PrawfsBlawg

Judicial departmentalism in action

Idaho wants to prevent trans people from changing their gender markers on state documents. Here is how it has gone:

• Pre-2018: State regulations prevent trans people from changing markers.

• 2018: Federal court declares reg violates equal protection

• 2020: State enacts legislation codifying regulation

• 2021: Federal court declares legislation violates equal protection

• 2022: Court orders state to pay $300,000 in attorney's fees.

Folks are giving Idaho a hard time, but this is how it should work. The state pursued its constitutional vision, even contrary to judicial precedent. The court's competing view prevailed in litigation and the state adheres to the adverse judgment. And the court awarded the state to pay attorney's fees to the prevailing plaintiffs. That the court's view will prevail in litigation and that the court can award fees can/should place a drag on states pursuing their departmentalist preferences--states know they will lose and lose money.

It is unwieldy. But it is how the system should work.

Bad lawsuits from the left

Florida Governor Ron DeSantis suspended Hillsborough County (Fla--includes Tampa) state's attorney Andrew Warren from office, pursuant to his constitutional power to suspend any state officer not subject to impeachment. The basis for the removal is Warren's intention not to prosecute for receiving or providing abortions and gender-affirming healthcare, which DeSantis described as a refusal to enforce state law.  Warren filed suit in federal court; he alleges the suspension violates the First Amendment (because Warren has merely spoken about exercising his discretion not to prosecute, but has not been presented with or done anything with any live cases) and the Florida Constitution (because DeSantis did not establish proper grounds for suspension).

This is a bad lawsuit. Like many lawsuits from the right, it is partly for show, to look strong in standing up to the other side. Warren gave a press conference talking about how DeSantis abused his power and acted undemocratically in removing a twice-elected official who received more votes in Hillsborough County than DeSantis had. That rhetoric does not differ from Republican cries during Trump's impeachments. It seems to me there are two problems with the suit, at least in federal court.

The First Amendment claim fails under Garcetti and the patronage cases. Accepting that DeSantis retaliated for Warren's expression and nothing he did in office, Warren is a policymaking official and he spoke as part of his formal job duties; the First Amendment does not protect such speech from employment consequences. DeSantis is not Warren's "boss" and that Warren owes his job to the county voters and not to DeSantis or anyone under DeSantis' control. But DeSantis enjoys a (limited) supervisory role over Warren. Job-related speech--a promise as to how he intends to perform his official functions--is not protected as a basis for suspension if it constitutes misfeasance, neglect of duty, or incompetence. If a policy-level employee can be fired for cause for job-related speech without First Amendment recourse, a person can be suspended for job-related speech that provides a legal basis for removal without First Amendment recourse.

Warren's real argument is that his speech cannot constitute misfeasance, neglect, or incompetence. That is a question of state law that a federal court will not (and arguably should not) touch. This is a paradigmatic Pullman abstention case--if there were a good First Amendment claim, it can be mooted by an open-and-unresolved state law issue of whether Warren's conduct met the state-constitutional standard* for removal, which a state court should resolve in the first instance. At worst, I would expect the district court to certify the state issue to the Florida Supreme Court. Pullman abstention and certification are disfavored in First Amendment cases because of the chilling effect in the litigation delay, but Warren's First Amendment claim is  weak and the state issues are uniquely central and dispositive. Of course, Warren does not want to be in state court, especially not the Florida Supreme Court. But that is why we have these doctrines.

[*] Federal courts do not abstain from federal constitutional issues in deference to a parallel state constitutional issue. They do abstain in deference to a unique state constitutional issue.

I do not know much about Warren, but he appears to have political aspirations and is willing to take on the current state power. Which is great. But political fights are no more proper in federal court when undertaken by a politician I agree with for a cause I support.

Update: A reader offers another reason the Court cannot hear this case--a plaintiff cannot bring a § 1983 or Ex parte Young claim for a violation of state law and a federal court cannot order state officials to follow state law.

Standing sucks up more stuff

The district court dismissed the lawsuit by three Republican House members challenging security screening (and the fines imposed for ignoring the screening) in the House building following January 6. The court held, properly, that establishing the screening mechanisms and sanctioning members for violating those mechanisms were protected from judicial review by the Speech or Debate Clause--they involve internal rules governing how the legislative body operates and conducts its business.

But the court based the dismissal on lack of standing--plaintiffs lacked standing because the challenged conduct (and the actors who engage in that conduct) cannot be questioned in any other place. But that is not how the Clause is understood. That the challenged conduct is legislative means it cannot form the basis for constitutional challenge in court; it does not mean the plaintiffs did not suffer an injury fairly traceable to some conduct.

It remains stunning how every constitutional and procedural issue gets sucked into the standing/jurisdictional framing.

Facial invalidity and universality

The concept of facial invalidity confounds the universal-remedy debate. The argument goes that if a court declares a law facially invalid--invalid as to all persons, beyond the plaintiff--then it must be able to enjoin enforcement as to all persons, beyond the plaintiff. The response rests on the judgment/opinion distinction. The judgment remains limited to the parties, because that is all a court can do. The opinion, explaining why the law cannot be constitutionally enforced against anyone else, has precedential effect--telling government and the courts what must (if binding precedent) happen in the next case if the government attempts to enforce. The executive may, in its departmentalist discretion, take that chance, although precedent tells him the state will lose in court. But a court cannot "invalidate" a law, therefore it certainly cannot "facially invalidate" a law.

The Second Circuit displays this confusion in Picard v. Magliano, a challenge to a state law prohibiting certain protests within 200 feet of a courthouse. The district court declared the law facially invalid and issued a (what I label) a universal injunction, prohibiting all enforcement of the law. The Second Circuit declared the law invalid as to the plaintiff (who wanted to hand out flyers about jury nullification), which the state conceded, and affirmed the injunction prohibiting enforcement of the law against him. But it declared that the law was not facially invalid because it was capable of constitutional application, thereby vacating the injunction prohibiting enforcement beyond the plaintiff.

That last move makes no sense because the initial injunction makes no sense. The district court never should have enjoined enforcement beyond the plaintiff and the Second Circuit should have narrowed the injunction for that reason. The facial validity of the law is about the scope of precedent and future enforcement.

You need 5 to do anything

An interesting discussion on the Con Law Prof listserv this week about Justice Brennan's famous "rule" for his clerks that you need five to do anything. There are several ways to interpret that statement, suggesting different things about the Court and its actions.

The first is "if we have 5, we can do whatever we want." This suggests judicial lawlessness, power politics to impose policy preferences without regard to text, precedent, or law. It also reflects the accusation some have leveled against the current majority--they are doing what they want as policy because they can. And defenders of the Court respond that they are following Brennan's rule. And as Eric Segall would say, there is no law to be found anywhere.

The second, urged by several former Brennan clerks on the listserv, is "it takes 5 to do anything." Stated differently, you only can do anything with 5. This suggests humility in working within a multi-member Court--you need to get 5 on board, which might mean compromising and settling for less than you would like. But Brennan remained committed to lawyerly tools and did not advocate pure policy goals.

The third, from another clerk, was a statement of resignation in a case he lost--"well, they have 5, they can do what they want." Again, thsi does not suggest judicial lawlessness or accusing the other side of ignoring law in favor of personal goals. It reflects reality--"they have a different view than I do, but they have 5 and I do not."

Undermining judicial review

In my post on California's SB 1327, I noted Ilya Somin's post . He quoted the ACLU's May letter objecting to the proposal, in which it said the bill "creates an end run around the essential function of the courts to ensure that constitutional rights are protected."

This criticism--and it is a common one--misunderstands the procedural point. These laws do not eliminate judicial review; they shift its posture. Pre-enforcement offensive review is unavailable, pushing rights-holders into a defensive posture. A rights-holder must violate the law, get sued, and raise her constitutional right as a defense to liability. This action will begin and remain in state court, with (discretionary) SCOTUS review at the end of the process. This is recognizable as judicial review--a court passing on the constitutional validity of a law and determining whether it can be enforced--and allows courts "to ensure that constitutional rights are protected." It is wrong to say otherwise.

The problem with these laws--if there is one--is not that they bar judicial review, but that they require a less-preferable or less-ideal form of judicial review. Those who reject parity between state and federal courts do not like that litigation will begin in state court and that SCOTUS's discretionary jurisdiction may mean no federal forum. Rights-holders must "act at their peril" by violating the law and getting sued to obtain review, something they may choose not to do out of fear of liability. That creates a substantive problem--the loss of constitutionally protected activity. And it creates a procedural problem--the absence of statutory violations means "any person" will not sue, which mean the rights-holder has no opportunity for judicial review. The rights-holder also may be unable to obtain necessary binding precedent when litigating defensively. If the trial court dismisses on constitutional grounds, "any person" may choose not to appeal, taking his loss and going home until the next lawsuit, while leaving the rights-holder free from liability now but fearing the next lawsuit. Doug Laycock argued that offensive litigation provides three unique benefits--preliminary relief, prospective relief (beyond precedent), and class-wide relief--not available in defending a single suit.

These are valid criticisms of SB8/SB1327-type laws. But critics and advocates do not capture them through the simplistic "this prevents judicial review." Critics must explain why the model of judicial review the law allows is inferior and insufficient to offensive pre-enforcement litigation. Further, they must explain not why offensive pre-enforcement litigation is better, but why it is constitutionally necessary. And they must explain not why defensive litigation is worse, but why it is constitutionally insufficient. Screaming about "end runs" around judicial review does not make that case.

California goes full SB8 on firearms, sort of

SB 1327, signed by Gov. Newsom on Friday, prohibits distribution and sale of assault weapons, .50 BMG rifles, or unserialized firearms, as well as selling to people under 21. The bill prohibits public enforcement of these provisions and creates a private right of action that copies the elements of SB8--$10,000 statutory damages per firearm, injunctive relief, and attorneys fees; no fees for defendants; limited affirmative defenses.

California got the procedure right (much to my surprise), in making private enforcement exclusive and prohibiting public enforcement. The conversation around SB8 and copycats has focused on private enforcement as this powerful weapon ("bounty hunters" makes a great headline and political talking point, as someone pointed out on a listserv), as if private enforcement alone creates the bind for rights-holder that SB8 did. Private enforcement must be exclusive, otherwise rights-holders can pursue offensive pre-enforcement litigation against the responsible executive.

I am not sure how much effect this will have, beyond symbolism ("the left can play the same games as the right"). The law may not be constitutionally invalid--do the recent cases mean that states cannot prohibit any firearms, regardless of nature? The law certainly is not blatantly unconstitutional (if there is such a concept); no binding SCOTUS precedent establishes that the sale and manufacture of assault weapons or unserialized handguns is protected by the Second Amendment. The law does not target possession of assault weapons or subject owners to private suits for possessing absent an intent to give the weapon to someone else. The prohibited weapons are less pervasive and less at the core of "Second Amendment activity" than post-six-week abortions; the latter represented 90 % of Texas abortions, whereeas assault weapons are already prohibited by California law. Suits under this law are less likely to substantially disrupt ongoing seller or buyer activity.

To the extent sellers believe the First Amendment protects unregulated purchases (and thus sales) of assault weapons, this law may not hamstring them in challenging it. A seller could challenge the criminal prohibition in a pre-enforcement action against the government, obtain (it hopes) favorable precedent, then use that precedent to defend civil suits under the new law (an invalid ban would be as violative of the Second Amendment regardless of enforcement system). Ultimately, this looks less like SB8 and more like California's consumer-protection scheme pre-2004, in which laws prohibiting misleading statements could be enforced by the government or by "any person" civil litigation, leaving possible pre-enforcement offensive litigation in place.

I think the real "lefty" answer to SB8 is the one Rocky and I hypothesized--a prohibition on racist speech, exclusively privately enforced. That would reach a wide swath of likely protected activity in the way SB8 did, without allowing for pre-enforcement judicial review.

Immediate Update: Ilya Somin has thoughts. He argues the scope of potential defendants is quite broad and thus the law could have more effect than I suggest.  And he continues to urge that offensive litigation should be available against the sheriff who would enforce any judgment (we argued this fails for the same reason as the clerks-and-judges theory). Although to the extent one of the conservative justices would abandon procedural principle when the threatened substantive right is one they like, Ilya provides them the path.*

[*] To be clear, I am not accusing Ilya of inconsistency--he made the same argument about SB8 as about SB 1327. I am suggesting one of the WWH majority could use this to put a fig leaf over inconsistency

Snap Relocation

Monet v. Tesla, from ND Cal. This is a products-liability claim alleging defects in Tesla's "autopilot" system. The plaintiffs are Arizona citizens. When the lawsuit was filed on November 16, 2021, Tesla was incorporated in DE and headquartered in Palo Alto, CA. On December 1, 2021, Tesla famously moved its headquarters to Texas. On January 4, 2022, plaintiffs served Texas. Tesla removed on February 2, 2022.

Plaintiffs moved to remand, citing the forum-defendant rule. The court denied remand, relying on § 1441(b)(2)'s "properly joined and served" language. According to the court, the forum-defendant rule bars removal when the defendant is local at the time of service and removal. It further said that the rule that citizenship is determined at the time of filing applies to determining whether there is diversity jurisdiction (which is undoubtedly the case here, regardless of where Tesla has its headquarters), but not to the non-jurisdictional limit of § 1441(b)(2).

This makes no sense.

Diversity jurisdiction locks citizenship at the time of filing; diversity removal should follow that. A case is removable if it could have been filed in federal court in the first instance, which is determined by citizenship at the time of filing. Post-filing citizenship changes cannot create or destroy federal jurisdiction or make a case removable that had been non-removable for lack of jurisdiction. It should follow that post-filing citizenship changes should not make removable a case that was not removable for non-jurisdictional reasons, such as presence of a forum defendant. The time-of-filing rules eliminate the incentive to play citizenship games to create or eliminate jurisdiction, as well as simplifying the jurisdictional inquiry by focusing on one point in time. Tesla obviously did not move to Texas to make this case removable. But post-filing changes should remain irrelevant, both to avoid the temptation and to simplify the analysis.

The court errs in reading "properly joined and served" language of § 1441(b)(2) to override the time-of-filing rule. The forum-defendant rule prohibits removal when there is a forum defendant; whether a defendant is a forum citizen should be measured at the time of filing, along with all other citizenship determinations. The "properly joined and served" language in § 1441(b)(2) checks a particular type of plaintiff gamesmanship--naming but not proceeding against a straw forum defendant and denying removal to the non-forum real litigation targets. But it does so by allowing the parties to ignore the unserved forum defendant in removing, not by allowing the forum defendant to change citizenship in a way forbidden in all other contexts. Stated differently, the "and served" language punishes the plaintiff for gamesmanship or bad litigation strategy in failing to serve the local defendant, by allowing service despite the local;s presence; it does not give one otherwise-disfavored defendant a unique opportunity, available to no other party, to change its citizenship post-filing to allow otherwise-prohibited removal. And, of course, no gamesmanship could have been at work here, since Tesla is the sole defendant, thus not a strawman, and plaintiffs obviously intended to proceed against it.

The court purports to rely on binding 9th Circuit authority for the proposition that removal is proper where the defendant was not a forum citizen at the time of removal. But in Spencer, the sole non-local defendant removed; once in federal court, the plaintiff sought to add a local defendant, then argued that the case must be remanded because it now included a local defendant. The 9th Circuit held, properly, that post-removal changes to the parties that do not destroy complete diversity do not require remand. But the changes in Spencer involved the addition of a new party, not changes to the citizenship of existing parties that are ignored in other contexts.

Finally, note that the court's approach could affect personal jurisdiction. Because Tesla had its PPB in California, it was subject to general jurisdiction there (being sued where it is essentially at home). But would this post-filing citizenship change also eliminate general jurisdiction, because Tesla no longer is essentially at home in California? It should not matter in this case, since there should be specific jurisdiction because the car was likely designed and/or manufactured in California. But on different facts, the court's approach to post-filing citizenship changes can complicate jurisdictional issues.

The limits of swearing cheerleaders and an obviouly hollow victory

Free speech folks were watching this Tenth Circuit case, arising from the expulsion of a high school student for a private, out-of-school Snapchat post saying "Me and the boys bout to exterminate the Jews" with a photo of them wearing WW-II-era foreign military hats. In other words, it raised the open question from Mahanoy--out-of-school online speech not about school but raising concerns for in-school bullying, harassment, threats, and discrimination. The court reversed the grant of a 12(b)(6), holding that Mahanoy applies, the school did not have an interest in regulating this speech (despite its content), and there was no showing of substantial disruption. Good all around-and perhaps a hint that lower courts will follow Mahanoy to a sharper in-school/out-of-school line.

But the court remanded for consideration of qualified immunity, which will almost certainly be granted. The events underlying this case occurred in 2019, two years prior to Mahanoy and during a period in which courts allowed schools greater power to reach out-of-school speech that found its way into school and that could be perceived as threatening or discriminatory. Certainly there is no SCOTUS or Tenth Circuit precedent establishing that similar speech cannot be punished. So this is a small victory for the plaintiff that will not last long.

Florida Anti-Woke lawsuit proceeds, standing is weird

The district court denied (mostly) a motion to dismiss for lack of standing, finding most plaintiffs had pleaded (just barely) enough facts. In particular, the court allowed the claims by a University of Central Florida professor to proceed, rejecting the argument that profs speak as the government when teaching and so lack First Amendment for their classroom speech. (For the moment--the court acknowledged that its conclusion rested on 11th Circuit precedent that may not be long for this world). This decision comes on the heels of the district court denying preliminary injunctions as to most plaintiffs because they lack standing.

This just proves the insanity of treating standing as a jurisdictional doctrine independent of merits. If it is truly a jurisdictional issue, it must be proven by evidence, not based on the pleadings. Moreover, in denying the PI, the court decided that plaintiffs had not shown (through evidence beyond the pleadings) standing. It should not matter that plaintiffs have (barely) pleaded it if the court said they cannot prove it. For example, the court denied dismissal of the rising kindergartner's claim, even though it previously said the kindergartner had not shown an injury because the kindergarten curriculum did not include  any statutorily proscribed material.

Some jurisdictionality in Biden v. Texas

I do not do Ad Law or Immigration, so I do not much to say on the merits of Biden v. Texas. But there was some jurisdictionality thrown in, which is worth discussing.

The district court had enjoined enforcement of the Biden rescission, in violation of § 1252(f)(1), which deprives lower courts (but not SCOTUS) of"jurisdiction or authority to enjoin or restraint the operation" of certain provisions in non-individual cases. The question is whether the district court nevertheless had jurisdiction over the action as a whole, even if it could not issue the remedy it did. The majority said it did, because § 1252(f)(1) limited the court's remedial power but not its subject matter jurisdiction to adjudicate the case. Although § 1252(f)(1) uses the word jurisdiction, jurisdiction to issue a remedy is different from subject-matter jurisdiction to adjudicate. Justice Barrett dissented for Thomas, Alito, and Gorsuch.* She rejected the sharp distinction between SMJ and remedial authority, because SMJ often connects to the remedy, citing examples of the amount-in-controversy in § 1332 and redressability in standing.

[*] Sort of. The three joined all but the first sentence reading "I agree with the Court's analysis of the merits--but not with its decision to reach them." Meanwhile, Barrett did not join Alito's dissent to the merits.

Obviously, I agree with the majority. Remedies, like the merits, should be independent of adjudicative jurisdiction. The problem is Congress using the word jurisdiction carelessly to refer to available remedies in a case the court can hear. I am glad the Court read through it. As to Barrett's examples, the amount-in-controversy is not about available remedies but about the size of the case. Meanwhile, the standing example just shows--again--why standing is about merits and not jurisdiction.

Cue the converse abortion ad hoc nullification machine

The Times considers the First Amendment implications of abortion being legal in some places and illegal in others. And individual news reports about how Dobbs is being received and applied with respect to other rights and issues suggest this will not be limited to abortion.

Limiting state-created danger and a different due process violation (Updated)

An interesting Fifth Circuit decision arising from a (notorious-at-the-time) 2015 incident in which a high-school football coach ordered two players to hit the referee. (One guess which Fifth Circuit state produced this case). The district court dismissed the claim against Coach Breed; it read the claim as invoking the state-created-danger theory (Breed increased the danger to the ref by ordering the players to hit him), which the Fifth Circuit does not recognize. The Fifth Circuit reversed, saying this is not an SCD case and therefore the plaintiff may have a viable due process claim on a different theory. Unfortunately, the path and conclusion are incoherent.

The court said SCD applies when the state actor "creates" a dangerous situation resulting in harm (to conditions or to third parties), but this does not include when the state actor orders or compels the third parties to engage in some conduct. This is a fine distinction that I am not sure works. What if Breed had told the players "unless you get completely out of control, Coach and I will not punish you?" if you hit the ref. Or what if the players discussed their plan to hit the ref while Breed was present and Breed said nothing, nodded in approval, or gave verbal assent ("OK")? Each of those facts can establish SCD, because the state actor creates or enhances the danger to the plaintiff by emboldening third parties by "approving" or "condoning" third-party misconduct or  by sending a message that a third-party can act with impunity. I do not see a meaningful difference between those cases and a direct command, order, or compulsion; if the former must be addressed as SCD (and rejected in the Fifth Circuit), so must the latter.

The court offered the difference that SCD requires deliberate indifference, while the claim here involves intentional harm. But DI is the legal standard and can be satisfied by the higher mens rea of intent to cause harm. And conduct short of a command can be done with the intention to inflict harm; the cops in Dwares wanted, if not intended, the skinheads to attack the protesters, even if they did not order them to attack.

If this is not an SCD case, what is the theory of liability? What did Breed* do that violates due process besides creating a dangerous condition? Is the act of ordering or commanding third persons to engage in misconduct an independent due process violation? If so, we are back to why orders/commands are different than approval and condonations; if the former are some unique violation independent, why not the latter, in which case what is left of SCD? Is it limited to orders to assault someone? But many SCD cases involve third-party assaults. Why is a command to third parties to assault different than approving a third-party assault (again, see Dwares). We return to that unexplained and unworkable distinction between ordering third-party misconduct and approving or condoning it.

[*] The court attempts to defend the distinction by arguing that Breed acted under color when he ordered the players to act, relying on close-nexus cases. But no one doubts that and it is beside the point. Those cases are about when private actors are deemed under color; they have nothing to do with whether the government actors who ordered the conduct are under color. In fact, it is beyond dispute that Breed acted under color--a government employee acting within his official position "on the clock" while performing his formal government duties. (Maybe if he had done this during the few minutes between the post-game handshake and getting on the bus he would have more luck).

The Fifth Circuit is the only court of appeals not to recognize SCD. I am all for ways around that problem. But some coherence would be nice.

Update: Following a series of email exchanges with a reader, I might see a workable basis for a distinction. It combines the under-color and liability elements and goes something like this: If the connection between the government actor and the private actor is sufficiently close that it places the private actor under color and subjects him to § 1983 suit**, the claim against the government actor rests on a direct violation; the government actor is, in essence, acting through his agent. If the connection is not sufficiently close as to to place the private actor under color, the government actor's liability must be based on SCD--the third party acted on his own as a private person, but the government actor did something to create or worsen the risk to the plaintiff at the third party's hands.

[**] If the plaintiff were to choose to sue him. Again, the ref did not sue the players here.

Thus, the coach is directly liable for ordering the players to hit the ref. He would be liable on an SCD theory if he  stood by and did nothing while the players discussed and planned to hit the ref. And we can have a debate about the case in which the coach said "we will not punish you if you hit the ref."

Not sure I buy it, but it makes some logical sense.

Cert dened in Coral Ridge Ministries

Beginning on p.11, with dissent from Thomas but not Gorsuch (who has called for reconsidering NYT v. Sullivan) or anyone else. I guess the Court is not ready to undo the foundation of modern free speech.

This case was never a good vehicle for overruling NYT because the statements at issue (labeling a ministry a "hate group") are clear protected opinion; the district court dismissed the claim on opinion and actual-malice grounds, while the court of appeals addressed the latter. Unless the Court wanted to undo the entire defamation edifice (at this point, who knows?), this was not the right case. My guess is that explains why Gorsuch did not join Thomas, as opposed to him changing his mind about undoing the First Amendment.

More zombie laws and litigation strategy

Dobbs has created a new puzzle with respect to zombie laws that I had not considered. It is usually obvious when a law has been de-zombified--the judicial constitutional precedent under which that law is invalid changed. Dobbs thus de-zombifies all abortion laws (subject perhaps to rational-basis scrutiny for extreme laws). But sometimes it is less obvious, because the Court suggests de-zombification through its reasoning and analysis, although the precise issue was not before the Court. So does the logic and reasoning of Dobbs, along with Thomas' concurrence, de-zombify other laws violating other substantive-due-process rights that it cast into (at least) some doubt?

Relatedly, how does that affect the posture in which the constitutional question will be litigated and resolved? Does the logic of Dobbs render a threat of renewed enforcement sufficiently likely or imminent to allow offensive pre-enforcement litigation to determine the state of judicial precedent and the constitutional validity and enforceability of the law. (Courts would call this whether the rights holder can show a sufficiently imminent injury for standing; I argue we should call this whether a constitutional violation has occurred or is likely to occur). Strict adherence to imminence (which courts follow for everything other than the First Amendment) limits offensive litigation, requiring rights holders to await actual renewed enforcementand challenge the law defensively.* At a minimum, they must wait longer to see if the state expresses some intent to renew enforcement based on its reading of Dobbs.

[*] Ex parte Young says rights holders need not wait, that it is unfair to force rights holders to violate the law at their peril and risk liability as a condition of litigating their constitutional rights. How to square that with Whole Women's Health, which I argue was correct? The problem in WWH was the lack of a target defendant and a governmental enforcer to enjoin.

Take Texas's sodomy law, which remains on the books. It is at least an open issue requiring new litigation whether constitutional precedent must change because Lawrence is incompatible with Dobbs. The question is whether that is sufficient to allow offensive pre-enforcement litigation or whether rights holders need some greater indication that the state intends to resume enforcing that law. Stated differently, can rights-holders, having read Dobbs and identified an open constitutional issue, initiate offensive litigation to declare the state of precedent and determine whether the sodomy law remains constitutionally invalid and unenforceable? Can Texas defeat such offensive litigation by insisting that it takes the Dobbs majority at its word, that it sees Lawrence as good law, and that it knows it cannot successfully enforce the law and has no intent to do so?

Does the answer change when the zombie post-dates the apparent change in precedent? Could that rights holder show imminence of enforcement more readily if the legislature enacts a new zombie? Returning to Texas' sodomy law--suppose the Texas legislature re-enacts a sodomy law post-Dobbs; does that allow a rights holder to argue that the state reads Dobbs as calling Lawrence into doubt and thus intends to enforce the new law (otherwise, why would it have bothered enacting it).

A separate strategic question: Should rights holders push the issue of what Dobbs did to Lawrence now or should they wait to see what states do? On one hand, there may be a benefit to striking now. People are paying attention and discussing Dobbs' effect on other rights; the charge of hypocrisy would land with the public (not that the Justices care) if the Court follows Dobbs to overrule Lawrence two years after insisting it would not. On the other, this is a frisky majority and rights holders may be wise not to test what it is willing to do.

Pedantry

Is it overruled Roe or overturned Roe? I say "overrule," which is the term the Court used. Shepard's (ah, the days) used that term--courts "overrule" precedent and "reverse" lower-court judgments." I do not believe courts "overturn" anything in the formal (as opposed to colloquial) sense.

Now that we have the opinion and not only the draft, do we have any better sense of whether Roberts or Thomas assigned the opinion? And why would either give it to Alito? Roberts must have known Alito would produce a toxic opinion. And it seems Thomas would want to keep the opinion (this and the gun case would have made the Fed Soc two-fer). Did Thomas know he wanted to call all SDP into question so he needed to write separately rather than lose a majority on a small piece?

How should we describe the vote count? I went with 5-1-3 (majority, concurrence for result but not reasoning, dissent). I have seen others offer two related framings as a pair--6-3 for judgment (MS law valid, MS wins), 5-4 for overruling Roe.

Zombie Laws

We have a real-time illustration of zombie laws and judicial departmentalism. A zombie law remains, precedent changes, and new precedent reanimates the zombie, at least prospectively.* Texas announced it will begin enforcing its pre-Roe zombie, prompting clinics in the state to cease all abortions. This chart shows three other states with an intent to enforce zombies, although Wisconsin seems less unlikely to enforce.

[*] Jonathan Mitchell argues that retroactive application would be permissible. I doubt states will try that.

Meanwhile, other states are enjoined from enforcing abortion restrictions. Those states move to dissolve the injunction, citing Dobbs as the changed legal circumstance, and the district court will grant the injunction, making those laws enforceable.

§ 1983 giveth, § 1983 taketh away

Everyone will be talking about the gun case and the prospect that, given this Court's direction, it will soon to be easier to wave a gun in public than to engage in some speech in public. So let me focus on two cases about the scope of § 1983.

Nance v. Ward (Kagan for the Chief, Breyer, Sotomayor, and Kavanaugh) that a prisoner can use § 1983 to challenge manner of execution where the plaintiff's proposed execution method is unavailable under state law and would require the state to change its law. The need to change state law or regulations does not necessarily prevent the state from executing the plaintiff (the touchstone for Heck cases) but delays the execution until the state brings its law into compliance with the Constitution. Many § 1983 claims declare state law invalid and send it "back to the drawing board" to amend the law to comport with the Constitution (as judicially interpreted). Challenges to conditions of confinement can brought through § 1983 and those claims operate like challenges to method of execution--both challenge the implementation of a sentence (death or incarceration) and both may compel changes to state law (e.g., challenges to laws limiting the number of prison doctors or the regulations for prison population) to remedy that violation.

Vega v. Tekoh (Alito for the Chief, Thomas, Gorsuch, Kavanaugh, and Barrett) held that Miranda violations cannot form the basis for § 1983 claims for damages. The point of deparure, unsurprisingly, is whether Miranda is a constitutional rule and thus a "right . . . secured by the Constitution and laws." The majority describes it as a constitutional prophylactic rule but not the Constitution itself, while the dissent (Kagan for Breyer and Sotomayor) argues that the rule is constitutionally grounded (per Dickerson) even if it secures a deeper constitutional commitment against compulsion. Miranda thus is enforceable only defensively, as a basis to suppress evidence in the criminal proceeding.

I confess to not finding this case a huge deal for a couple of reasons, even as an another instance (See Egbert) of the Court eliminating ex post remedies for constitutional violations. Maybe I am missing things. First, Miranda is an odd fit for a § 1983 damages claim against the police officer who took the unwarned statement because the violation is complete only if the statement is offered by the immune non-party prosecutor and accepted by the immune non-party judge. Thus the officer's constitutional liability turns on the actions of two other people. Assuming the officer did not use coercion or force, he did nothing "wrong" unless someone else does something.

Second, I do not understand why this plaintiff does not lose on issue-preclusion grounds. He twice moved to suppress his statements on Miranda grounds and the state trial court twice rejected his arguments. Unless there is something I do not know about California preclusion law, the state court's resolution of the Miranda issue should be preclusive in the § 1983 action. This point also undermines the majority's argument as to why a prophylactic rule is not a "law" for § 1983 purposes. The Court identified numerous problems--judicial economy, conflicting decisions, and federal review of the prior state decision admitting the evidence--weighing against allowing damages suits over even a prophylactic Miranda. But the whole point of  Allen is that the federal court in the subsequent § 1983 action does not review the state court; it is bound by the state court determination and then applies it to the new claim for damages. There is no concern for conflicting judgments or lack of deference; the federal court is bound by the state court ruling. At least where, as here, the state court finds against the state defendant/federal plaintiff. The conflict arises if the state courts find Miranda was violated and the rights holder sues for damages; preclusion does not apply (because the officer was not a party to the prior suit), so the federal court would have a new bite at finding no violation (Alito's preferred conclusion). What am I missing on this point?

COD is for government

A 5-4 Court held in Shoop v. Twyford that a district court erred in ordering transportation of a prisoner to the hospital under the All Writs Act where the evidence to be obtained at the hospital would not be admissible under AEDPA. A jurisdictional problem popped up at SCOTUS--the transportation order was not final. The majority stated in a "terse" footnote that it was appealable under the collateral order doctrine because it burdens state sovereignty and creates public-safety risks; Justice Breyer dissented for Sotomayor and Kagan to argue this does not meet COD requirements; and Justice Gorsuch argued cert was improvidently granted because the Court did not take the case to extend the doctrine. At the very least, it required more than a footnote.

And this is an expansion, as the court of appeals held that state sovereignty that is implicated by any federal-court order compelling a state to do something. Breyer, likening the order to a discovery order, argues that having the state as appealing party should not convert an otherwise interlocutory order (such as a discovery order) into one subject to COD review.

Of course, the modern collateral-order doctrine is skewed towards appeals by the government as opposed to by private individuals. While not framed as "appeal is proper because this is the government," the unprotectable public interests justifying the COD arise most commonly where the government loses on a uniquely governmental issue--e.g,, individual-officer immunity, sovereign immunity, foreign sovereign immunity, discovery orders affecting foreign sovereign immunity. I do not expect, as Breyer  worries, a regime in which government can appeal a common order that a similarly situated private party cannot appeal; but it is not surprising to see COD review of a unique discovery order that applies only to government parties but never to private parties. For example, an order compelling transportation of a prisoner for discovery purposes applies only to government parties and is appealable; a common order compelling discovery, equally applicable to all parties, is not.

Charter schools act under color

So says a sharply divided (especially rhetorically) en banc Fourth Circuit in a challenge to a North Carolina charter school policy requiring female students to wear skirts in furtherance of "chivalric" ideals incorporated into its educational philosophy. A majority holds that the school owner (but not private manager) acts under color and the skirts policy violates Equal Protection and that the owner and manager are liable under Title IX. There are two concurring opinions-0ne joined by the author of the majority and one authored by the author of the majority opinion. There are two dissents, including one by Judge Wilkinson heralding chivalry and alternative education in the face of the institutional forces of educational rigidity. Much pissiness all around.

I expect SCOTUS to take this next term. The decision creates a circuit split with three circuits (1st, 3d, and 9th) that held that charter schools do not act under color, including in making school and student policies. There also is a question of consistency with the one SCOTUS decision holding that education (at least for a segment of problem students) is not a traditional public function.

Journalistic malpractice, HPV-in-a-car edition

The underlying details of this case and story are too salacious for the media to resist. But that makes more obvious the wrongness of the coverage.

M.O. and M.B. had sex in M.B.'s car and M.B. infected M.O. with HPV. GEICO, which provided M.B.'s auto insurance, denied coverage and brought a federal declaratory judgment action. An arbitrator awarded M.O. $5.2 million from M.B., and M.O. filed a state-court action to confirm the award; the trial court allowed GEICO to intervene pursuant to statute and confirmed the arbitration award on the same day. GEICO appealed, arguing that the trial court did not allow it to meaningfully participate in the trial court, either to challenge the judgment or to contest its coverage obligation. The court of appeals affirmed, holding that the insurer's statutory intervention right did not entitle it any minimal participation. It could have done that by defending the claim (rather than by denying coverage) or it can challenge its obligation to defend  through a DJ action (which is pending in federal court).

The court did not consider, address, or decide that GEICO must pay this award or that (and this is where everyone wants to make jokes) auto insurance covers injuries arising from sexual activity in a car because sex in a car is "normal" use of the vehicle.

Yet here is the result of a Google search for "Geico HPV." Several headlines and stories say the court ordered GEICO to pay or that GEICO must pay, which is not close to correct. Some stories describe the woman winning the award against GEICO (as opposed to her former paramour) and the court of appeals siding with her on her claims against GEICO, also not close. A few headlines hedge by saying GEICO "could" or "may" have to pay, which is more accurate, but the underlying stories get the details of the case wrong. And even those accurate headlines miss the point of this decision.The court did not say the trial court was correct in confirming the award or that M.O. should receive $ 5.2 million because her partner negligently transmitted an STI; neither issue was before it. The court held that GEICO was not entitled to challenge its obligation to pay by intervening in this proceeding and must challenge the duty to indemnify through its federal DJ action. But this decision--the one prompting this media coverage--brings us no closer to resolving the question of GEICO's obligation to pay.

I have read speculation that GEICO is pushing this "can you believe we must pay this absurd award" narrative as a tort-reform maneuver--a car-sex analogue to McDonald's coffee. If so, the media should be doubly ashamed for this journalistic malpractice--not only are they incapable of reading and understanding law and what a case means, they are allowing themselves to be manipulated.

Ministerial exemption and the Collateral Order Doctrine

A divided Tenth Circuit holds that denial of summary judgment on ministerial exemption grounds is not subject to immediate review under the Collateral Order Doctrine. The point of departure went to whether the ministerial exemption is a defense against liability or an immunity from suit analogous to qualified immunity. The majority said it is a defense against liability turning on a fact question--whether the plaintiff is a minister; it therefore was not effectively unreviewable on appeal. The dissent argued the exemption is an immunity from all litigation, lost if the defendant must wait to appeal.

Some quick thoughts.

The court divided is over what to do with language in Hosanna-Tabor describing the exemption as  a "bar" to a Title VII suit or claim. But that takes Hosanna's language out of context. The Court distinguished between a limit on the court's jurisdiction and a defense to the merits, defining the exemption (properly) as the latter. The Court did not consider or decide whether this defense was an immunity from suit or a defense against ultimate liability.

The defense-to-suit v. defense-to-liability debate makes no sense and it is too bad the majority and dissent spent so much time on it. As the Court recognized, "virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a 'right not to stand trial,'" and every right could be characterized as one or the other. Thus, it is not mere avoidance of trial that matters, but "avoidance of a trial that would imperil a substantial public interest." The question then becomes whether the religious defendant's First Amendment interests are sufficiently substantial and public to merit immediate review.

The other point of departure is whether the ministerial exemption is a question of fact or law. The majority said it is a question of fact--is this employee a minister, as defined. That precludes COD review, which is not available on fact questions, even fact questions going to defenses, notably qualified immunity, that are immediately reviewable.

Maybe there isn't a big difference between mostly dead and all dead

Like Westley in The Princess Bride, Bivens is mostly dead following today's decision in Egbert v. Boule. Unlike with Westley, I deny any big difference between being mostly dead and all dead. Here is my SCOTUSBlog recap. [Update: And a short interview on All Things Considered] I did not expect this from the argument. While not friendly to the plaintiff's claim, the quesioning did not reflect  a desire from six justices to winnow Bivens to nothing--especially after declining to grant cert on whether to overrule Bivens.

But it may as well have. If the new single question in the Bivens analysis is whether there is any reason to believe that Congress is able to decide whether to recognize a cause of action outside of identical facts to Bivens, no new Bivens action is possible, because the answer is always yes. Credit to Gorsuch for being honest about where the analysis and conclusion leads. Meanwhile, without saying so, the Court has essentially granted virtually all federal officers at all levels in virtually all agencies more-or-less absolute immunity from suits for damages for constitutional violations. Maybe something identical to Bivens survives going forward--Fourth Amendment violation, pure law enforcement, no connection to immigration and national security. But not for long. And perhaps not if the agency has (as all agencies do) some internal disciplinary system.

So it is up to Congress to enact something like § 1983 for action under color of federal law, that also keeps in place the many statutory schemes (e.g., CSRA) that operate adjacent to Bivens. Could the changing nature and increased ideological diversity of constitutional claims--e.g., an increasing number of religious-liberty claims--create sufficient bipartisan support for enacting something? Probably not. But that will be the new focus.

I am working on the third edition to my civil rights treatise. The second edition was written in 2017 and published in 2018. I am stunned (and a bit frozen) by how much has changed in that short a period and how much the Bivens and immunity chapters must be rewritten.

Bivensing the 13th Amendment

From Logsdon-Smith v. Kentucky. Plaintiffs were sexually abused by a probation/parole officer. They sued the governor and the state for a 13th Amendment violation under § 1983; in response to a motion to dismiss arguing the § 1983 claim was time-barred, they refiled as a direct action under the 13th Amendment. The Sixth Circuit affirmed dismissal.

The 13th Amendment is not directly enforceable because § 1983 exists as the exclusive mechanism for enforcing that provision against state actors; Congress has enacted laws (including § 1983) to enforce the 13th Amendment; and the 13th Amendment provides for congressional enforcement and precludes an implied right of action, unlike those rights enforceable under Bivens . This makes sense, especially because the plaintiffs downshifted away from § 1983 because they blew the statute of limitations--it makes no sense to have § 1983 as the cause of action unless you have deprived yourself of the opportunity to file a § 1983 action, in which case you can rely on the Constitution. Plus, it seems like a futile move from the outset--Bivens actions are subject to the personal-injury period for the state in which the action is brought (one year in Kentucky), as are § 1983 actions. If a 13th-Amendment-Bivens claim were possible, it would be as time-barred as the § 1983 action.

The alternative basis for dismissal makes less sense--that the state has 11th Amendment immunity because there is no clear congressional statement abrogating immunity. But that begs the question. The unequivocal congressional statement appears in the statutory cause of action. Congress should have the same power to abrogate under § 2 of the 13th Amendment as under § 5 of the 14th--both were enacted subsequent to Article III and the 11th Amendment and both limited state power and enhanced federal power.But congressional power or congressional statement is irrelevant in this case, because the absence of a congressionally created cause of action precludes any congressional statement. The question should be whether the amendment itself abrogates, which has nothing to do with a clear congressional statement. The answer cannot depend on the text; no constitutional provision--including those through which Congress can abrogate--expressly abrogates sovereign immunity because sovereign immunity appears nowhere in the Constitution. The absence of abrogation here derives from the absence of a congressional cause of action, which was the first reason for rejecting the plaintiffs' claims; it is not an independent basis for dismissal.

The court pointed out the "broader policy questions" about whether a one-year limitations period is too short for constitutional claims under § 1983. Courts apply the state limitations period so far as it is "not inconsistent with the Constitution and laws of the United States." A six-month period is too short and inconsistent with the purposes of § 1983 and the Constitution. Perhaps one year is too short, as well.

Two interesting § 1983 ideas (corrected)

1) Steve Vladeck has an essay at MSNBC on the Court's shrinking docket and slow pace. He makes a point I had not considered: The Court's shrinking docket means fewer opportunities for rights to be clearly established and therefore less ability for plaintiffs to overcome qualified immunity. This takes on a larger scope if the Court follows through on hints that lower-court precedent cannot clearly establish.

2) Angeli Gomez is the Ulvane Uvalde parent who urged police to enter the school, was handcuffed, released, and ran into the school to rescue her children. CBS reports that Ulvane Uvalde police told Gomez not to speak publicly about the events on threat of prosecution for obstruction of justice and violation of her parole. Popehat wants to represent her in what he thinks could be a viable § 1983 action. The two questions are whether a nonsense arrest threat, without follow-through, constitutes a sufficient deprivation of the First Amendment and whether there either is case law establishing that (nothing from SCOTUS, doubt there is a "robust consensus" from lower courts) or whether this is an obvious violation.

Edits: My apologies for getting the town's name wrong.

SCOTUS vacates stay of Texas social-media law (Updated)

SCOTUS vacated the Fifth Circuit unexplained stay of the district court injunction of HB20, Texas' social-media law; in other words, the law cannot be enforced pending appeal. This leaves the Texas law in the same place as Florida's, following  last week's 11th Circuit decision affirming the preliminary injunction prohibiting enforcement of that law. Justice Kagan would have denied the stay application, without explanation. Alito dissents for Thomas and Gorsuch.

Alito's dissent hits all the conservative Twitter talking points about social media that misapply or misunderstand First Amendment doctrine. Plus he adds a gratuitous footnote about § 230 requiring neutrality or creating a platform/publisher distinction. Special mention for accepting this verbal sleight-of-hand: "Texas contends that § 7 does not require social media platforms to host any particular message but only to to refrain from discrimination against a user's speech on the basis of viewpoint"--as if prohibiting a site from rejecting speech on the basis of viewpoint does not compel the site to carry that speech by eliminating one basis for the site to remove that speech.

Presuming the Fifth Circuit declares the law valid when it reaches the merits to create a circuit split and presuming Justice Kagan's position is based on posture and not First Amendment substance (she did not join Alito's opinion), the vote should be 6-3 that a state law violates the First Amendment in attempting to compel private entities to carry speech and speakers they would prefer not to carry.

Besides pushing troubling First Amendment arguments, Alito pushes a troubling procedural argument. He suggests that a pre-enforcement federal action is inappropriate because HB20 is enforceable for prospective relief (injunction, plus ancillary attorney's fees and costs) but not the sort of harsh retroactive relief (imprisonment or severe fines and penalties) as with the law in Ex Parte Young; a social-media site therefore can raise the First Amendment as a defense to a state suit for injunctive relief, also allowing the state court to interpret the law's vague provisions. But the Court has never held that EPY actions are limited to laws that impose retroactive sanctions for past conduct, especially where attorney's fees may impose greater financial consequences on rights-holders than retroactive damages or fines.

Although he did not cite it, I think Alito drew the wrong conclusion from WWH and SB8. The WWH Court was correct that re-enforcement offensive EPY actions are not constitutionally required and defensive litigation can be constitutionally sufficient. That does not mean an EPY action is improper whenever defensive litigation is available (which is always). The question is whether EPY's other requirements--an identifiable responsible executive officer whose enforcement can be enjoined--are met. SB8 could not be challenged offensively because the absence of public enforcement meant no responsible officer and no one to enjoin. HB20 is publicly enforced (while also allowing private enforcement), satisfying this element of EPY.

Update: On this last point about Alito's hostility to EPY actions, he includes this line: "While I can understand the Court's apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty and Texas should not be required to seek preclearance from the federal courts before its laws go into effect." Putting aside the misuse of laws "go[ing] into effect," Steve Vladeck shows that since November 2020, Alito has voted publicly ten times on emergency-relief requests in offensive pre-enforcement actions that would stop enforcement of state laws pending resolution of federal pre-enforcement litigation. Of those cases, one challenged a Maine law; the others challenged New York or California laws. He never suggested those state courts should have a crack at interpreting the law. I do not believe he is trying anymore.

Misplaced anger over precedent: The example of DeShaney

Campaign-finance regulation advocates and much of the public regard Citizens United as one of the Court's worst decisions, responsible for the electoral mess that has followed. I find this unique attention on CU strange, as the Court built on a 30+-year-old framework that treated expenditures as protected speech, recognized corporations as equal speakers with individuals, and generally rejected equalizing and preventing drown-out as compelling government interests. CU did not break much new ground, yet it has become the alpha-and-omega of bad campaign-finance doctrine.

We are seeing this play out again amid reports that Uvalde police stood around and did nothing for almost an hour while the shooting continued. Everyone points to Castle Rock v. Gonzalez as establishing the (awful) principle that police have no constitutional duty to protect from third-party harms. But as with CU, Castle Rock broke no new ground. It built on the real culprit, DeShaney v. Winnebago County, which everyone is ignoring in the Twitter debate.

Castle Rock arose from a father who kidnapped his three daughters in violation of a restraining order. Despite pleas from the mother, officers did nothing to enforce the restraining order by looking for the father or the kids. About 10 hours later, the father appeared at the police station with the girls' bodies in his truck and committed suicide-by-cop. The mother sued the department on a theory that the failure to take steps to enforce the TRO deprived her of procedural due process; a 7-2 Court rejected the claim. Scalia (for 7) said the mother lacked a protected property  interest in enforcement of the TRO because the police had inherent discretion in when and how to enforce the order and enforcement had no inherent monetary value; Souter concurred (with Breyer) to argue that enforcement of the TRO is a process and there is no due process right to an underlying process.

The real constitutional injury should have been that the girls ls were kidnapped and murdered because the police did nothing--a substantive claim for deprivation of their life and liberty, not about the failure to provide process. That is, the injury was in the result (the girls were murdered), not by the failure to provide process. But DeShaney foreclosed that claim when it held that government action, never government inaction, violates substantive due process; government failure to protect people from third-party harms cannot be the basis for an SDP claim. The plaintiff in Castle Rock tried to use PDP to get around that limitation. DeShaney did not involve cops. But it, not Castle Rock, is the source of the problem and the reason there can be no constitutional liability for the Uvalde officers' failure to act.

DeShaney established or hinted at two exceptions. It acknowledged that the government has a duty to protect those with whom it has a "special relationship," typically where government has assumed involuntary custody over a person and thus an obligation to provide for his well-being. But every circuit holds that school does not constitute such a special relationship--school officials have no affirmative duty to protect students, which necessarily means police officers have no such duty when they are called to the scene.

DeShaney also stated that the government had not created the danger to the plaintiff or done anything to make him more vulnerable to it. From this language, lower courts developed the "state-created danger" theory, imposing SDP liability where the government takes some action that creates or worsens a plaintiff's vulnerability to third-party harms. Unfortunately for the families, the 5th Circuit is the lone court of appeals to reject this theory; short of the court changing its mind or using the case to get to SCOTUS, this is a non-starter in Texas.

If it were available, I am trying to figure out whether a claim is possible. An affirmative act is required--not mere inaction of doing nothing but some affirmative steps. So standing in the hallway waiting for a key cannot state a claim, nor can the failure to transmit or act on 911 calls showing kids alive in the classroom. Reports suggest the Uvalde police affirmatively stopped parents from entering the school (including cuffing one person) and affirmatively stopped federal agents from entering the school; that could do it, although plaintiffs must show causation (that their children might have been saved had local police not stopped others from helping) and that preventing help was conscience-shocking. Some courts have found liability on an inaction-as-message theory--the failure to act sent a message to the wrongdoer that he could act with impunity; I doubt that works here, because the shooter was not aware of or reacting to the inaction.

The facts of this case keep changing, so expect to learn more. But the police-critical narrative taking hold is "police get impunity for their actions, but have no obligation to act to protect the public" makes no sense as a democratic bargain. But the second piece of that narrative derives not from Castle Rock, but from DeShaney.

Taking away rights?

Since the Dobbs draft leaked, I have been trying to figure out what makes the apparent decision to overrule Roe illegitimate and some egregious act of judicial lawlessness.

It cannot be the result simpliciter--that my constitutional understanding differs from that of the apparent five-Justice majority does not make their views wrong in any objective sense, much less illegitimate. It cannot be that it overrules precedent, because the Court has overruled precedent. This is also why it cannot be that recent appointees pledged fealty to stare decisis--case are always subject to reconsideration and stare decisis has standards for overruling cases. It cannot be that the stare decisis analysis is wrong, for the same reason that disagreement with substantive constitutional analysis is not sufficient.

Orly captures where I had tentatively landed--overruling precedent to eliminate or limit individual rights (Orly describes them as "fundamental human rights") and to increase government power is different and something the Court has never done.

But I am not sure the distinction works. First, cases abrogating and overruling Lochner limited or eliminated the due process right to contract, which had been regarded as fundamental. Any potential distinction turns on substantive agreement or disagreement with the right recognized in Lochner compared with the right recognized in Roe. Second, crim pro scholars can correct me, but it seems that the Court has overruled precedent to narrow rights for criminal defendants. Third, at least as to abortion, the Dobbs majority might describe itself as vindicating a right to potential life that had been acknowledged but given undue weight in Roe. Thus the framing--eliminating a fundamental right--does not capture what the Court did (or believes it did). Again, I do not share this view. But the argument that Dobbs is an illegitimate action by an illegitimate Court must hinge on more than "I have a different view of the law."

To be clear, I am not calling out Orly; I had landed on a similar explanation. But I am less confident it works.

Judicial takings and alternatives to offemsive litigation

This Seventh Circuit case (Diane Wood for Manion and Scudder) is weird and I am trying to figure it out. I think it illustrates broader points about the problem of offensive-or-defensive litigation on constitutional issues.

A group of property owners brought a state-court quiet title action against Indiana, arguing that they owned Lake Michigan beach-front property to the low-tide mark, as reflected in their deeds; the Indiana Supreme Court (Gunderson) held that Indiana holds and retains submerged property up to the high-tide mark. The legislature then codifed the decision, declaring its ownership and declaring laekfront property owner's non-ownership below that mark. A different group of property owners (non-parties to Gunderson) brought this action against the governor, AG, against the governor, AG, and heads of the agencies on natural resources and state lands, alleging a judicial taking and seeking a DJ and injunction that they owned the property to the low-water mark.. The  panel dismissed the claim on standing grounds, finding no traceability or redressability to the state officials sued, since they do nothing to enforce Gunderson or the statute defining the property lines and can do nothing to grant the plaintiffs title to the challenged portion of the lakefront. The court also identified federalism-and-comity based caution (reflecting the ideals, if not applications, of Rooker-Feldman) in hearing a case raising a novel legal theory that requires a lower federal court to review the merits of a state supreme court decision. The court dismissed with leave to amend, although I am not sure what they can do to salvage this action.

The outcome is correct, but the case highlights some weird doctrinal interstices. It also shows how constitutional litigation occurs outside the ordinary pre-enforcement offensive action against a state executive. Assuming judicial takings can be a thing, what are plaintiffs such as these to do?

1) The appropriate course for a judicial-takings claim is to appeal the state-court decision effecting the taking to SCOTUS. That is not available to the federal plaintiffs, who were not party to the state decision. That also explains why the court did not dismiss on RF grounds--the federal plaintiffs were not state court losers.

2) One possibility is that non-parties cannot suffer a judicial taking, since the state-court judgment had no effect on their property rights. Thus Gunderson may have taken the property of the owners who sued in state court, but not of the different owners who sued in federal court. This has intuitive appeal. Judgments in non-class-actions do not bind non-parties. It makes no sense to give a judgment a broader effect as a taking than as a judgment. Any "taking" of the federal plaintiffs' property arises from Gunderson's precedential effect in future litigation, but any taking should not happen before then. This point should apply had the federal plaintiffs brought a claim for compensation for the taking rather than an injunction (the court suggests they would have had standing to do that, because these officials could provide compensation). These owners are not (yet) entitled to compensation because Gunderson did nothing to their property rights, beyond precedential

The district court rejected any judicial-takings claim here because Gunderson did not strip these owners of established ownership rights, as required by the Scalia plurality in Stop the Beach. At worst it resolved an ambiguity as to ownership; at best it declared, as a matter of state law, that they never owned this land at all and it has always been state property. My argument provides another basis for rejecting that claim--as non-parties to Gunderson, their property was not lost because that decision did nothing as to their property.

3) The plaintiffs made a strange concession: that their challenge to the statute turns on their judicial-takings claim. "If Gunderson stands, it follows that the Owners never held title to the land below the ordinary high-water mark, and the legislation therefore had no effect on their property rights." I do not understand this point. The legislature owns state property, subject to judicial review and interpretation. The state supreme court having declared the state owns to the high-water mark, I do not understand why the legislature could not enact legislation declaring state ownership, whether consistent with Gunderson or consistent with the owners' deeds. To the extent state declarations of ownership below the high-water mark constitute a taking, why does the statute alone not effect that taking? This does not resolve the standing problem as the court sees it, since the defendant officials continue to lack power to grant ownership. But it makes the possible taking argument clearer.

4) Traceability and redressability fail because the court cannot order any of the defendants to grant the plaintiffs title to the contested land. How, then, can they assert whatever rights they might have? The court imagines how this comes up for the owners:

Gunderson recognized that members of the public have a right to walk on the beach in front of the Pavlocks’ house as long as they stay lakeward of the high-water mark; an injunction requiring the State to refrain from any action would not grant the Pavlocks the right to exclude. If Cahnman wants to sell his beachfront property, he may convey land only from the high-water mark. The requested injunction would not give him title to submerged lands that Indiana law (confirmed by both the state’s highest court and its legislature) says belongs to the state. To the extent the Owners’ deeds conflict with Gunderson and HEA 1385, the latter two sources govern. And if, for example, the Pavlocks tried to sue people who walked on the section of beach between the high- and low-water marks for trespass, or Cahnman tried to hoodwink a buyer by representing that he held title down to the low-water mark, an injunction against state officials would not prevent Indiana’s Recorder’s Offices from correcting that error, or Indiana courts from applying Gunderson.

This hints at how this sort of takings claim, if it can exist, should come to court. The Pavlocks sue people walking on  the beach for trespass; the trespassers cite Gunderson and/or the statute as the source of their right to walk there; the Pavlocks argue that the decision in their case applying Gunderson and the statute effect a taking; and that argument provides a basis for § 1257 review of the state court. Cahnman hoodwinks a seller; the seller sues him for hoodwinking him, citing Gunderson and the statute; Cahnman defends on the ground that Gunderson and the statute effect a taking; and that defense provides a basis for § 1257 review of the state court.

The hypothetical suit against the trespassers should sound somewhat familiar to Fed Courts geeks--it is basically Mottley. This suggests that the Mottleys could not have sued the executive when Congress enacted the law prohibiting free passes--like the plaintiffs here, they would have lacked standing. They would have been forced to proceed, in state court, as they did--Mottleyssue the Railroad for breach; RR argues impossibility based on the statute; Mottleys argue statute violates the 5th Amendment; argument provides a basis for § 1257 review.

Again, consider this another example of asserting constitutional rights outside the typical offensive EPY action. Some of these claims are somewhat offensive in that the Pavlocks initiate the lawsuit, although the federal constitutional issue is not the main piece of the claim and arises downstream in the litigation. Nevertheless, we accept this as appropriate procedure, not some conspiracy to eliminate judicial review.

More overlapping jurisdictional doctrines

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

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

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

Random reactions to some items in the news

My response to some random news items.

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

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

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

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

More confusion on legislative immunity

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

State Interests for Jurisdiction by Registration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who assigned this and why? (Update)

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

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

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

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

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

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

Of leaks and legitimacy

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

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

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

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

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

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

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

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

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

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

Why Mallory?

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

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

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

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

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

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

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

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

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

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

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

Private enforcement and the state court option

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

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

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

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

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

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

Supreme Court to Address Jurisdiction through Corporate Registration

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

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

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

Contacts Jurisdiction and Consent Jurisdiction

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

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

State Corporate Registration Statutes

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

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

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

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

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

            The Split in the Constitutionality of Jurisdiction by Registration

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

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

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

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

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

HB7 lawsuit

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

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

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

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

Another SB8 funder suit

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

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

More universal injunctions

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

Finally, I co-sign Sam's conclusion:

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

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

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

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

Abstention is down on its luck these days

(Thanks to Gerard for the title):

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

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

Judge Sutton on universal injunctions

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

"Don't say gay suit" filed

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

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

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

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

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

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

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

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

Cert denied in John Doe relation back

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

Double it

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

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

Exclusivity and personal rights in bounty litigation

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

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

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

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

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

The Younger analysis was not much better

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

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

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

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

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

What is a SLAPP law?

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

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

Defense

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

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

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

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

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

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

Counterclaim

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

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

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

No offensive challenges to SB8 against licensing bodies

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

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

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

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

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