Thursday, June 13, 2024

Paring back strange standing doctrines

SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*

* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.

The case hints at paring back more strained forms of standing.

The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).

The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.

Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle. (Update: Andy and Michael Morley made the full critique of associational standing here.

Posted by Howard Wasserman on June 13, 2024 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, May 31, 2024

The end of the "obvious alternative explanation" on 12(b)(6)?

The idea of an "obvious alternative explanation"--introduced in Twombly and reified in Iqbal--does not fit the 12(b)(6) analysis. If all reasonable inferences must be drawn in the plaintiff's favor, it is incoherent to credit an alternative explanation; that requires drawing inferences for the defendant and rejecting as implausible those inferences for the plaintiff. That is, if the AG orders the arrest of thousands of Arab Muslim men from Middle Eastern countries in the months after 9/11, saying it is more plausible that he was motivated by a desire to protect the country rather than animus is to draw inferences for the defendant and against the plaintiff.

And it confuses students. Despite my emphasizing that it dropped out of the analysis for most lower courts, students run to it as part of the analysis. Worse, they use it as a basis to suggest different facts. ("The plaintiff alleged X, but a more obvious explanation is that unalleged Y is true, therefore complaint dismissed.").

On a day in which public attention focused on other legal matters, perhaps NRA v. Vullo interred "obvious alternative explanation" in the 12(b)(6) analysis. The NRA alleged the head of the state insurance regulator threatened to take (or promised to refrain from taking) unrelated regulatory actions against the companies if they cease doing business with the NRA. The state argued that the agency engaged in government speech in its press releases and that in meeting with insurers, the agency exercised regulatory authority to pursue violations and to offer leniency to resolve enforcement actions. But the Court could not "simple credit" the argument that "we're just enforcing the law" as an obvious alternative explanation, in light of other allegations taken as true and the obligation to draw favorable inferences for the plaintiff.

This may not mark any sea change in the Twiqbal analysis. The Court (including the liberal justices) may be more solicitous of the NRA's free speech claims than of 9/11-detainees' equal-protection claims during a national-security crisis or consumers' antitrust claims, and thus less solicitous of New York's obvious alternative explanations than of John Ashcroft or Bell Atlantic. The Court also does not follow obvious alternative to its real point of favorable inferences--"we cannot credit defendant's suggested inference from the alleged facts at this time." Instead, the moves to the need to accept pleaded facts as true, subject to what discovery may show those real facts to be. That is a different point.

Nevertheless, NRA at least offers plaintiffs a new argument that a court cannot grant a 12(b)(6) and dismiss a claim by accepting the defendant's best explanation for the facts alleged over the plaintiff's best explanation for those facts, where both explanations are independently plausible.

Posted by Howard Wasserman on May 31, 2024 at 02:34 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, May 28, 2024

Erie and the source of multi-part tests

Here is an under-discussed Erie problem: Whether, and how to analyze whether, a federal court must apply an atextual judicially created multi-factor balancing test over contrary state law. I thought of it in looking at this Third Circuit case that Eugene flagged. I wondered what courts had done in diversity cases and found this 2021 New Mexico case in which plaintiffs urged the court to apply the state near-absolute guarantee of anonymity in sexual abuse cases rather than the federal multi-factor balancing. The court's analysis, in language that would fail my Civ Pro exam, came in a footnote:

The Court rejects Plaintiffs’ request for “deference to the State of New Mexico's judicial system's ‘blanket finding’ that childhood sexual abuse survivors be permitted to remain anonymous until their trials.” Doc. 33 at 4. When exercising its diversity jurisdiction, this Court must apply New Mexico substantive law. See Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1005 (10th Cir. 2017) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). But this mandate does not allow Plaintiffs to argue that this Court should defer to a state court procedural practice. Federal courts are bound to follow federal procedural law. Hanna, 380 U.S. at 465 (1965).

This case and the general problem provided two insights on Erie.

First, when courts make the "federal courts apply federal procedural law" move, they mean federal courts apply the FRCP or other statutorily created procedural law. That is the lesson of Hanna--the Erie doctrine does not act as a "check" on the FRCP. But Hanna requires a different approach (and perhaps conclusion, although not in Hanna itself) when the federal rules--including procedural laws--derives from a source other than the FRCP. Courts have unfortunately (and inaccurately) short-handed the analysis. But I think that is the idea they are getting at.

Second, courts have not identified clear rules for determining when an atextual judicial gloss derives from sparse statutory text (and thus becomes part of the text) and when it reflects judge-made common law. That distinction determines whether the federal standard certainly applies under the REA (because no federal rule is invalid) or whether the court performs a far less certain "relatively unguided Erie" analysis that is more likely to require it to apply state law. This was the point of departure between Ginsburg's majority and Scalia's partial dissent in Gasperini--whether the judicially created "seriously erroneous result"/"miscarriage of justice" standard for new trials derived from an interpretation of FRCP 59(a) (Scalia) or whether the courts created it to fill statutory gaps (Ginsburg). But neither explained why their preferred understanding was correct. But it is not always obvious. Why is Twiqbal plausibility an interpretation of FRCP 8(a)(2) while the four-part Winter test for a preliminary injunction is a stand-alone test independent of FRCP 65? (the latter one is historical and predates the FRCP, but the point stands).

Although not explicit and not framed in these terms, courts seem to understand the multi-factor balance for pseudonymity as an interpretation and thus part of FRCP 10(a), which requires that the case caption include the party names. The Third Circuit explained: 1) "Rule 10(a) requires parties to a lawsuit to identify themselves in their respective pleadings" and 2) "[w]hile not expressly permitted under Federal Rule of Civil Procedure 10(a), in exceptional cases courts have allowed a party to proceed anonymously." It follows (although the court did not say this much) that the balancing of nonexhsaustive competing interests for and against anonymity implements FRCP 10. Again, however, it is not obvious why this is the case.

So how should the District of New Mexico have resolved the plaintiff's argument for applying the more plaintiff-friendly pseudonymity rule, beyond "we must apply federal procedure." It should have said that under the Rules of Decision Act, FRCP 10(a), as interpreted through the multi-factor balancing, constitutes an Act of Congress that "otherwise requires or provides" and serves as the rule of decision; as interpreted, it is sufficiently broad to answer the question of when a plaintiff can proceed pseudonymously. The court then should have analyzed whether the rule was valid under § 2072--whether it really regulates procedure and whether it does not abridge, enlarge, or modify a substantive right. The answer would be "yes, it is valid," because every FRCP is valid. But the substantive policies underlying state law (protecting the privacy of sexual-assault victims and encouraging them to come forward) would have forced the court to either rely on "incidental effects" on substantive rights being permissible or adopt the Scalia view that a procedural rule never, in any meaningful sense, can AEM. Either way, that analysis is a lot more complicated than the footnote allows.

And what if the multi-factor test were not part of FRCP 10? The unguided Erie analysis must consider whether ignoring state law would cause the "character or result" to differ, whether a party might go to federal court to avoid less favorable state law, and whether the state law is "bound up" with substantive policy. That analysis usually points towards state law and probably would here--a defendant might remove to avoid automatic pseudonymity and the state law has underlying substantive concerns.

But this example shows why "apply federal procedure," without more, cannot be the extent of the analysis. A litigant-name rule is unquestionably "procedural"--it relates to the manner and means through which rights are enforced in court. But if the conflict with state law comes from a federal legal rule unmoored from the FRCP, the federal court may be required to apply that state law.

Posted by Howard Wasserman on May 28, 2024 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 22, 2024

Shadow Docket Sunlight Act of 2024

Introduced by Sheldon Whitehouse with a number of Dem co-sponsors. It requires disclosure of votes and at least one written opinion for the Court explaining any decision granting, denying, or vacating injunctive relief or vacating a stay of injunctive relief. The bill makes clear this covers cases within the Court's appellate jurisdiction and thus is an exercise of the exceptions-and-regulations clause.

Two thoughts.

1) Different complaints about the Court trigger different solutions--and those solutions may contradict one another. The need for transparency on the shadow docket requires opinions and vote counts. But the need to get the Court to act  less like a body of self-serving individuals requires eliminating vote counts and limiting opinions.

2) Attempts to control what, when, and how the Court reaches and explains its judgments presents an interesting question about the line between Congress' exceptions-and-regulations power and the "judicial power"/Klein/dictating case outcomes principle. Previous discussions have focused on whether Congress can stop or limit the form and content of opinions; this bill presents the flip side of whether Congress can require opinions. But both go to the same idea--how much can Congress control the presentation of a decision once made.

I expect to use this in Fed Courts in the fall, even if it has no chance of ever becoming law.

Posted by Howard Wasserman on May 22, 2024 at 04:42 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Judge Reeves on Qualified Immunity (Updated)

Judge Reeves offers his second judicial takedown of qualified immunity. He hits the usual hits--atextual; ahistoric; fails to achieve supposed policy goals; contrary to intended text; judicially created and silently modified; a tool for injustice; inconsistent with every other area of law (e.g., a physician cannot avoid malpractice liability because no court of appeals had imposed liability on another physician who made that precise mistake). Shout-outs to the work of Alex Reinert, Joanna, Schwartz, Will Baude, Karen Blum, Andrew Pollis, and others, as well as to the string of the most absurd cases in which courts found QI. Reeves adds a new tool to his argument--Dobbs and why Justice Alito's arguments justifying overruling Roe provide stronger justification for overruling the entire QI line. For example, if women lack an abstract reliance interest in the ability to control their lives by controlling when and if to have children, police officers lack such an abstract interest in being able to violate the Constitution.

The puzzle comes at the end. Describing what he calls a "more democratic vision," Reeves argues that courts must "tell the jurors the truth." He lists a series of points on which jurors should be instructed--police may act in split-second, rapidly evolving circumstances; the law gives less deference to officers who engage in a pattern of misconduct or who act in a calculated fashion with advice of counsel; unnecessary suits against public officers divert energy and attention from the public business and deter qualified people from entering public service. The jury should be able to resolve these tensions and contradictions on a case-by-case basis.

But where is he getting this from? Is it tied to the constitutional right--the officer does not violate the Fourth Amendment in that fast-moving situation? Or does this retain the basic idea of qualified immunity (an officer avoids liability for policy reasons despite violating plaintiff's rights) but place the decision in the jury's hands? If so, the same criticisms remain--this sort of immunity has no basis in law, and putting the balance in the "more democratic" hands of the jury does not change that. Reeves wants "the People" to resolve the contradictions in "America's DNA," although without any actual law or legal basis for doing so. This new approach retains the analytical gap between when an officer can be liable for damages and when he can be liable for an injunction--a gap that similarly has no legal basis.

The opinion is a tour de force in identifying and illustrating, in plain language, the absurdity of modern qualified immunity. It has some unnecessary hyperbole--a reference to Southern trees bearing strange fruit and to the 3/5 compromise--but I'll law allow it. But the opinion also highlights problems in the "get rid of qualified immunity" discussion. What, if anything, replaces it--strict liability (as exists for prospective relief)? a different form of qualified immunity more in line with 1871 common law? narrower substantive constitutional rights? something else? And where does the replacement come from--if the Court does it, the  atextualism objection remains. Can we reform qualified immunity without addressing the other two legs of Judge Ho's "unholy trinity"--prosecutorial immunity and Monell?

The opinion offers an additional insight that I had not considered--its place in the backlash to the Civil Rights Movement, particularly to civil disobedience and public protest. Pierson v. Ray introduced qualified immunity (common law good-faith-and-probable-cause) in an April 1967 case arising from the arrest of several Black ministers who entered a segregated bus-terminal waiting area. The Court (except Justice Douglas) lost its stomach for protecting civil rights and undoing Jim Crow when it came to imposing damages on Southern officers enforcing constitutionally dubious laws against people who knowingly and intentionally violate those laws for political purposes. We might see Pierson of a piece with Walker v. City of Birmingham, decided two months later, where the Court applied the collateral bar rule to a First Amendment challenge to those who ignored a nakedly racist injunction against a public march. Or Adderly v. Florida (earlier in the term), rejecting a right to protest on the driveway of a county jail. Although raising distinct legal issues, all reflect the Court allowing government greater leeway and authority in stopping public protests.

Posted by Howard Wasserman on May 22, 2024 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, May 08, 2024

TikTok ban and 3-judge district courts

TikTok challenged the new law banning it (at least with Chinese ownership), alleging violations of the First Amendment, equal protection, bill of attainder, and taking. Pursuant to § 3(a) of Division H of the Act, it filed the petition with the D.C. Circuit.

Congress essentially adopted for challenges to the statute the procedure for challenges to regulations implementing and enforcing the statute. But reviewing regulatory action looks appellate, while reviewing the validity of enforcing legislation involves an exercise of original jurisdiction, including taking evidence about standing (unfortunately) and the plaintiff's factual allegations about things such as the impossibility of compliance and the effect on speech. And Congress had such a process if it wanted quick multi-judge review--3-judge district courts.

Posted by Howard Wasserman on May 8, 2024 at 08:58 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 01, 2024

Judge sanctioned for handcuffing teenager

In March 2023, Steve and I had an exchange about Judge Benitez (S.D. Cal.), who probationee's daughter handcuffed and placed in the jury box during a revocation hearing, purportedly to teach the girl a life lesson. Steve and I debated whether judicial immunity would protect Benitez in a damages action and Steve worried that he would suffer no real consequences.

Fourteen months later, we have something: The Judicial Council of the Ninth Circuit reprimanded Benitez; prohibited Benitez from taking new criminal cases for three years;* and allowed defendants in pending or future probation-revocation hearings to move to recuse Benitez, with the motion going to the Chief District Judge.

[*] Relatively meaningless, because Benitez took senior status in 2017 and no longer takes new criminal cases.

I leave it to those who study judicial ethics to opine on whether any of this constitutes "real consequences."

Posted by Howard Wasserman on May 1, 2024 at 04:04 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, April 30, 2024

Except when they're not really questions

Gerard should be right. The problem is that many questions in oral argument are not really questions. They are statements of the justice's views or thoughts or arguments about the case. And many of those views and thoughts are so off the wall as to look less like devil's advocate and more like justices flirting with (what the panicking folks regard as) troubling ideas. Or it reflects their willingness (if not intention) muck up the timing of the prosecution to do more than is necessary in the case. And while it has always been thus, it seems to be getting worse. Or the presumption of good faith surrounding the Court has so disappeared that we cannot come back--everyone assumes the justices have made up their minds and their questions are designed to further and defend their determined positions.

And this is non-partisan. Consider the EMTALA argument. Some people highlighted the eight pages of exchange (beginning on p.104) between Justice Alito and Elizabeth Prelogar, in which Alito suggested that EMTALA does not protect abortions because the unborn child is identified in the statute. It is a textually awful argument and Prelogar explained how it misreads the text and the logical end of the underlying premise. But at least Alito gave Prelogar a chance to answer, at length, pushing back when he did not like what she said. Contrast that with the five-ish pages (beginning on p.14) between Justice Sotomayor and Joshua Turner. Sotomayor began with a long hypothetical about a state prohibiting the use of insulin to treat diabetes, complete with details about the medical problems that would result, then never gave Turner a chance to offer more than a sentence in response--the colloquy ended when the Chief jumped in to get Turner to complete his answer.

Posted by Howard Wasserman on April 30, 2024 at 11:47 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, April 18, 2024

More zombie laws

Dara Purvis (Penn State) in the Conversation. She makes two points of note: One is a 2015 (12 years post-Lawrence) attempt in Louisiana to enforce a prohibition on same-sex sex--permissible under departmentalism, but a political problem to be sure. She also discusses the failed Arizona attempt to repeal the 1864 law, in which some Republicans joined with Democrats in the effort. Dara describes the many zombie laws and what legislatures can do. But it is worth highlighting Virginia's comprehensive effort to scour the statute books and find all the Jim Crow laws that should be repealed.

Posted by Howard Wasserman on April 18, 2024 at 04:53 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Why Roe is different

When SCOTUS decided Dobbs, I wondered what made it "unprecedented," as pro-choice critics argued. It was not overruling precedent simpliciter, because the Court had overruled other precedent. It was not overruling precedent to limit a right, since the Court had overruled other rights-creating precedent (Lochner, death penalty, and some crim-pro protections).

While doing an interview about the Arizona case, I think I hit on what might be different: The massive number of zombie laws, many more than 100 years old, that Dobbs reanimated. Abortion raises two related features: 1) the large number of old laws dating back to a prior understanding of medical science and a prior perspective on women's bodily autonomy and 2) the large number of abortion laws, many inconsistent or contradictory, that states enacted between 1973 and 2022 to test Roe or to prepare for its demise. Courts must now sort laws out. Women, providers, and advocates to understand a confusing landscape. The same thing did not happen after West Coast Hotel. And probably would not happen if the Court overruled Brown, New York Times, or Obergefell.*

[*] Many zombie anti-SSM provisions remain, including in state constitutions. But the issue is more straight-forward compared with the myriad laws and ways to regulate abortion.

Posted by Howard Wasserman on April 18, 2024 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, April 17, 2024

Blaming the courts for everything (Updated)

A week late, but a thought I have been carrying about the Arizona Supreme Court decision allowing the state to enforce a restrictive 1864 abortion law in the face of a 2022 15-week ban; thus pre-15-week abortions lawful under the 2022 law are not lawful if they violate the 1864 law. The majority relied on a construction clause in the 2022 law stating that it did not repeal the 1864 law and read the provisions as distinct ways of criminalizing the same conduct. The dissent read the construction clause as part of the legislative history rather than the text and thus not a proper consideration on an unambiguous law, demanding a clearer statement from the legislature (or the public) about intent to keep the 1864 law in use. Both interpretations are reasonable, although (knowing nothing about Arizona law) I find the majority more persuasive.

No one is happy with the decision, but for interesting reasons.

The left views this as another Republican-dominated court attacking abortion on "vibes" and with total disregard for law. No one acknowledges that this is not stand-alone constitutionality but trying to act on legislative enactment. And they direct no ire at the Arizona legislature for keeping the 1864 law around, recodifying it in 1977, and expressing the intent in 2022 that it remain on the statute books. On that last point, Arizona enacted the 2022 law several months before Dobbs, while a longstanding Roe-based injunction prohibited enforcement of the 1864 law. Legislators likely put the non-repeal provision to make a show of having a near-ban on the books for the hoped-for time when Roe was overturned. They did not count on it happening so soon.

The right--including the Republican governor who signed and Republican legislators who supported the 2022 law--is mad that the court did not bail them out of their bad--intentional or otherwise--lawmaking. The decision thrust abortion onto the national radar. It forces them to defend their anti-abortion actions from two years ago or to feign shock and indignity that the court would have taken seriously their express recognition of the 1864 law.

But the criticisms from both sides share a common theme--it is all on the courts. The left expects legislatures to attack abortion and demands the courts join rights-holders in resisting those legislative encroachments on constitutional rights; the right expects legislatures to engage in performative legislation attacking abortion and demands courts ensure that nothing they do has unpopular real-world consequences. Pre-Dobbs, it worked for both sides on the extremes--courts stopped enforcement of the worst laws, allowing some room for the abortion right while allowing legislators to posture and perform. Dobbs changes the consequences. But, as the Arizona case shows, not the target of criticism.

Update: Paul reminds me of Adam Unikowsky as an exception--a lefty arguing majority probably got it right and that Arizona Republicans should shut up. This is a great analysis.

Update: I confess to coming at this from a unique-for-a-liberal space: Zombie laws are easily reanimated and immediately enforceable when the state of constitutional law changes and the court lifts any injunction, unless the legislature expressly or impliedly repealed. Yes, 19th-century abortion restrictions--including those enacted before women had a national right to vote--are valid and enforceable, absent legislative action of some kind. Of course, intellectual honesty trumps partisanship here at Prawfs.

Posted by Howard Wasserman on April 17, 2024 at 09:43 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, April 16, 2024

SCOTUS stays (in part) injunction Idaho transgender-care ban, justices debate (Updated)

SCOTUS stayed the injunction prohibiting enforcement of Idaho's ban on gender-affirming care for minors, to the extent the injunction applied beyond the plaintiffs. We end up in the right place--no enforcement against the plaintiffs pending appeal--but by the wrong process.

Justice Gorsuch, joined by Thomas and Alito, spends 12 pages on the evil and error of universal injunctions. He ends on this:


Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today’s decision wrong, it makes it wrong in the best possible ways, for “good judicial decisions are usually tempered by older virtues.”

That last sentence shoots at Justices Jackson's dissent, criticizing the Court's early involvement. The rest, including as to the inefficiency of constitutional litigation is, as far as I am concerned, spot-on. Note this is the first time Justice Alito has taken a public stance against universal injunctions.

Justice Kavanaugh, joined by Justice Barrett, concurs to ponder a standard for SCOTUS early involvement, especially the need to consider likelihood of success on the merits on emergency stay and injunction-pending-appeal motions. He links the rise in universal injunctions to the rise of shadow docket activity. And he continues Barrett's hobbyhorse about determining the "status" quo for interim and emergency relief--whether the status quo is prior to enactment of the law, prior to the injunction, or something else. He expresses skepticism of universal injunctions, although noting APA as a separate issue.

Justice Jackson, joined by Sotomayor, dissented from the stay. She primarily focused on reducing the Court's early involvement in cases. She emphasized the split of scholarly and lower-court authority, suggesting the issue is not as clear as Gorsuch suggests, but also criticizes Gorsuch for "reach[ing] out" to resolve an unsettled remedial issue on less-than-full presentation. She also argued the injunction was not universal--it was a "party-specific, fact-specific" expansion to ensure full protection to the named plaintiffs--another reason not to resolve the universality question. Justice Kagan dissented from the stay but did not join Jackson's opinion.

Update: Sam Bray has more. Including the point that no one on the Court endorsed universality--at best Jackson says it is unresolved and difficult.

Posted by Howard Wasserman on April 16, 2024 at 10:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, April 11, 2024

The kids are (kind of) alright

My Temple does a program for final-semester HS seniors, a capstone to their Jewish educations designed to explore Jewish values and ideals and their connection to the real world they are about to enter (to the extent college is the real world). My kid is doing it this year, in a group of about 10 kids.

On Monday, I spoke with the group about free speech on campus. I tried to give the spiel that many schools include (or have spoken about including) in freshman orientation--the basic categories of unprotected expression, the limits on content and viewpoint discrimination, the permissibility of neutral time, place, manner restrictions, the ideas behind protest and civil disobedience, and academic freedom. I tried to get at what I think is a basic idea: Much (most?) of the speech they will encounter on campus, however offensive, is constitutionally protected; they should not count on the university to either talk back or silence the objectionable speakers; and the remedy to be applied is more speech. And, given the context, I tried to frame it in terms of Jewish values, something I have mentioned before and am trying to get my head around (it helps that Brandeis is the source of the "more speech" idea).

At least from their reactions, they seemed receptive. he most skeptical eye turned to the idea that a professor could publish a book denying the Holocaust or give a speech denying October 7 without consequence. Mostly, they did not want to sit back and let the worst antisemitic speech go, but they understood the difference between talking back and silencing.

But the experience, along with recent events on this campus, convinces me that schools should include something like this in orientation.

Posted by Howard Wasserman on April 11, 2024 at 01:42 PM in First Amendment, Howard Wasserman, Judicial Process, Religion | Permalink | Comments (0)

Wednesday, April 10, 2024

Specific Performance and the First Amendment

The Bryn Mawr Film Institute canceled a screening of The Child Within Me, a documentary about Israeli musician Yehuda Poliker, citing fears about appearing to endorse Israel and its position in the war. A state trial court issued an injunction ordering the Institute to show the film, pursuant to terms of the contract.

This surprised me. I assumed that the First Amendment would limit specific performance, where the order would compel the party to engage in speech it no longer wished to engage in. Much as the Thirteenth Amendment (if I remember right) limits specific performance of employment contracts. The only thing I found (courtesy of a 2019 law review article) is a 1982 Indiana Court of Appeals case involving a contract for a newspaper to run an ad for a political candidate. The court enjoined to newspaper to perform the contract and run the ad. As to the First Amendment, the court ended the opinion as follows:

The appellant finally contends that the trial court's decision violated its first amendment guarantee of freedom of the press. Again, we agree with the appellant that a newspaper has a right to publish or reject advertising as its judgment dictates. However, once a newspaper forms a contract to publish an advertisement, it has given up the right not to publish the ad unless that right is specifically reserved or an equitable defense to publication exists. The Herald-Telephone's first amendment right is not being infringed. It may still choose to publish or not publish any material it wishes, as long as the decision is made before a binding contract is formed. The trial court's decision is not constitutionally infirm.

It would appear that a party can contract away any right against compelled expression. I have asked my wisest contracts colleagues for more; I will update if I hear anything. I am leaving comments open for anyone who knows anything about the contracts side of this.

Posted by Howard Wasserman on April 10, 2024 at 12:41 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, April 06, 2024

How old is too old?

Josh Barro argues that Justice Sotomayor, aged 70, should retire following the end of the Term so Biden can appoint a younger successor. The merits of urging timed retirements aside, the question becomes how old is too old and how long Justices should serve.

Barros believed that the organized campaign to urge Breyer to retire in 2021 shows that Democrats learned the lesson of Ginsburg's 2014 non-retirement. He expresses disappointment that the resistance to Sotomayor retiring--some frame the resistance to Sotomayor being Latina, which pisses Barro off--shows they have have not learned that lesson.

But Ginsburg was 81 and a cancer survivor in 2014, whereas Sotomayor is 70. Barro downshifts to Scalia--he was 70 when he failed to retire in 2006 in the same circumstance as Ginsburg 8 years later (same-party President, party about to lose Senate) and Republicans avoided a similar fate because of Mitch McConnell and an inside-straight presidential victory. Barro also points to Thurgood Marshall not retiring in 1980, at 72, so Carter could appoint his successor and Obama could have appointed that successor, leaving the Court with a liberal majority through the '90s and '00s.

Sotomayor has been on the Court for 15 years, less than the 18 she would serve under most term-limits proposals (Ginsburg has been on the Court 21 years as of 2014). Marshall had been on the Court for 13 years in 1980. In the name of avoiding judges getting old and dying when the wrong party controls the political branches or being unable to "hold on" until an aligned President returns to office,* we force judges into ever-shorter terms--too short to figure out the job. Or we compel Presidents to appoint ever-younger judges--Barrett will have served 22 years by the time she reaches 70.

[*] For Marshall, the black swan event in terms of modern politics was Republicans getting 12 years in the White House from 1981-93, which Democrats could not pull off after Clinton and Obama. Here is a counter-factual--what if President Dukakis had been able to appoint successors for Brennan and Marshall in 1990?

If we are going to play this game, why stop with Sotomayor? Kagan turns 64 this month--why not urge her to retire so Biden can rewind the clock by an extra 10-15 years? Does 6 years make that big a difference? Sotomayor has some health problems (Kagan does not, as far as we know) but Barro limits them to a passing mention. He argues from age, not health. Maybe we should research justices' family and geneological histories.

Posted by Howard Wasserman on April 6, 2024 at 05:55 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, April 01, 2024

Briefplaints, press releases, and long-shot lawsuits

A woman indicted and jailed for murder over a medication abortion brought a § 1983 action against the DA and ADA who pursued the charges. The ADA obtained the indictment and the arrest; the woman spent three days in jail until the DA dropped the charges. The DA was hit with ethics charges for bringing the case, which is unheard of.

There is a lot here related to what I teach.

Prosecutorial Immunity. Prosecutors are immune for presenting a case to a grand jury, including intentionally lying about facts or misstating law in doing so. The complaint tries to reframe the relevant conduct as the pre-grand-jury investigation of the case, which the DA'ss office ran without the sheriff or local PD; prosecutorial immunity does not attach to investigations or to a prosecutor performing law-enforcement functions. It combines that with an exception to the independent intermediary doctrine--because prosecutors played both the "police" and "prosecutor" roles, the prosecutor was not independent of the police so the immune prosecutorial conduct does not break the causal chain between the non-immune investigation and the injury.

Entity Liability. The complaint names the DA and ADA. Although the ADA ran the case, the complaint alleges the ADA ran everything through the DA (the office policymaker) and the DA ordered the arrest. But the Fifth Circuit has long held that county prosecutors act as arms of the state, not the county, in enforcing state penal law. So the County is not a person and enjoys sovereign immunity.

Briefplaints and Press Releases. Two terms I use in class in explaining how many attorneys approach pleading. I found the term "briefplaint" on Twitter to describe a complaint in which the plaintiff's lawyer anticipates and responds to affirmative defenses and legal arguments, filling the complaint with case citations and the arguments she will make in response to a motion to dismiss or for summary judgment. Beth Thornburg (long at SMU) coined the term "pleading as press release" to describe a complaint aimed at the public and the media rather than the court and opposing party--loaded with flowery language and rhetoric and designed to be quoted. The concepts fit together. A briefplaint is more likely in a high-profile case in which the attorney knows people are watching and feels the need to get ahead of defenses and arguments, knowing that the people watching do not understand the difference between a pleading alleging facts and a brief presenting legal arguments. It thus is not enough to provide a short-and-plain statement of the claim (the plaintiff's best version of events) and let everything else happen in time. The plaintiff feels the need to show everything she knows or anticipates about the case.

    This complaint exemplifies that. Part V (the complaint is numbered oddly) lists applicable statutes and constitutional provisions and Part VI lays out a fully cited legal argument for why prosecutorial immunity--an affirmative defense--does not apply. The case has (unsurprisingly) drawn national press attention, so the attorney may believe she has to show the public and the media that she has considered these issues and has a strong case.

Posted by Howard Wasserman on April 1, 2024 at 05:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, March 19, 2024

Winning the nomenclature war

In Murthy v. Missouri, Deputy S.G. Brian Fletcher and Justice Gorsuch both referred to these "enjoin everyone from doing everything everywhere" orders as "universal injunctions" rather than "nationwide." So proud.

Posted by Howard Wasserman on March 19, 2024 at 03:19 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, March 18, 2024

SCOTUS narrows when officials act under color online

SCOTUS on Friday decided  when public officials can block people from their social-media pages. Lindke v. Freed (from the Sixth Circuit, a claim against a city manager) became the lead case; O'Connor-Ratcliff v. Garnier (from the Ninth Circuit, claims against school-board members) was vacated-and-remanded for reconsideration in light of Lindke.

Justice Barrett wrote Lindke for a unanimous Court, describing the standard as:

a public official’s social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.

A few thoughts:

• The court properly recognized that the question is not when a nominally private person acts under color, but when a state official engages in state action or functions as a private official. While SCOTUS has had few cases on the latter issue, it ignores the obvious analogy to off-duty officers who use the badges of authority to engage in misconduct; there is a wealth of lower-court precedent, typically (although not exclusively) involving law enforcement. The court emphasizes (and this arose a lot during argument) that public officials retain private lives and First Amendment rights when they are "off duty." The Court thus repurposes the idea that "the state-action requirement 'protects a robust sphere of individual liberty;'" rather than grounds for not subjecting private actors to constitutional liability, it limits the scope of a public official's job responsibilities., a requirement that the official have some "off-duty" time to engage in his own First Amendment activities.

• The Court takes a narrower approach to state action than I would have liked to see. The official "must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action." If maintaining and posting content to the site is not part of the official job functions and responsibilities that bind the government, the official does not act under color, no matter how much the site appears to be official. The open question is how courts apply this to sites that an elected official uses to "further" her job duties or as a "tool of governance" but which are not required by state law and not a formal part of her job duties. Perhaps custom gets there, except courts do not easily find something so persistent, permanent, and well-settled as to have practical force of law. It seems unlikely social media (10-years-old) and even web-based communications (maybe 25 years old) reach that level.

Davison v. Loudon Cty. and Knight Foundation v. Trump--the leading cases finding state action in a public official maintaining an official or quasi-official for purposes of communicating and interacting with constituents about government business--must come out the other way. Both courts focused on the appearance and function of the activities on the site--the discussion of public content, the indicia of official status. But that is step two under Lindke. The courts now never reach that issue if the official does not have  actual authority to speak on the government's behalf about the matters at issue. For example, even on her official "chair" site, the chair of the Loudon County Board of Supervisors does not have actual authority to speak on the government's behalf about, say, a recent school-board meeting. And her web site site is not the only space in which that information appears--the city likely posted it to the government's official site. The chair uses the site to engage with constituents and keep them informed about government events as an elected official, which is not a formal part of her job on behalf of the government. Maybe the President is different, although he still lacks formal speaking authority about a lot of what he posts on social media. Along those lines, I doubt a legislator or member of a multi-member body can ever be a state actor. As individuals, they do not speak for or otherwise bind the government and are not authorized or required to speak for the government or the body. Future litigation in O'Connor-Ratcliff might tell us more--that case involves elected officials who used their campaign sites to discuss public matters after taking office.

• I think the opinion downplays the importance of engagement between the public and officials (especially elected officials) within formal official-controlled channels, even where such engagement does not bind the government and does not constitute a legally authorized or compelled part of the job. Yes, an official should be able to maintain a private site that touches on public matters, just as an official should be able to discuss public issues with friends at a barbecue. But when an official opens a site and invites the public to communicate with her about public affairs, that looks like something other than a barbecue with friends. The Court could have concluded that Freed's site is private without erecting the additional hurdle that renders many job-adjacent functions--those that "further" the job without being legally authorized--not state action.

• I will link to this Will Baude post trying to make heads or tails of the Court's odd mandate in the case--vacating the Sixth Circuit "[t]o the extent that this test differ from the one applied by the Sixth Circuit." My best guess is that this is sloppy language, reflecting that the Justices ignore (if they even grasp) the procedural nuances, the differences between judgments and opinions, etc. The Court uses more expected language-vacating and remanding for further proceedings consistent with this opinion--in O'Connor.

• The Court at one point gives us this: "'editorial control over speech and speakers on [the public employee’s] properties or platforms' is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own." Is editorial control also part and parcel of Facebook's First Amendment rights and control of its site immune from government command? Or will the Court give us the farce that a government official exercises editorial control to keep citizens from speaking to them but that private entities lack the same editorial control to control who speaks on their spaces?

Posted by Howard Wasserman on March 18, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, March 13, 2024

Penn faculty sue Penn to stop cooperation with committee

My initial reaction to Fakhreddine v. University of Pennsylvania is that we have reached pinnacle of performatively stupid (or stupidly performative) litigation over campus speech post-October 7/Gaza War. Plaintiffs are pro-Palestine/anti-Israel faculty suing to stop Penn from cooperating with requests from the House Committee on Education and the Workforce, which they claim targets them (the lead plaintiff is mentioned in the House letter) and their expressive activities. Claims are for violations of the First and Fourteenth Amendments, Pennsylvania Constitution, and breach of contract.

On further reading, the suit is less clueless as I thought. I think plaintiffs lose and it is not close. And it still has the hallmarks of performative litigation cum bad lawyering: Hundreds of paragraphs listing political grievances--including complaining about a separate lawsuit by a student against Penn, the IHRA definition of antisemitism, and  the "McCarthyesque" (some version of the word appears 12 times) Committee. It uses "dox" (some version appears more than 30 times) to mean any publicity (e.g., Elizabeth Magill was doxxed because people emailed her with harsh criticism following the December 7 hearing). And it makes the pleading mistake of incorporating by reference prior counts into each new count; the 11th Circuit regards this as an indicator of an impermissible "shotgun pleading;" it at least shows sloppy drafting.

It confuses whether Penn acts under color of federal law or under color of state law. It never cites § 1983, as it should for claims against state actors, although many lawyers (erroneously, in my view) treat EpY as the cause of action when seeking something other than money, regardless of the government entity. It bases the under color arguments on Penn's cooperation with the Committee, a federal entity; that makes Penn act under color of federal law. But then it asserts a 14th Amendment claim, which cannot apply if Penn's joint action is with the federal government such that it acts under color of federal law.

If not complete performative nonsense, where do I think it still fails?

    • It argues for state (or federal) action from the private person's voluntary cooperation with the federal government. It emphasizes that the Committee did not subpoena the records; it sent a non-binding letter request. But close nexus requires government compulsion or overwhelming encouragement of the private conduct rather than the private entity willingly agreeing with and working with the government.

    • It seems to me the constitutional claims and the breach claims are inconsistent, assuming this qualifies as a breach. If the letter request is sufficiently coercive to place Penn under color, Penn cannot be liable for breach--the coercion would seem to make conformity with the contract impossible. If Penn is making a voluntary choice, it cannot act under color.

    • Legislative immunity lurks here, although a step removed. The real violation here is the Committee request. But Speech-or-Debate immunity shields such a claim--a court will not question whether a legislative request violates the Constitution. The question is how far down legislative immunity extends. Can a court the constitutional validity of a legislative request in the course of resolving a constitutional claim against the party subject to that request? (A recent 9th Circuit case raises a similar issue--I may write about that later next week).

Posted by Howard Wasserman on March 13, 2024 at 01:29 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, February 28, 2024

Universality and litigation procedure in the social-media cases (Updated)

Universality reared its head in the social-media cases, especially the Florida case. The plaintiffs brought a facial challenge, which perplexed the Justices who found some applications of the law that would be valid (e.g., DMs and email services). Michael Dorf offers one solution. In trying to avoid this problem, Paul Clement (arguing for the providers) tried to emphasize the particularity of the preliminary injunction--it protects his clients but does not prohibit enforcement against anyone other than his clients and it should remain in place to protect his clients from a wave of statutorily authorized $ 100,000 civil actions while litigation continues on remand to the trial court.

Clement is half right on this. The injunction protects only his clients, so the state could enforce against violators not within the NetChoice consortium. But the injunction does not (or at least should not) protect his client from civil suits. The unknown random people who might sue are not parties to the action and do not work in concert with the state, therefore the injunction cannot bind them. They likely do not act under color and thus could not be sued or held liable in an offensive § 1983/EpY action--they are not exclusive enforcers and sue to enforce their own rights to be on the platform, making them ordinary litigants pursuing an ordinary (if constitutionally dubious) state-law cause of action.

The case thus illustrates another limitation on offensive litigation in a mixed enforcement regime--any pre-enforcement injunction cannot stop private enforcement as a matter of the judgment, only as a matter of precedent. (Edit: My initial post said we forgot to mention this in our Cornell piece--turns out we did talk about it at 151-52. Mea culpa).*

[*] Anyone else experience the feeling of writing so much on a topic you forget what you've said?

Posted by Howard Wasserman on February 28, 2024 at 11:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, February 15, 2024

Jurisdictional confusion never goes away

This decision from the District of Delaware has everything from every class I ever teach 8 pages from a frivolous case--courts with Eleventh Amendment immunity, judges with judicial immunity, § 1983 claims against private actors, absence of a private right of action, incomplete diversity, declination of supplemental jurisdiction, and perhaps Rooker. Everything. The case seems to be an elderly couple lashing at after their adult children moved them off of some property.

The case caught my attention because of footnote 1. After dismissing for failure to state a claim the claims against several private individuals (family members, two private practice attorneys, a law firm, a legal aid organization, and the electrician who cut off the power to their property) for lack of action under color, the court drops this footnote:

See Itiowe v. Trentonian, 620 F. App’x 65, 67 n.2 (3d Cir. 2015) (per curiam) (noting that dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction may be appropriate where a plaintiff brings constitutional claims against non-state actors without plausibly alleging that they acted under the color of state law); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).

Jurisdiction/merits confusion will never go away. State action/under color presents one of the early examples of conflation (along with Title VII's numerosity requirement) and an easy case for merits treatment. One of my early cases clerking on the Eastern District of Pennsylvania involved a defense 12(b)(1) motion for lack of state action* and us writing an order instructing the parties to treat this as a merits/12(b)(6) issue, citing a published opinion from Judge Becker on the Third Circuit. How much we forget. Or it is continued malign influence of Bell v. Hood, under which courts find lack of jurisdiction if an otherwise obviously federal claim is sufficiently weak. See also Judge Newsom's take.

[*] I don't recall all the details and we did not publish anything. But the case arose from an assistant DA assaulting a defense attorney in open court. I used it as a class problem for years--how seriously should we take the idea of a state position "enabling" conduct for under color purposes?

Posted by Howard Wasserman on February 15, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fifth Circuit and favorable termination

I wrote in December about the Fifth Circuit decision in Wilson v. Midland Cty., about the application of Heck to a claim by a woman convicted of crimes in Texas where an ADA was moonlighting as the judges' law clerk. Judge Willett's panel opinion held the claim Heck-barred because Wilson was no longer in custody (she completed her sentence a decade ago), while decrying the injustice of the result.

The court granted rehearing en banc and scheduled argument for May. As I wrote, there is a circuit split on whether Heck applies to a person who no longer is in custody. No matter the result here, the issue seems to be teeing up for SCOTUS resolution.

Posted by Howard Wasserman on February 15, 2024 at 09:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, February 10, 2024

Thoughts on the disqualification case

• The prevailing wisdom seems to be reversal on the ground that states lack the power to adjudicate eligibility, at least without congressional approval. Many of the exchanges about that lack of power took a procedural focus--the process by which state courts would do this; differing evidentiary rules and standards of proof; the risk of disuniformity; the absence of federal control; etc.

None of these is real--or at least each is answerable and resolveable. But the justices never seemed inclined to hear those resolutions. Consider:

    • Disuniformity can arise in any adjudication in any court system in any posture, unless the Court exercises original jurisdiction over all cases, which it cannot and will not do. But we could get disuniformity from one process the justices accepted--prosecution for insurrection. Imagine Trump committed separate allegedly insurrectionary acts--January 6 and, then after leaving office, he pulls an Aaron Burr. That prompts separate prosecutions in separate federal districts in separate circuits, perhaps under different interpretations of the rules of evidence--and perhaps disuniform rulings as to his eligibility. (Admittedly slightly different because it is two distinct insurrectionary acts--but we could imagine a link between the two or a single conspiracy with acts in two places).

    • SCOTUS exists to resolve disuniformity. But the Court demurred from control over this issue contra most other current legal issues. And it did so in a way that placed the plaintiffs and states in a catch-22. An exchange between Justice Barrett and Jason Murray illustrates. Barrett expressed concern for being stuck with the record from the lower court; Murray responded that the Court could adopt independent factual review as it does under New York Times and for other "constitutional facts;" Barrett replied by complaining about having to decide without deference from lower-court fact finding. Which is it--SCOTUS must control the lower courts or SCOTUS must have lower courts to defer to? We could find a similar solution to Justice Alito's concerns for different evidence and proof rules--NYT dictates, as a matter of substantive constitutional law, the standard and burden of proof for defamation. Why not for § 3?

    • A system in which constitutional enforcement occurs in courts must account for enforcement mechanisms. Nothing "just happens." Accepting that the "self-executing" nature of § 3 means Trump became ineligible as soon as he engaged in insurrection (as Murray argued), that ineligibility still must be enforced through some mechanism. And, Murray argued, the only available mechanism once someone occupies the office is impeachment (accepting, from Griffin's Case, that collateral attacks on presidential action are impossible). But Gorsuch would not hear it, insisting that is a separate question. But that separate question is one of the issues at the heart of the case--how to enforce § 3.

• The President is a national officer. But he is not selected nationally--he is selected by some combination of 50 states and D.C., potentially through 51 selection mechanisms. I have not heard a good argument for why § 3 is different from other things states can consider and use to control ballot access and selection of federal offices, including the presidency.

• An unfortunate narrative has developed about "how could all these supposedly brilliant law professors have been wrong." Most legal scholarship is normative rather than predictive--scholars do not predict what the Court will do, they write about what the Court should do and what the law should be. That the Court disagrees does not make the  scholars "wrong" and the Court "right," other than in the (Robert) Jacksonian sense in which infallibility follows from finality and from actually having power to impose their constitutional views on others.

Posted by Howard Wasserman on February 10, 2024 at 06:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, February 08, 2024

Erie and litigation finacing in Florida

The Florida legislature is considering legislation that would, among other things, require automatic disclosure of financing agreements. Wisconsin enacted a similar law in 2018 and I wrote about the Erie issues it creates in federal court. Same issues and analyses arise here. Florida adds another wrinkle: Disclosure must be made within 30 days of commencing the suit, as opposed to as part of the discovery process. I have used this as a puzzle in the Erie part of Civ Pro for the past few years; now I have a local hook for it.

One additional question: Is there an equal protection or First Amendment problem in that the Florida law only applies to financing agreements for which the financier will receive some cut of any settlement or judgment. It does not apply to those--such as Elon Musk financing Gina Carano's suit against Disney over her firing from The Mandalorian or Peter Thiel and Hulk Hogan's suit against Gawker--who do not expect a return on their financing and do so for some personal or political goal. I suppose the answer depends on the purpose of the rule and how much an uncompensated funder can influence a litigant's decisionmaking. (Hogan declined lucrative settlement offers from Gawker; some argue that Thiel's funding removed Hogan's ordinary litigation incentives and strategies).

Posted by Howard Wasserman on February 8, 2024 at 09:43 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, February 06, 2024

Reining in the lower courts

The Tenth Circuit rejected a Bivens claim against U.S. Marshals who beat a man unconscious outside his home while executing a warrant. The Court noted, but did not rely on, the fact that the plaintiff was assaulted outside his home, whereas officers attacked Bivens inside his home. The Court relied on the differences between deputy marshals and ATF agents and the availability of USMS grievances against the officers. The case reveals how absurd Bivens has become. And the court uses language that seems to acknowledge that absurdity while blaming SCOTUS for forcing lower courts to reach such absurd results.

SCOTUS often grants cert to pull lower courts back into line when decisions get to far afield, even if SCOTUS forced them there through its decisions and the language of its decisions. That is, SCOTUS pulls lower courts back when they take the doctrine too far, even if the lower courts' decisions reflect natural extensions of SCOTUS precedent. Some cases allow the Court to say "we didn't mean that." This arguably explains Taylor v. Riojas, where the Court held (in a summary reversal) that leaving a prisoner in a cold, barren, feces-strewn cell obviously violated the Eighth Amendment without precedent. It arguably explains HHC v. Talevski, where the Court ensured of the continuing vitality of  § 1983 "and laws" actions.

Might the Court take this case or a similar case--in which the basic logic is "no Bivens claim because this guy is not named Bivens"--to pull back from the worst nonsense? Or is Bivens so doomed that the Court's next move will be to overrule it?

Posted by Howard Wasserman on February 6, 2024 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, January 19, 2024

The law of Trump and easy cases

I mentioned previously that people have proposed classes on "Law of Trump"--a discussion of the many, many legal issues that have arisen in litigation involving Trump and those in his orbit. A lot of it has touched on Civ Pro and Fed Courts, hence my interest.

Much of the Law of Trump involves not new law, but easy application of established principles, applied to a new, often-unprecedented context receiving outsized attention. Take Clifford Frost, one of Trump's fake Michigan electors, now facing eight state felonies over the scheme. Frost filed a federal action to enjoin the prosecution, although he does not assert a constitutional defense; he recasts a sufficiency-of-the-evidence defense as a 14th Amendment violation and as bad faith. This was, and should be, an easy case for Younger abstention.

Posted by Howard Wasserman on January 19, 2024 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Koppelman on the Colorado cake wars

Andy Koppelman writes about Autumn Scardina and her lawsuit against Jack Phillips and Masterpiece Cakeshop (pending before the Colorado Supreme Court). Koppelman criticizes Scardina for "provok[ing] pointless fights" and offering the Court an opportunity to impose vague-but-bad expansions of free speech or limits on antidiscrimination law.

I have written about this lawsuit here and in our private-enforcement articles. Scardina's litigation demonstrates the commonality ubiquity, and liberal acceptance of defensive constitutional litigation. Like abortion providers and advocates under SB8, Phillips was forced to refuse to bake the cake, get sued, and assert his federal constitutional rights as a defense to liability in state court (so far unsuccessfully).* Unlike with abortion providers and advocates, liberal academics and advocates did not complain about the process or argue that the procedural posture of this case denied the federal courts the opportunity to engage in judicial review or Phillips the opportunity to vindicate his constitutional right.

[*] Colorado's civil rights law mixes public enforcement through the Civil Rights Commission and private enforcement through civil litigation. The Civil Rights Commission began proceedings against Phillips on Scardina's complaint; it dismissed that effort when Phillips brought a federal action to enjoin the proceeding and the federal court declined to abstain, citing Younger's bad-faith exception. Scardina then filed suit in state court.

But there is more to this. Rocky and I are working on piece # 5 in this series on private enforcement, arguing that public accommodation laws and "expressive products" offer the Blue-state counterpart to SB8 and the opportunity for a campaign of actual or threatened litigation to undermine constitutionally protected-but-locally unpopular right-wing conduct of refusing to provide certain products for certain customers. And this context is easier SB8 and other recent Red-State efforts--anyone can order a cake with a simple phone call (or many cakes with many phone calls). Koppelman's objection to Scardina's campaign (he calls it "reprehensible") shows why Blue states are unlikely to take this step. Koppleman is a liberal who believes in balancing LGBT+ rights and religious liberty. He, and other Democratic officials, may not want open legal warfare.

Posted by Howard Wasserman on January 19, 2024 at 10:31 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More interrupting during argument?

Is it me or do justices increasingly cut-off litigants not to ask a new question or to push back on an answer but to stop the litigants from talking anymore in response to a question. In essence, the justice saying "I've heard enough in response to the question I asked; stop talking."

It is particularly bad during the sequential/serial/round-robin stage. The Justices use the time to make speeches and arguments and lead attorneys into one-word answers  ("Don't you agree . . ."), then cut them off with a "thank you" when the attorney attempts to give a complete answer or to try to use the answer as part of her argument. This supports criticism (I cannot remember where is saw it) that appellate arguments have morphed into congressional hearings, in the worst sense. 

But I noticed it three times in the "main" arguments in Devillier v. Texas (on how to sue for just compensation for a taking)--once each from the Chief, Alito, and Gorsuch. This is more jarring, because it undercuts what the advocate is supposed to be doing. The skill in argument involves weaving answers to questions into affirmative arguments. An attorney did not only answer the justice's question, she used her answer to further her prepared argument. Stopping the attorney from completing her answer makes that impossible. In all instances, another justice jumped in with questions, so the attorney was not left hanging. But if it becomes more commonplace, it reflects a real change in what argument is supposed to be.

Posted by Howard Wasserman on January 19, 2024 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink | Comments (3)

Wednesday, January 03, 2024

A new Bivens Catch-22

After federal officials attempted to strip Michael Cohen of his home confinement and placed him in solitary confinement in retaliation for his public statements, Cohen obtained habeas relief. He then sought Bivens damages against Donald Trump, Bill Barr, and a bunch of officials in the corrections system. The Second Circuit affirmed dismissal of the Bivens action, to no one's surprise (except perhaps Cohen and his attorneys)--this is a new context (because the cause is not called Bivens or Carlson) and there are always special factors counseling hesitation. The court relied on the special factor or availability of alternative remedies--the habeas relief that Cohen sought and received.

But note the double work habeas does here. Because Cohen challenged, in part, the terms of his sentence (imprisonment rather than house arrest), a successful damages claim would have implied the invalidity of that part of the sentence. Such a claim is Heck-barred unless he can show "favorable termination" of the criminal proceedings, such as through habeas relief undoing the sentence. But his success in satisfying that preliminary requirement to pursue damages means he has no Bivens claim at all. On the other hand, had he failed in obtaining habeas relief, he might have been able to pursue the Bivens action, only to find it Heck-barred because he failed to show favorable termination.

Posted by Howard Wasserman on January 3, 2024 at 09:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 01, 2024

AI will not replace us! Tools will not replace us!

The Chief's Justice's 2023 Year-End Report takes on the new role of AI in the courts. The report features the usual historical discursive on how technology evolved in courts and litigation beginning with the typewriter in the 1870s and continuing to new AI tools. He includes the history of Shepardizing, with this nugget--"Lawyers facing a deadline might skip this stage, proclaiming that “'the Lord is my Shepards.'” But Roberts insists that machines and AI cannot fully replace human actors in the judicial system, especially judges, who must make decisions involving "gray areas" (he uses the term twice) of fact-specific judgments and "open questions about how the law should develop in new areas."

Steve Vladeck suggests that Roberts abandons his "misbegotten suggestion that the job of a judge is to simply call 'balls and strikes,'" a vision of judging that allowed for no ambiguity or discretion in the judicial role. That was nonsense in 2005, as legal scholars pointed out, and continues to be. In fact, the Report distinguishes judges' discretionary "gray-area" judgments (judgments about whether someone is a flight risk, about an allocuting defendant's sincerity, about whether a district court abused its discretion, and about developing open legal issues) from non-discretionary, in-or-out questions about tennis serves that tournaments entrust to optical technology.*

[*] Query whether Roberts intentionally--and tellingly--did not use as his analogue the automatic strike zone systems that MLB is testing. Ball-or-strike is as non-discretionary as a serve--it is in the zone or not in the zone. But Roberts didn't tell a Senate committee that an umpire's job is to call a serve in or out. Using the new automated strike zone would have acknowledged too obviously that what he said at the time was nonsense.

Posted by Howard Wasserman on January 1, 2024 at 10:03 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, December 21, 2023

Shifting narratives on antisemitism

I watched the HBO documentary No Accident, chronicling the civil conspiracy trial against Jason Kessler, Richard Spencer, and other organizers of "Unite the Right"  in Charlottesville. The jury found the individuals and groups liable for civil conspiracy under Virginia law but hung on civil conspiracy under federal law; the court reduced an award of (mostly punitive) damages of more than $ 24 million to about $ 2.35 million, given Virginia-law limits on punitive damages. I am considering holding a "Civil Litigation Night at the Movies" next semester, given how the case touches on every class I teach--Civ Pro (lots of stuff about discovery), Evidence (a detailed look at trial and how lawyers prove facts), and Civil Rights (the case began with a focus on a provision of the KKK Act of 1871, although that is not where things landed).

The film highlights some Jewish themes--Roberta Kaplan's Passover Seder, an information session at a New York City temple, discussions (in 2019) of increases in antisemitism, explanations of  "white replacement theory" and Jews' roles in that. But I was struck by how outdated those discussions of antisemitism felt and how much the conversation around antisemitism has changed in the past two months. Now  Republican such as Elise Stefanik are calling out antisemitism in the mainstream media, while making common cause with the villains in this movie. I do not mean to oversimplify--left-wing antisemitism existed in 2017 (e.g., efforts to exclude Jewish organizations from the Women's March and Gay Pride programs) and right-wing antisemitism has not disappeared. But the narrative changed very quickly. Or it vindicates Tom Lehrer.

Posted by Howard Wasserman on December 21, 2023 at 03:35 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, December 18, 2023

The Times, Dobbs, and SB8

The New York Times had a big piece Friday on the behind-the-scenes events leading to Dobbs. I want to comment on SB8's cameo in the story.

The piece describes the SB8 case as the beginning of the fall of Roe and the failure to stay enforcement before the law took effect as the point at which "Roe was partially undone." I saw one surprising bit in this section--that Justice Gorsuch was incommunicado except through Justice Alito on the evening of August 31 (the law took effect at midnight September 1). He expressed no view until the next day (which Alito relayed to the rest of the Justices), then voted to deny any injunction the following day. Beyond that weirdness, everything the Justices said in internal memos (as quoted in the Times) appeared in the opinions in the stay order--Roberts' view that the existence of the law might create an independent violation and Justice Sotomayor's view that it was a "pity that we cannot do the right thing."

The problem with giving SB8 a meaningful role in the drama leading to Dobbs is that the outcome of the case should have been obvious. The Court had never said the mere existence of the law violates the Constitution independent of enforcement. The Court cannot stop the law from taking effect, because the Court cannot enjoin a law, independent of its enforcement. And the Court could not, in a § 1983/EpY action, enjoin unknown private actors from doing anything. All of this should have been obvious when the private case reached the Court.

Posted by Howard Wasserman on December 18, 2023 at 12:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, December 15, 2023

Favorable termination and miscarriages of justice

Case out of the Fifth Circuit, written by Judge Willett, on Heck v. Humphrey and the so-called Heck bar or habeas exception to § 1983:

A former county ADA in Texas moonlighted for two decades as law clerk to the judges of that district. He was discovered in 2019 and disbarred. Erma Wilson was convicted of cocaine possession in 2001 and received an 8-year suspended sentence. Wilson learned about the conflict when a capital conviction was overturned on habeas (she was not among the many people who received written notice from the DA about the conflict) and brought a § 1983 action, more than two decades after her conviction and more than a decade after completing her sentence.

Heck precludes § 1983 damages actions that would functionally call into question the validity of a conviction or sentence; habeas provides the sole federal vehicle for challenging state convictions. A § 1983 plaintiff must show "favorable termination" as an element of her claim. The problem arises when, as in Wilson, an individual no longer is in custody and thus cannot challenge the conviction or sentence through habeas. The Heck majority adopted favorable termination as an absolute rule. Justice Souter concurred in the judgment to argue that favorable termination should apply only at the "intersection" of habeas and § 1983, where both vehicles might be available; it should not apply when habeas is unavailable because the plaintiff no longer is in custody. Souter illustrates with a hypo that basically matches this case--a procedurally compromised conviction where the person does not learn about the compromise until after his release from custody. In Spencer v. Kemna, five Justices in three separate opinions adopted that position. This precipitated a circuit split--five circuits, including the Fifth, hold that Heck always applies; six allow for some exceptions; the answer depends on whether lower courts can count noses to find binding precedent or whether SCOTUS creates binding precedent only through a single majority opinion. Because the Fifth Circuit requires favorable termination, Wilson's claim was Heck-barred.

Judge Willett was outraged. He described the conduct and the outcome as "utterly bonkers," "difficult to explain," "hard to take in," and "underscor[ing] that the American legal system regularly leaves constitutional wrongs unrighted." He footnotes the last with references to prosecutorial immunity, Monell, and qualified immunity, stating "Upshot: Many Americans’ rights are violated but not vindicated."

Two questions of interest going forward:

1) What happens next. Willett emphasizes that the en banc court or SCOTUS could overrule its precedent on this point. Which avenue will and should the plaintiff pursue?  En banc Fifth Circuit review (and overruling) allows Wilson to avoid Heck and pursue her claim. But it does not resolve the broader circuit split; even if the Fifth Circuit changes its position, five other circuits continue to deny relief to plaintiffs in Wilson's shoes.* Much depends on what Wilson and/or her attorneys want to achieve--a remedy for her in this case or a broader change in the law. I guess this case may offer an interesting example of the occasional gap between cause lawyering and individual representation.

[*] The Seventh Circuit went the other way--it moved to the  "Heck applies" position in 2020 after years of allowing plaintiffs to avoid Heck where they diligently pursued the federal issues diligently and lost the opportunity to pursue habeas through no fault of their own.

2) Wilson's Other Options. The court fails to mention that Wilson had other options or whether she attempted to take advantage of them. Heck lists several ways to obtain favorable termination, including where the conviction has been "expunged by executive order, [or] declared invalid by a state tribunal authorized to make such determination." Lower courts have held the former to include pardons and executive clemency, at least where the pardon makes clear the basis and why it reflects favorable termination. Did Wilson seek a pardon? Alternatively, did she ask the state trial court to vacate the conviction? Neither the complaint, magistrate report, district court opinion, or Fifth Circuit opinion say so. Either would provide the needed favorable termination, mooting the question in this case of when favorable termination applies.

From the standpoint of § 1983's history, those options are unacceptable because they require plaintiffs to rely on state-law processes, whereas § 1983 reflects congressional distrust of state courts and state institutions; Souter makes this point in his Heck concurrence. At least in this case, however, I would expect even Greg Abbott to be receptive to a pardon; the optics and politics seem obvious.

Posted by Howard Wasserman on December 15, 2023 at 03:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, December 05, 2023

Court dumps tester case

On mootness grounds in a 3+-page opinion from Justice Barrett; the court vacates the lower-court judgment under Munsingwear.  The interesting stuff is two opinions concurring in the judgment.

Justice Thomas argues that the plaintiff lacks standing and, because standing is antecedent to mootness, the Court should resolve the case on that basis. His standing analysis--whether intentionally or not--illustrates why this is all merits. Thomas repeatedly describes standing as being about legal rights: " To have standing, a plaintiff must assert a violation of his rights;" plaintiff "lacks standing because her claim does not assert a violation of a right under the ADA, much less a violation of her rights." But the Court describes standing as being about injury, not legal right; standing asks whether plaintiff suffered an injury, while the merits consider whether he has a right under some legal source and whether that right was violated. Fletcher's essential insight, which Newsom carries forward, is the impossibility of separating the tww--one cannot suffer an injury unless a legal right attaches to it. I think either would say, on a clean slate, Laufer loses because she does not have a right to information under the ADA and thus loses on the merits. Is Thomas moving towards that view?*

[*] The injury/right separation becomes clearest for third-party standing--the plaintiff suffered an injury while some third party suffered a violation of her rights. Of course, Thomas rejects third-party standing.

Justice Jackson concurs in the judgment to argue that the Court grants Munsingwear vacaturs too automatically, although she agrees with vacatur here because the plaintiff--the victor below--unilaterally caused mootness. Jackson would ratchet up the burden on the party seeking vacatur to show a specific harm beyond disagreement with the lower-court judgment. There is no right to appellate review and the lower-court judgment--valid and binding and precedential when rendered in a live action--is entitled to a presumption of correctness and value that warrants its continuation.

Posted by Howard Wasserman on December 5, 2023 at 09:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, November 22, 2023

PJ as a chilling tool

I wrote earlier this month about the Tennessee lawsuit against Kathy Griffin and how the many who believed personal jurisdiction was lacking allowed their substantive views to affect their jurisdictional views. It was possible, of course, that forcing a speaker to defend nonsense defamation claims in a distant forum adds to the chilling effect and the goal of silencing speakers.

Thank goodness Elon Musk and Twitter (never X) can illustrate the point with this tortious interference lawsuit in the Northern District of Texas against Media Matters and reporter Eric Hananoki, over an investigation into Twitter allowing ads to run next to antisemitic content, after which several major advertisers withdrew (for the moment) from Twitter.

Twitter is a Nevada corporation with its principal place of business in California. Media Matters is a D.C. not-for-profit with its PPB in D.C. Hananoki is a Maryland citizen. The speech was directed to the world via the MM website and other online and traditional media outlets. The complaint identifies several advertisers who withdrew, none incorporated or having PPB in Texas. The best it can do is that many Twitter users are in Texas and many of the advertisers do business in Texas. Unless they have something else, that will not cut it--there was no "Texasness" to the Media Matters report or to any criticism of Twitter. This is what speech-chilling personal jurisdiction in a speech-chilling BS lawsuit looks like.

Putting a cherry on this as a Civ Pro exam: The Fifth Circuit has held that state anti-SLAPP statutes do not apply in federal court, whereas the Ninth Circuit holds that California's statute does apply in Federal Court.

Posted by Howard Wasserman on November 22, 2023 at 01:17 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 17, 2023

A standing problem?

The University of Florida chapter of Students for Justice in Palestine, represented by the ACLU, has sued Ron DeSantis, Florida State University System Chancellor Raymond Rodrigues , UF President Ben Sasse, and the UF, and moved for a preliminary injunction. The complaint alleges that Rodrigues, on DeSantis' command, ordered all state universities to deactivate any recognized SJP chapters (USF and UF have chapters). The complaint adds that DeSantis promoted this idea during a recent GOP debate. The complaint does not allege that UF has, at this point, done anything in response to that order.

As structured, this creates a bit of standing (or is it ripeness--who the hell knows) puzzle. Rodrigues' order is not self-enforcing; it does not, of its own force, deactivate UFSJP and thus does not, of its own force, injure UFSJP, meaning Rodrigues does not injure UFSJP. How would an injunction against Rodrigues help UFSJP--perhaps by ordering Rodrigues to withdraw the order? The connection between DeSantis and UFSJP is more remote.

UFSJP's injury arises from UF deactivating it or threatening imminently to deactivate it, something UF has not done or even moved to do. The court could (and probably will) find that the order that chapters "must be deactivated" creates the necessary imminence--the order says UF must do this and UF cannot ignore that command, meaning it will, likely soon, take steps to deactivate. (Much as courts allow plaintiffs to file pre-enforcement challenges before an enacted law's effective date). But, taking the "doctrine" seriously, it is not an easy question. It certainly demonstrates the challenges and necessary precision for plaintiffs in framing these cases.

Posted by Howard Wasserman on November 17, 2023 at 10:48 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, November 16, 2023

Kavanaugh and Barrett on universality

SCOTUS refused to stay an injunction prohibiting enforcement of Florida's anti-drag law; Justices Thomas, Alito, and Gorsuch dissent.

Justice Kavanaugh, for himself and Justice Barrett (mostly) issued a statement respecting denial of the stay. It says in relevant part:

Rather, for purposes of its stay application, Florida challenges only the scope of relief ordered by the District Court—namely, that the injunction prohibits state enforcement of the law not only against Hamburger Mary’s but also against other entities that are non-parties to this litigation. To be clear, if this Court, for example, were ultimately to affirm the District Court’s First Amendment judgment on the merits, the State could not successfully enforce this law against anyone, party or not, in light of stare decisis. But district court judgments do not have that stare decisis effect. And the State here contends that the District Court otherwise lacked authority to enjoin the State from enforcing the law against entities other than Hamburger Mary’s. Therefore, the State says that it should be able to enforce the law against those non-parties during the pendency of its appeal.

No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. But the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief.

I argued that the district court messed up the scope-of-injunction analysis. In particular, this was not a proper case for overbreadth, which Kavanaugh sees as the reason this case does not present the proper vehicle. Nevertheless, credit for recognizing that stare decisis provides the prospective non-party effect of this decision, whether binding or persuasive.

The opinion adds a footnote, which Barrett does not join, distinguishing enjoining enforcement of statutes and setting aside agency regs under the APA.

Posted by Howard Wasserman on November 16, 2023 at 10:37 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, November 04, 2023

Substantive frivolousness and jurisdictional frivolousness

The Sixth Circuit held Friday that there is personal jurisdiction in Tennessee in a defamation suit against comedian Kathy Griffin over her tweets about Samuel Johnson, who was recorded harassing a prom-bound LGTBTQ student. The court found jurisdiction on three key facts:Griffin tagged and addressed some tweets to the Board of the Tennessee-based health-care company of which Johnson was CEO, urging that he be fired and and removed from the board (the claim is for tortious interference with employment and IIED); the tweets focused on the Tennessee-based activities of a Tennessee citizen and his continued employment in Tennessee; and she relied on a video of a video of the incident produced in Tennessee. The court distinguished precedent rejecting PJ in a case arising from Griffin's Twitter activities over the Nick Sandmann incident in 2019.

The First Amendment community took an unusually strong stance on the PJ issue in this case. (Griffin spoke about the case, including jurisdiction, on an episode of the Slandertown podcast). But personal jurisdiction seemed obvious in this case. The plaintiffs, and First Amendment commentators, emphasized the Sandmann cases. But the court rightly distinguished precedent, where the relevant events occurred outside Kentucky and the statements about the case went to the world; given the absence of "Kentucky-ness" over the coverage, I doubted Kentucky courts would have jurisdiction before anyone filed suit. Here, on the other hand, the people, events, and consequences of this case were entirely in Tennessee; the only things outside Tennessee were Griffin and many (probably most) of her Twitter followers. The case possessed that "Tennessee-ness" necessary for the effects test.

I wonder if the First Amendment folks conflated substance and procedure. They view the case as frivolous, because Griffin's statements were some combination of true, opinion, and hyperbole that cannot form the basis for defamation or IIED liability or, it should follow, an employment claim. This, they argue, is another example of performative defamation litigation designed to chill Griffin's internet advocacy (Griffin is a target for trolls and others); Johnson sued to shut her up. And making her not only defend, but defend in a distant place, furthers the silencing goal. But substantive frivolousness does not necessarily translate to jurisdictional frivolousness--that the lawsuit is nonsense does not mean the location is independent nonsense. Geographic inconvenience could form a piece of the performative nonsense--see Rudy Giuliani's defamation suit against Joe Biden in New Hampshire. But not always. And not here. Imagining the case had merit (as a court must in determining jurisdiction), this lawsuit is about Tennessee.

Griffin moved in the trial court to dismissed under 12(b)(2) and 12(b)(6), but the district court did not address the latter. She asked the court of appeals to do the 12(b)(6) analysis and dismiss, but the court wanted the trial court to take the first pass at that issue.

Judge Cole concurred. He argued that jurisdiction rests on the tweets tagging or speaking to the company and discussing Johnson's employment; absent those tweets, the case looks different. He might have come out the other way if Griffin's original tweet had described Johnson but not mentioned the company by name or location. That different case would turn on Johnson's conduct and Griffin's role as an LGBTQ+ activist and whether she was passively discussing events on the internet or whether she directed electronic activity into Tennessee with the intent to engage or interact with people or businesses there. I do not know what to think of that. On one hand, courts must recognize the undivided nature of internet communications--it is impossible for one Twitter user to control who views her tweets where, such that any communication is directed everywhere, not to the forum state. On the other hand, the analysis should acknowledge when a speaker in Califonia speakers to the world about an exclusively Tennessee thing.

Cole added this at the end: "Our opinion also does not comment on the veracity of Johnson’s allegations in making our personal jurisdiction determination." True and not disputed. But interesting that he saw need to mention the point and head off any suggestion that finding jurisdiction suggests the suit has any merit. Maybe this is why the First Amendment crowd was so vested in the court finding a lack of jurisdiction.

Posted by Howard Wasserman on November 4, 2023 at 12:34 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, October 30, 2023

Private defensive litigation and the state role

The Third Circuit declared valid a New Jersey law requiring noncustodial parents, at the request of the custodial parents, to continue paying child support past the child's nineteenth birthday where the child is a full-time college student; the law does not impose such an obligation on custodial parents. Merits aside, I do not understand how this case reached federal court; that it did again illustrates how often courts and litigants--including the government--misunderstand or ignore the boundaries between offensive and defensive (and federal and state) constitutional litigation.

Pittman is the noncustodial parent. Pittman's ex-wife requested in state court continuation of the support obligation because their daughter was a full-time college student. The state court agreed and ordered three more years of support. Pittman sought relief from that obligation.

Pittman filed a § 1983 action in federal court. According to the district court, Pittman sued the governor and attorney general; the court granted a motion to dismiss, in part, because the governor and attorney general, as executive officials, have "no power to codify, amend, or abolish the laws Plaintiffs challenge, because that power is vested solely in the state legislature." Pittman filed an amended complaint naming the attorney general and the head and assistant head of the state Office of Child Support Services. All defendants moved to dismiss on Younger and Rooker-Feldman grounds; the district court denied the motions (rightly), then reached the merits and declared the law valid. No defendant raised "you sued the wrong person" as to the amended complaint. The court of appeals affirmed on the merits.

It seems to me the state defendants (and the district court) all misunderstood  why they are the wrong defendants and why the court should have dismissed the federal action . As far as I can tell from looking at New Jersey law, none of the executive officers is responsible for enforcing these laws. These laws govern family-court proceedings between private parties. Although the commissioner has rulemaking authority, the lawsuit did not challenge those regulations. The government, including these officials, plays no role in enforcing this law. The correct argument should have been that neither the governor nor AG is responsible for enforcing the challenged law, therefore the court could not enjoin them from doing so. Whether framed as standing, Eleventh Amendment, or merits, a federal court cannot enjoin an official from doing something he lacks the state-law power to do.

In other words, offensive litigation in federal court should not have been an option; this case required defensive litigation in state court. In resisting the continuation of the support obligation in the action against his ex, Pittman should have argued that the law allowing his child-support obligations to continue was constitutionally invalid, appealed that determination through the New Jersey courts and then to SCOTUS (if he lost--if he won, his ex-wife could have appealed). The challenge to the law should have proceeded like a challenge to a suspect state tort-reform provision--apply the provision in an actual tort case and adjudicate challenges to its validity.

Yet everyone missed this.

The governor and AG's argument as to the original complaint--"we cannot create or change the challenged law, that is the legislature's job"--is stupid. Taken seriously, the executive would never be a proper defendant in a constitutional challenge to a law because the legislature always controls the challenged laws. But the executive normally is the right defendant because constitutional litigation challenges the enforcement of the law, not the law itself--and the executive is  responsible for that. That is not true in this case because of the nature of the particular challenged law at issue. But not for the reasons the officials argued.  For the same reason, the three defendants in the amended complaint erred in not raising the same "wrong defendant" argument--we do not enforce this law.

So why did everyone mess up? At some level, I wonder if state officials prefer to litigate federal issues in federal court rather than state court. Why? The path to SCOTUS is one step shorter in federal court, but that does not seem a big deal. More importantly, I wonder if state officials buy the common idea that federal courts "do" federal law better than state court--they get federal law right--and that works as much for state governments seeking to argue their laws are valid as for rights-holders seeking to challenge their validity. State officials would rather defend an EpY action in federal court than litigate as interested parties in private state-court litigation, despite the purported "home-court advantage" in their courts.

Posted by Howard Wasserman on October 30, 2023 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, October 06, 2023

Judicial Process and Vigilante Federalism

Judicial Process and Vigilante Federalism, Rocky's and my latest on private enforcement, has been published in Cornell Law Review Online. The essay responds to Jon Michaels & David Noll's Vigilante Federalism.

Posted by Howard Wasserman on October 6, 2023 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

This is what ignoring a court order looks like (Maybe) (Amendment)

 

People often accuse government officials of "ignoring" or "disregarding" court orders. Most use the term inaccurately. They apply it to cases in which governments continue to enforce zombie laws contrary to Supreme Court precedent prior to a court ordering them to stop that--the Southern Manifesto or Cooper v. Aaron. Or they apply it to edge cases, such as the recently resolved dispute in Allen v. Milligan over Alabama's congressional maps--Alabama read the non-explicit court order narrowly, attempted to get away with not drawing a second majority-Black district, lost when the new map returned to district court and SCOTUS refused to stay the order, and acquiesced to the court-drawn map (with the second district).

By contrast, a real example of ignoring a court order appears to be playing out in Florida. The district court found Florida law and regs prohibiting Medicaid coverage for gender-affirming care violates the 14th Amendment, ACA, and the Medicaid Act and enjoined enforcement. Florida appealed, but neither the district court nor Eleventh Circuit has stayed the injunction. Nevertheless, according to plaintiffs' motion to enforce, Florida continues to enforce the reg and to deny coverage. Florida has good reason to believe it will prevail on appear and the district court's judgment is not long for this world--if Florida can ban gender-affirming care, as the Eleventh Circuit held, it is hard to imagine the court saying Florida cannot refuse to pay for that care. But it does not matter. A district court judgment binds the defendants as to the plaintiffs unless it is stayed or reversed on appeal. The departmentalist power to continue enforcing the law as to the plaintiffs based on disagreement, belief a higher court will reverse, or to try to set-up reversal has disappeared. Florida can appeal the judgment, as it has. But until the judgment is stayed or reversed, Florida must comply. And its failure or refusal to do so can warrant sanctions.

Note, by the way, how much leeway the plaintiffs expect the court to give. They do not request sanctions. In essence, they want the court to reaffirm or clarify its judgment (which is perfectly clear) and to remind Florida it may not enforce the law. Sanctions are several steps away.

Amendment: Maybe. The injunction (properly) prohibited enforcement of the law as to the four plaintiffs. The motion seems to challenge the state's blanket efforts to continue enforcing its regs, such as public statements of intent to continue enforcement, recoupment efforts, and cease-and-desist letters to insurance carriers. To the extent those blanket efforts cause enforcement against the four plaintiffs, this motion gets it right--the state fails to distinguish those the injunction protects from enforcement from others who remain unprotected. But the language in the motion is much broader--it seems to argue that, given the court's finding that the reg is invalid, the injunction bars all enforcement against all people. I take back--or at least soften--everything I said above.

Posted by Howard Wasserman on October 6, 2023 at 10:27 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, September 18, 2023

Rebuffing Consent-Based Jurisdiction Over the PLO for Overseas Terrorist Acts

The following post is by Rocky Rhodes (South Texas) and Andra Robertson (Case Western), who have been writing and blogging about consent-based jurisdiction. They covered Mallory v. Norfolk Southern Railway for us last Term. We invited them to write a series of posts in the coming days on two recent Second Circuit cases, the first to consider Mallory's scope.

Procedural and transnational scholars have an abundance of puzzles to unravel in the Second Circuit’s recent decisions holding the Fifth Amendment’s Due Process Clause prohibited the “deemed consent” provisions of the federal Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA) from establishing personal jurisdiction over the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) for supporting overseas terrorist acts. The cases are the first federal circuit court decisions interpreting in depth the Supreme Court’s decision this summer in Mallory v. Norfolk Southern Railway Co., which held that Pennsylvania’s corporate registration scheme (which specifies that corporations registering to do business submit to general personal jurisdiction in Pennsylvania for any and all suits) did not violate due process. The Second Circuit’s decisions also rest on questions that have long divided scholars and courts on the transnational scope of the Fifth Amendment’s Due Process Clause and whether the PLO and PA should be afforded due process protections from the adjudicative authority of United States courts. We are grateful to Howard for giving us an opportunity for posting our thoughts and analysis in unpacking some of these issues.

The Suits Against the PLO and the PA

The primary and signed Second Circuit opinion, Fuld v. Palestine Liberation Organization, arose from the fatal stabbing of U.S. citizen Ari Yoel Fuld in a 2018 terrorist attack outside a shopping mall in the West Bank. His widowed spouse and his children filed suit in the Southern District of New York against the PLO, which conducts Palestine’s foreign affairs and serves as a Permanent Observer to the United Nations on behalf of Palestinians, and the PA, which is the non-sovereign and interim governing body of parts of the Gaza Strip and the West Bank. The Fulds allege that, because the PLO and PA incentivized and assisted the terrorist act that led to the fatal stabbing, monetary damages should be awarded against both defendants under the remedial provisions of the Anti-Terrorism Act (ATA), which authorize compensation to United States nationals injured “by reason of an act of international terrorism” from “any person who aids and abets, by knowingly providing substantial assistance” to the perpetrator of the attack.

But the PLO and the PA moved to dismiss the Fulds’ suit for lack of personal jurisdiction. Although Congress enacted the PSJVTA specifically to authorize jurisdiction over the PLO, the PA, and any successor or affiliated entities in suits under the ATA in federal court, the defendants urged that the PSJVTA’s jurisdictional provisions deeming their statutorily defined post-enactment conduct as a “consent” to personal jurisdiction conflicted with the dictates of the Fifth Amendment’s Due Process Clause.

Congress enacted the PSJVTA in response to the success of the PLO and the PA in having other overseas terrorist-activity suits under the ATA dismissed on jurisdictional grounds. One of those cases, Waldman v. Palestine Liberation Organization, was also before the Second Circuit, now for the third time, and was decided on the same day as Fuld. Almost twenty years ago, the Waldman plaintiffs had likewise sued the PLO and the PA under the ATA for money damages for providing material support for terrorist attacks. Although the Waldman plaintiffs eventually obtained a substantial jury verdict, the Second Circuit reversed in Waldman I, 835 F.3d 317 (2d Cir. 2016), on the basis that the PLO and the PA were not amenable to jurisdiction. While acknowledging that sovereign foreign governments lacked due process rights, the Second Circuit concluded that, because neither the PLO nor the PA were recognized by the United States as sovereign states, they were protected by personal jurisdiction due process limits, which are “basically the same under both the Fifth and Fourteenth Amendments.” The only relevant difference, according to the Second Circuit, is that the Fifth Amendment allows the consideration of the defendant’s contacts throughout the United States, rather than just with a particular state.

In the absence of consent, these jurisdictional limits require that foreign defendants such as the PLO and the PA have the necessary contacts with the United States to support general or specific jurisdiction. General jurisdiction exists where the defendant is “at home,” allowing plaintiffs to bring all claims, wherever they arose. But the PLO and the PA are “at home” only in Palestine, the headquarters and nerve center of both entities. Specific jurisdiction occurs when the defendant establishes purposeful contacts with the forum and the dispute “arises from or relates to” the defendant’s forum contacts in a manner that satisfies certain standards of fairness. But the overseas terrorist activities of the PLO and the PA were neither related to nor aimed at the United States—the random attacks only affected U.S. citizens because they were victims of indiscriminate violence abroad, which the Second Circuit held in Waldman I was not sufficient for specific jurisdiction.

Statutory Jurisdictional Consent

Congress initially responded to Waldman I, and similar holdings in the District of Columbia Circuit dismissing cases under the ATA against the PLO and the PA for lack of personal jurisdiction, with the Anti-Terrorism Clarification Act of 2018 (ATCA). The ATCA provided that if, after more than 120 days of the statute’s enactment, a defendant accepted certain forms of assistance from the United States or maintained an office within the jurisdiction of the United States under a waiver of a federal statute barring the PLO from operating such an office, the defendant would be deemed to have consented to personal jurisdiction in an ATA suit, regardless of when the international terrorism occurred or suit was filed. But, within the 120-day period, the PLO and the PA formally terminated their acceptance of any relevant assistance from the United States and shut down the PLO’s only office operating pursuant to a federal statutory waiver. Based on these actions, neither of the ATCA’s predicates were met. The Second Circuit in Waldman II thus refused to recall its mandate from Waldman I that dismissed the suit for lack of personal jurisdiction. See Waldman v. Palestine Liberation Org., 925 F.3d 570 (2d Cir. 2019) (per curiam), cert. granted, judgment vacated sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020) (mem.).

While petitions for writs of certiorari were pending before the Supreme Court in Waldman II and a case from the D.C. Circuit, Congress tried again for a consent-based solution, this time with the “Promoting Security and Justice for Victims of Terrorism Act of 2019.” The PSJVTA, which applies just to the PLO, the PA, and successor or affiliated entities, deems that those entities consent to personal jurisdiction if, after a specified number of days from the statute’s enactment, they either (1) make a direct or indirect payment to an imprisoned terrorist or a member of his family after his death, or (2) conduct activities while physically present in the United States or maintain any facilities or establishments within the United States other than those devoted exclusively to conducting official business of the United Nations or related to engagements with United States officials or legal representation. Congress provided that this new act should “be liberally construed to carry out the purposes of Congress to provide relief for victims of terrorism” and should apply to “any case pending on or after August 30, 2016,” which meant it applied to both the Waldman and Fuld litigation.

Congress thus sought in the PSJVTA to rely on a third pathway to personal jurisdiction: consent. Defendants may consent to personal jurisdiction, either by agreement or litigation conduct, in a forum where they would not otherwise be subject to personal jurisdiction. As we have discussed previously on Prawfs, the Supreme Court held in Mallory this summer that the Due Process Clause was not violated by Pennsylvania employing a consent theory to uphold jurisdiction over an out-of-state corporation registering to do business in the state, even when that corporation would not otherwise be subject to either general or specific jurisdiction. Congress similarly sought to base jurisdiction over the PLO and the PA on their deemed consent to jurisdiction in engaging in certain specified activities.

But the PLO and the PA responded in Fuld and Waldman that the statutory jurisdictional predicates in the PSJVTA did not signal an acceptance of or an intent to submit to the jurisdiction of the United States. While a variety of legal arrangements may constitute the necessary consent, the defendants maintained that the predicate activities deemed “consent” under the PSJVTA were unrelated to the litigation or any submission to the judicial power of courts in the United States. In other cases relying on this jurisdictional basis, the defendant’s consent was predicated on either litigation-related conduct or the acceptance of some in-forum benefit conditioned on amenability to suit in the forum. But neither of those, the defendants argued, were present under the PSJVTA. First, foreign payments made to foreign nationals were neither an in-forum benefit nor related to litigation conduct; and second, the United States had not provided any forum benefit for the alleged United States activities of the PLO and the PA—rather, any such activities were illegal under federal law. This meant, according to the defendants, that the PSJVTA deemed activities consent in a manner that violated their due process rights.

The Second Circuit agreed. We will explore the Second Circuit’s rationale and its implications for the future of consent jurisdiction in our next post.

Posted by Howard Wasserman on September 18, 2023 at 09:31 AM in Civil Procedure, Judicial Process | Permalink | Comments (0)

Thursday, September 14, 2023

Judicial supremacy and proceduralism

I seem to be spending the day reacting to Gerard. He wrote this at Balkin, pointing out that many secretaries of state will not act in the absence of a SCOTUS ruling and will not take the steps necessary to obtain that ruling. Much commentary (especially from non-legal-scholars but also from lawyers who should know better) has taken the tone of "no secretary of state can keep Trump off the ballot, only SCOTUS can."

The problem strikes me as a combination of judicial supremacy, misunderstanding procedure and how cases come to the Court, and an assumption that everything is an EpY action in federal district court. Accepting the Court must have the last word, that is the end of the game; something must happen at the beginning, when someone does something to trigger judicial review. The pervasive lack of understanding (or bad faith) means no one will understand or accept when a Secretary of State excludes Trump from the ballot to create the opportunity for litigation. Nor will they accept the case going through state rather than federal court. Everyone seems to be waiting for a random person to file suit in federal court, ignoring the obvious lack of standing.

Posted by Howard Wasserman on September 14, 2023 at 02:17 PM in Howard Wasserman, Judicial Process | Permalink | Comments (1)

Saturday, September 09, 2023

The Procedure of Trump (Updated)

Someone on the Civ Pro listserv suggested that one could structure a Civ Pro/Fed Courts course around Donald Trump and his orbit. Today's lesson: Removal and Remand.

1) Judge Jones remanded the Georgia prosecution of Mark Meadows, concluding that Meadows did not satisfy the requirements  of federal-officer removal because neither the charged conduct nor the alleged overt acts related to his office or his official duties (the court never reached colorable federal defense). The court emphasized the absence of an executive role in state elections and the Hatch Act's limitations on federal employees' partisan activities; these defined the outer limits of Meadows' job. Because Trump, and thus Meadows, cannot play a role in state elections, everything Trump did post-election (the Raffensberger phone call, etc.) involved the campaign and his efforts as a candidate, which the Hatch Act places beyond Meadows' official functions. Remand of a § 1442 removal is appealable, and Meadows has appealed.

2) A group of citizens, represented by C.R.E.W., filed suit in Colorado against Trump and Colorado Secretary of State Jena Griswold, seeking to exclude Trump from the ballot under § 3 of the 14th Amendment; Trump removed. Derek Muller and Will Baude agree on the predicted outcome--the federal court will remand because, while there is arguably jurisdiction under § 1331,  plaintiffs lack Article III standing. I will add the following:

    • I think the § 1331 argument is pretty strong. To arise under federal law under Grable & Sons, the federal issue must be necessarily raised, actually disputed, substantial (meaning important to the federal system at a whole), and capable of resolution in federal court without disrupting the federal-state balance approved by Congress. The first three seem obvious here. The last prong looks, in part, to how often the type of case will arise and how many similar cases will land in federal court. So a quiet title action turning on the validity of a federal tax lien will not come up that often; negligence claims based on drug misbranding and attorney malpractice arising from patent work will come up frequently. A dispute over candidate qualifications, especially whether a candidate engaged in insurrection or rebellion, seems more analogous to the tax lien case.

    • The case will be remanded on standing. An individual voter does not have more than a generalized grievance as to who appears on the ballot. Discussions of how to enforce § 3 never mention the several unsuccessful 2008 lawsuits by random citizens seeking to declare Obama ineligible as not born in the U.S.; all were dismissed for lack of standing.

    • The removal problem arises because of the plaintiff's procedural choice to include Trump as defendant. Why did they do that? The relief sought--a declaration of ineligibility and an injunction preventing his inclusion on the ball0t--runs against the secretary, not Trump. Trump has an interest in the case that the secretary may not adequately protect and he may be entitled or permitted to intervene to protect that interest. But there does not seem to be any reason to include him as a defendant in the first instance, which also gave him the power to remove.

Update: Trump filed an unopposed motion to remand after consulting with plaintiffs and recognizing that they lack standing and that removal was procedurally improper (Griswold did not join or consent to removal but had been served, contrary to Trump's initial representation).

3) Paulsen/Baude argue that § 3 is self-executing. The responses/critiques have confused effectiveness with enforcement. Their point is that § 3 creates an extant and enforceable legal obligation--one that does not require congressional action and has not been rendered a nullity by past congressional action or by desuetude. But, as with any legal provision, someone has to enforce that obligation, which usually leads to court; Paulsen/Baude do not claim otherwise. The question is how that occurs, which forms a big piece of Akhil Amar's two-part discussion with Baude and Paulsen). Paulsen in Part II gets to what I believe the right answer--some enforcement action by a state official, followed by some state-law proceeding in state court, followed by (often expedited) review to the state supreme court, followed by SCOTUS review. SCOTUS will get the last word, but the case arrives from state court (as Bush v. Gore did); none of this will begin--or be removed to--federal district court. And, again, that is perfectly fine and consistent with ordinary litigation. As with the controversy around S.B. 8, it is simply not true that the sole or necessary process for constitutional adjudication is an offensive EpY action in federal court.

Posted by Howard Wasserman on September 9, 2023 at 07:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, September 02, 2023

Fugitive abortion seekers

The Washington Post reports on the latest exclusive-private-enforcement efforts from Mark Lee Dickson and Jonathan Mitchell--county and city ordinances prohibiting the use of local roads to obtain a legal out-of-state abortion, enforced through private lawsuits. I have questions.

How does private enforcement work here and how does a plaintiff have the basic information to bring suit? How can a plaintiff know what roads someone took to leave the state? Is he going to follow the woman and her driver through town (and when does that become stalking)? Are they given interdiction authority to find out where someone is heading (which strengthens the argument that "any person" acts under color)? Will local law enforcement help (which provides a target to sue in an offensive pre-enforcement action)? How can a plaintiff know they took these roads on the "abortion trip" as opposed to some other time. What constitutes one trip and how do you identify the purpose of that trip--if a person drives on those roads on Monday but does not leave the state for the procedure until Wednesday, has she used the roads to obtain the abortion?

The hard part for rights-holders facing these laws is creating litigation and the opportunity to challenge the law as a defense. Anti-choice activists do not want to sue, because they do not want to provide that opportunity, since the law is clearly constitutionally invalid. Someone needs to be Estelle Griswold. A friendly plaintiff action should be easy heree--"any person" includes anyone anywhere who knows the route a woman took out of state, including any person who supports abortion rights. Or how about a caravan of cars driving through town at once, daring someone in town to sue. Again, it takes time. But these ordinances seem to impose less of a chill than S.B. 8 did.

These private-enforcement laws (what Jon Michaels and David Noll call "vigilante federalism" and "subordination regimes") have, thus far, remained the province of red states. Despite suggestions about the rights blue states could target (something Rocky and I look at in a potential new paper), only California has done something, a half-hearted regulation of ghost guns and assault weapons. This story reminds of another feature of performative cultural-war legislation--the divide between states and municipalities. Red states (notably Florida and Texas, of course) use state law to override the local laws and policies of blue municipalities within the state--Ron DeSantis suspended two elected Democratic states attorneys; Florida's various anti-woke laws aim to override local school-board policies; Texas has stripped cities of the power to establish immigrant sanctuary cities. The Post article mentions blue-state conservative cities near a red-state border (for example, New Mexico cities near the Texas border or Illinois cities near the Missouri border) prohibiting abortion clinics from operating there, thus eliminating a destination for out-of-staters seeking services. Yet Democratic state governments have not taken similar steps to strip municipalities of their local power.

Posted by Howard Wasserman on September 2, 2023 at 02:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, August 31, 2023

Judicial departmentalism in Tennessee (Updated)

In June, a judge in the Western District of Tennessee declared the state's drag-show ban constitutionally invalid and enjoined the Shelby County D.A. from enforcing the law. The D.A. of Blount County, located in the Eastern District of Tennessee, announced intent to enforce the law there with the help of police, including against the organizers and hosts of an upcoming pride event. Organizers of the upcoming event and a drag performer sued local officials and the state A.G. Chris Geidner and FIRE are dismissive of and outraged by the actions of the Blount County officials.

Update: A judge in the Eastern District issued a TRO that includes prohibiting defendants from interfering with Blount Pride Fest, scheduled for Saturday. More below.

Let's break this out.

On the surface, this is an easy case, without full-bore judicial departmentalism. The W.D. Ky. order "ENJOINS District Attorney Steven J. Mulroy from enforcing the AEA within his jurisdiction in SHELBY COUNTY, TENNESSEE." The Blount County prosecutor was not a party to that case and not bound by the injunction. Nor should he be bound by the declaratory judgment, which declares the rights of "the parties." Accepting that non-judicial actors must adhere to judicial precedent (i.e., rejecting departmentalism in favor of judicial supremacy), district court opinions do not establish binding precedent, within the district and certainly not outside the district. The district court's declared the law invalid in general. But the law of precedent dictates the effect of its declaration beyond the parties; the law of precedent says district court decisions are persuasive on other courts. There is no good argument that a district court opinion should have greater effect on executive officials than on other courts. And in a judicial-departmentalist world (where judicial precedent does not bind non-judicial actors), the fact that the precedent comes from an out-of-district trial court means the Blount County DA does not even face the guaranteed judicial loss (and attorney's fees) as if he pursued new enforcement in the face of binding judicial precedent.

On the surface, things are proceeding as they should. One group of rights-holders successfully sued to stop enforcement by one official against them; a second executive official pursued enforcement against a second group of rights-holders; the second group of rights-holders sues the second executive and raises the same (strong) constitutional arguments, including pointing to the prior district court opinion as persuasive authority; and we see what happens. My guess is they would get a TRO or preliminary injunction allowing this weekend's event to occur, have the law declared invalid (because First Amendment law is clear, even without the prior district court opinion on this law), and recover attorney's fees.

Here is where the case gets complex. Blount Pride, the plaintiffs in the second action, argue (¶¶ 85-90 in the Complaint) that the Blount County DA and all state executive officials are bound by the prior DJ. They argue that county DA's act as the state in enforcing state laws, thus the DJ against the Shelby County DA binds all state officials who enforce this law on behalf of the state--the AG (who litigated the first case, although not named as a party) and every county DA. Although they do not specify, I think they are using this for a preclusion argument.

But the scope-of-judgment problem is not about the defendants bound in the first case--it is about the plaintiffs protected in the second case. The first action declared the rights of and protected that plaintiff, Friends of Georges. Although the injunction used typically sloppy language, we know that DJ's declare the rights of "the parties" and injunctions should extend no further than necessary to protect the plaintiff--again, so long the plaintiff (and its members*) are protected, the injunction goes no further. The plaintiffs thus argue that the prior DJ as to Friends of George dictates to every official who enforces the anti-drag law that it is constitutionally invalid and cannot be enforced against Blount Pride.

[*] See also Michael Morley and Andrew Hessick's forthcoming piece arguing against associational standing.

This argument fails on three points:

    1) If Blount Pride believes it is protected by the existing WD Tenn. judgment, its move should be to return to that court for further relief where the DJ has been ignored. My guess is Blount Pride knows its rights had not been declared.

    2) Given # 1, this lawsuit attempts to use non-mutual preclusion--a new plaintiff, not party to the prior case, using preclusion against a prior party. But governments (and government officials sued in their official capacities) are not subject to non-mutual preclusion.

    3) The preclusion argument ignores Doran--"[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute." That is this case. The prior DJ and injunction stops enforcement of the anti-drag law "with respect to" Friends of George and its members; it cannot directly interfere with enforcement of the anti-drag law against anyone else, such as Blount Pride. Even if every DA and the AG were parties to the first case, that judgment has no direct effect on the efforts to enforce the law against new individuals.

Michael Dorf wrote a post considering what it means to say § 3 is self-executing:

However--and this is an obvious but crucial point--that does not mean that it is literally self-executing. State and local election officials who attempt to place Donald Trump's name on a primary or general election ballot will not find their hands stayed by a mysterious force field or a lightning bolt.

Section 3 is self-executing in the way that other self-executing provisions of law are, not in the way that laws of nature are. To say that Section 3 is self-executing is to say only that government officials can and indeed must give it effect even absent implementing legislation.

I would add that effect will be given when disputes--likely multiple disputes--over attempted application reach court for the court to resolve.

We can say the same about the First Amendment. No mysterious force field or lightning bolt stops the Blount County DA from attempting to enforce the anti-drag law, even if the First Amendment protects drag performance. When the DA and a drag performer dispute whether the law is valid, the case must move to court to resolve that particular dispute. That is what happened when Friends of George disputed with the Shelby County DA. It now happens separately when Blount Pride disputes with the Blount County DA.

Again, things in Tennessee are playing as they should within the judiciary--certainly if you are a judicial departmentalist and even if you are a judicial supremacist. Adjudicating constitutional rights requires litigation. That process is long and cumbersome and not as clean as the First Amendment "protects your right to dress and perform in drag" and "First Amendment protections apply everywhere." But it gets where we are supposed to be.

Update: Two words on the new TRO. First, as always, the court overdid the order, prohibiting defendants from "enforcing, detaining, arresting, or seeking warrants or taking any other action to enforce or threaten to enforce T.C.A. § 7-51-1407 pending further order of this Court," without limitation to the plaintiffs (the festival organizers and one drag performer). This is not a class action and such breadth is not necessary to protect these plaintiffs.* Second, the court in no way believed that the prior district court opinion controlled. The court called the opinion "well-written, scrupulously researched, and highly persuasive," "well-reasoned," providing "an adequate basis for [a] decision," and reflected the analysis "the Court is likely to adopt" in this case. But--contrary to plaintiffs' arguments and shouts from FIRE, Geidner, and others--defendants' enforcement threats did not violate or ignore that order, nor did defendants do anything a priori wrong in threatening enforcement.

[*] A few years ago, I spoke (with Suzette Malveaux) to the National Association of Attorneys General about universal injunctions. A point I thought of, but did not get a chance to make, is that they, among all litigants, should be circumspect on this. While they may love universality when suing the federal government, universality could and would come back to bite them as defendants in challenges to state law. That point, unmade, stands.

Posted by Howard Wasserman on August 31, 2023 at 10:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 30, 2023

More merits and standing overlaps

The Third Circuit rejected a First Amendment challenge to Pennsylvania's anti-discrimination/anti-harassment PR rule (ABA Model Rule 8.4(g)), concluding that the lawyer plaintiff (Zachary Greenberg) lacked standing. Given the definitions of harassment and discrimination, the plaintiff's planned speech (teaching CLE classes in which he would oppose hate-speech bans, repeat racist epithets in discussing cases, support due process protections for people accused of sexual misconduct, and support the right to express intolerant racist views) did not violate the rule and did not face a credible threat of enforcement.

This strikes me as good illustration of standing constitutionalizing an obvious merits issue. The plaintiff did not suffer an injury because his planned speech did not violate the rule and thus he did not risk liability for it. But that is the same as saying the rule does not violate his First Amendment rights by imposing liability on him for his protected speech. In fact, that is how the First Amendment would be raised and adjudicated in an enforcement action--the state initiates disciplinary proceedings against Greenberg; Greenberg defends by arguing that his speech does not constitute harassment or discrimination or that if it does, the statute is constitutionally invalid because his speech is protected by the First Amendment; and the disciplinary proceeding fails on the merits (either before the Bar or before the Pennsylvania Supreme Court).

If that analysis goes to the merits in an enforcement action, it should go to the merits (and not jurisdiction) in a pre-enforcement action. A pre-enforcement action allows a rights-holder to determine her substantive rights without having to violate the law and risk sanction. That pre-enforcement action should mirror the enforcement action. If jurisdiction is not an issue in one, it should not be in the other. The counter might that the question of the scope of the law and whether it reaches speech (the first defense in an enforcement proceeding, independent of the constitutionally protected nature of the speech) is a question of state law and that the federal court lacks jurisdiction to address state law. But courts do not fine-grain the standing analysis in that way.

Greenberg tried to argue that he would alter his speech based "on his perception of the social climate, which he sees as infested by '[w]idespread illiberal impulses for ‘safetyism,’”" citing studies of public distaste for offensive speech. But the court refused to find injury, traceable to the rule, from Greenberg's discomfort in speaking freely or in losing professional reputation, job opportunities, and speaking opportunities. This is important. The PR rules should not sanction lawyers for protected-but-obnoxious speech. The First Amendment should have nothing to say about social consequences for being publicly obnoxious.

Posted by Howard Wasserman on August 30, 2023 at 12:23 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 23, 2023

303 Creative as "fake case" (Updated)

I have never understood the "fake case" criticism of 303 Creative. The fact that Smith had never designed a wedding site or been asked to do so and the supposed fake email request from a same-sex couple struck me as red herrings.

In attempting to write (without success, thus far) on the case, I looked at the lower-court orders. The district court denied standing because Smith could not show that any couple, much less a same-sex couple, would seek her services (this is where the notorious email comes in). The court of appeals reversed, relying on Susan B. Anthony List, the controlling case on pre-enforcement First Amendment challenges that the district court did not cite. SBA adopts a forgiving approach, at least in First Amendment cases--plaintiff must show "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Smith satisfied the first prong because "[a]lthough Appellants have not yet offered wedding website services, Ms. Smith has been employed as a graphic and web designer in the past. Appellants have also provided clear examples of the types of websites they intend to provide, as well as the intended changes to 303 Creative's webpage." The court would not assume that, if Smith offered the intended wedding-site services, no customer would request her services or that only opposite-sex couples and no same-sex couples would do so. To require the latter proof would eliminate pre-enforcement challenges, requiring rights-holders to violate the law and create active enforcement situations. That all seems right to me.

Standing's ideological drift increases daily--the left wants to ratchet it up and the right wants to swing open the federal courthouse doors. But imagine A wants to open a drag club in Tennessee--she has not begun business, but has run clubs in the past and lays out her business plan for the club. I imagine critics of 303 who support LGBT+ rights would want that business owner to be able to file a pre-enforcement action and not be forced to open the business, put on a show, and have some unknown customer complain.

Update: As if on queue , Richard Re has an essay (forthcoming in Notre Dame Law Review Reflections) showing why the criticisms are wrong, if one accepts pre-enforcement litigation, and how the case indicates an ideological realignment on standing.

Posted by Administrators on August 23, 2023 at 01:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, August 19, 2023

Fifth Circuit takes injury where Fletcher and Newsom would not

The Fifth Circuit found the 2016 and 2021 FDA expansions of Mifepristone use unlawful under the APA; the majority upheld the original approval, over a dissent from Judge Ho. The case was brought by an organization of anti-choice emergency-room doctors; the court found associational standing based on probabilities that some member doctor might treat someone suffering from complications of Mifepristone, requiring the member to violate his conscience, deal with that patient rather than other patients, or suffer the mental and emotional stress of treating them. Ho goes a step further, finding doctors suffer aesthetic injuries from being deprived of the happiness of delivering babies--just as environmental activists are deprived of the happiness of seeing the Nile crocodile. In essence, the Fifth Circuit recognized--at least for anti-choice doctors--standing based on opposition to government policy where the policy's downstream effects cause them some anguish. Adam Unikowsky takes down the absurd--and unlimited--standing analysis.

I want to add a slightly different path on this point.

In arguing that "injury" cannot be detached from law (and that standing is about the merits of a claim, William Fletcher in his foundational article and Judge Newsom of the 11th Circuit in a 2021 concurring opinion offer versions of a case everyone recognizes as an insufficient legal injury. Fletcher offers A, who loses sleep over homelessness and donates money (which he would otherwise not do) to aid the homeless; Newsom offers B, who loses sleep over the federal deficit and purchases sleeping pills to help her sleep. Each then offers the identical comparator of C, a homeowner who loses sleep because of a barking dog and spends money on something (ear plugs, sleeping pills, thicker windows) to help.Everyone agrees that C has standing because she suffered a physical and monetary injury. And everyone agrees that neither A nor B has suffered an injury courts would recognize as establishing standing. But, Newsom and Fletcher argue, A, B, and C suffer identical injuries--loss of sleep and expenditure of money to alleviate the cause of the sleeplessness. We thus cannot attribute the different outcomes to the presence or absence of an injury; the difference arises from what what the substantive law recognizes as a violation of that law and of the rights created by that law-as Newsom puts it, "whether his legal rights have been infringed and whether the positive law authorizes him to sue for that infringement."

The Fifth Circuit decision recognizes the injury that Newsom and Fletcher agreed courts never would recognize--the government adopted a policy (allowing the sale and prescription of Mifepristone by willing doctors to willing patients) that worries other doctors and that causes these doctors to engage in some conduct (treating patients they would rather not treat for conditions they would rather not treat).

When I teach standing, I hit the theme of the ideological drift of standing--from a doctrine that conservative judges wielded strictly to stop liberal cause litigation to a doctrine hat interfered with conservative cause litigation to a doctrine many conservative judges want to discard in the name of conservative cause litigation. Between this case and Biden v. Nebraska, as well as Alito's insistence that there was standing in California v. Texas, we have many examples to choose from.

Posted by Administrators on August 19, 2023 at 02:55 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, August 16, 2023

More pedantry

Defendants do not move to remove cases to federal court and do not file motions for removal. They remove them to federal court through a notice of removal--telling the federal and state courts that this case is in federal court. In other words, Mark Meadows is not "attempting" or "wanting" to move his Georgia prosecution to federal court; that prosecution is now pending in the Northern District of Georgia. It then is on the State to challenge removal through a motion for remand and for the courts to agree with and grant that motion, ordering the case returned to state court.

Posted by Howard Wasserman on August 16, 2023 at 06:59 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)