Constitutional Law Prof Blog

Oklahoma Supreme Court Declares State Abortion Law Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its unanimous opinion in Burns v. Cline, the Oklahoma Supreme Court held state SB 1848, a law restricting abortion, unconstitutional. 

SB 1848 had similar requirements as the challenged Texas bill HB2, which the United States Supreme Court ruled unconstitutional in Whole Woman's Health v. Hellerstedt in June. Oklahoma’s bill, like Texas’ HB2, had an admitting privileges provision that required all abortion facilities, on any day an abortion was being administered, to have a doctor at the facility equipped with admitting privileges at a hospital within 30 miles. Additionally, the bill had twelve other regulations on abortions providers, including standards for supplies, equipment, training, screenings, procedures (both pre and post op), and record keeping. Certain violations of these standards implicated felony and civil penalties.

The Oklahoma Supreme Court cited Whole Woman’s Health v. Hellerstedt extensively, explaining that every woman has a constitutionally protected right to terminate a pregnancy pre-viability, and that laws that impose an undue burden on that right are unconstitutional. The court also elucidated that a law seeking to protect women’s health while actually impeding on the right cannot withstand constitutional review.

The court relied on the plaintiff doctor, outlining Burns’ 41 years of private practice experience and the singular time he had to call an ambulance for a patient over the course of that tenure. The court also considered Burns’ application to 16 different hospitals for admitting privileges. Burns was either rejected because his medical specialty does not have recognized board certification, or because he was unable to meet a requirement of admitting at least 6 patients per year. The court noted that his exemplary record was the blockade to his access to the 6 in-patient requirement.

SB 1848 would have closed Burns’ clinic or subject him to civil penalties if it remained open. SB 1848 would have rendered Oklahoma with only one operable abortion provider for the entirety of the state. Because of this, the Oklahoma Supreme Court found this an unconstitutional undue burden under both Hellerstedt and Casey. The court rejected the state’s argument that this bill advanced women’s health under the reasoning from Hellerstedt. Of note was the court’s reference to the Oklahoma State Medical Association, as well as various expert testimony and data points laid out in Hellerstedt, that explained both the safety of an abortion and the lack of safety for patients should these bills withstand constitutional review.

The Oklahoma Supreme Court also rejected the bill under the Oklahoma Constitution single subject rule. SB 1848 created 12 unrelated provisions against abortion providers, imposing major penalties on providers should the regulation be unheeded. The state argued that because all of the regulations were in some way related to abortion, they were not averse to the single subject rule. The Supreme Court of Oklahoma rejected this reasoning, stating that the legislation’s multiple sections were not “germane, relative and cognate” to a common purpose.

The most obvious importance of this case is its strict adherence to the undue burden standard outlined in Hellerstedt. But importantly, the court's rationale regarding the state constitutional standards for omnibus bills is likely to have a heavy impact.

[with assistance from Juliet Critsimillos, CUNY School of Law]

Eisen, Painter, Tribe on The Emoluments Clause (and its application to Donald J. Trump)

Check out this Brookings brief, The Emoluments Clause: Its text, meaning, and application to Donald J. Trump, just published by Norman Eisen, Richard Painter, and Laurence Tribe. From the intro:

Foreign interference in the American political system was among the gravest dangers feared by the Founders of our nation and the framers of our Constitution. . . .

As careful students of history, the Framers were painfully aware that entanglements between American officials and foreign powers could pose a creeping, insidious risk to the Republic. The Emoluments Clause was forged of their hard-won wisdom. It is no relic of a bygone era, but rather an expression of insight into the nature of the human condition and the preconditions of self-governance. . . .

While holding office, Mr. Trump will receive--by virtue of his continued interest in the Trump Organization and his stake in hundreds of other entities--a steady stream of monetary and other benefits from foreign powers and their agents.

Lawyer Takes Garland Suit to Supreme Court

Steve Michel, the attorney who sued Senate Republicans to get them to take up President Obama's nominee to the Supreme Court, Judge Merrick Garland, to a vote, reportedly filed for an emergency injunction at the Supreme Court.

Recall that Judge Contreras (D.D.C.) dismissed Michel's suit last month for lack of standing.

Michel's latest move is unlikely to succeed: He still lacks standing.

Fourth Circuit Finds Police Department's "Negative Comments" Social Media Violates First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its unanimous opinion in Liverman v. City of Petersburg (Virginia), the Fourth Circuit has held that a police department's social media policy and its subsequent enforcement violated the First Amendment.

The opinion, authored by Judge J. Harvey Wilkinson, concerned the police department's "negative comments" policy which provided,

Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law.

The court further considered a related provision, the so-called "public concern provision, which provided:

Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis.

Liverman, while off-duty, posted a comment to his Facebook page complaining about "rookie cops" becoming "instructors," writing in part, "Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers."  Another off-duty officer, Richards, wrote to "agree 110%" and furnish additional comments.  The officers each received an oral reprimand and probation for 6 months, with a new policy added that excluded officers on probation from being considered for promotion.

The Fourth Circuit engaged in the familiar Pickering-Connick balancing test, first asking whether the speech related to a "matter of public concern," and then if so, balancing “the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 

The court easily found that the "negative comments" ban related to matters of public concern, concluding that "the restraint is a virtual blanket prohibition on all speech critical of the government employer." As for the interest of the police department, the court was not only critical of the ban's breadth, but also contended it actually disserved the government interests:

We do not, of course, discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships that Connick condemned. But social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one’s larger community. And the speech prohibited by the policy might affect the public interest in any number of ways, including whether the Department is enforcing the law in an effective and diligent manner, or whether it is doing so in a way that is just and evenhanded to all concerned. The Department’s law enforcement policies could well become a matter of constructive public debate and dialogue between law enforcement officers and those whose safety they are sworn to protect.

Moreover, the department could not show any actual disruption to its mission.

The court did note that the department could craft a "narrower social media policy" that did not have "chilling effects," but as the negative comments policy was written, it did indeed violate the First Amendment.

 

Bill of Rights Day 2016

President Obama's 2016 Proclamation regarding Bill of Rights Day stresses the evolving nature of the Bill of Rights protections:

As it was originally created, the Bill of Rights safeguarded personal liberties and ensured equal justice under the law for many -- but not for all. In the centuries that followed its ratification, courageous Americans agitated and sacrificed to extend these rights to more people, moving us closer to ensuring opportunity and equality are not limited by one's race, sex, or circumstances. The desire and capacity to forge our own destinies have propelled us forward at every turn in history. The same principles that drove patriots to choose revolution over tyranny, a country to cast off the stains of slavery, women to reach for the ballot, and workers to organize for their rights still remind us that our freedom is intertwined with the freedom of others. If we are to ensure the sacred ideals embodied in the Bill of Rights are afforded to everyone, each generation must do what those who came before them have done and recommit to holding fast to our values and protecting these freedoms.

Two and a quarter centuries later, these 10 Constitutional Amendments remain a symbol of one of our Nation's first successful steps in our journey to uphold the rights of all citizens. On Bill of Rights Day, we celebrate the long arc of progress that transformed our Nation from a fledgling and fragile democracy to one in which civil rights are the birthright of all Americans. This progress was never inevitable, and as long as people remain willing to fight for justice, we can work to swing open more doors of opportunity and carry forward a vision of liberty and equality for generations to come.

 As for how "Bill of Rights Day" became a named day - - - if not a true holiday - - - my previous discussion is here.

[image via]

Seventh Circuit Walks Back Absolute Immunity for Liquor License Renewals

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled this week in Brunson v. Murray that an official is not entitled to absolute immunity for a liquor-license renewal decision, even though absolute immunity extends to suspension and revocation decisions.

The ruling reverses circuit precedent on the issue. The court said that changes in state law and federal law (Cleavinger, discussed below) compelled the change.

The difference between a renewal decision, on the one hand, and a suspension or revocation decision, on the other, is that the latter is judicial-like (which triggers absolute immunity), where the former is not. The court determined this based on how each decision operates under state law (a functional analysis) and the six factors "characteristic of the judicial process" in Cleavinger v. Saxner. In short: "Under state law, a local liquor commissioner's action on a license renewal lacks the procedural formalities and protections that apply to the same official's decision to suspend or revoke a license. The differences are great enough to produce different results for the availability of absolute immunity."

The court remanded the plaintiff's claim for the renewal decision, remanded some other claims, and dismissed yet others in this strange and sordid case involving conflicts of interests and apparent vendettas by local public officials against a liquor store owner.

State Dem AGs Borrow Page From Republican Federalism Playbook

The NYT reports that some Democratic state AGs plan to borrow a page from Republican AGs' playbook: sue the President:

The strategy could be as simple as mirroring the blueprint laid out by their Republican colleagues, who made something of a legal specialty of tormenting President Obama. Conservative attorneys general in states including Texas, Virginia and Florida have sued the Obama administration dozens of times, systematically battering Mr. Obama's signature health care, environmental and immigration policies in the courts.

Ninth Circuit Upholds California's Ten-Day Waiting Period for Gun Purchasers

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit this week upheld California's ten-day waiting period for gun purchasers against a Second Amendment challenge, even as to those purchasers who already had a concealed carry permit and to those who had cleared a background check in less than ten days.

The ruling is a significant defeat for gun-rights advocates. It means that California's ten-day waiting period stays in place for all gun purchasers as a "reasonable safety precaution" against impulsive gun buys.

The Ninth Circuit applied the familiar two-part test for Second Amendment challenges now used by most of the federal circuits: (1) does the law burden conduct protected by the Second Amendment; and, if so, (2) does the law satisfy the appropriate level of scrutiny? As to the first step, the Ninth Circuit applies an "historical understanding" test--"[l]aws restricting conduct that can be traced to the founding era and are historically understood to fall outside of the Second Amendment's scope may be upheld without further analysis." As to the second step, the Ninth Circuit applies a sliding scale based on how close the law comes to the core of the Second Amendment and how much it burdens Second Amendment rights.

The court said that it didn't need to address step 1 (the historical understanding), because the ten-day waiting period satisfied the appropriate level of review, intermediate scrutiny. (The court used its sliding scale test to arrive at intermediate scrutiny, because "[t]he actual effect of the [waiting period] on Plaintiffs is very small.") The court held that the law providing a cooling off period to promote safety and to reduce gun violence, even for purchasers who already had a gun (because the purchasers may seek "to purchase a larger capacity weapon that will do more damage when fired into a crowd.") "A 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home . . . ."

Judge Thomas concurred: "I agree entirely with, and concur in, the majority opinion. I write separately, however, because the challenge to California's ten-day waiting period can be resolved at step one of our Second Amendment jurisprudence. As a longstanding qualification on the commercial sale of arms under [Heller], a ten-day waiting period is presumptively lawful."

No Standing to Challenge Trump's Election, Petition for Recount

Steven D. Schwinn, John Marshall Law School

Three district courts ruled late last week and early this week that petitioners lacked standing (Article III or otherwise) to challenge President-Elect Trump's election, or to petition for a recount.

On Friday, the Michigan Supreme Court effectively halted the recount effort there. Two concurring justices explained that Jill Stein was not "aggrieved" under the recount statute and therefore couldn't petition for a recount--the same argument that Trump and the Michigan AG made earlier in the process. Then on Monday Judge Diamond (E.D. Pa.) ruled that Jill Stein lacked Article III standing to seek a recount through the federal courts. (Judge Diamond identified several other problems with Stein's complaint.)

On Friday, Judge Moss (D.D.C.) tossed a case by a pro se plaintiff challenging Trump's election, because "[a]n ordinary citizen's challenge to the eligibility of a presidential candidate falls squarely within this category of nonjusticiable 'generalized grievances.'"

Reactions to Posner's "What is Obviously Wrong with the Federal Judiciary"

Check out this micro-symposium in the Green Bag in reaction to Judge Richard Posner's two-part (Part I, Part II) What is Obviously Wrong with the Federal Judiciary, also in the Green Bag.

Arkansas Supreme Court Upholds Birth Certificate Denial Listing Both Same-Sex Parents

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a closely divided (4-3) opinion in Smith v. Pavan, the Arkansas Supreme Court concluded that the state statutes governing the issuance of birth certificates to children could deny same-sex parents to be listed as parents. 

Essentially, the majority opinion, authored by Associate Justice Josephine Hart found that the United States Supreme Court's 2015 decision in Obergefell v. Hodges declaring same-sex marriage bans unconstitutional was inapposite:

Obergefell did not address Arkansas’s statutory framework regarding birth certificates, either expressly or impliedly. Rather, the United States Supreme Court stated in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.

Justice Hart noted that the Court in Obergefell did mention birth certificates "only once" and quoted the passage, construing it being related "only" to the Court's observation that states conferred benefits on married couples, which in part demonstrated that “ the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”

Not surprisingly, dissenting justices construed this same passage as providing support for the opposite conclusion.  In a well-wrought dissent by Justice Paul Danielson, he argues:

[T]he United States Supreme Court held in Obergefell that states are not free to deny same-sex couples “the constellation of benefits that the States have linked to marriage.”  Importantly, the Court listed “birth and death certificates” specifically as one of those benefits attached to marital status.  Thus, the majority is clearly wrong in holding that Obergefell has no application here.   Indeed, one of the cases on review in Obergefell, Tanco v. Haslam, 7 F. Supp. 3d 759 (M.D. Tenn. 2014), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), involved a same-sex married   couple   who   challenged   the   Tennessee   law   providing   that   their   child’s nonbiological parent would not be recognized as the child’s parent, which affected various legal rights that included the child’s right to Social Security survivor benefits, the nonbiological parent’s right to hospital visitation, and the nonbiological parent’s right to make medical decisions for the child.

Furthermore, one of the four principles discussed by the Court in Obergefell, for purposes of demonstrating that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples, is that the right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”    The opinion makes clear that the protection of children and the stability of the family unit was a foundation for the Court’s decision.

[citations to Obergefell omitted].

For the majority, biology was the paramount "truth" that vital records should reflect.  Moreover, this "truth" is evinced in dictionary definitions of words such as "husband" and "father," a strategy in cases that Obergefell rejected.  

 

However, the relevance of Smith v. Pavan even in Arkansas is unclear.  As Justice Rhonda Wood argued, the case may not have warranted a decision by the court:

Two key circumstances have developed since this litigation started. First, plaintiffs received relief in that the State has issued the appropriate birth certificates to them. Second, the State concedes that the relevant statutes involving determination of parentage must comply with Obergefell, including the statute governing the status of people born via artificial insemination. These developments render the majority’s decision provisional.

Moreover, there were (new) facts in dispute, despite the procedural posture of summary judgment:

First, according to the affidavit of the State Registrar of Vital Records, the Department of Health will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact. However, the parties disputed at oral argument how the department’s decision is actually being applied. There are no facts in the record to resolve this dispute. Moreover, the State has now conceded that children born of artificial insemination should have both parents deemed the natural parents, whether same-sex or opposite sex, under Ark. Code Ann. § 9-10-201 (Repl. 2015) and asserts that it will place both same-sex parents on the birth certificate under the State’s new interpretation of this statute. This statute provides that “[a]ny child born to a married women by means of artificial insemination shall be deemed the legitimate natural child of the women and the women’s husband [read spouse] if the [spouse] consents in writing to the artificial insemination.” Ark. Code Ann. § 9-10-201(a). It is likely, therefore, that a same-sex couple will now have both spouses’ names listed on the original birth certificate without a court order, so long as the child was conceived via artificial insemination, the same-sex marriage occurred prior to the insemination, and the non-biological parent consented to the insemination. Appellants and appellees both conceded at oral argument this would resolve the challenge by two of the three same-sex marriage couples.

It is possible that Arkansas would revoke its concessions given the state supreme court's ruling, but if the state does, then this seems a clear case for a petition for certiorari to the United States Supreme Court.

 

 

[image: Arkansas Supreme Court building]

Greenhouse on the Lower Courts Under Trump

Check out Linda Greenhouse's piece in the NYT on the stakes for the lower courts under Trump. She sites this analysis by Russell Wheeler at Brookings.

Daily Read: The Equal Protection Argument for Allocation of Votes in the Electoral College

ConLawProf Lawrence Lessig has a terrific post sharing arguments that the present "winner take all" rule (in all but 2 states) for allocating electoral votes violates the Equal Protection Clause.

As an orientation for assessing the argument, Lessig trenchantly reminds us:

In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim. When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim, and held that the Equal Protection Clause regulated how Florida could recount its votes. That conclusion led 5 justices to conclude the recount couldn’t continue. George Bush became president.

[emphasis added]. 

Lessig provides some scholarly sources and reveals he is planning a law review article on the applicability of Bush v. Gore and equal protection principles to the "winner take all" electoral college process. 

But he also shares a first take of a legal argument drafted by Jerry Sims, an Atlanta attorney.  Here's Sims's Georgia example:

In Georgia, for example, we have 16 Electors and approximately 44% of all voters cast ballots for Clinton. Yet the Clinton Voters receive no representation within the State’s Electors. They are left with no voice whatsoever in the election of the President by the Electoral College, their votes are for all practical purposes thrown away. If Georgia were electing a single candidate then a winner-take-all result would be proper, but in an election of 16 Electors, the Clinton votes are not being given equal dignity with the Trump votes. Of course the state could argue that there is a single slate of Electors is up for election. But therein lies the rub, the State is not free to disregard the one man one vote rule by arbitrarily framing the election of 16 Electors as though it is an election of a single office holder. That argument would be a pretext designed to deny any voice to the voters for the candidate not winning the plurality of the vote within the State, even though in reality multiple representatives are being selected to vote in a second election for a single candidate. This system leaves minority voters in Georgia with no voice whatsoever in the final real election. Thus, if the election is viewed by the State as a statewide election, then Electors should be allocated proportionately, in order to give every vote equal dignity and weight, thereby electing a delegation of Electors that actually represents all of the voters within the State. Under this methodology every vote counts. Proportional allocation of Electors respects the one man one vote principle while preserving the small state bias. It merely eliminates the likelihood of a President being elected who did not win the popular vote and did not win because of the small State bias embedded in the Constitution.

Sims links to a spread sheet that provides the data for other states.

The equal protection framework relies on Bush v. Gore and Reynolds v. Sims, as well as Williams v. Rhodes (1968).

It's certainly worth considering. 

 

Measuring Scalia-Ness in Trump's List for the Supreme Court

Check out this study that measures candidates on President-Elect Trump's list of potential Supreme Court nominees for how close they are to Justice Scalia. From the abstract:

This study proposes three empirical measures of what made Justice Scalia Justice Scalia. First, how often does a judge promote or practice originalism? Second, how often do they cite to Justice Scalia's non-judicial writings . . . . And third, how often does a judge write separately, something Justice Scalia did 25.9% of the time when he was not writing the majority opinion over his last 20 years on the court.

The study puts Utah Supreme Court Justice Thomas Lee far and away the closest to Justice Scalia. Justice Lee had a particularly outsized lead in "percentage of opinions with originalism" and followed closely behind others in the other two categories.

UPDATED: Does Jill Stein Have Standing to Petition for a Recount in Michigan?

Steven D. Schwinn, John Marshall Law School

It depends on what "aggrieved" means, according to the Trump team in its filing yesterday in opposition to Stein's recount petition.

Under Michigan law, a candidate can petition for a recount if the candidate "is aggrieved on account of fraud or mistake in the canvass of the votes by the inspectors of election or the returns made by the inspectors, or by a board of county canvassers or the board of state canvassers."

In a filing before the Michigan Board of State Canvassers yesterday, the Trump team argued that Stein wasn't "aggrieved," because, as the fourth-place finisher in the state, "finishing over 2.2 million votes behind the winner," she could not possibly benefit from a recount. The Trump team argued that her petition should be denied.

It turns out there's little direct authority on how to define "aggrieved." The Trump team points to the gloss given by the Director of Elections in a Board hearing ten years ago, the "natural understanding" of the term, and the use of the term in other places in Michigan law and other states' laws.

But even if Stein was "aggrieved," the Trump team argues that Michigan can't possibly conduct a recount before December 13 (outside the six-day "safe harbor" under federal law before the meeting of the electors on December 19).

But even if Stein was "aggrieved" and if Michigan could conduct a recount, the Trump team argues that Stein failed to sign and swear her petition.

Trump won 2,279,543 votes in Michigan; Clinton won 2,268,839; Gary Johnson won 172,136 votes; and Stein won 51,463.

UPDATE: Michigan AG Bill Schuette just filed suit in the Michigan Supreme Court to halt any recount, making arguments substantially similar to those by the Trump camp.

Eleventh Circuit Denies Immunity in Police Officer's Free Speech Case

Steven D. Schwinn, John Marshall Law School

The Eleventh Circuit ruled earlier this week that a police major was not entitled to qualified immunity for issuing a be-on-the-lookout (BOLO) advisory for another officer, recently fired for complaining about racial profiling and other constitutional violations by the local police department.

The ruling means that the officer's First Amendment case can move forward on the merits.

The case arose when Derrick Bailey, then an officer in the Douglasville Police Department, complained to his chief that other Douglasville officers and Douglas County Sheriff's Office deputies engaged in racial profiling and other constitutional violations. Bailey, who had an above-average record, was fired and harassed by other officers. Then Major Tommy Wheeler of the Douglas County Sheriff's Office issued the BOLO, saying that Bailey was a "loose cannon" who presented a "danger to any [law-enforcement officer] in Douglas County," and directing officers to "act accordingly." (According to the court, there was no evidence of any of this.)

Bailey sued for civil rights violations, and Wheeler moved to dismiss on qualified immunity grounds. The Eleventh Circuit rejected Wheeler's defense. It ruled that Bailey's speech was protected (Wheeler didn't contest this), that Wheeler's conduct adversely affected Bailey's speech, and that there was a causal connection between Bailey's speech and Wheeler's actions.

As to the second part, adversely affected, the court explained:

Let's pause for a moment to appreciate just how a reasonable law-enforcement officer may have understood that [BOLO] instruction. Under Georgia law, when a subject is armed and dangerous, an officer may shoot the subject in self-defense--a term Georgia construes as having justifiable intent to use such force as the officer reasonably believes to be necessary to prevent death or great bodily injury. So, in other words, Wheeler's BOLO gave all Douglas County law-enforcement officers a reasonable basis for using force--including deadly force--against Bailey if they reasonably misconstrued a single move Bailey made--such as reaching into his pocket when confronted by law-enforcement officers--as imperiling themselves or anyone else. We think that this situation, which potentially seriously endangered Bailey's life, easily would deter a person of ordinary firmness from exercising his First Amendment rights.

The court also ruled that Bailey's right to be free from retaliation for his speech was clearly established at the time that Wheeler issued the BOLO.

The court also denied Wheeler absolute immunity on Bailey's state-law defamation claim.

The ruling sends the case back to the trial court to go forward on the merits.

Constitutional Law Exam: 2016 Possibilities

It's time again for Constitutional Law final exam.  In previous posts, such as here, we've discussed the common strategy of using current controversies as exam material, and have highlighted the best practices regarding final exam drafting, including the baseline that the exam question must include ALL the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.

This end-of-semester, the President-Elect has provided ample fodder for exam material.

A good place to start would be the ACLU Report entitled The Trump Memos, a 27 page discussion of issues of immigration, creation of a Muslim "database," torture, libel, mass surveillance, and  abortion.  Embedded in many of these issues are constitutional structural considerations involving federalism (e.g., sanctuary cities) and separation of powers (building "the wall). 

For First Amendment issues, augmenting the ACLU's libel discussion with the ABA section article about Trump as a "libel bully" provides lots of material.  There is also the recent "flag-burning" tweet, though this may be too simple given the precedent, although it could be combined with the lesser known doctrine regarding denaturalization, as we discuss here.

Lesser known doctrine that may not have been covered this semester (but presumably would be covered next semester) includes the Emoluments Clause, given Trump's many possible conflicts, as we've mentioned here and here.  Additionally, some argue that the "election" is not "over": recounts are occurring and there are calls for the Electoral College to select the popular vote winner as President.  The problems with the voting and the election could also provide exam material; there are also interesting equal protection voting cases such as the recent Ninth Circuit en banc case.

While Trump looms large on the constitutional landscape, there are also some interesting cases before the United States Supreme Court, in which the issues are more focused.

 

 

 

 

 

Call for Papers: Separation of Powers: A Global Constitutional Dialogue

Check out the call for papers for an exciting Symposium on The Separation of Powers: A Global Constitutional Dialogue on May 22, 2017, at the University of Milan.

The topic is inspired by Professor Giovanni Bognetti's (U. Milan) book, La Separazione dei Poteri.

The conveners are Prof. Richard Albert (Boston College), Dr. Antonia Baraggia (U. Milan), Prof. Cristina Fasone (U. Rome), and Prof. Luca Pietro Vanoni (U. Milan).

The Call for Papers is here; proposals are due by January 15, 2017, to separationofpowersmay22@gmail.com. The full-day Symposium will be held entirely in English.

Second Circuit Says Plaintiff Has Standing for Some, but Not All, Truth-In-Lending Procedural Violations

Steven D. Schwinn, John Marshall Law School

The Second Circuit ruled today that a class representative had standing to challenge a creditor's failure to disclose certain requirements under the Truth In Lending Act, but lacked standing to challenge other failures to disclose.

The ruling means that two of the plaintiff's claims are dismissed for lack of standing. The court dismissed the other two on the merits.

The court's ruling applies last Term's Spokeo v. Robins, dealing with a plaintiff's ability to challenge a defendant's failure to comply with "procedural" statutory requirements, absent a more traditional injury. The Court in Spokeo held that a plaintiff who seeks to challenge a defendant's failure to comply with a statute also has to allege and show a concrete injury in order to show Article III standing. (The statutory violation is called a "procedural violation," because the statute in Spokeo (and this case) required the defendant to follow certain procedures--in particular, to disclose certain things to consumers. The Court in Spokeo said that sometimes those procedural violations also come with a concrete harm, and sometimes they don't. A plaintiff has to plead and show that they do.)

The case arose when Abigail Strubel sued a credit-card issuer for failing to make four disclosures required by TILA: (1) that cardholders wishing to stop payment on an automatic payment plan had to satisfy certain obligations; (2) that the bank was statutorily obliged not only to acknowledge billing error claims within 30 days of receipt but also to advise of any corrections made during that time; (3) that certain identified rights pertained only to disputed credit card purchases for which full payment had not yet been made, and did not apply to cash advances or checks that accessed credit card accounts; and (4) that consumers dissatisfied with a credit card purchase had to contact the creditor in writing or electronically.

The court held that Strubel had standing to challenge 3 and 4, but not 1 and 2.

As a starting point, here's what the court said about Spokeo:

Thus, we understand Spokeo, and the cases cited therein, to instruct that an alleged procedural violation can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff's concrete interests and where the procedural violation presents a "risk of real harm" to that concrete interest. But even where Congress has accorded procedural rights to protect a concrete interest, a plaintiff may fail to demonstrate concrete injury where violation of the procedure at issue presents no material risk of harm to that underlying interest.

As to 3 and 4, the court said that Strubel sufficiently demonstrated a concrete interest in "avoid[ing] the uninformed use of credit," "a core object of TILA." It said that a "consumer not given notice of his obligations is likely not to satisfy them and, thereby, unwittingly to lose the very credit rights that the law affords to him." The court went on to dismiss these claims on the merits.

As to 1 and 2, the court said that Strubel didn't show a concrete interest, because (as to 1) the creditor had no automatic payment plan when Strubel had her card and (as to 2) Strubel never had any reason to report a billing error (which would have triggered the creditor's obligation to "advise of corrections." In other words, because the conditions for violating the underlying requirements were absent, the creditor's failure to notify Strubel of the requirements couldn't have caused any concrete harm. The court dismissed these claims for lack of standing.

The court noted that a different plaintiff could have standing to challenge 1 and 2, so long as the plaintiff could also show a concrete harm. The court also noted that the CFPB can enforce these provisions independently.

Seventh Circuit Issues Mixed Ruling in Important Prisoner-Rights Case

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit today dismissed a state prisoner's First Amendment claim, but ruled that his Eighth Amendment claim can go forward.

Each part of the ruling is important: the free speech ruling creates a circuit split; and the Eighth Amendment ruling implicates questions of supervisor liability for civil rights violations and access to justice for victims--issues now before the Supreme Court (in a different context).

The case arose when state prisoner Seyon Haywood alleged that his auto mechanic teacher attacked him. Guards charged Haywood with making a false statement, and a disciplinary panel found him guilty and sentenced him to two-month's segregation and revoked one month of good-time credit.

Haywood filed a federal civil rights case against the warden, alleging that his punishment violated his free speech rights, and that his segregated confinement violated the Eighth Amendment.

The Seventh Circuit dismissed the First Amendment claim. The court ruled that under Heck v. Humphrey and Edwards v. Balisok, Haywood couldn't bring a Section 1983 case for relief that would necessarily imply the invalidity of his disciplinary sentence, at least until he successfully challenged that disciplinary sentence. The court rejected Haywood's argument that Heck and Edwards don't apply, because he disavowed any challenge to the duration of his confinement. Haywood's argument drew on a Second Circuit ruling, Peralta v. Vasquez, which said just that. The Seventh Circuit's rejection of Haywood's claim sets up a circuit split on the question whether a prisoner can bring a 1983 case without successfully challenging a sentence, if the prisoner waives that challenge.

As to the Eighth Amendment claim, the court held that Haywood produced sufficient evidence to show that the warden (the only defendant in the case) was deliberately indifferent to Haywood's conditions of confinement to satisfy Ashcroft v. Iqbal and Farmer v. Brennan for direct (not vicarious) liability.

Judge Easterbrook dissented on this latter point. He argued that Haywood only showed that the warden knew of the conditions of his confinement, and, under Iqbal, knowledge is not enough. Judge Easterbrook also noted that the Supreme Court will weigh in on this soon enough, in the consolidated Turkmen cases, testing whether former AG Ashcroft and FBI Director Mueller, among others, can be held liable for detention of alien detainees at the Metropolitan Detention Center in New York, soon after 9/11.