From the syllabus of today's Connecticut Supreme Court decision in Khan v. Yale Univ., which summarizes the court's reasoning in a unanimous opinion by Justice Raheem Mullins:
In 2015, D accused the plaintiff [a Yale undergraduate] of sexually assaulting her in her dormitory, and the university suspended the plaintiff. The committee, however, stayed the disciplinary proceedings against the plaintiff pending the outcome of a criminal case that the state had filed against him. The plaintiff subsequently was acquitted on multiple counts of sexual assault, and, in 2018, he resumed full-time student status at Yale.
Shortly thereafter, however, as a result of the reporting in a student newspaper of additional allegations of sexual assault involving the plaintiff, the plaintiff agreed to undergo a mental health consultation, but he refused a request that he meet with university administrators. Subsequently, the university again suspended the plaintiff on the ground that it was necessary for the safety and well-being of the plaintiff and the university community.
Thereafter, the committee convened a hearing in connection with D's 2015 sexual assault complaint. [Details of the procedures at the hearing quoted below. -EV] The university ultimately expelled the plaintiff.
Plaintiff sued D for defamation and interference with business relations, claiming "that D had made false accusations in an effort to have him expelled as part of the #MeToo political movement and a personal vendetta stemming from D's alleged romantic advances toward the plaintiff." But the federal District Court threw out the claims, "concluding that the disciplinary proceedings were quasi-judicial in nature and that D, therefore, enjoyed absolute immunity under Connecticut law for any statements that she had made in the course of those proceedings" (much like witnesses in trials have such immunity from civil lawsuits).
Eventually the Second Circuit asked the Connecticut Supreme Court whether Connecticut law provided such immunity, and the court said no:
From Wednesday's Firefighters4Freedom v. City of L.A. (see here for more on the non-privacy-based challenges in the case), a part of the opinion that all three judges endorsed:
Firefighters4Freedom, a nonprofit corporation "whose mission is to support the constitutional rights of firefighters in the City of Los Angeles during the COVID-19 pandemic," sued the City of Los Angeles over the City's 2021 COVID-19 vaccine mandate for City employees. Firefighters4Freedom sought declaratory and injunctive relief based on allegations the vaccine mandate exceeded the City's authority under its police powers, violated the firefighters' right to privacy under the California Constitution, and violated the firefighters' due process rights….
"Unlike the federal Constitution, the California Constitution expressly recognizes a right to privacy: 'All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.'" …
In Hillv. NCAA (Cal. 1994) the Supreme Court articulated a two-part inquiry to determine whether the plaintiff's right to privacy under article I, section 1 has been violated. First, the plaintiff must demonstrate … "'(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.'" "Second, if a claimant satisfies the threshold inquiry, '[a] defendant may prevail in a state constitutional privacy case by negating any of the three elements … or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.' [Citation.] 'The plaintiff, in turn, may rebut a defendant's assertion of countervailing interests by showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests.'" …
Firefighters4Freedom alleged City firefighters have a legally protected privacy interest in their bodily integrity…. The right to bodily integrity (also called personal autonomy) is protected under article I, section 1 of the California Constitution. (See In re Qawi (Cal. 2004) ["The right of privacy guaranteed by the California Constitution, article I, section 1 'guarantees to the individual the freedom to choose to reject, or refuse to consent to, intrusions of his bodily integrity.'"].) …
In today's decision in United States v. Texas, the Supreme Court ruled 8-1 that the states of Texas and Louisiana lacked standing to challenge the Biden Administration's immigration enforcement guidelines. The guidelines had prioritized some undocumented immigrants for removal over others, most notably those who had committed serious crimes or acts of terrorism, and those who had crossed the border only recently. The states claimed these guidelines violated various statutes with provisions indicating the federal government "shall" detain or remove certain categories of migrants that were not prioritized under the guidelines.
The majority did not reach the merits of the case, but instead concluded the states lacked standing to raise the issue in the first place. I think the Court got the right result, but for the wrong reason. They would have done better to reach the merits and rule the executive has enforcement discretion here. Indeed, much of Justice Brett Kavanaugh's majority opinion makes more sense that way.
The standing ruling is a big win for the Biden Administration and for executive discretion in law enforcement more generally. Going forward, it will be very difficult for states (or anyone) to challenge executive decisions on enforcement priorities. Today's ruling also follows on last year's decision in Biden v. Texas, the "Remain in Mexico" case, where the Supreme Court did reach the merits, and also concluded the executive has broad discretion. So far, the primary result of Texas's efforts to use litigation to constrain Biden's immigration policies have been two Supreme Court decisions bolstering executive authority.
Justice Kavanaugh's majority opinion (joined by Chief Justice Roberts and the three liberal justices) argues that states lack standing to challenge most uses of executive discretion over enforcement decisions:
The States have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions. On the contrary, this Court has previously ruled that a plaintiff lacks standing to bring such a suit.
The leading precedent is Linda R. S. v. Richard D., 410 U. S. 614 (1973). The plaintiff in that case contested a State's policy of declining to prosecute certain child-support violations. This Court decided that the plaintiff lacked standing to challenge the State's policy, reasoning that in "American jurisprudence at least," a party "lacks a judicially cognizable interest in the prosecution . . . of another." Id., at 619. The Court concluded that "a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Ibid.
The Court's Article III holding in Linda R. S. applies to challenges to the Executive Branch's exercise of enforcement discretion over whether to arrest or prosecute.
Kavanaugh then gives a list of reasons why enforcement decisions are generally left to the executive:
Several good reasons explain why, as Linda R. S. held, federal courts have not traditionally entertained lawsuits of this kind. To begin with, when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual's liberty or property, and thus does not infringe upon interests that courts often are called upon to protect….
Moreover, lawsuits alleging that the Executive Branch has made an insufficient number of arrests or brought an insufficient number of prosecutions run up against the Executive's Article II authority to enforce federal law. Article II of the Constitution assigns the "executive Power"to the President and provides that the President "shall take Care that the Laws be faithfully executed." U. S. Const., Art. II, §1, cl. 1; §3. Under Article II, the Executive Branch possesses authority to decide "how to prioritize and how aggressively to pursue legal actions against defendants who violate the law." TransUnion LLC, 594 U. S., at ___ (slip op., at 13)….
That principle of enforcement discretion over arrests and prosecutions extends to the immigration context, where the Court has stressed that the Executive's enforcement discretion implicates not only "normal domestic law enforcement priorities" but also "foreign-policy objectives." Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 490–491 (1999). In line with those principles, this Court has declared that the Executive Branch also retains discretion over whether to remove a noncitizen from the United States. Arizona v. United States, 567 U. S. 387, 396 (2012) ("Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all")….
In addition to the Article II problems raised by judicial review of the Executive Branch's arrest and prosecution policies, courts generally lack meaningful standards for assessing the propriety of enforcement choices in this area. After all, the Executive Branch must prioritize its enforcement efforts…. That is because the Executive Branch (i) invariably lacks the resources to arrest and prosecute every violator of every law and (ii) must constantly react and adjust to the ever-shifting public-safety and public-welfare needs of the American people.
This case illustrates the point. As the District Court found, the Executive Branch does not possess the resources necessary to arrest or remove all of the noncitizens covered by §1226(c) and §1231(a)(2). That reality is not an anomaly—it is a constant. For the last 27 years since§1226(c) and §1231(a)(2) [the statutes Texas relies on] were enacted in their current form, all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.
Kavanaugh also points out that a ruling in favor of the states would create a dangerous slippery slope of lawsuits challenging enforcement priorities in other areas of law:
If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws—whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path.
Kavanaugh is right about most of these points. In a world where the federal government lacks the resources to pursue more than a small fraction of violations of federal law (a majority of adult Americans have committed a federal crime at some point in their lives), enforcement discretion is inevitable, and the Constitution largely gives that discretion to the executive, not the courts.
But this reasoning makes more sense as a decision on the merits than as a standing ruling. The states claim that Biden's enforcement priorities inflict financial costs on them (e.g. in the form of migrants spending more time in state detention and using various state services), and Kavanaugh's opinion acknowledges that financial losses are the type of injury normally sufficient to create standing.
That's true even if (as in this case) the migrants also create economic benefits for states that outweigh their losses. I don't see why financial losses resulting from enforcement discretion are somehow less "cognizable" than those resulting from other government policies. In a concurring opinion, Justice Amy Coney Barrett says she is "skeptical that these reasons are rooted in Article III standing doctrine." Her skepticism is well-justified! Barrett correctly explains that the precedents cited by Kavanaugh are mostly not actually about standing, but about the substantive scope of executive discretion.
The majority does note several situations where litigants will still have standing to challenge executive nonenforcement:
First, the Court has adjudicated selective-prosecution claims under the Equal Protection Clause. In those cases, however, a party typically seeks to prevent his or her own prosecution, not to mandate additional prosecutions….
Second, as the Solicitor General points out, the standing analysis might differ when Congress elevates de facto injuries to the status of legally cognizable injuries redressable by a federal court…. For example, Congress might (i) specifically authorize suits against the Executive Branch by a defined set of plaintiffs who have suffered concrete harms from executive under-enforcement and (ii) specifically authorize the Judiciary to enter appropriate orders requiring additional arrests or prosecutions by the Executive Branch….
Third, the standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions….
Fourth, a challenge to an Executive Branch policy that involves both the Executive Branch's arrest or prosecution priorities and the Executive Branch's provision of legal benefits or legal status could lead to a different standing analysis. That is because the challenged policy might implicate more than simply the Executive's traditional enforcement discretion…
Fifth, policies governing the continued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies.
The fourth point may be significant in cases where the executive combines non-enforcement with a possible grant of benefits to undocumented immigrants, as in the case of the grant of "lawful presence" to DACA recipients (though in my view the right approach here is just to rule against that provision of the policy while keeping the rest intact). But, overall, these five exceptions are likely to come up only rarely.
Like Kavanaugh's general points about executive discretion, these exceptions make more sense as an analysis of the scope of executive power than as a theory of standing. With the possible exception of post-arrest detention policies (the inclusion of which in this list makes little sense), they all apply to cases where the executive goes beyond exercising ordinary enforcement discretion or (in the case of the Equal Protection Clause) uses it in a way that violates suspects' constitutional rights.
In a concurring opinion joined by Justices Clarence Thomas and Amy Coney Barrett, Neil Gorsuch differs with the majority's analysis, but concludes the states lack standing for a different reason: redressability. He reasons that a ruling setting aside the Biden guidelines would not really redress the states' financial injuries, because there is no guarantee that federal officials would actually detain or deport the migrants in question. Even if the guidelines were rescinded, lower-level federal officials would still lack resources to deport more than a small fraction of all undocumented immigrants, and they would still have to exercise discretion over which ones to cover.
Gorsuch is right about much of this. However, if the states had prevailed, it is highly likely that federal officials would detain or deport at least a few migrants they would otherwise have left alone. And this in turn would save the states at least a little money on the types of expenditures they complain about. Usually, the ability to partially redress an injury, even in a small way, is enough for standing (Gorsuch admits as much). Gorsuch contends that statutes preclude federal courts from issuing injunctions in a case like this. But even if this is true, a decision invalidating the enforcement guidelines would likely lead to at least some additional deportations and detentions, thereby alleviating the states' claimed injuries at least to a small degree.
Gorsuch also argues at length that federal courts lack the power to issue "vacatur" orders negating administrative policies like the one in question. I will leave this issue to administrative law experts.
In a lengthy dissent, Justice Samuel Alito disputes the majority's and Gorsuch's standing analysis, often for good reason. He also claims the original meaning of the scope of executive power doesn't give the President the power to exercise enforcement discretion in this way. But virtually all the history he cites relates to the executive's possible power to "suspend" or "dispense" with laws, thereby rendering otherwise illegal actions legal. Here, the administration isn't asserting the power to make otherwise illegal migration legal. It merely adopts a policy prioritizing pursuit of some violators over others.
As the majority recognizes, such discretion is unavoidable in a situation where there are far too many lawbreakers for the executive to pursue more than a small fraction of them. And it is a core executive power.
So the California Court of Appeal has held, concluding that there is enough of a factual dispute (under California's plaintiff-friendly pleading standards) for the case to go forward.
From Wednesday's California Court of Appeal decision in Firefighters4Freedom v. City of L.A., decided by Justice John Segal, joined by Justice Dennis Perluss (read the opinion itself for much more, and there's also a discussion of a constitutional right to privacy claim that I blogged about separately):
Neil deGrasse Tyson once said in an interview, "The good thing about science is that it's true whether or not you believe in it." Under California's pleading rules, however, truth, scientific or otherwise, usually cannot be determined on demurrer…. "[T]he plausibility of the [plaintiff's] allegations has no role in deciding a demurrer under governing state law standards, which … require us to deem as true, 'however improbable,' facts alleged in a pleading …."
Firefighters4Freedom, a nonprofit corporation "whose mission is to support the constitutional rights of firefighters in the City of Los Angeles during the COVID-19 pandemic," sued the City of Los Angeles over the City's 2021 COVID-19 vaccine mandate for City employees. Firefighters4Freedom sought declaratory and injunctive relief based on allegations the vaccine mandate exceeded the City's authority under its police powers, violated the firefighters' right to privacy under the California Constitution, and violated the firefighters' due process rights.
The trial court sustained the City's demurrer to all three causes of action without leave to amend, primarily by taking judicial notice of facts contained in various documents submitted by the City, including that "COVID-19 vaccinations are safe and effective in protecting the health and safety of the public" and that "[t]here is consensus in the medical and scientific community that COVID-19 vaccines are a reasonable method to lessen the spread of COVID-19 during the present global pandemic." … [T]he trial court erred in taking judicial notice of the truth of the statements in the documents the City asked the court to judicially notice. Because the facts in the documents submitted by the City were not subject to judicial notice, Firefighters4Freedom's causes of action cannot be resolved on demurrer.
A trial court, of course, may take judicial notice of certain aspects of the COVID-19 pandemic, the disease caused by the virus, and the existence of certain government actions and publications concerning COVID-19. But the trial court here took judicial notice of the truth of disputed factual matters. And that was error….
In Wednesday's Sonya J. v. Robert M., the California Court of Appeal (in an opinion by Justice Ioana Petrou, joined by Justices Allison Tucher and Victor Rodríguez) largely upheld a restraining order that barred Sonya J. from harassing her ex-husband and her adult children (see the opinion for a long and detailed discussion of Sonya J.'s behavior); but it vacated (quite correctly, I think) a ban on various social media posts, holding that it was unconstitutionally vague:
A restraining order is unconstitutionally vague when the order does not clearly define the conduct prohibited…. As noted, item 23 [of the DVRO] states: "[Sonya] shall immediately take down from the Internet and social media any and all photos of the protected parties; and cease and desist from posting any photos, descriptions, references, or allusions to any of them for the duration of the protective order. [Sonya] will also cease and desist from posting anything directly or indirectly mentioning child/parental alienation as well as anything about Robert, including but not limited to that which may be immediately or remotely interpreted as demeaning or belittling to him."
Under this language, Sonya risks violating the DVRO by posting anything "directly or indirectly mentioning child/parental alienation," but what is meant by "child/parental alienation" is not explained, and not reasonably understood. Nor is it clear whether the restriction enjoins Sonya from writing about this topic as a general matter (which may raise overbreadth concerns) or specifically with respect to her children.
"[T]he Does cannot wield the constitutional right to parent as a sword to require the district to adopt policies that help them to direct and control their son's choices," and likewise as to the right to free exercise of religion.
From Judge Jill Parish's opinion Wednesday in Doe v. Alpine School Dist.(D. Utah), which strikes me as quite correct:
John and Jane Doe are the parents of JD, a minor student who attended Skyridge High School. [I couldn't find his age or grade in the record. -EV] On May 25, 2022, Mrs. Doe arrived at the school and attempted to check JD out of school; however, the Skyridge office staff informed her that the students were not in their classrooms because it was the last week of school…. [Mrs. Doe] located her son in the school parking lot after contacting his girlfriend….
Skyridge's Resource Officer, Mr. Sweeten, told [the Does] that although the district calendar indicated that the last week of school would follow a normal schedule, Skyridge had an informal custom of releasing students after only two hours of class time and of not enforcing attendance during that week. Administrators stated that this unofficial policy was followed so that students could check in with teachers about their grades….
The Does are members of the Church of Jesus Christ of Latter-day Saints and have raised their son under its doctrines and to follow its practices, one of which prohibits premarital sex. The Does had previously discovered that JD had begun having sex with his girlfriend and had placed restrictions on JD's activity to prevent him from having premarital sex thereafter, such as requiring him to be accompanied by other persons when he was with his girlfriend and requiring that JD travel to and from school with his older sibling. The Does learned that JD had had sex with his girlfriend in the parking lot next to the school during school hours three times during the final week of school.
The Does sued the school district and several administrators, alleging that their constitutional rights to parent their child and to free exercise of religion had been violated.
Last year, there was a bit of a stir when Justice Alito cited Sir Matthew Hale in the Dobbs draft, as ultimately in the published opinion. The well-known seventeenth century English judge sentenced two women to death for witchcraft. Therefore, everything the jurist wrote should be cancelled.
For those who still care about these things, Justice Sotomayor's dissent in Pugin v. Garland, which was joined by Justices Gorsuch and Kagan, also cites Hale. She cites Blackstone too. I'm sure he said some misogynistic things.
Although the Court quotes Blackstone's statement that " 'dis-suad[ing] a witness from giving evidence' " was an " 'impedimen[t] of jus-tice' " in support of its position, ante, at 8, Blackstone actually supports this dissent. The Court ignores that in historical usage "giving evidence" meant "testifying" at a proceeding. See, e.g., 3 W. Blackstone, Commentaries on the Laws of England 305 (1768) ("[E]very defence, which cannot be thus specially pleaded, may be given in evidence, upon the general issue at the trial"); 2 M. Hale, History of the Pleas of the Crown 280 (1736) ("If a reward be promised to a person for giving his evidence before he gives it, this, if proved, disables his testimony"). The majority also ignores that the Blackstone passage is discussing "[c]ontempts against the king's . . . courts of justice." 4 Blackstone, Commentaries, at 124 (1769). This context confirms Blackstone is referring to impeding a wit-ness from testifying at a proceeding, because otherwise it would not be a contempt against the king's courts.
Kagan had cited Hale in the past as well. Is there a problem? Hale no.
Last year ProPublica—yes that ProPublica—assailed Alito for quoting "infamous witch trial judge with long-discredited ideas on rape." I'm waiting for that venerable new organization to discover any Justice who was appointed by Presidents Obama or Biden.
Last year, federal district Judge Kathryn Kimball Mizelle attracted widespread attention when she issued a decision holding that the Centers for Disease Control mask mandate for airline flights, airports, and other transportation settings was illegal. The ruling was much criticized by legal commentators and by mandate advocates who felt the CDC rule was an essential tool for combatting the Covid-19 pandemic. But mandate opponents celebrated, and some passengers cheered when they heard about the ruling in mid-flight and were able to remove their masks.
Yesterday, the case that began with a bang ended with a whimper, as the US Court of Appeals for the 11th Circuit dismissed the Biden Administration's appeal of the district court ruling because of mootness:
A Mandate that, as we write, no longer exists. On April 10, 2023, President Biden signed a joint resolution of Congress that terminated the national emergency. Act of Apr. 10, 2023, Pub. L. No. 118-3, 137 Stat. 6 (2023). More relevant to this case, on May 11, 2023, the HHS Secretary's declaration of a public health emergency expired. See End of the Federal COVID-19 Public Health Emergency (PHE) Declaration, Centers for Disease Control and Prevention (May 5, 2023), https://www.cdc.gov/coronavirus/2019-ncov/your-health/end-of-phe.html. Therefore, even had the district court sided with the government, the Mandate would have expired by its own terms on May 11, 2023. See 86 Fed. Reg. 8025-01 at 8030 ("This Order will remain in effect . . . until the Secretary of Health and Human Services rescinds the determination . . . that a public health emergency exists.").
This development raises the jurisdictional question of mootness—that is, whether "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)….
The answer to that question is, quite clearly, yes. Appellees initiated this litigation in order to have the Mandate 1) declared unlawful and 2) set aside. Regarding Appellees' second objective, coming on the heels of a joint resolution from Congress and following the HHS Secretary's conclusion that the public health emergency has ended, the Mandate has expired on its own terms. As a consequence, there is no longer any Mandate for us to set aside or uphold. Indeed, even if we were to decide against Appellees and reverse the district court—as the government desires—there would be no Mandate to reinstate.
Regarding Appellees' first objective, we do not think asking for a declaratory judgment that the Mandate is unlawful saves this case from mootness. If it did, our case law would be turned on its head. That is, "[a]bsent exceptional circumstances, a challenge to the enforcement of a statute [would not become] moot when that law is no longer effective." Aaron Private Clinic Mgmt., 912 F.3d at 1335.
I'm no mootness expert. But this analysis seems right to me.
Because the case is moot, the 11th Circuit also vacated the district court ruling, as longstanding precedent usually requires in these situations. That means this litigation will not set any precedent on the question of whether the CDC has the power to impose mask mandates in order to try to combat the spread of the disease. If a new Covid-19 variant or some other viral threat leads to a new transportation mask mandate, the issue of the CDC's powers will likely be litigated again from square one.
Although I hate mask mandates and was happy to see this one end, I thought there were serious flaws in Judge Mizelle's reasoning. There were some plausible legal arguments against the CDC mandate; but many of those she advanced were really weak. Her ruling also came in for severe criticism from other commentators skeptical of mask mandates, such as Andrew McCarthy of the National Review, and David French and Sarah Isgur of The Dispatch.
When the Trump and Biden Administrations used the very same law to impose a nationwide eviction moratorium, the Supreme Court rightly ruled the CDC lacked the power to do so. But the transportation mask mandate was a much closer case.
The Biden Administration's handling of the issue also was not above criticism. Strikingly, they chose not to ask the appellate court to stay Judge Mizelle's nationwide injunction against the mandate. That's why the injunction remained in effect for over a year, up until yesterday's decision.
To my mind, this choice raised serious questions about whether administration officials genuinely believed the mask mandate was an essential public health measure saving large numbers of people from death or serious illness. If they did believe it, surely they should have tried to reinstate the mandate as soon as possible!
The administration's real priority may have been to preserve the CDC's power. By stringing out the case until it became moot, they avoided a precedent that might have tied their hands in the future.
In a sense, both the plaintiffs challenging the mask mandate and the Biden Administration ended up winning. The plaintiffs secured an injunction that put an early end to the mask mandate. The administration managed to avoid setting a precedent limiting the CDC's authority. Airline passengers who hate wearing masks (myself included!) won some extra months of mask-free flying.
But this sequence of events has also left a cloud of uncertainty over the scope of the CDC's power to set mask mandates. That uncertainty could come back to bite us in the future.
Arizona v. Navajo Nation is one of the more frustrating opinions I've read this term. Not frustrating in the sense that Justice Gorsuch wrote his tenth consecutive opinion favoring Indian tribes. By now, that is to be expected. Rather, I found this decision difficult to follow because Justice Kavanaugh's anemic majority opinion did not address, let alone acknowledge Justice Gorsuch's dissent. Much like in Brackeen, the Court's conservatives are simply ignoring Justice Gorsuch on Indian law. It's like a game of hide-and-seek where the seekers never stop counting. Or maybe, to fit the genre, a game of Cowboys and Indians where the Cowboys go play baseball.
I don't pretend to be an expert in Indian law, so it is difficult for me to balance how strong or weak the opinions are. As a general matter, I am skeptical of any Gorsuch opinion that rules for an Indian tribe or member. McGirt and Brackeen will do that to you. But I am also skeptical of any Justice Kavanaugh opinion that is super short, repeats the same theme over and over and over again, and relegates a dispute about precedent to a footnote. Navajo Nation has all the hallmarks of trying to smooth over unclear/unfavorable precedent.
Without some back-and-forth, I have to venture out on my own to figure what the right answer is. And venture I will.
From Warren v. DeSantis, decided today by the Florida Supreme Court in an opinion written by Justice Canady (for more on the case, see this post):
On August 4, 2022, Governor Ron DeSantis issued Executive Order 22-176 suspending Petitioner Andrew H. Warren, the elected State Attorney for the Thirteenth Judicial Circuit of the State of Florida, on the grounds of "neglect of duty" and "incompetence." More than six months later, Petitioner filed a petition in this Court arguing that the Governor lacked authority to issue the Executive Order and requesting the issuance of a writ of quo warranto directed to the Governor and alternatively seeking a writ of mandamus commanding the Governor to reinstate him…. We agree with the Governor that the petition should be denied on the ground of unreasonable delay.
Within two weeks of his suspension, Petitioner filed suit in federal district court seeking, among other things, a writ of quo warranto on the ground that the suspension order was facially insufficient under Florida law. Quite predictably, the federal district court promptly dismissed that state-law claim after concluding that the Eleventh Amendment to the United States Constitution barred that claim from being brought in federal court. SeePennhurst State Sch. & Hosp. v. Halderman (1984). Petitioner then waited almost five months before finally petitioning this Court and requesting our "expeditious review" of his state-law claim. Petitioner offers no explanation for the delay. We conclude that, under the circumstances of this case, the time for our review has passed….
Article IV, section 7 of the Florida Constitution grants "the governor" the power to "suspend from office any state officer not subject to impeachment" and enumerates the grounds for suspension, including "neglect of duty" and "incompetence." Art. IV, § 7(a), Fla. Const. A suspension is done "[b]y executive order stating the grounds and filed with the custodian of state records." Article IV, section 7 then grants "[t]he senate" the power to, "in proceedings prescribed by law, remove from office or reinstate the suspended official."
Although the text of article IV, section 7 does not attribute any role to the courts in suspension matters, our precedents recognize a narrow judicial role in reviewing the face of a suspension order to determine if it satisfies the constitutional requirement of " 'stating the grounds' of the officer's suspension." That is a "limited" role that entails no more than "determining whether the executive order, on its face, sets forth allegations of fact relating to one of the constitutionally enumerated grounds of suspension." The allegations need only "bear some reasonable relation to the charge made against the officer." The "some reasonable relation" standard is "a low threshold" to satisfy, and the executive order need only satisfy it "on the whole."
The Supreme Court was wrong to deny relief to a man imprisoned for activity that Court's own rulings indicate was not illegal - one who never had an opportunity to challenge his incarceration on that basis.
There aren't very many cases where the Supreme Court splits 6-3 along left-right ideological lines, and I think the liberal dissenters got it right. But today's important habeas corpus decision, Jones v. Hendrix, is one of those times.
The issue in Jones is whether a man incarcerated in a federal prison has the right to file a habeas petition challenging his imprisonment in a situation where an intervening Supreme Court decision - issued many years after his original conviction and appeal - ruled that the activity he was convicted and imprisoned for wasn't actually a crime. Here is the Court's summary of what happened in the case of Marcus Jones:
In 2000, the U. S. District Court for the Western District of Missouri convicted petitioner Marcus DeAngelo Jones of two counts of unlawful possession of a firearm by a felon, in violation of 18 U. S. C. §922(g)(1), and one count of making false statements to acquire a firearm, in violation of §922(a)(6). The Court of Appeals for the Eighth Circuit affirmed his convictions and sentence of 327 months' imprisonment. See United States v. Jones, 266 F. 3d 804 (2001). After losing his appeal, Jones filed a timely §2255 motion to vacate, set aside, or correct his sentence, which resulted in the vacatur of one of his concurrent §922(g) sentences but no other relief. See United States v. Jones, 403 F. 3d 604 (CA8 2005); United States v. Jones, 185 Fed. Appx. 541 (CA8 2006) (per curiam). Years later, in Rehaif v. United States, 588 U. S. ___ (2019), this Court held that a defendant's knowledge of the status that disqualifies him from owning a firearm is an element of a §922(g) conviction. In doing so, it abrogated the Eighth Circuit's contrary precedent, which the Western District of Missouri and the Eighth Circuit had applied in Jones' trial and direct appeal….
After Rehaif, Jones hoped to leverage its holding into a new collateral attack on his remaining §922(g) conviction.
Jones apparently did not know he he was considered a felon under the relevant statute, because (relying on conversations with prosecutors) he thought his previous felony conviction had been expunged (see his counsel's Supreme Court brief, pp. 5-7, for a summary of these facts).
The majority, in an opinion by Justice Clarence Thomas, ruled that such challenges are barred by the Antiterrorism and Effective Death Penalty Act (AEDPA), in cases where the prisoner had filed a previous habeas petition challenging his conviction - even if there was no way for him to bring up the Supreme Court's later ruling (which reversed the lower-court precedent under which Jones was convicted). The majority also rejected various constitutional challenges to a rule that effectively allows continued imprisonment of legally innocent people who never had a chance to raise the relevant legal issue.
I won't try to assess the purely statutory issues in this case. I think both sides have some plausible arguments as to that, and I am not nearly enough of an AEDPA expert to have a strong view on who's right. But Justice Ketanji Brown Jackson's thorough dissent raises crucial constitutional points that the majority flubbed:
I am also deeply troubled by the constitutional implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents… Apparently, legally innocent or not, Jones must just carry on in prison regardless, since (as the majority reads §2255) no path exists for him to ask a federal judge to consider his innocence assertion. But forever slamming the courtroom doors to a possibly innocent person who has never had a meaningful opportunity to get a new and retroactively applicable claim for release reviewed on the merits raises serious constitutional concerns…..
[the majority rules] a person in prison for noncriminal conduct cannot ask a federal court to review the legality of his detention if he has previously filed a §2255 petition. This position is stunning in a country where liberty is a constitutional guarantee and the courts are supposed to be dispensing justice. It also raises hackles under at least two provisions of our founding charter [Suspension Clause and 8th Amendment].
Justice Jackson makes a compelling argument that Suspension Clause bars imprisonment of a person who is legally innocent and never had a chance to raise the relevant legal issue [pp. 29-36 of her dissent]. The majority contends that habeas does not protect mere "statutory" claims of legal innocence in cases like this one (as opposed to constitutional claims). Jackson has a powerful answer:
[T]he majority conspicuously downplays the stakes in this case. Not once does its opinion make direct mention of the fact that the claim the majority says §2255(h) silently precludes is one that implicates core values because it involves legal innocence. Instead, the majority repeatedly describes Jones's bid for access to the postconviction review process as bringing a mere "statutory" claim…. But statutory claims that suggest a person's innocence are different in kind from more run-of-the-mill statutory claims, such as a technical, nonprejudicial violation of a criminal procedure rule….
Even if the majority was right with respect to its assumption that founding-era practices bear on whether the clear-statement rule [requiring a clear statement for abrogations of habeas corpus] applies here, historical practice plainly undermines its assertion that legal innocence claims are of recent vintage. Supreme Court Justices riding circuit in the early 19th century repeatedly considered the merits of habeas petitions filed by individuals who argued they were being wrongfully incarcerated because the laws that had been invoked to justify their confinement, properly construed, did not reach their conduct.
As Jackson notes, the majority's approach also creates ridiculous inconsistencies in treatment of prisoners with virtually identical habeas claims:
Consider two individuals who have been convicted of the same federal crime—perhaps two codefendants who were tried and sentenced together. Both complete their direct appeals, but only one files a §2255 motion within AEDPA's statute of limitations, while the other one decides not to or misses the deadline. If §2255(h) bars a successive petition raising a legal innocence claim, then when Rehaif is handed down—altering the elements of the crime of conviction such that both prisoners have a colorable claim of legal innocence—only the one who did not previously file a §2255 petition can raise this retroactive statutory innocence claim.
To my mind, keeping a legally innocent person in prison also violates the Due Process Clause of the Fifth Amendment. The clause bars the government from depriving a person of "life, liberty, or property, without due process of law." Keeping a man in prison when the activity he was convicted of was not actually illegal seems an obvious deprivation of "liberty" without any basis in "law." And, because Jones never had a chance to raise the relevant issue, this practice can't be justified on the basis of efficiency or procedural finality.
Jones' lawyers raised the Due Process Clause argument in their brief (pp. 43-45). As they note the Supreme Court has previously held (albeit before the passage of AEDPA) that "conviction and punishment for an act that the law does not make criminal inherently results in a complete miscarriage of justice and present(s) exceptional circumstances that justify collateral relief under § 2255." But the majority disposes of the due process issue in a cursory footnote, and the dissenting justices ignore it entirely. The issue at least deserved more serious consideration.
At the very least, there are plausible serious constitutional problems here. And, as Justice Jackson goes on to point out, this triggers the Supreme Court's longstanding rule requiring it to interpret federal laws in ways that avoid constitutional problems, if at all possible. In his well-known controlling opinion inNFIB v. Sebelius (2012), Chief Justice John Roberts ruled that courts must avoid constitutionally problematic interpretations of statutes in "any case where it is "fairly possible" to do so – even if "the most natural interpretation" of the law supports a different outcome.
Some legal scholars reject the avoidance canon, and I myself think Roberts took it too far in NFIB. But the canon remains on the books, backed by a long line of precedent. If the Court wants to narrow the canon's scope or even abolish it entirely, it is free to do so. But the majority should at least indicate they are doing so and explain why. In this case, Justice Thomas doesn't even try to address it.
I don't agree with every point Justice Jackson makes in her dissent. But her position is much stronger than that of the majority. The Court made a grave error today, that will likely have the effect of consigning a substantial number of legally innocent people to long prison terms.
Congress could potentially fix the problem by passing a legislative fix, allowing prisoners in situations like Jones' to file habeas claims. But I am not optimistic it will happen anytime soon, if ever.
NOTE: In addition to Jackson' dissent, there is also a brief joint dissent by Justices Kagan and Sotomayor, which I won't try to cover here. They indicate agreement with much of Jackson's position. It isn't clear to me why they didn't just join her dissent, as well as writing their own much less detailed one.
In researching and drafting court submissions, good lawyers appropriately obtain assistance from junior lawyers, law students, contract lawyers, legal encyclopedias and databases such as Westlaw and LexisNexis. Technological advances are commonplace and there is nothing inherently improper about using a reliable artificial intelligence tool for assistance. But existing rules impose a gatekeeping role on attorneys to ensure the accuracy of their filings.
Peter LoDuca, Steven A. Schwartz and the law firm of Levidow, Levidow & Oberman P.C. (the "Levidow Firm") (collectively, "Respondents") abandoned their responsibilities when they submitted non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT, then continued to stand by the fake opinions after judicial orders called their existence into question.
Many harms flow from the submission of fake opinions. The opposing party wastes time and money in exposing the deception. The Court's time is taken from other important endeavors. The client may be deprived of arguments based on authentic judicial precedents. There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the American judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity.
The narrative leading to sanctions against Respondents includes the filing of the March 1, 2023 submission that first cited the fake cases. But if the matter had ended with Respondents coming clean about their actions shortly after they received the defendant's March 15 brief questioning the existence of the cases, or after they reviewed the Court's Orders of April 11 and 12 requiring production of the cases, the record now would look quite different. Instead, the individual Respondents doubled down and did not begin to dribble out the truth until May 25, after the Court issued an Order to Show Cause why one of the individual Respondents ought not be sanctioned.
For reasons explained and considering the conduct of each individual Respondent separately, the Court finds bad faith on the part of the individual Respondents based upon acts of conscious avoidance and false and misleading statements to the Court.
From Judge Mark Goldsmith's opinion in Hernden v. Chippewa Valley Schools(E.D. Mich.); note that the question here is simply where the Board could potentially be held liable as an entity for the Bednard e-mail, not yet whether the e-mail actually violated Hernden's constitutional rights (for more, see the Complaint and the attachede-mails):
Hernden alleges that she is a police officer and the mother of a child who was educated in the Chippewa Valley school system in Clinton Township, Michigan. The Board allegedly implemented policies that limited in-person instruction during the COVID pandemic, and Hernden expressed her opposition to these policies by contacting members of the Board via Zoom, email, and in-person Board meetings.
On December 11, 2020, Defendant Elizabeth Pyden—a member of the Board serving as its secretary—allegedly forwarded a series of emails between Hernden and Pyden to Hernden's "then-supervisor, challenging Plaintiff's conduct as unbecoming of a police officer." Hernden submits that her supervisor then commenced an investigation to determine whether Hernden had violated any departmental rules, though Hernden was not disciplined.
In a subsequent email to the Board, Hernden allegedly "cautioned" the Board against "interrupting her public comments" and suggested that doing so violated the First Amendment. In Hernden's view, this email constituted "an implied threat of legal action against the Board and/or its individual members for perceived violations of Plaintiff's First Amendment rights during public comments at the Board's public meetings."
Hernden alleges that Defendant Frank Bednard—member and president of the Board— then forwarded Hernden's email to the United States Department of Justice (DOJ) with a complaint about her behavior. Bednard also informed the other members of the Board about his communication with the DOJ. The email from Bednard reflects that, on October 5, 2021, Bednard wrote an email addressed to "DOJ" that contained the following assertions, and then shared this communication with the Board members listserv:
In a series of stories, ProPublica has charged Justices Clarence Thomas and Samuel Alito with two types of misconduct. First, the reports contend that the justices failed to disclose certain travel they received. Second, ProPublica alleges that the justices failed to recuse themselves from cases that indirectly involved the people who provided that travel. There are very straightforward responses to each of these accusations. Until fairly recently, the ethics rules were reasonably understood to not require disclosing such "personal hospitality." Moreover, the Justices were unaware of alleged potential conflicts because the Supreme Court briefs did not indicate any connection between the parties in the cases and those who provided the travel. ProPublica is no doubt aware of these two facts. Yet, the outlet still persists in a globetrotting quest to tar the judicial branch with the brush of corruption.
Now, Justice Alito has taken matters into his own hands. On Friday, ProPublica asked Alito to provide comments about a planned story concerning Alito's 2008 fishing trip to Alaska. On Tuesday evening, he provided such a response--in theWall Street Journal. Why did Justice Alito take this unorthodox step to preempt the scoop? Because ProPublica has proven itself unreliable. The outlet could not be trusted to accurately provide Alito's rejoinder in context. And Alito's concerns proved prudent.
Consider two examples. ProPublica wrote that "Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts." But ProPublica does not even acknowledge the 2023 rule revision. Indeed, the fact that the rule was changed reflects the prior uncertainty. ProPublica could fully inform readers about the relevant rule change. But it chose not to.
Second, ProPublica charged that Alito should have recused from Republic of Argentina v. NML Capital (2014). ProPublica reported that NML Capital was affiliated with billionaire Paul Singer, on whose private jet Alito flew to Alaska. ProPublica included a single explanatory sentence from Alito's Wall Street Journal op-ed to explain his failure to recuse: "It was and is my judgment that these facts would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially." But that generic line barely scratches the surface of what Alito wrote. Alito explained that "Singer was not listed as a party" in the briefs, and his name did not "appear in any of the corporate disclosure statements." Alito observed that it "would be utterly impossible . . . to search filings with the SEC or other government bodies to find the names of all individuals with a financial interest in every such entity."
Alito is correct on both fronts. On a plain reading of the old ethical rule, he complied with the standards as they were understood at the time. To prove the point, Judge A. Raymond Randolph of the D.C. Circuit Court of Appeals received permission from the ethics office to take a similar trip to Alaska in 2005. Moreover, there is no expectation that Justices unravel intricate business arrangements or comb through press stories to stumble upon phantom conflicts of interest.
ProPublica styles itself as "an independent, nonprofit newsroom that produces investigative journalism with moral force." But consistently, their reporting targets only conservatives, with the same cookie-cutter series of allegations that crumble under the slightest scrutiny. Regrettably, this pervasively-progressive "moral force" undermines any pretenses of "investigative journalism." Justice Alito shouldn't have to do the media's job. Fortunately for the Supreme Court, he did so.
--
Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston.
The article is here [UPDATE: link fixed]; here is the Introduction:
It is usually a mistake to suppose that a company is the best judge of how its business works. Or that an industry is the best judge of how the industry works. AT&T is a good example. When the Justice Department sat down with management in 1981 to negotiate a breakup of what was then a monopoly provider of telephone service, government lawyers asked which part of the company management wanted to keep after the breakup—the long-distance operations or the regional networks. The long-distance operations had long been the company's most profitable, so management asked for those.
It was a mistake. The long-distance operations had been profitable only because AT&T had owned the regional networks and could use them to deny access to competing long-distance companies seeking to complete calls. Once AT&T had spun off the regional networks, the company could no longer do that. Competitors flooded the long-distance market, driving down AT&T's profits. But the regional networks remained protected from competition thanks to the prohibitive cost of running new wires to individual homes. They flourished. Management had failed to grasp that the real source of AT&T's power was its regional-network monopolies, not its long-distance operations. Two decades later, AT&T was forced to sell itself—to one of the regional networks.
If management sometimes has trouble understanding the value proposition of the single company that it runs, we can forgive newspapers for not understanding the value proposition of the entire industry that they constitute.
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