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February 2005
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A decision on the Constitutionality of Pub. Law 109-3

In some posts earlier, I made my argument that the special act granting federal courts jurisdiction to hear the Terri Schiavo matter was not unconstitutional. Today, in concurring in the 11th Circuit’s decision denying rehearing en banc, Judge Birch declared that in his view, 109-3 is unconstitutional.

Birch’s opinion makes the following argument: with regard to separation of powers, 109-3 goes too far; rather than "provid[ing] for jurisdiction consistent with Article III and 28 U.S.C. s 1331," it also

provides that the district court: (s) shall engage in “de novo” review of Mrs. Schiavo’s constitutional and federal claims; (2) shall not consider whether these claims were previously “raised, considered, or decided in State court proceedings”; (3) shall not engage in “abstention”...and (4) shall not decide the case on the basis of...exhaustion.

These elements mean that 109-3 “constitute[s] legislative dictation of how a federal court should exercise its judicial functions”:

By setting a particular standard of review in the district court, Section 2 of the Act purports to direct a federal court in an area traditionally let to the federal court to decide.... By denying federal courts the ability to exercise abstention or inquire as to exhaustion or waiver under State law, the Act robs federal courts of judicial doctrines long-established for the conduct of prudential decisionmaking.

But I’m afraid I still don’t buy this. If judicial doctrines are “established” by the judiciary itself, they are not binding on the Congress unless and to the extent that those doctrines are required by the Constitution. Congress empowered the Federal Rules of Civil Procedure, after all, and has the authority to alter the rules of evidence, so long as these alterations do not violate the Constitutional standards of due process. Congress is, after all, given the authority to regulate and create exceptions in the Supreme Courts’ appellate jurisdiction both as to law and fact, under Article III. If Congress can do these things, I see no reason that it cannot declare that non-constitutional limits on the federal judiciary’s authority—such as prudential abstention rules—shall not apply in this circumstance. Of course, Congress can’t alter the Constitutional limits on the federal judiciary, see Marbury, but Judge Birch is referring to the “prudential decisionmaking” doctrines that were established by the courts to avoid unintentionally stepping on state toes—not doctrines that entirely forbid the federal government from purposely stepping on toes.

Nor do I buy the argument that Congress lacks power to set a particular standard of review. This is, of course, the binding law, under City of Boerne, but, again, there is no constitutional foundation for the entire concept of standards of review in civil cases, except to the degree that the federal constitution incorporates some common law principle or other.

Birch goes on to make the argument that “because [109-3] applies only to this case, it lacks the generality and prospectivity of legislation that comports with the basic tenets of the separation of powers,” but there is no such requirement. Congress has the authority to enforce the Fourteenth Amendment by appropriate legislation—not even by appropriate “laws,” so that special, personal laws are permitted under the Amendment, with no obvious limitation to prospectivity or generality requirements. By my reading of the Fourteenth Amendment, Congress could legally establish special courts to hear each and every alleged violation of the Fourteenth Amendment ever committed, if it wanted to take the time to do so. Any attempt to restrict this power—by, for example, importing a generality or prospectivity requirement into the term “appropriate” in the Fourteenth Amendment, City of Boerne-style—would, I think, be to “establish” a “judicial doctrine” far in excess of the judicial power.

Judges Tjoflat and Wilson, in part II of their dissenting opinion (p.27), respond to Judge Birch’s arguments in a manner I find convincing.

Reasonable minds, of course, can disagree as to these jurisdictional issues. I just disagree with Judge Birch’s separation of powers argument.

On Death

There's only three people I regret not having met - Edward Bennett Williams, Johnny Cochran, and Dr. Eugene Scott.  Williams was dead before my coming of age, so my regret is one of accident of birth rather than of my omissions.  But I never met Dr. Scott or Mr. Cochran.  And I'm saddened.

Both, though of diverse backgrounds and interests, had in common an iconoclasm and charisma.

Dr. Gene Scott was a minister like none I'd ever seen.  Growing up in a small Midwestern town, I'd watch his 24-hour satellite network.  I always told myself, "If ever in Los Angeles, I'm going to see him live." 

Dr. Scott gave sermons with a Churchill in his mouth, and frequently, Playboy bunnies in the audience.  He was no Jimmy Swaggart -- Scott was Aristotle with faith.

He had a Ph.D from Stanford, and he was a philologist who could lecture for hours on the biblical equivalent of, "It depends what is, is."

Johnny Cochran's life needs no explanation here.

Both men lived and worked in Los Angeles.  I had always intended to attend church at Dr. Gene's University Cathedral, but like so many other things, I put it off.  What's the rush?  I had a few opportunities to meet Mr. Cochran, but again, no hurries, no worries.

Boy was I wrong.  In my foolish youth, I forgot that we don't live forever.  It's time to write some letters home.

Death of a Giant

"If it don't fit, you must acquit." Those words assured Johnnie Cochran a permanent place in American legal history. But they are far from a summary of all that made him great.

Johnnie Cochran's death at 67 comes as a shock. A brain tumor, his partner tells us. Somewhere in the recesses of that creative well, something went wrong, terribly wrong, and now we are one less warrior in a world sorely in need of a hero.

Cochran had the gift of gab, and the gift of looking a jury in the eye and inspiring trust that what he was speaking was truth. The truth he spoke was often one that ran counter to what we want to hope and to believe. He burst some common bubbles: Only the guilty are convicted, the police do not lie, power can be trusted. He had courage and his courage made it safer to be an American.

Cochran was not an oracle. He did not write books about what we should think, feel or do. He was a trial lawyer, and he was at his best in the thick of battle, when a man or woman's fate hung on the next question he would ask.

He wasn't perfect. He once, as a prosecutor, obtained a conviction of Lenny Bruce, which was later overturned on appeal. Yet even when he was on the wrong side of the aisle he was first and foremost an advocate.

Plenty about Cochran's style rubbed me the wrong way. Too brash a showman and too quick to lend his name to a case he may never even have heard of. But at least he had a style. In an age of civility and bar association cluster-humping, he stood out.

Losing him creates a void.

Crime and Federalism Wins in the Circuits

In United States v. Lopez, 514 U.S. 549 (1995) the Court, for the first time since 1937, struck down a law because it exceeded the scope of Congress' commerce power. Understandably, the federal circuits reacted with caution: no court struck down a criminal statute immediately post-Lopez.  Granted, the federalism gurus of the fightin' Fifth tried.

Three years after Lopez, the Fifth Circuit - which, we'll remember, gave us Lopez - examined constitutional challenges to the Hobbs Act. In United States v. Hickman, 151 F.3d 446, rehearing en banc 179 F.3d 230 (CA5 1999), cert. denied 530 U.S. 1210 (2000) an equally divided en banc panel of the Fifth Circuit affirmed convictions under the Hobbs Act against a Commerce Clause-based attack.  Perhaps Lopez was an abberation.

Then in United States v. Morrison, 529 U.S. 598 (2000), the Court held that the civil remedy provision of the Violence Against Women Act violated the Commerce Clause. And the next week, in Jones v. United States, 529 U.S. 848 (2000), the Court construed the federal arson statute narrowly because, applying it to the burning of a private resident, would raise considerable constitutional problems in light of Lopez.  The Court was taking federalism seriously. Did the circuits hear its call?  Not for another three years.

Again, the Fifth Circuit heard an attack brought against the Hobbs Act.  In United States v. McFarland, 264 F.3d 557 (5th Cir. 2001), rehearing en banc 311 F.3d 376 (5th Cir. 2002), cert. denied, 538 U.S. 962 (2003), the Fifth Circuit again split evenly in rejecting a challenge that the Hobbs Act exceeded Congress' commerce power.

No federal circuit held that a federal criminal law was unconstitutional under the Commerce Clause until nearly eight years after Lopez, and three years after Morrison.  The circuits, it seemed, did not take Lopez or Morrison seriously - at least not seriously enough to implement it.

In United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003), a 2-1 panel reversed a conviction under the federal child pornography law because the pornographic images were not transported interstate. In McCoy, a mother was convicted under federal child pornography laws for taking sexually-explicit pictures of herself and her daughter.  The government failed to prove that McCoy took the photographs for commercial gain, or that the photographs traveled interstate.  Because of that, her prosecution was unconstitutional under the Commerce Clause.

On the heels of McCoy came United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (Kozinski, J.). The issue in Stewart was whether Congress' commerce power allowed it to criminalize the possession of a home-made machine-gun Stewart had converted his semi-automatic rifle to fire automatically with parts that had moved through interstate commerce. Holding that Congress lacked the power, Judge Kozinski wrote:

Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress’s power has limits, and we must be mindful of those limits so as not to obliterate the distinction between what is national and what is local and create a completely centralized government.

Id. at 1135 (quotation marks omitted).

In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S.Ct. 2909, 72 (U.S. Jun 28, 2004), a 2-1 panel held that the Controlled Substance Act, to the extent that it criminalized the use of marijuana not purchased nor obtained interstate, was an unconstitutional exercise of power under the Commerce Clause. Wrote Judge Pregerson:

The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce.

Id. at 1229-30.  The Ninth Circuit has been silent on crime and federalism issues post-Raich.  But in 2004, the Eleventh Circuit spoke.

In United States v. Maxwell, 2004 WL 2191801 (11th Cir., Oct. 1, 2004), a unanimous three-judge panel held that Congress may not criminalize the intrastate possession of child pornography, even if the child pornography is kept on items that moved through interstate commerce. In Maxwell, the defendant kept his child pornography on diskettes that moved through interstate commerce. However, the prosecution could not establish that the pictures on the disks were taken outside of Maxwell's home state - Florida. Thus, the law was unconstitutional as applied to him. Significantly, the panel held that it would not apply the aggregate affects test of Wickard v. Filburn to non-commercial activity.

A couple of weeks ago, in United States v. Smith, No. 03-13639 (11th Cir. Mar. 18, 2005), a different and unanimous three-judge panel affirmed Maxwell's holding, and reviewing for plain error, held that allowing Maxwell-type prosecution would be reversed.

Even though there are over 4,000 federal criminal laws, the circuits have only given us a five crime and federalism victories in ten years. It seems that most circuits do not take Lopez and Morrison seriously.

Johnny Cochran is dead.

This story, via Drudge:

LOS ANGELES (AP) - Johnnie L. Cochran Jr., who became a legal superstar after helping clear O.J. Simpson during a sensational murder trial in which he uttered the famous quote "If it doesn't fit, you must acquit," died Tuesday. He was 67.

Cochran died of a brain disorder in Los Angeles, said law partner Randy McMurray.

UPDATE: The LA Times has a has a lengthy article here.

UPDATE: has a story here.

Speaking Through the Wall of Silence

A prison guard broke the wall of silence, he was harassed, and then constructively discharged.  He brought a section 1983 action, alleging that he was fired in retaliation for engaging in protected speech.  As a public employee, should his speech be balanced under Pickering and Connick?  No. Baron v. Suffolk County Sheriff's Department, No. 03-2718 (1st Cir. Mar. 29, 2005).

The distict court determined at summary judgment that "the internal workings of the Sheriff's Department" were a matter of inherent public concern, and thus found that Baron's speech was protected without engaging in an extended analysis of its form and context. The Department takes issue with this conclusion, arguing that the content of Baron's expression was not a matter of inherent public concern because it dealt exclusively with internal working conditions at the House of Correction. We disagree.

Slip op. at *12-13.  The panel distinguished Connick, writing:

Retaliation against officers who breach a code of silence among their colleagues at a county House of Correction implicates the public interest in a way that morale among Assistant District Attorneys does not.

Id. at *15.  Thus, the plaintiff's free speech rights need not be balanced against the state's interest in maintaing order and discipline.

(Hat tip: AL&P).

Ninth Circuit on the Eleventh Amendment

Today the Ninth Circuit handed down the most cryptic decision I've ever read.  It's not confusing, since I am fluent in Eleventh Amendment-speak.  Rather, it's cryptic.  I'm not quite sure what the court held (beyond ruling that the suit may go forward), or what it's rationale was.  Check out Taylor v. Westly, No. 02-16511 (9th Cir. Mar. 29, 2005).

Under California law, the state has the right to steal a shareholders’s stock if the shareholder does not cash dividend checks or respond to proxy notices for three years.  The corporation then cancels the shareholder’s certificates and issues duplicate certificates to the state.  The Controller then redeems the stock and deposits the money into state's general account.
Indeed, the two plaintiffs in Taylor sued after California used its confiscatory procedure to deprive them of a lot of money - 52,224 shares of Intel stock from one plaintiff; and 7,000 shares of TWA stock from another.

The plaintiffs sued for declaratory and injunctive relief, and money damages.  The district court dismissed the suit, recognizing that however unfair or disgusting California’s procedure may be, the only legal issue is whether the former stockholders may sue the state for the sale of the stock proceeds.  That is, can a plaintiff sue a state for money damages?  A unanimous three-judge panel reversed.

The State of California’s sovereign immunity applies to the state’s money. Money that the state holds in custody for the benefit of private individuals is not the state’s money, any more than towed cars are the state’s cars. Thus, where a permanent escheat determination has not yet been made, the state’s Eleventh Amendment immunity from suit against it for damages payable from its treasury has no application to escheated property and sales proceeds from escheated property, whether held by the Controller or the Treasurer. 

Id. at *14.  Is the panel suggesting that California does not possess the res since it’s held in trust?  Thus, Deep Sea Research (holding that the Eleventh Amendment does not bar in rem proceedings where a state is seeking title to property) would apply?  Perhaps there is a good argument for this position.  It would have been nice if the panel had developed it.

Surprisingly (or not), the panel does not cite the Court’s very recent, and very applicable decision in Tenn. Student Assistance Corp. v. Hood.  In Hood the Court held that requiring a state to answer a debtor's complaint in bankruptcy court did was not barred by the Eleventh Amendment because "the bankruptcy court’s jurisdiction is premised on the res, not on the persona," i.e, the jurisdiction is over the debt and not the State.  Perhaps the argument is that since the stock is held in a trust account, that the state does not have title to the money in the trust?  Again, there is a good argument for that.  But the panel does not raise it.

However, the Court in Hood noted that had Tennessee had title to the property, then the suit would be barred.  Here, Taylor involves a straight-forward application of Deep Sea Research.  California holds the res.

Moreover, on page *17, the panel suggested that this is really a mere Ex parte Young action, since the plaintiffs were suing the Controller for injunctive and declaratory relief -- Give us our money! But the remedial tail wags the Eleventh Amendment dog – If they are demanding that the Controller pay retrospective relief, then it’s a suit for money damages.  The panel tried getting around this point, writing: "The plaintiffs seek return of their own property, rather than to gain ownership of government property."  Id. at *19.

But that's not correct.  If I sell your stock certificates, I no longer possess your stock.  Rather, I possess money.  If you sued me, you would be able to trace the sale of that stock and attach my property and obtain money from me.  But I don't enjoy immunity from suit.  States do.

I’m not sure whether this decision is so wrong that the Court will grant cert.   Then again, the holding and rationale are so convoluted that the advocates might not be able to properly frame the issues.

Anyhow, I'll update this post once (if) I figure this case out.

But the Governor did it?

Connecticut calls itself the Land of Steady Habits. In recent years, those habits have evolved to graft among its public officials. Why just the other day, former Governor John G. Rowland was sentenced to federal prison for a brief stretch. He couldn't keep distinct in his mind his official duties and gorging himself at the public trough.

After his guilty plea and resignation from office, he kept on grabbing cash. He raked in about $15,000 a month as a consultant to private industry on, of all things, government. Now the Connecticut General Assembly wants to take a look at why felons are hired as consultants. Oink, Oink, Oink

Now comes news that a prosecutor may not have been able to avoid all the fun. Supervisory Assistant State's Attorney David Newman of New Haven is under the microscope, according to the Chief State's Attorney's Office. Suspicions that all is not well in the historic Elm Street courthouse. According to the New Haven Register, questions have arisen about whether Mr. Newman regards himself as a legitimate beneficiary of charitable contributions intended to resolve minor offenses. Charity for a Day

Newman has hired criminal defense lawyer Hugh Keefe, who tried to waive off the scandal as an "internal employment matter." Well, that's one spin. But Keefe is known for his defense of police officers in claims arising under 42 U.S.C. Section 1983 and for defending those accused of crimes. He's no employment lawyer.I Want Mine, Too

This comes on the heels of a report that a former prosecutor was arrested leaving the 50th birthday party of Chief States Attorney Christopher Morano. The former lawman was drunk, was carrying a little reefer, and was armed. He's now asking the court for a diversionary program that would permit the record of his arrest to be erased after a brief period of probation.

Wow. I guess there's no place like home for white collar crime, and, if you know the right people it seems that just about anything is possible.