I've long followed and much admired CIR's work; Rosenberger v. Rector (free speech) and U.S. v. Morrison (federalism) are two prominent examples over the years, but you can see some of their other cases here. (I'm also one of their occasional academic advisors.) They're hiring, and I thought I'd pass along the details:
The Individual Rights Litigator with three or more years of active trial and appellate litigation experience (including any judicial clerkships) will channel his or her passion for advancing individual liberty, deep knowledge of constitutional law, and entrepreneurial skills to help develop and execute litigation strategies in service of CIR's mission, identify specific opportunities for consequential litigation, assist with client development and case filings, and advance the subsequent litigation docket with other litigators inside and outside of CIR. In short, the Individual Rights Litigator will help incubate, execute, and win major landmark victories that defend or advance individual liberties.
After Iran launched a barrage of missiles at Israel on April 13 in its first direct military assault on the country, Sen. Rick Scott, R-Fla., told his X followers why he thought former President Donald Trump should be reelected.
"This is the strength we need back in the White House!" Scott wrote April 13, sharing a July 22, 2018, tweet in which Trump threatened Iran's president. Trump later that day shared a screenshot of Scott's post on Truth Social , without further comment.
Trump's sharing of Scott's post led several X users to accuse the former president of violating the Logan Act, a 1799 law that bars private citizens from communicating with foreign governments to influence them about disputes with the U.S.
My thinking, from my e-mail to the PolitiFact writer (which was largely quoted in the post):
The Court allows takings suit against Texas to proceed under state law, but doesn't resolve question of whether the Takings Clause is "self-executing."
In DeVillier v. Texas, the Supreme Court issued a narrow ruling in an important Takings Clause case. Richard DeVillier and other property owners whose land was damaged by flooding caused by actions of state agencies will be able to proceed under a Texas state law cause of action. But the Court did not resolve the issue of whether the Takings Clause is "self-executing" - allowing property owners whose land has been taken to bring cases in federal court even in the absence of a specific federal statute authorizing it.
The Supreme Court decision does, however, overturn the extremely dubious Fifth Circuit US Court of Appeals ruling dismissing the plaintiffs' case. At least for the moment, it also negates Texas' Catch-22 attempt to get rid of the case by removing it to federal court (DeVillier originally filed his claim in state court), and then getting it dismissed on the grounds that there is no federal cause of action available.
Here are some key passages from the unanimous Supreme Court ruling written by Justice Clarence Thomas:
The Takings Clause of the Fifth Amendment states: "nor shall private property be taken for public use, without just compensation." We have explained that "a property owner acquires an irrevocable right to just compensation immediately upon a taking" "[b]ecause of 'the self-executing character' of the Takings Clause 'with respect to compensation.'" Knick, 588 U. S., at 192 (quoting First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315 (1987)). Texas does not dispute the nature of the substantive right to just compensation. This case presents only a question regarding the procedural vehicle by which a property owner may seek to vindicate that right.
Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead,constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose… DeVillier argues that the Takings Clause is an exception. He relies on First English Evangelical Lutheran Church of Glendale v. County of Los Angeles to assert that the just-compensation requirement of the Takings Clause is "self-executing" and that "[s]tatutory recognition [is] not necessary" for takings claims because they "are grounded in the Constitution itself." 482 U. S., at 315 (internal quotation marks omitted). In other words, the Takings Clause creates by its own force a cause of action authorizing suits for just compensation.
The cases that DeVillier cites do not directly confront whether the Takings Clause provides a cause of action for just compensation. First English itself proceeded under a state-law cause of action….
That said, the absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action. It demonstrates only that constitutional concerns do not arise when property owners have other ways to seek just compensation. Our precedents do not cleanly answer the question whether a plaintiff has a cause of action arising directly under the Takings Clause.
But, this case does not require us to resolve that question. The question presented asks what would happen if a property owner had no cause of action to vindicate his rights under the Takings Clause. It would be imprudent to decide that question without satisfying ourselves of the premise that there is no cause of action….
The premise that Texas left DeVillier with no cause of action to obtain the just compensation guaranteed by the Takings Clause does not hold. Texas state law provides a cause of action by which property owners may seek just compensation against the State. As Texas explained at oral argument, its state-law inverse-condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause….
This case therefore does not present the circumstance in which a property owner has no cause of action to seek just compensation. On remand, DeVillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of action available under Texas law.
One issue that seems unclear is whether, on remand, DeVillier and the others will be able to pursue the Texas law "cause of action" in federal court, or whether they must do so in state court. If the latter, could Texas once again remove the case to federal court and then once again argue the case must be dismissed because there is no proper federal cause of action? To my mind, the requirement that "DeVillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of action available under Texas law" seems to preclude the possibility of their being removed and dismissed for procedural reasons. But perhaps I am missing something here. I wish the Court were more clear on that point.
Perhaps the Catch-22 problem will not recur in this case, either because the substantive takings issues will now be fully litigated in federal court, or because the plaintiffs will be able to pursue their claims in state court and Texas will not try to remove again, or such attempts at removal will be rejected. But it could easily arise in other cases.
It would have been better if the Supreme Court had simply ruled that the Takings Clause is self-executing. The Clause makes no distinction between "legal" and "equitable" remedies for violations, or between "offensive" and "defensive" uses of the constitutional right in question. Instead, the presumptive remedy - "just compensation" - is built right into the text. Such a clear textual command overrides any possible implicit law-equity distinction. And it would be perverse if state or federal governments could negate the Takings Clause simply by failing to enact a specific statute to enforce it. Even if previous Supreme Court precedents don't squarely decide this issue, several - including First English - strongly imply that self-execution is the rule. As Justice Thomas notes, the 2019 Knick decision specifically refers to "'the self-executing character' of the Takings Clause 'with respect to compensation.'"
In addition, even if property owners are allowed to pursue claims in state court, it is important for victims of violations of federal constitutional rights to have access to federal courts, as well, a principle upheld by the Supreme Court's important Takings Clause ruling in Knick v. Township of Scott(2019).
I discussed the self-execution and Catch-22 issues at stake here in greater detail in the amicus brief I filed in this case, together with the Cato Institute.
UPDATE: The Institute for Justice - the public interest law firm representing DeVillier - indicates to me that their understanding of the Court's ruling is that the case will remain in federal court upon remand, and will not have to be refiled in state court.
That happened in yesterday's opinions respecting the stay in Labrador v. Poe, twice in Justice Gorsuch's concurrence (joined by Justices Thomas and Alito), and once in Justice Jackson's dissent (joined by Justice Sotomayor). Nice! For Sam's substantive analysis of Labrador, see this post.
From today's dissent from denial of rehearing en banc in Book People, Inc. v. Wong, written by Judge James Ho and joined by Jones, Smith, Duncan, and Engelhardt:
States have a profound interest in protecting the innocence of children from various adult activities. We don't let children buy alcohol. We don't let them gamble. They're not supposed to smoke.
We also shield them from sexually explicit materials. Nothing in the First Amendment prevents states from taking steps to shield children from such content. See, e.g., Ginsberg v. New York (1968) ("The well-being of its children is of course a subject within the State's constitutional power to regulate," "justify[ing] … limitations … upon the availability of sex material to minors"); FCC v. Pacifica Found. (1978) ("Bookstores and motion picture theaters … may be prohibited from making indecent material available to children."); New York v. Ferber (1982) ("we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights"); Thompson v. Oklahoma (1988) (in all "50 States," "no one under age 16 may purchase pornographic materials"); see also Pope v. Illinois (1987) (Stevens, J., dissenting) ("As for prohibiting sale or exhibition of sexually explicit material to minors … it has long been established that the State may go beyond the constitutional definition of obscenity.")….
The READER Act should be easy to affirm under these principles. The Act simply prohibits public school districts and open-enrollment charter schools from possessing, acquiring, and purchasing content with sexually explicit material for public school libraries. To facilitate transactions with book vendors, the Act asks vendors to inform the State if a book contains sexually explicit or sexually relevant material before selling it to a school district. It also asks vendors to inform the State of any books containing this material previously sold to a school district. And it directs the Texas Education Agency to post the names of books sold to school districts containing this material.
[This post is co-authored with Professor Seth Barrett Tillman.]
Last month, we filed an amicus brief in United States v. Trump (S.D. Fla.), one of two prosecutions brought against former-President Trump by Special Counsel Jack Smith. Our brief argued that Special Counsel Jack Smith is not an "Officer of the United States." At most, his temporary position is characterized as a mere "employee." As a result, this mere "employee" cannot exercise the broad prosecutorial powers of a United States attorney.
Smith filed a response to our amicus brief. Smith argued that the Blackman-Tillman brief is in conflict with an amicus brief filed by Former Attorney General Edwin Meese III, Professors Steve Carabresi and Gary Lawson, and organizations. Smith wrote:
Professor Seth Barrett Tillman and others filed (ECF No. 410-2) an amicus brief ("Tillman Amicus") in support of defendant Donald J. Trump's claim (ECF No. 326 at 1-7) that the Special Counsel lacks the legal authority to prosecute this case. Taking the polar opposite view from Former Attorney General Edwin Meese III and others, who argued in a separate amicus brief ("Meese Amicus") that the Special Counsel is a principal officer under the Constitution, see ECF No. 364-1 at 14-16, the Tillman Amicus's central contention is that the Special Counsel is not an officer at all, but instead an employee who is forbidden from exercising the authority vested in the Special Counsel by law.
A similar claim was made in an amicus brief filed by a group of constitutional lawyers and "state democracy defenders." This cohort includes Professor Laurence Tribe, George Conway, Patrick Fitzgerald, Donald Ayer, and Christine Todd Whitman. The amicus argues that the Blackman-Tillman brief is "inconsistent" with the Meese brief.
Smith, and the amicus brief, are incorrect. The Blackman-Tillman and Meese briefs are in substantial agreement with one another.
The Meese brief argues that for the Special Counsel to exercise the powers he is exercising, the Special Counsel must be a principal officer. However, the Special Counsel is in actuality something else. The Meese brief argues that the Special Counsel is merely an inferior officer. And, the Meese brief contends, that inferior officer cannot hold the powers granted to the Special Counsel.
The Blackman-Tillman brief approaches the same issue from a different perspective. We contend that for the Special Counsel to exercise the powers he is exercising, he must be an officer. And to be an officer, a position must have continuity. However, the Special Counsel is in actuality something else. We argue that the Special Counsel is merely an employee, because his position is not continuous.
The Meese brief, and the Blackman-Tillman brief, agree that Special Counsel Jack Smith is purporting to exercise powers he cannot exercise. Indeed, the Meese brief expressly argues that "The authority exercised by [Smith] as a so-called 'Special Counsel' far exceeds the power exercisable by a mere employee." The Meese brief added, that Smith "is acting as an officer, but aside from specific offices listed in the statutes discussed above, there is no office for him to hold."
The Meese brief argues that, at best, the Special Counsel is an inferior officer. As such, the Special Counsel cannot exercise the powers he purports to exercise. The Blackman-Tillman brief makes an almost identical point. Our position is, at best, the Special Counsel is an employee. If that characterization is correct, and we think it is, then the Special Counsel certainly cannot exercise the powers he purports to exercise.
Daily Mail (William Hunter) reports on the "Fanvue Miss AI pageant"; "ladies face off in tests of beauty, technology and social-media clout." "[P]erhaps the most unusual detail of the competition is that even some of the judges will be AI-generated." (Thanks to Instapundit [Ed Driscoll] for the pointer.)
From yesterday's Ohio Court of Appeals decision in State v. Golga (my students Dice Hagiwara, Jonathan Kaiman, and Brandon Peevy and I had filed an amicus brief in the case, with the invaluable help of local counsel Jeffrey M. Nye [Stagnaro, Saba & Patterson], on behalf of Profs. Stephen Lazarus, Kevin O'Neill, Margaret Tarkington, the 1851 Center for Constitutional Law, and myself, urging reversal of the conviction):
The City of North Ridgeville … shut off the water supply to Mr. Golga's residence because of nonpayment. He responded by calling the City's Water Department eight times over the course of 26 minutes. During the calls, he screamed, used profanity, and insisted his service be restored. An accounting clerk attempted to aid him but ended several calls because Mr. Golga would not stop screaming and cursing at her. Needing a moment, she allowed another of his calls to go to voicemail. He left the following voicemail message:
[Y]ou can't just be hanging up on people. That's f***ing bullsh*t. If you're f***ing trying to kill me by turning my f***ing water off, then f*** you. And if you'd like me to come down to the f***ing thing, we can have a f***ing conversation, go f*** yourself! You think you're f***ing bad? Yeah, f*** him. Let's starve him out. Let's f***ing kill 'em all, right? F*** you!
Mr. Golga eventually spoke with the City's public utilities director who came up with a plan to restore Mr. Golga's water service the next morning.
After Mr. Golga's voicemail message was forwarded to the police, he was charged with one count of telecommunications harassment in violation of Revised Code Section 2917.21(A)(1). A jury found him guilty of the offense. The municipal court sentenced Mr. Golga to 180 days in jail but suspended 177 of them. It also ordered him to complete anger management.
The Court of Appeals reversed, in an opinion written by Judge Jennifer Hensal and joined by Judge Donna Carr:
Yesterday in my conflict of laws class I taught South Dakota v. Wayfair, the 2018 case which lets states force out-of-state sellers to collect and remit use taxes. This morning I wondered why it hasn't been invoked more in the debates over interstate restrictions on abortion.
Wayfair involved a South Dakota requirement that businesses pay sales taxes on the products they sell into the state. If they don't, their customers are supposed to pay a use tax at the same rate, which of course they rarely do. The Court held that South Dakota could, under the Fourteenth Amendment's Due Process Clause and the "dormant" Commerce Clause, require Wayfair to collect and remit the tax itself, even if Wayfair didn't have any physical presence in South Dakota. Instead, due process would be satisfied so long as Wayfair was subject to South Dakota's personal jurisdiction—which they were, purposefully availing themselves of the South Dakota market by shipping products there. And dormant commerce would be satisfied through a multiprong test, focusing in particular on whether Wayfair's activity had "a substantial nexus with the taxing State," and noting that it's "'long been settled' that the sale of goods or services 'has a sufficient nexus to the State in which the sale is consummated,' i.e., that 'a sale is attributable to its destination.'"
I mention all this because Wayfair might scramble current debates over abortion pills like mifepristone. Suppose an out-of-state entity—a pharmacy, an abortion-rights nonprofit, etc.—ships abortion pills to a user in a state where abortion is illegal. Right now the Supreme Court is considering a case asking whether this use of the mails is illegal under the Comstock Act (though it might well be resolved on standing grounds instead). And a state that made such shipments illegal might have trouble enforcing its laws across state lines; one state's "penal judgments" typically aren't enforced by another, as a longstanding exception to judgment recognition.
So what if the state follows the Al Capone strategy and uses tax law instead? Say that Alabama imposes a use tax on mifepristone, which it would ordinarily require the user to pay, but which it also requires the provider to report, collect, and remit. There'd be a sufficient nexus, insofar as a sale is attributable to its destination. The tax would apply equally to in-state and out-of-state mifepristone providers, eliminating any claim of discrimination against interstate commerce. And while the Court in Wayfair emphasized the amount of business being done, it didn't endorse a strict minimum of how many shipments are needed to satisfy the commerce clause; after all, why should an out-of-state provider be allowed to evade a tax which an in-state provider would be obligated to pay? (The other parts of the dormant commerce test, derived from the Complete Auto case, could likely be satisfied too; and there's no rule against taxing illegal activities—cf. how they got Capone.)
If a state did tax mifepristone, it could probably get that tax enforced. While the general doctrine is that foreign tax judgments are only enforceable by the sovereign imposing the tax, the Supreme Court changed course as to state tax judgments in 1935, holding that every other state owed these judgments full faith and credit. So if Alabama had someone purchase mifepristone from an out-of-state pharmacy, and if it didn't receive a payment on time, it could initiate tax proceedings against the pharmacy in its own courts, and then potentially pursue recovery in other states—all the while imposing penalties for nonpayment. The various shield laws that states have enacted, purporting to bar enforcement of out-of-state laws or judgments restricting abortion, wouldn't necessarily stand up against a judgment entitled to full faith and credit. (Or a state might use the Supreme Court's original jurisdiction against an out-of-state citizen; or, depending on the amounts involved, a county or city might be able to use diversity jurisdiction to enforce its tax judgment in federal court.)
The point of all this isn't necessarily to outline a strategy for restricting abortion, but to note some reasons why we should feel less confident about Wayfair! It's very strange that an out-of-state actor might be obliged to look up and follow other states' tax laws, reporting on transactions and so on, even if we think those states lack power to regulate the actor in general. It's just that the strangeness is easy to miss when the issue is competition between online and brick-and-mortar purveyors of office supplies, and a lot easier to see when the issue is having to report your shipments of abortion pills (names, addresses, etc). The natural regulator for interstate shipments is Congress, which may have already banned interstate shipment of abortion pills in the Comstock Act, but which generally allows office supplies to move across state lines. But because the Biden Administration has "interpreted" the Act in an extraordinarily narrow way, we have neither an effective federal entitlement to send pills through the mails nor an effective federal prohibition either. Yet so long as each state can require out-of-state actors to collect and remit taxes, each state can further entangle itself in the abortion debate too.
This morning's decision in DeVillier v. Texas, written by Justice Thomas for a unanimous Court, has this meticulously careful description of the relationship between law, equity, and causes of action, with a citation to my colleague A.J. Bellia's excellent work with Brad Clark (emphasis added):
The cases that DeVillier cites do not directly confront whether the Takings Clause provides a cause of action for just compensation. First English itself proceeded under a state-law cause of action. Id., at 313–314, n. 8. DeVillier also points to several takings cases where property owners sought injunctions to prevent the Government from interfering with their property rights, such as by obtaining easements or imposing zoning regulations. See Dohany v. Rogers, 281 U. S. 362, 364 (1930); Delaware, L. & W. R. Co. v. Morristown, 276 U. S. 182, 188 (1928); Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 384 (1926); Cuyahoga River Power Co. v. Akron, 240 U. S. 462, 463 (1916); Norwood v. Baker, 172 U. S. 269, 276 (1898). Because none of those cases relied on §1983 for a cause of action, he reasons that those cases must have proceeded directly under the Constitution. But, the mere fact that the Takings Clause provided the substantive rule of decision for the equitable claims in those cases does not establish that it creates a cause of action for damages, a remedy that is legal, not equitable, in nature.2 That said, the absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action. It demonstrates only that constitutional concerns do not arise when property owners have other ways to seek just compensation. Our precedents do not cleanly answer the question whether a plaintiff has a cause of action arising directly under the Takings Clause.
FN 2: The significance of DeVillier's equitable cases is further obscured by fundamental changes to the law of equity that postdate those decisions. Compare Fed. Rule Civ. Proc. 2 with A. Bellia & B. Clark, The Original Source of the Cause of Action in Federal Courts, 101 Va. L. Rev. 609, 653 (2015).
This is very well done. And though terse, it suggests a much better path than Harlan's concurrence in Bivens, which addresses and gets exactly wrong the relationship between law and equity and a cause of action.
In the forthcoming edition of Ames, Chafee, and Re on Remedies, I included a note after Bivens that addresses the argument that since there is a basis for a suit in equity, there must therefore be a cause of action for damages. The short answer: no. Here's the note:
NOTE ON EQUITY AND GRANTS OF GENERAL JURISDICTION
Justice Harlan presumes that if a grant of general jurisdiction is enough
for judges to grant equitable relief, it should also be enough for judges to
allow a cause of action for damages. One important distinction, though, is
that equity does not traditionally have causes of action. See generally
Samuel L. Bray & Paul B. Miller, Getting into Equity, 97 Notre Dame L. Rev.
1763 (2022). It would be unsurprising, therefore, for a statute to authorize a
court to give equitable relief with a grant of general jurisdiction, while for legal relief statutes tend either to create a new cause of action or to codify a
common law one (with or without alteration).
Yesterday the Court stayed most of the district court's injunction in Labrador v. Poe, narrowing the injunction so that it protected only the plaintiffs from the enforcement of Idaho's statute restricting surgeries and other kinds of medical interventions for minors related to gender identity. Accompanying the Court's stay were three opinions about universal injunctions. Labrador v. Poe is an important development and it starts to clarify the Court's direction.
Note that in this post I will refer to "universal injunctions," meaning injunctions that prohibit the government's application of a law or regulation to anyone, not just to the parties and those represented by parties. In other words, the category "universal injunctions" includes national injunctions and also their state equivalents (i.e., it includes nationwide and statewide injunctions), but it excludes the distinct question of vacatur as a remedy under the Administrative Procedure Act. Using the term "universal injunctions" is helpful because it is what is squarely at issue between the justices in Labrador v. Poe: the case is about an injunction prohibiting enforcement of a state law against anyone, and the justices discuss the power to do this as a matter of equitable principles, leaving to one side the question of whether those principles are altered by the APA.
Here is where the justices fell:
Three justices (Gorsuch, joined by Thomas and Alito) concurred in the stay that narrowed the injunction to be plaintiff-protective, and their opinion offered a clear rejection of universal injunctions.
Two justices (Kavanaugh, joined by Barrett) concurred in the stay, and spoke primarily to how the Court should think about stays of lower-court injunctions. This opinion did not fully answer the question of universal injunctions, but it expressed skepticism ("As I see it . . ."; "In short, a rule limiting . . ."; and especially footnote four).
The Chief Justice did not indicate how he voted, so if he concurred in the stay the vote was 6-3, and if not it was 5-4. It is more likely given the Court's practices for unidentified votes that he concurred in the stay, but either is possible.
One justice (Kagan) dissented from the stay without opinion. That does not indicate a position on the universal injunction question, since it is consistent with a number of different possibilities, including (1) a view that universal injunctions are not permissible but Idaho failed for substantive or procedural reasons to make a compelling case for a stay; or (2) a view that universal injunctions are permissible, and there was on these facts no reason to think that the grant of a universal injunction was an abuse of discretion.
Two justices (Jackson, joined by Sotomayor) dissented from the stay. They emphasized debate on the history of universal injunctions, and that the questions raised by these injunctions "are contested and difficult." Their disagreement with the majority was about how stringent the standard should be for stays of lower-court injunctions, how deferential the Court should be, and whether the injunction in this case actually was a universal injunction at all (as opposed to one that was no broader than necessary to protect the plaintiffs).
Brief observations:
This is the first time we have had a case where most of the justices (seven) have joined opinions that say something, however exploratory, about universal injunctions.
There is a striking asymmetry in the positions of those seven: three against universal injunctions, two skeptical of them, and two calling the question undecided and difficult. No one offered a first-principles defense of what has become the status quo in lower courts only since the last part of President Obama's second term.
In terms of arguments, the opinions were careful, and I was especially impressed at the absence of two straw men. First, it's sometimes said that without universal injunctions there would have to be individual suits for every affected person--but that ignores the role of precedent, and both the Gorsuch and Kavanaugh concurrences recognized precedent's role for how a judicial decision reaches out to non-parties. Second, it's sometimes said that the position against universal injunctions requires one to think that an injunction cannot have any incidental benefit for non-parties. That isn't so. An injunction that requires A to clean up a nuisance afflicting neighbor B might also have good benefits for neighbor C. And Justice Jackson made exactly that point (footnote 3).
In terms of revealed preferences, what is new in Labrador v. Poe is several-fold. Justice Alito joined Justice Gorsuch and Justice Thomas in opposing universal injunctions, I think for the first time. And it was I believe Justice Jackson's first opinion about universal injunctions since joining the Supreme Court: it offers a measured assessment of the debate and not only criticizes the concurring justices (it is a dissent), but also calls for restraint among the lower-court federal judges who are giving universal injunctions (the paragraph with "I see some common ground"). Justice Kavanaugh's opinion reflected his consistent skepticism on injunctions against state laws that run beyond protecting the plaintiff, as well as his inclination to distinguish the injunction question from the APA question--both themes previously appeared in his statement respecting the denial of the application for a stay in Griffin v. HM Florida-ORL, LLC.
It makes sense to think about the injunction question separately and first, since the APA question adds additional layers and complexities to the core issue of equitable power in the absence of a statute. That is exactly what the Court is doing.
It's interesting that the question was about an injunction against a state law. There have been important opinions by Judge Stras (in dissent) and Chief Judge Sutton that have extended the critiques of national injunctions to their state counterparts. The opinions of the justices in Labrador v. Poe are a measure of vindication.
There are plenty of other important strands in all of these opinions, including thoughtful contributions on when stays from the Supreme Court are appropriate and the impossibility of entirely avoiding the merits, on the emergency docket, and on forum-shopping (as Justice Gorsuch correctly says, "In universal-injunction practice, . . . [j]ust do a little forum shopping for a willing judge and, at the outset of the case, you can win a decree barring the enforcement of a duly enacted law against anyone.").
I'll close by quoting the incisive final paragraph of Justice Gorsuch's concurrence:
Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today's decision wrong, it makes it wrong in the best possible ways, for "good judicial decisions are usually tempered by older virtues." DHS, 589 U. S., at ___ (slip op., at 4).
From the Florida Court of Appeal decision Friday in Waite v. State, written by Judge Paige Kilbane, joined by Chief Judge James Edwards and Judge Scott Makar:
This case stems from a lengthy dispute between Waite and the Citrus County Sheriff's Office ("CCSO"). Since 2018, Waite quarreled over property boundaries with city employees and CCSO deputies. For the duration of this dispute, Waite would report what he believed to be crimes to various state agencies and the media. As his relationship with the CCSO continued to devolve, Waite started recording conversations with CCSO deputies.
In January 2021, Waite called 911 to report what he perceived to be a trespassing incident involving members of the CCSO. Waite insisted that he wanted to file a complaint with internal affairs and that he had an email ready to send. The 911 operator explained that she would have a supervisor give him a call back as she could not provide the information he was requesting. Waite agreed and informed the 911 operator he wanted the call to be recorded. Later that same day, Sergeant Edward Blair called Waite back. Waite recorded the three-minute phone conversation but did not inform Sergeant Blair he was doing so. Waite sent the audio recording of that call via email to the CCSO records department and requested an internal investigation…. [Waite was criminally charged with violating] section 934.03(1)(a), Florida Statutes (2020), by recording the conversation with Sergeant Blair without his consent….
Waite pleaded no contest after his motion to dismiss was denied, but then appealed the denial of the motion to dismiss, and the appellate court agreed with him.
"Dr. Morrison brought this lawsuit. He chose to challenge the accuracy of these statements in a public courtroom. If disclosing the allegedly-defamatory statements invades his privacy or causes him injury, it is solely the result of his own actions and decisions."
Dr. John Morrison sues multiple defendants, including Delray Medical Center ("the Hospital") in a 14 count Complaint alleging both federal and state claims….
The redacted information … [includes] … allegedly defamatory statements about Dr. Morrison…. Dr. Morrison … argues that disclosing this information may affect his ability to practice medicine and earn a living. He further says, "The public's interest in viewing these false and defamatory statements are of little to no importance. Unlike other cases involving the competing balance of interests test, there is no motion from a non-party to view otherwise sealed information. The potential damage to Dr. Morrison's ability to earn a living and practice medicine substantially outweigh the abstract and unasserted interest by the public in viewing the specifics of these false statements."
Dr. Morrison brought this lawsuit. He chose to challenge the accuracy of these statements in a public courtroom. If disclosing the allegedly-defamatory statements invades his privacy or causes him injury, it is solely the result of his own actions and decisions. Disclosing these statements will not impair court functions. They do not involve public officials or public concerns. Dr. Morrison will be able to respond to the information; he brought the defamation claim specifically so he could disprove the statements. There is no lesser alternative than unsealing.
"This isn’t about forum shopping. It’s about forum shaming. It’s about shaming judges who won’t distort their rulings to do their bidding—while rewarding those judges who do."
[I heard about Judge Ho's speech and thought it relevant to some of the recent discussions on this blog, so I asked him if I could publish it. He kindly obliged.]
Midland County Bar Association
April 15, 2024
Thank you, Judge Counts, for the kind introduction. I'm honored to follow in the footsteps of your previous keynote speakers—including Judge Counts and Judge Junell—past and present members of my court, like Chief Judge Richman and Judge Prado—as well as distinguished judges from our state court system.
Gatherings like this recognize the modest but important role that the judiciary plays in resolving our Nation's disputes.
Here in Midland, a single federal district judge has the solemn duty to resolve all of the disputes that arise under Article III of the Constitution. Judge Counts has spent his entire life serving his country and his community—the United States Army, the Texas Army National Guard, a state and federal prosecutor, and fifteen years on the federal bench.
The people of Midland can take comfort that their rights are protected by such a devoted and publicly spirited member of their community.
based on state sealing law. The lawsuit is against a current Vermont legislator, and alleges the defendant had aided and abetted the sexual assault of the then-16-to-17-year-old plaintiff in 1968-70.
Self-represented Plaintiff Bryan Milazzo brings this action against Peter Anthony [based on diversity of citizenship] …. Plaintiff seeks "compensatory and exemplary damages for injuries suffered as the result of Defendant Peter Anthony aiding and abetting … sexual activity against Plaintiff, a minor …."
Prior to bringing this federal case, Plaintiff filed complaints against Defendant in New York and Vermont state court based on the same or similar facts as alleged in his federal Complaint. The New York proceedings remain pending. The Vermont Superior Court dismissed Plaintiff's complaint in 2023 for failure to state a claim upon which relief can be granted. Plaintiff filed his Complaint in this Court on November 1, 2023….
Defendant sought to seal the motion to dismiss and various related documents (including the motion to file under seal itself), but the court said no. It began by noting the general presumption of public access to court records, which is especially strong as to potentially outcome-determinative filings such as motions to dismiss, and also "moderately strong" as to the exhibits and as to the motion to file under seal. It then explained why a special Vermont sealing rule didn't affect the analysis:
The record in Plaintiff's [earlier] case against Defendant in the Vermont Superior Court was sealed "as applied to [Defendant]." Defendant asserts that, because "the Vermont Superior Court sealed the record as applied to [Defendant] in Plaintiff's suit concerning the same set of facts[,] … this Court should avoid inconsistent orders between the Superior Court and the U.S. District Court by ordering case filings to be made under seal." According to Defendant, the Vermont Superior Court sealed the concurrent state court proceedings "pursuant to Vermont statute, namely 12 V.S.A. § 522(b)."
The Court is not persuaded that consistency between state and federal court sealing decisions warrants a categorical approach to sealing in this case. To the extent that consistency between federal and state court sealing decisions could be considered a countervailing factor, the argument would only apply to the documents filed in the Vermont Superior Court proceedings; namely, Exhibits B, C, and D attached to Defendant's Motion to Dismiss.
The Court is not aware of any caselaw holding that consistency between federal and state court sealing decisions is a legitimate countervailing factor….
