis and argument." And it is threatening to enforce conduct-code provisions for disrupting the event, while continuing "efforts to ensure that we equip all community members with the knowledge and skills to engage respectfully, thoughtfully, and sensitively with each other and with a wide array of theories, identities, political viewpoints, and perspectives."

I have discussed the uncertainty about the lines among counter-speech, heckling, unprotected counter-speech, and hecklers' vetoes. But what I wrote here bears repeating and elaborating. The protesting students were in the wrong, but for narrow reasons. And it cannot be resolve by invoking the dreaded heckler's veto.

The students did not engage in a heckler's veto. They engaged in heckling, a form of Bradneisian counter-speech. Were Shapiro speaking on an open campus sidewalk and the protesting students shouted back from an adjoining sidewalk, this should be the result. Same if the students remained outside the room or outside the building producing similar noise. There is nothing improper in heckling or attempting to "shout down" a speaker.

The protest crossed the line and lost its protection via the neutral rules of the classroom forum,. Those rules presumably granted Shapiro (and the student group that invited him and reserved the room) a greater expressive right than the dissenting audience members; those neutral rules made Shapiro and Fed Sco preferred first speakers. The source of the heckler's veto is not the protesting students or the attempt to shout Shapiro down and prevent him from being heard. The source lies in the administration failing to remove the disruptive students or otherwise control the situation; governmental inaction or failure to protect deprived him of the ability to speak. The government could have shut the protesting students up or removed from the room; it can sanction them after the fact. The removed students cannot claim their speech rights were violated; by heckling in that time and place, they engaged in civil disobedience, an unlawful act for which they must be willing to pay a price. The open question is whether post-event sanction of the (improperly) protesting students is sufficient to overcome the charge of a heckler's veto; I would say not, but this is a separate question.

I continue to reject the administration's command for respectful, thoughtful, and sensitive engagement with competing viewpoints and theories. Shapiro, like any first speaker, bore no such obligation--he could say whatever he wanted and need not listen to or respectively engage with any disagreeing audience member or what she had to say (I am not saying Shapiro would have approached it this way, only that he bore no obligation to hear and engage with any audience member). The administration was wrong to impose such an obligation on the heckling students. The students were in the (legal) wrong because of the forum rules, not because of some broader compelled commitment to respectful dialogue to which only they are subject.

Posted by Howard Wasserman on March 3, 2022 at 12:03 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Egbert v. Boule argument

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

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

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

Tuesday, March 01, 2022

The future of Bivens

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

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

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

Monday, February 14, 2022

Weird procedure and Palin v. New York Times (Updated Several Times)

Jed Rakoff is an excellent judge. But his approach to Palin v. NYT has been procedurally bizarre.

First, he held an evidentiary hearing (testimony from James Bennett, the op-ed's primary author) in deciding a 12(b)(6) motion, without converting to summary judgment; the Second Circuit reversed. Second, Rajoff denied summary judgment, hinting that the evidence did not support actual malice by clear-and-convincing evidence but that it was not his job to weigh the evidence. This was proper, although unusual--most judges are not so forgiving of plaintiffs.

Today, Rakoff announced he would grant the Times's motion for judgment as a matter of law, although the jury is deliberating and he will allow the jury to reach a verdict. It is not unusual for a judge to let a case go the jury knowing he will grant JML. He gives the jury a chance to get it "right" and enters judgment on the verdict, insulating his opinion from appellate review. But he can resolve the case as he sees fit if the jury gets it "wrong." But it is unusual (and perhaps improper?) to announce that intention while the jury is deliberating. If any juror learns of Rakoff's announcement, that seems to provide a basis for reversal of a judgment on the verdict or at least a new trial--the deliberations become a sham if the jurors know how the case ends regardless of what they do. If there is a chance the jury learns of his announcement it presents at least a colorable new-trial or appellate issue that will make life tougher for the Times in defending the judgment. [Update: On further thought, Rakoff could grant a new trial, then grant summary judgment before the new trial begins or JML after the plaintiff's case n the second trial]

Further Update: Jury finds for NYT. This moots the above discussion, although it remains a weird process, unless we somehow learn that jurors learned about Rakoff's plan before the verdict. Watch out for news reports saying that NYT lives another day or that the Court or jury reaffirmed NYT, which reflect basic ignorance about what district courts do.

Further, further Update: It turns out the use of NYT and actual malice as the standard is based in part on New York's anti-SLAPP statutewhich codifies actual malice (likely as a hedge against SCOTUS overruling)* although in an amendment enacted after the op-ed was published. Judge Rakoff held, as a matter of New York law, that the law applied retroactively and the instructions to apply actual malice applied the statute and the First Amendment. Overruling New York Times as the constitutional standard would not change the standard under New York law, meaning the result would be the same. SCOTUS typically does not take cases that turn on state law.

[*] This presents the opposite of a zombie law--a statute that continues providing heightened protection of individual rights when the Constitution does not require that heightened protection. Like RFRA or RLUIPA. What do we call them? Super Laws, as they not only are no undead but enjoy extraordinary powers? I wish I had thought to include this opposite category in the paper.

Further, further, further update: The jury found out via push notifications on their phones. The jurors insist it did not affect their deliberations. Judge Rakoff notifed the parties and gave them the opportunity to seek any relief they believe appropriate based on this, while noting that no party objected to his plan to issue his FRCP 50 order while allowing the jury to continue deliberating. Everyone is scrambling to figure out what effect, if any, this will have.

Posted by Howard Wasserman on February 14, 2022 at 07:17 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, February 01, 2022

Taking Pico for a ride and other preocedural musings on removing books

Some thoughts on the flurry of efforts to remove* books and materials from school libraries and curricula.

[*] Some people are upset about the use of the word "ban" in this context since the books remain available from other sources. That is a dumb argument, but I do not feel like fighting it.

This offers an opportunity to revive and underrated William Brennan First Amendment opinion--Board of Island Trees v. Pico. A plurality (Brennan for Marshall, Stevens, and most of Blackmun) held that the First Amendment limits school power to remove materials from the library based on disagreement with the content or ideas expressed in those books. The Court is more deferential to school boards than it was in 1982, so perhaps this will not fly. But it is an argument worth watching.

Many efforts give parents private rights of action to sue over  stuff they do not like. Republican officials laud themselves for following the Texas S.B. 8 trick of using the threat of civil litigation and damages to influence behavior and believing that will avoid federal litigation, while not realizing that not everything is S.B. 8. Schools and school board must make any changes to curricula or libraries, even if those changes are made on threat of a private suit and private liability; that provides a government target for a suit challenging any removal on First Amendment grounds. Imagine anti-Ruby Bridges Parent A threatens a suit because the book makes his child feel bad that his grandparents opposed school integration and the school, fearing liability, removes the book; to the extent that raises First Amendment issues, I-would-like-my-kids-to-know=history parent X who want the book to remain can sue the board to enjoin removal. The latter parent's First Amendment rights should prevail over the former parent's state-law rights.

Going further on procedure: Perhaps Parent X can intervene in Parent A's suit against the school, arguing that X's kids have a First Amendment interest that will be impaired by the state suit and that the school will not sufficiently vindicate? Alternatively, perhaps Parent X, seeing Parent A's suit, can ask a federal court to enjoin Parent A's state lawsuit because the judgment in that suit would compel the government to remove some materials and thereby violate Parent X's (kids') rights? This would seem to fit three exceptions to § 2283 (depending on timing) and not be barred by Younger.

Finally, a matter of state procedure: If the removal of Ruby Bridges is required by state law because its presence  makes A's kids feel uncomfortable, does the removal of Ruby Bridges make X's kids feel uncomfortable, by denying the basic history of Louisiana in the 1950s? Perhaps A and X can sue the school for competing judgments. Or X intervene in A's suit to protect state-law interests in not having his kids feel uncomfortable. The key to defeating S.B. 8 is that "any person" can include a friendly plaintiff who wants to help Whole Woman's Health litigate the law. "Discomfort" is a similarly boundless concept that goes both ways and can allow some unexpected claims from unexpected sources.

Posted by Howard Wasserman on February 1, 2022 at 04:11 PM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 27, 2022

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

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

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

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

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

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

Employment lawyers, please help.

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

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

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

Saturday, January 22, 2022

District court preliminarily enjoins UF conflicts policy

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

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

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

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

Friday, January 21, 2022

Republicans and conservarives love univeral injunctions now

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

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

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

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

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

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

Legislative and Adjudicative Jurisdiction

Kudos to the First Circuit for getting it right in a case involving a federal prosecution for drug trafficking in international waters. The defendants argued, and the court agreed, that extending the Maritime Drug Law Enforcement Act to international waters infringed on international law and thus exceeded congressional authority. The defendants had moved to dismiss for lack of subject matter jurisdiction, but the First Circuit rightly recognized the issue as one of legislative jurisdiction--Congress' power to enact substantive legislation--rather than the subject-matter jurisdiction of the federal courts. Thus the prosecution fails on the merits because the law being enforced was unconstitutional; the prosecution does not fail for lack of judicial jurisdiction.

Posted by Howard Wasserman on January 21, 2022 at 08:32 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 20, 2022

SCOTUS denies mandamus in SB8, Sotomayor remains pissed

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

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

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

Wednesday, January 19, 2022

Judge Scola pulls no punches

From Judge Robert Scola of the Southern District of Florida, pulling no punches in cancelling a scheduled jury trial.

Posted by Howard Wasserman on January 19, 2022 at 01:18 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

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

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

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

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

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

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

Friday, January 14, 2022

When laws send a message

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

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

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

Thursday, January 13, 2022

Zombie Laws

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


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

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

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

 

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

Wednesday, January 05, 2022

UF profs have standing to challenge outside-activities policies

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

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

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

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

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

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

Monday, January 03, 2022

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

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

But then there is this:

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

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

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

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

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

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

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

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

Monday, December 27, 2021

A different Court contingency

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

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

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

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

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

Sunday, December 26, 2021

Project Veritas injunction remains against New York Times

From Friday. The New York trial court enjoined from using materials and enjoined to recover materials from third parties and to destroy the materials within their control. The opinion is a tour de force of bad legal analysis, including: placing attorney-client privilege and the First Amendment on roughly equal planes of fundamentalness; granting the injunction without proof that the Times did anything wrong in obtaining the material (contra Bartnicki); taking the Times statement that there is no evidence of wrongdoing as an admission that there could have been wrongdoing; finding that memoranda about Project Veritas conduct is not on a matter of public concern; and generally treating The Times as purely a litigant engaged in discovery rather than as a media entity operating outside litigation.

The opinion is fascinating because Judge Wood writes with extraordinary certainty while being extraordinarily wrong and extraordinarily likely to be reversed on appeal, at some point.

Posted by Howard Wasserman on December 26, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, December 20, 2021

Trump tries to fight Younger again

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

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

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

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

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

Friday, December 17, 2021

Dorf on limiting bounty hunters

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

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

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

I will respond with three points.

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

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

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

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

Fed Soc Courthouse Steps on SB8

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

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

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

Thursday, December 16, 2021

Not everything is SB8, or abandoning the private attorney general

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

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

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

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

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

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

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

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

Sunday, December 12, 2021

California threatens to follow Texas

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

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

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

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

Saturday, December 11, 2021

Putting the "judicial" in judicial departmentalism

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

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

He writes:

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

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

Josh concludes this way:

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

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

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

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

Suing sheriffs

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

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

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

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

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

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

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

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

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

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

Thursday, December 09, 2021

TX state court declares SB8 procedures invalid

A state judge in Travis County declared that SB8's procedures violated the Texas Constitution because: 1) the legislature cannot grant"any person" injury-less standing; the $10,000 minimum damages is punishment without due process; and the law delegates enforcement power to private persons. The court granted a DJ but not an injunction. This is a state MDL case consolidating 14 state-court lawsuits by various providers and advocates against Texas Right to Life and other potential defendants. The case addresses the state procedural issues we address in our second paper and an as-yet unwritten fourth paper on state procedure in potential enforcement actions. The court reached those issues pre-renforcement.

I leave to Rocky whether the court got it right on Texas standing; I think the court gave short shrift to past cases in which the legislature has authorized random people to sue. Two other quick thoughts.

1) The court explains that SB8 plaintiffs would act under color of law and an SB8 defendant could raise that as a defense in an enforcement action, therefore the court allows providers to raise state action pre-enforcement, rather than making them wait for ruinous lawsuits to be filed. The court cites a Texas Supreme Court decision adopting the Bobbitt/SBA theory of pre-enforcement standing, requiring a credible threat of enforcement. In the federal litigation, providers cannot show that any particular potential SB8 plaintiff intends to file suit so as to establish standing to sue that person; WWH relies on the goofy theory of suing judges and clerks because they recognize that problem. This court ignores that issue, never explaining why TRTL or any other defendant, even if a state actor in bringing an SB8 action, is the source of the "real and serious threat" to enforce. If Texas standing matches Article III, that cannot be right.

2) The court sounds the recurring theme of similar laws with similar bad procedures attacking gun rights and anti-LGBT+ bakers. The latter is an odd example. As the court notes, lawmakers would not need "any person" to chase the baker. Current law allows for one and perhaps hundreds of easy lawsuits. Again, if the point is SB8 represents some unique and unprecedented procedural attack, the court is wrong.

SCOTUS announced released opinions tomorrow. Maybe we finally get SB8. Although this case may obviate the need to decide the federal cases. If private SB8 lawsuits--the sole mechanism for enforcing the heartbeat ban--are impermissible, there is no need for a federal court to resolve the validity of the heartbeat ban, as there is no threat of enforcement. Perhaps more tomorrow.

Posted by Howard Wasserman on December 9, 2021 at 08:20 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, December 07, 2021

Who's afraid of judicial departmentalism

Jason Mazzone argues that Mississippi's SG missed the mark in the Dobbs argument. Asked whether overruling Roe/Casey invites challenges to Griswold, Lawrence, and Obergefell, the SG said those are different because they have clear lines. The correct answer, Jason argues, should have been:

Right now there is no groundswell to overrule those cases, but so what if there is and states ban contraception, same-sex sex, or same-sex marriage? "Legal challenges will then be filed, lower courts will hear the cases, and this Court might eventually be called weigh in. That's how our system works. Nobody thinks that just because the Supreme Court has said something others cannot make use of the legal system to advance a different position and seek to change minds."

Without using the term, Jason describes judicial departmentalism--SCOTUS adopts a constitutional position, states enact and attempt to enforce new laws that might disagree with and challenge that constitutional position, and new litigation resolves the issue, with the Court adhering to its jurisprudence or changing its mind.

But the Court cannot hear this and such an honest (if accurate) answer would have created more problems for the state. The Justices remain wrapped in the judicial supremacy of Cooper in which the Court gets the last word on the Constitution, the states fall in line, any departure is suspect, and anything that gives states new wiggle room is problematic. Justice Sotomayor was explicit about this position (citing Marbury for the proposition, although Marbury says nothing of the sort). Even those Justices inclined to declare Mississippi's law valid and perhaps overrule Roe/Casey would have pushed back against the idea of doing this again with contraception or same-sex marriage.

The same issue arose in the SB8 arguments. Roberts asked the Texas SG about an amicus brief that made, in sharper terms, Jason's point: The system is designed to allow states to enact laws that diverge from SCOTUS precedent, with future litigation resolving the dispute. The Texas AG ran from the idea, saying that everyone is bound to take and faithfully implement the Court's constitutional interpretation.

Posted by Howard Wasserman on December 7, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)