Proof of Concept: Elgin and the Blogs

Last month, I joined a panel discussion on blogging during a PLI program on social media led by LexBlog's Kevin O'Keefe. I explained how important following blogs through an RSS Reader is to keeping up to speed in a world where information moves more quickly than ever.

I recalled that comment this week while thinking about the Supreme Court’s recent decision in Elgin v. Department of Treasury. Years ago, expert analysis of important new decisions would take weeks, if not months, to become widely available, largely through law reviews and journals. Today, busy lawyers have the benefit of the insights of lawyers and law professors around the country within days, sometimes hours. Elgin has sparked particularly interesting commentary about a range of difficult federal courts issues which has helped crystallize my reading of the opinions.

Elgin involved a group of Federal employees who were terminated for willfully failing to register with the Selective Service, as required by 5 U.S.C. § 3328. The Civil Service Reform Act (“CLRA”) establishes a comprehensive framework for reviewing adverse personnel actions taken against Federal employees: first, the case goes before the Merit Systems Protection Board (“MSPB”) for hearing, and the employee may then seek appellate review at the United States Court of Appeals for the Federal Circuit.

The employees sued in Federal district court, arguing that Section 3328 was unconstitutional as a Bill of Attainder and pursuant to equal protection (since women aren’t subject to Selective Service registration). This created two problems: a number of lower courts have held that the MSPB has exclusive jurisdiction over covered employment actions. But on the other hand, it seemed clear that the MSPB couldn’t adjudicate the constitutional claim because it can’t strike down statutes. So does the employee really have to first litigate his claims before a Board that has no power to decide them?

Elgin turns on a conflict between two related lines of authority. In Webster v. Doe, a covert CIA employee was terminated by the Director pursuant to Section 102(c) of the National Security Act after informing his security officer that he was gay. The Supreme Court held that although the broad language of the NSA was sufficient to bar judicial review on traditional administrative grounds, it was not sufficient to bar judicial consideration of constitutional challenges: “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.”

Only six years later, the Court decided Thunder Basin Coal Co. v. ReichThe Federal Mine Safety Act requires mine operators and miners to designate representatives to participate in regular safety inspections. The Secretary of Labor had broad authority to compel compliance, subject to review by the Mine Safety Commission, then by the appropriate Federal court of appeals. The miners designated two union employees as their representatives. The mine operator filed suit pre-enforcement, arguing that compelling it to first violate the Act and then challenge any penalties administratively violated its due process rights. Rather than applying Webster, the Supreme Court held that all that was necessary when Congress wished to merely delay, rather than preclude judicial review of constitutional claims, was that its intent be “fairly discernible.”

By a 6-3 vote, the Elgin Court held that Thunder Basin governed, and the district courts had no jurisdiction over petitioners’ constitutional claims. It made no difference that the MSPB had no jurisdiction to strike down the statute – the Federal Circuit did have such power once the case went up on appeal. Nor did it make any difference that the Federal Circuit, as an appellate court, was poorly suited to supervise any factual development that might be necessary to decide the constitutional issue; if the factual record was inadequate, the Circuit could remand the matter to the MSPB for discovery, and decide the claims when the case returned to it.

Join me below the jump for some thoughts about what it all means.


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Illinois Supreme Court Sets Civil Argument Schedule for March

This afternoon, the Illinois Supreme Court published its Call of the Docket [pdf] for the March term, and the Court will hear oral argument in six civil cases. The cases, with the issue or issues presented in each, are:

March 16:

Sheffler v. Commonwealth Edison Co.,No. 110166 – Does a complaint seeking both injunctive relief and damages in connection with defendant’s alleged failure to timely restore power after storms, and to give priority in restoring power to customers dependent on electric life support system, fall within the exclusive jurisdiction of the Illinois Commerce Commission? See Tort Law.

Italia Foods, Inc. v. Sun Tours, Inc.,No. 110350 – (1) Does the federal Telephone Consumer Protection Act require that the Illinois legislature enact enabling legislation before private claims under the TCPA can be heard in state courts? (2) Are TCPA claims "statutory penalties" within the meaning of state law, and if so, are the claims assignable, and what is the applicable statute of limitations? (3) If the claim is not assignable, were absent class members' claims tolled when, for a twenty-seven month period, no class representative with proper standing was present before the court? See Civil Procedure.

The Board of Education of Auburn Community Unit School Dist. No. 10 v. The Illinois Dept. of Revenue, No. 110395/110422 – Does the Property Tax Extension Limitation Law ("PTELL") apply to all portions of a community unit school district following annexation of territory in a separate county which had not opted into PTELL? See Taxation.

March 22:

ABATE of Illinois, Inc. v. Giannoulias, No. 110611 – Does a state statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violate the Takings Clause of either the federal or state constitutions? See Constitutional Law.

Bell v. Hutsell, No. 110724 – (1) Where defendants did not personally furnish alcoholic beverages, is liability for breach of a voluntary undertaking to monitor and inspect barred by the bar on civil social host liability? (2) Is there a private right of action under the Liquor Control Act for permitting one’s minor child or his or her invitees to possess, distribute or consume alcoholic beverages? See Tort Law.

Snyder v. Heidelberger, No. 111052 – Does a quitclaim deed intended to create a joint tenancy between a husband and wife cause an injury within the meaning of the statute of repose for legal malpractice actions, 735 ILCS 5/13-214.3, when the deed is executed and recorded, when the husband dies and the alleged error can no longer be rectified, or both? See Tort Law.

Illinois Supreme Court Allows Petitions for Leave to Appeal in Eight New Civil Cases

Last week, the Illinois Supreme Court allowed petitions for leave to appeal in eight new civil cases. They are:

  • Sheffler v. Commonwealth Edison Co., 399 Ill.App.3d 51 (1st Dist., 2010), which involves the question of whether a complaint seeking injunctive and damages relief in connection with defendant’s alleged failure to give priority, in restoring power after storms, to customers dependent on electric life support system, fell within the exclusive jurisdiction of the Illinois Commerce Commission;
  • Genius v. County of Cook, 398 Ill.App.3d 321 (1st Dist 2010), which involves the question of whether the Cook County Employee Appeals Board had jurisdiction to decide disciplinary charges against officer based upon abolished rules;
  • Italia Foods, Inc. v. Sun Tours, 399 Ill.App.3d 1038 (2nd Dist., 2010), which involves the question of whether federal Telephone Consumer Protection Act required that Illinois legislature enact enabling legislation before private claims under the TCPA could be heard in state courts;
  • Board of Education of Auburn Community Unit School Dist. No. 10 v. Illinois Department of Revenue, 398 Ill.App.3d 629 (4th Dist. 2010), which involves the question of whether the Property Tax Extension Limitation Law applied to all portions of a community unit school district following annexation of territory in a separate county which had not opted into PTELL;
  • Vincent v. Alden-Park Strathmoor, Inc., 399 Ill.App.3d 1102 (2nd Dist. 2010), which involves the question of whether a claim for common law punitive damages pursuant to the Nursing Home Care Act survives the death of the patient;
  • Palm v. 2800 Lake Shore Drive Condominium Association, 401 Ill.App.3d 868 (1st Dist. 2010), which involves the question of whether provisions of the Chicago Condominium Ordinance requiring production of documents were preempted by purportedly conflicting Illinois state law;
  • A.B.A.T.E. of Illinois, Inc. v. Giannoulias, 401 Ill.App.3d 326 (4th Dist. 2010), which involves the question of whether statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violated the takings clause of either the federal or state constitutions; and
  • Phoenix Insurance Co. v. Rosen, [Rule 23 Order] (1st Dist. 2010), which involves the question of whether the provision permitting trial de novo following arbitration was void and unenforceable pursuant to public policy.

For further details on all of these cases, click the "Illinois Supreme Court Update" to the right of this page.

Florida's Statute Banning Gays and Lesbians From Adopting Ruled Unconstitutional

In a landmark decision, Florida’s Third District Court of Appeal unanimously upheld a lower court’s ruling striking down as unconstitutional the state’s statute that prohibited gays and lesbians from adopting.  In a 42-page opinion, Florida Department of Children and Families v. In re: Matter of Adoption of X.X.G. and N.R.G. (pdf), the Court found there was no rational basis for the statute, and therefore held it to be unconstitutional on equal protection grounds.

The facts of the underlying case were not substantially disputed.  In 2004, the Florida Department of Children and Families removed two brothers, a four-year-old and an infant, from their home based on allegations of abuse and neglect.  The children were placed into foster care with Frank Gill, an experienced foster parent.  For the next several years, the children “thrived” in the household.  When the children became available for adoption after the termination of their natural parents’ rights, Gill applied to adopt them.  Although the State agency responsible for monitoring the children reported that Gill’s home presented a suitable environment and that he met all the criteria for adoption, it recommended against adoption on the sole basis that Gill is a homosexual.  After Gill’s adoption application was denied on that basis, he filed a petition in the circuit court to adopt the children and a trial ensued.

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How Well Are Senate Confirmation Hearings Working?

Earlier this week, we discussed “advice and consent.”  Can Senators legitimately ask a Supreme Court nominee about a hot button issue and expect a direct answer? Do Senators have the right to vote up or down on a particular nominee for purely political reasons?

Now we turn from the question of what the confirmation process should be to the issue of how the process operates in practice. Is the widely held view that hearings have become a substance-free charade in the years since the Bork nomination supported by the evidence? What subjects are Senators asking about, and are white, male nominees treated differently from women and African-American nominees? Two timely studies attempt to shed some light on these questions.

Professors Dian Farganis and Justin Wedeking, of Elon University and the University of Kentucky, respectively, focus on how responsive nominees are to Senators’ questions in their study, No Hints, No Forecasts, No Previews: Analyzing Supreme Court Nominee Evasiveness, 1955-2009.  Farganis and Wedeking reviewed the transcripts of every Supreme Court confirmation hearing since 1955 (Justice John Harlan), coding the type of question asked, the responsiveness of the nominee’s answer, and the reasons given by the nominee for not answering more fully.

In general, the professors found that the popular model of nominees trying to avoid nearly all the Senators’ questions was not supported by the transcripts: they consistently ranked nominees’ answers as “very forthcoming” for between sixty and eighty percent of all questions.  They argue that the perception that hearings have become a multi-day exercise in nominees avoiding substantive responses is likely caused by two factors.

First, the professors found that the percentage of questions addressing nominees’ opinions and interpretations – especially of hot-button issues – has increased over time, and such viewpoint questions are more likely to be partially or fully evaded than factual questions.

Second, the researchers observed an increasing trend in recent years of nominees being more explicit about declining to answer a question, most often because they worry that a particular issue might come before the Court. This second trend is most famously illustrated by Justice Scalia’s reluctance to answer questions from Senators Strom Thurmond and Arlen Specter [pdf - pp. 33-34, 86]  during his 1986 confirmation hearing about whether he considered Marbury v. Madison to be settled law.

The second study, May It Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009comes from Professors Lori Ringhand and Paul Collins, of the University of Georgia Law School and the University of North Texas, respectively. Working from a database stretching back to the 1939 hearing for Justice Felix Frankfurter, Ringhand and Collins analyzed the topics addressed in the hearings. The results suggest that over the past seventy years, the hearings have had far more to do with politics and popular perceptions of the Court than they have with the Court’s actual day-to-day workload.

The biggest single group of substantive exchanges involved civil rights issues – race, gender and sexual orientation discrimination; freedom of speech and religion, and the right to privacy. Questions about nominees’ judicial philosophy occur less than half as often, and inquiries about statutory interpretation – what the Court spends much of its time doing – account for only about one percent of all exchanges. Interestingly, the study shows that Senators’ questioning of Judge Robert Bork was no more dominated by questions about his judicial philosophy than a number of other nominees’ hearings have been.

The researchers’ analysis of the impact of nominee race and gender on Senators’ examinations has received the most attention in the days since May It Please the Senate was posted, including from the New York Times the Volokh Conspiracy and PrawfsBlawg. According to the professors, minority candidates receive more questions about civil rights, judicial philosophy and criminal justice, and fewer about issues like federalism and statutory interpretation. Female nominees, on the other hand, receive fewer questions about civil rights, but more than men regarding judicial philosophy and federalism.

Both No Hints and May It Please the Senate are interesting reads, and important contributions to the study of politics’ impact on constitutional law. Many follow-up questions – some of which are mentioned in the studies themselves – suggest themselves for further research.

  • For example, Professors Ringhand and Collins break down their subject categories in the aggregate, arguing, for example that issues like abortion and the right to bear arms have not dominated the hearings; a similar breakdown along party lines might prove interesting.
  • Professors Farganis and Wedeking show that nominees’ evasiveness tends to increase in response to viewpoint questions, but it might be useful to analyze that data further by specific issues and sub-issues.
  • Both studies could throw additional light on the problems of twentieth and twenty-first century constitutional development by further analyzing their data with respect to the makeup of Congress at the time of each hearing, the party of the President, and the nature of the relationship between the Congress and the President.
  • Finally, it would be interesting to tie the professors’ results with respect to specific nominees back into the nominees’ performance on the Court, and the group dynamic of the Courts on which they served.

UPDATE: Professors Farganis and Wedeking have posted an update to their paper analyzing the responses given by Solicitor General Kagan to Senators' questions during her confirmation hearings.

So What Does "Advice and Consent" Mean Anyway?

Supreme Court confirmation hearings have come in for a lot of criticism in recent years. They’ve been called a “Kabuki Dance” and a process which has “take[n] on an air of vacuity and farce.”

Amid all the discussion of whether or not nominees have become more evasive recently – a subject we’ll address later in the week – an important question has gotten somewhat less attention in our ongoing national conversation. What does the Senate’s duty to give “advice and consent” mean anyway? Is a Senator entitled to ask a nominee about a hot-button issue – abortion, guns, the death penalty – and expect an answer? Is it legitimate for a Senator to vote against a nominee because of a perception that she’s too liberal or too conservative?

The “advice and consent” language arose out of a lengthy debate in the Constitutional Convention, the result of a compromise to a long-ending battle between those who wanted the Congress – or the Senate alone – to appoint judges, and other delegates who would have assigned that power exclusively to the President. Reviewing the evidence, it seems difficult to believe that a majority of the Convention supported a pro forma Senate role in confirming Supreme Court nominees.

Anyone arguing that the Senate should play only a deferential role faces an additional barrier. There’s considerable evidence that most seventeenth and eighteenth century rejections – including at least one, John Rutledge, by a Senate which counted several Founders among its members – were for political reasons.

The story begins with Edmund Randolph’s “Virginia Plan,” which proposed a “National Judiciary . . . to be chosen by the National Legislature.” A few days later, one of America’s first great lawyers, James Wilson, criticized the proposal for Congressional appointment, arguing that judges should be appointed exclusively by the Executive Branch. Benjamin Franklin suggested that the Convention might consider other methods of selecting judges, noting that in Scotland, lawyers picked the judiciary:

[T]he Lawyers . . . always selected the ablest of the profession in order to get rid of him, and share his practice (among themselves).

James Madison didn’t like either Congressional or Presidential appointment, and successfully moved to put the question aside for a while.

The following week, the Convention returned to the question. Madison argued that if the appointment power was given to the entire Congress, members would tend to appoint one of their own. He proposed that the Senate make the selection, and the Convention agreed.

In the days that followed, William Paterson of New Jersey proposed the “New Jersey Plan,” which would have allocated the power to appoint judges exclusively to the President, and Alexander Hamilton proposed a compromise – Presidential appointment, “subject to the approbation or rejection of the Senate.” But for the time being, the Convention held fast to the idea of appointments by the Senate.

There the matter rested for a month. In mid-July, Nathaniel Gorham of Massachusetts proposed a model rooted in his own state’s constitutional practice – appointment by the President, with the advice and consent of the Senate. Gorham almost immediately picked up an important ally – James Wilson, a prime proponent of Presidential appointment. Roger Sherman of Connecticut, a supporter of Congressional appointment, indicated that he might be willing to settle for advice-and-consent as well, but other delegates weren’t convinced. Ultimately, the whole matter was handed over to the Committee on Detail, which reported a draft in early August restoring Senate appointment.

By early September, there seems to have been some sentiment in the Convention for cutting back slightly on the Senate’s power. The Committee on Compromise presented its report, once more calling for Gorham’s plan – Presidential appointment, with the advice and consent of the Senate. James Wilson, who had earlier supported Gorham, back-tracked, arguing for Presidential appointment subject to the non-binding advice of a “Privy Council,” but Wilson’s proposal received little support, and the Committee on Compromise’s “advice and consent” appointments clause was adopted.

So if the Senate wasn’t intended to defer to the President’s choice, what is a reasonable test for a Senator to apply in deciding whether or not to support confirmation? Join us below the jump for the views of three prominent players in Solicitor General Kagan’s confirmation.

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High Court Sides With Hastings in Religious Student Organization Debate

Yesterday, a divided U.S. Supreme Court affirmed the University of California, Hastings College of the Law’s right to condition official recognition of a Christian student group on the organization’s agreement to open eligibility for membership and leadership to all students – including homosexual students. In an opinion on behalf of a narrow 5-4 majority, Justice Ginsburg concluded the law school’s policy – that a registered student organization (“RSO”) allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs – is a “reasonable, viewpoint-neutral condition on access to the student organization forum.” Justice Alito, who authored a vigorous dissent joined by the Chief Justice and Justices Scalia and Thomas, called the majority’s decision “a serious setback for freedom of expression in this country,” and characterized the ruling as a surrender to political correctness.

An initial and notable divide between the majority and the dissent is a disagreement over what law school policy was to be measured for constitutionality.  The law school maintains a published “non-discrimination policy” that prohibits student groups from “discriminate[ing] unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” But at the district court level, both the law school and the Christian student group, the Christian Legal Society (“CLS”), had stipulated to the following characterization of the Hastings policy under which it was denied recognition: “Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status.” Because of this stipulation, the constitutionality of this “all-comers policy,” as it was dubbed, was, according to the majority, the only question properly presented to the Court. The dissent rejected the assertion that the all-comers policy was merely an interpretation of the non-discrimination policy, and furthermore suggested that the law school’s all-comers policy was a pretext for discriminatory motives and litigation interests.

In its analysis, the majority first concluded that the limited-public-forum was the appropriate constitutional framework by which to measure the constitutionality of the all-comers policy.  The majority and Justice Stevens in a concurring opinion emphasized that the nature of the public forum at issue and the method by which Hastings influences it as warrants less than strict constitutional scrutiny. The majority stressed that “Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition.” And Justice Stevens insists that it is appropriate for the law school to retain a measure of control over a “forum” it creates and funds: “[t]he RSO forum . . . is not an open commons that Hastings happens to maintain. It is a mechanism through which Hastings confers certain benefits and pursues certain aspects of its educational mission.”

Calling the all-comers policy “paradigmatically viewpoint neutral,” the majority distinguished the present case from precedents in Healy v. James 408 U.S. 169 (1972), Widmar v. Vincent, 454 U.S. 263(1981), and Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), by saying that in those prior cases, “we ruled that student groups had been unconstitutionally singled out because of their points of view.” In considering the reasonableness of Hastings’ policy, “taking into account the RSO forum’s function and ‘all the surrounding circumstances,’” the Court noted its considerable deference to the school administration’s judgment regarding its educational policy. The Court characterized the all-comers policy as ensuring that “leadership, educational, and social opportunities” remained available to all students, that it served as an aid to Hastings in helping to police its non-discrimination policy, that it “encourage[d] tolerance, cooperation, and learning among students” and finally that it was consistent with existing State anti-discrimination laws. The dissent was not so quick to conclude that the all-comers policy was viewpoint neutral, and was further alarmed by the deference afforded by the majority to the law school’s justifications in defense of its policy, characterizing this deference as an abdication of the Court’s “responsibility to exercise [its] own judgment.”

The reasonableness of the policy was bolstered in the eyes of the majority by the “substantial alternative channels that remain open for CLS-student communication to take place.” In light of whatever viewpoint-neutral access barrier the all-comers policy presented, alternative avenues in electronic media – social networking sites, internet message groups, and Google – lessened the burden on CLS’ First Amendment rights. The dissent flatly rejected this argument, saying “[t]his Court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad.”

Finally, both the majority and Justice Kennedy in a concurring opinion rejected the proposition that an all comers policy that required student groups to accept members holding viewpoints or beliefs contrary to that of the student group could lead to “hostile takeovers” of groups such as CLS by “saboteurs” who could “infiltrate groups to subvert their mission and message.” The majority called this supposition “more hypothetical than real,” pointing to the absence of evidence of “RSO hijacking” at Hastings. To combat such intrusions, the Court emphasized that RSOs were free to condition eligibility for membership and leadership on other factors such as attendance, payment of dues, and other neutral requirements “designed to ensure that students join because of their commitment to a group’s vitality, not its demise.”

While the dissenters hoped that the Court’s decision “turn[s] out to be an aberration,” the Court’s ruling is poised to have a profound effect on a school’s right to define and control its roster of student organizations, and will certainly dictate the outcomes of identical litigation brought by CLS now pending before several lower courts across the country.

Supreme Court Expresses Perplexity During Hastings Argument

“What do I do with this case?” asked Justice Breyer in the final minutes of oral argument Monday morning in Christian Legal Society v. Martinez [pdf].

Justice Breyer’s question underscored the apparent confusion regarding what exactly was being challenged in the Christian Legal Society’s case against Hastings College of the Law. Despite the acknowledged importance of the constitutional question – whether and to what extent a public school may require officially recognized student groups to adhere to a non-discrimination policy even if that policy conflicts with a religious organization’s religious beliefs – this confusion may actually discourage the Court from answering the issue directly, in favor of remanding to the lower courts in order to develop a clear factual record.

When argument commenced, the Court almost immediately sought to identify just what it was being asked to decide. 

  • Was it the constitutionality of the “written policy” (the school’s  non-discrimination policy) or
  • The “all-comers policy” (the condition that a registered student organization’s bylaws must provide that its membership is open to all students”)?
  • Justice Scalia postulated that “the all-comers policy [is] broader than the non-discrimination policy, so that if you comply with that, you automatically comply with everything in the non-discrimination clause.” CLS counsel, Stanford Law Professor Michael McConnell, argued that both are unconstitutional.

Moreover, were the policies being enforced evenly by Hastings on all student groups, or just against CLS?  Justice Kennedy noted the parties did not agree on what case was before the Court. Counsel for Hastings, Gregory Garre, agreed that if the factual record showed the policy was not evenly applied to all groups, the policy would be unconstitutional. Kennedy appeared to concur: “It’s a much different case if Hastings treats the CLS differently than it treats the Democratic and Republican Club.” But given the newly emergent disagreement regarding the facts – i.e. whether the law school’s policies and requirements for registered student organizations were in fact being applied even-handedly – Justice Kennedy stated his concern that “it’s frustrating for us not to know what kind of case we have in front of us.”

Justice Breyer expressed perhaps the strongest frustration, saying: “I have an absolute void in this record, which in turn I think would be important to fill.” He continued: “where I feel I need more facts and I don’t have them . . . what should I do?” Even Mr. Garre conceded the presence of a new dispute: “This case was litigated based on stipulations to avoid precisely these factual issues that we are now talking about for this first time before this Court.” 

Nevertheless, the Court pressed on, attempting to reach the core constitutional question. And a large part of questioning was directed at what could be labeled the “take over problem”: the CLS’s objection to “being run by non-Christians” if it were forced to allow enrollment of members and officers who do not share the group’s core beliefs.  

At one point, Justice Alito asked Hastings’ counsel: “suppose at a particular campus there is a great deal of anti-Muslim animus. And there is a small Muslim group; it has ten students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say: First Amendment allows that?” Mr. Garre parried, saying “this example has never happened at Hastings in 20 years.” 

Garre insisted that “[g]roups can take measures to prevent [such a ‘takeover’].” But Chief Justice Roberts and Justice Alito pressed Garre. Justice Alito demanded to know what recourse an organization would have if such a “hostile takeover” were to actually take place. Garre suggested that “the members would rejoin and form another group,” to which Justice Alito quipped: “if hostile members take over, former members of CLS can form CLS2?” drawing laughter from the gallery.

In contrast, Justice Ginsburg had earlier pointed out that “all the hypotheticals about sabotage, takeover, they haven’t happened.” Justice Kennedy expressed a similar pragmatic view: “Why doesn’t this just all work out? If the Christian Legal Society has these beliefs, I am not so sure why people that don’t agree with them want to belong to them. What . . . doesn’t this all just work out?” This viewpoint would put these two Justices at odds with Chief Justice Roberts and Justice Alito, who seemed unwilling to resolve the issue by resorting to the conclusion that the feared “take over situation” is unrealistic.

Regarding what type of membership discrimination would be permissible, each advocate tried to draw a distinction. Faced with questions about whether a student organization could exclude members because of their race or gender, counsel for CLS distinguished between discrimination based on a potential member’s “status” and discrimination based on a potential member’s “belief” in the organization’s tenets. Mr. McConnell argued that an organization may permissibly condition membership on the latter, but not on the former.

And Hastings’ counsel conceded that an organization may permissibly create “merit” requirements for membership and officer positions within the organization, such as “pass[ing] a test on the Bible” if such a test “were truly an objective knowledge test.” To which the Chief Justice countered: “I assume there are groups that think subscribing to their beliefs is evidence of merit, particularly religious groups. So how can you have a test that allows distinctions based on merit but not beliefs?” At one point the law school seemingly pled the position that by adopting its non-discrimination policies it was merely taking a position of ultimate neutrality: “Hastings isn’t in the business of second-guessing the beliefs of individual groups.” 

Reading the proverbial tea leaves is always an exercise in speculation. Justices Scalia and Alito, along with the Chief Justice, appeared more sympathetic to CLS’ position, while Justices Ginsburg, Sotomayor, and Kennedy appeared to favor the arguments of Hastings. Both Breyer and Kennedy expressed dissatisfaction with the state of the record and confusion about just what issue was before the Court.  This case may turn out to be a tempest in a teapot.

Supreme Court to Hear Hastings First Amendment Case on Monday

On April 19, the United States Supreme Court will hear argument in Christian Legal Society v. Martinez, the third constitutional law case involving a law school – this time UC Hastings – that has found its way onto the High Court’s docket in less than a decade. 

The root of the controversy is the law school’s refusal to recognize the CLS as a registered student organization (and its accompanying denial of University subsidization).  CLS requires its members to sign an affirmation of adherence to CLS’s Statement of Faith “indicating the member holds certain Christian viewpoints commonly regarded in both the Roman Catholic and Protestant evangelical traditions as orthodox[,] . . . including the Bible’s prohibition of sexual conduct between persons of the same sex..”   Hastings justifies its position because this CLS bylaw contravenes the University’s nondiscrimination compliance code prohibiting student organizations from discriminating on the basis of sexual orientation.  Hastings insists that “under federal and state mandates,” the College is “precluded from utilizing student fees to fund [CLS]’s activities until CLS bylaws comport with the Hastings nondiscrimination compliance code.”  CLS argues this condition of receiving and maintaining registered status imposed on CLS violates the organization’s First Amendment rights of expressive association, free speech, free exercise of religion, as well as the organization’s right of equal protection.

Punctuating the significance of this case are a staggering thirty-nine amicus briefs submitted to the Court by amici including the ACLU, the Anti-Defamation League, the American Bar Association, and State Attorneys General from Massachusetts, Maryland, New Jersey, and Vermont (in support of Hastings), and the Boy Scouts of America, the Cato Institute, and State Attorneys General from Michigan, Alabama, Colorado, Florida, Idaho, Louisiana, Nebraska, New Mexico, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, and West Virginia (in support of CLS).

Former Solicitor General Gregory Garre will argue on behalf of Hastings, while former Tenth Circuit appellate court judge and current Stanford Law Professor Michael McConnell will represent the Christian Legal Society. 

The Short List For a Supreme Court Vacancy

Within the past several weeks, Supreme Court Justice John Paul Stevens has dropped several hints that he might be about to announce his retirement.   Even though nothing’s definite yet, the news media and the legal blogs are busy speculating about possible replacements. Here’s the roundup – both the “short list” and some of the long shots:

According to The Washington Post’s blog, The Swamp, Jess Bravin of The Wall Street Journal  and Mark Sherman at The Associated Press, there are only three names on the list:

  • Solicitor General Elena Kagan, the former Dean of Harvard Law School,  who has served as Solicitor General since 2009;
  • Judge Diane Wood of the Seventh Circuit.  Before her appointment, Judge Wood was Deputy Assistant Attorney General in the Antitrust Division of the Justice Department; and
  • Judge Merrick Garland of the D.C. Circuit. Judge Garland was Principal Associate Deputy Attorney General under President Clinton before his elevation to the Court of Appeals.

Kevin Rudin of National Public Radio lists General Kagan and Judges Wood and Garland as the front-runners, but suggests two intriguing possibilities:

Tom Goldstein of SCOTUSBlog writes that there is only one real candidate: General Kagan. Nevertheless, he handicaps a number of additional possibilities in addition to Judges Wood and Garland and Governor Granholm:

  • Secretary of State Hillary Clinton;
  • Professor Cass R. Sunstein, who is Felix Frankfurter Professor of Law at Harvard, and currently serves as Administrator of the Office of Management and Budget Office of Information and Regulatory Affairs;
  • Attorney General Eric Holder;
  • Governor Deval Patrick of Massachusetts. Governor Patrick served as Assistant Attorney General for the Civil Rights Division in the Clinton Justice Department. From 2000 through 2004, he was General Counsel and Executive Vice President of Coca-Cola; and
  • Senator Amy Klobuchar of Minnesota.  Senator Klobuchar served as a county prosecutor for several years and later was in private practice.

At the New York Times, Peter Baker lists a number of these candidates and adds four new ones:

  • Professor Harold Koh, former Dean of Yale Law School, where he specialized in international law, and now the Legal Adviser to the State Department;
  • Professor Pamela S. Karlan of Stanford, who specializes in voting rights and the political process;
  • Senator Richard Durbin of Illinois, who was both in private practice for a number of years before his election to Congress in 1983; and
  • Senator Claire McCaskill of Missouri, who was a long-time local prosecutor before her election as state Auditor.

Finally, Law 360 interviewed appellate specialists from leading firms around the country, asking them to complete this sentence: “If I were Obama, My Supreme Court Pick Would Be . . ."

The results were interesting and – with the exception of General Kagan’s six votes – showed little overlap with the list of candidates discussed above. Aside from Professor Kathleen Sullivan of Stanford Law School, an authority on constitutional law who was prominently mentioned last year when Justice Souter retired, the only new candidate receiving more than one nomination was the person I suggested:

"In nominating a successor to Justice John Paul Stevens, President Obama should seek not only a brilliant lawyer, but someone who would bring a breadth of real-world experience to a Court which today consists of nine former judges from the Federal Circuits.  Through most of the twentieth century, Supreme Court nominees were frequently drawn from outside the Federal appellate courts, including Congress, the Cabinet and the private bar.  President Obama should revive that tradition by nominating Senator Sheldon Whitehouse of Rhode Island.

Over the next decade, the Supreme Court will likely face a range of important issues in criminal law, including Federal sentencing, the death penalty, habeas corpus and issues arising from the Government’s anti-terrorism efforts.  Senator Whitehouse would bring an important perspective to these issues, having served as both a United States Attorney and as his state’s Attorney General before his election to the Senate, as well as serving on the Judiciary Committee and the Select Committee on Intelligence in the Senate.

In addition, the Court will certainly be asked over the next several years to define the parameters of its recent landmark cases impacting both the legislative and political process, such as Heller v. District of Columbia and Citizens United v. FEC.  Having served in both the state and Federal government, Senator Whitehouse would bring a deep understanding of those worlds, far removed from the judiciary, to the Court’s debates.

In his four years in the Senate, Senator Whitehouse has demonstrated not only that he has a keen legal mind, but has shown himself to be an incisive, aggressive investigator in Senate committee rooms.  Two of the finest twentieth-century Justices -- Hugo Black and Earl Warren -- held political office before joining the Court.  President Obama should elevate another: Senator Sheldon Whitehouse."

Going Forum Shopping? Supreme Court Holds That Federal Class Action Rule Trumps State Anti-Class Statute in Diversity Action

The United States Supreme Court just issued an opinion holding that state statutes that purport to limit a claimant’s ability to bring a class action do not govern proceedings in federal court, even in a diversity case.  Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co. began as claimant Shady Grove's attempt to recover statutory interest from Allstate under New York law.  Shady Grove sued in federal court in Brooklyn, seeking class action status, arguing that Allstate routinely failed to pay interest on overdue benefits.

The District Court dismissed the action for lack of subject matter jurisdiction.  The court accepted Allstate’s argument that a New York statute that precluded a suit for the recovery of a “penalty” from proceeding as a class action controlled in a diversity suit.  The Second Circuit affirmed.  It found that there was no conflict between the New York statute and Federal Rule of Civil Procedure 23 because the statute governed the eligibility of a case for class treatment while Rule 23 only governed whether an eligible case would be certified.

A closely divided Supreme Court disagreed.

Justice Scalia, writing for the court, held that the determination of whether the class could proceed as a class action was governed solely by Rule 23.  New York had no power to govern federal court proceedings through its anti-class action statute.  The only real question was whether Rule 23 violates the Rules Enabling Act in this instance by altering the parties’ substantive rights.  It does not.  The class action procedure is merely a joinder rule that does not change the underlying substantive position of the case.  It rejected Allstate’s argument that the New York statute had created a substantive right to be free of class action’s in penalty cases.  Ultimately, the characterization of the state rule as substantive or procedural did not matter:

In sum, it is not the substantive or procedural nature or purpose of the affected state law that matters, but the substantive or procedural nature of the Federal Rule.  We have held…that the validity of a Federal Rule depends entirely upon whether it regulates procedure….If it does, it is authorized by [the Rules Enabling Act] and is valid in all jurisdictions regardless of its incidental effect upon state-created rights.

Justice Scalia acknowledged that the result of the opinion would produce forum shopping.  However, such forum shopping is merely the “inevitable…result of a uniform system of federal procedure.”

The dissenters, led by Justice Ginsburg, preferred to view the New York statute as regulating the remedy permitted for violating the statute, not an attempt to interfere with federal procedure.  By allowing a class action to proceed in federal court where it could not have been brought in state court, the majority had effectively amended a state statute: “The Court today approves Shady Grove’s attempt to transform a $500 case into a $5,000,000 award, although the State creating the right to recover has proscribed this alchemy.”

This opinion may well have profound effects on federal practice:

  • State restrictions on class actions will not govern federal diversity cases.  Attorneys contemplating removal under the Class Action Fairness Act must take this fact into account. 
  • State tort reform measures that are couched in terms of procedure, such as special joinder rules, may not be applied in federal diversity cases.
  • In arguing for the application of rules derived from state law, it may not be sufficient to argue that the rule is “substantive” in nature.  To displace a federal procedural rule it will be necessary to show that the rule violates the Rules Enabling Act.

At minimum, Shady Grove, substantially limits a state’s ability to restrict class actions. The opinion may have additional, far-ranging effects on the relationship of state and federal law.

Illinois Supreme Court Allows Petitions for Review in Eight New Civil Cases

This afternoon, the Illinois Supreme Court allowed petitions for review in eight new civil cases.  They are:

  • Williams v. Board of Review, 395 Ill.App.3d 337 (1st Dist., 2009), which involves review of a decision by the Board of Review of the Department of Employment Security to deny a terminated employee's application for a Federally-funded trade readjustment allowance;
  • In re County Collector of Du Page Co., 2009 WL 3970918 (2nd Dist., 2009), a case involving the scope of the power to tax on behalf of a forest preserve district to pay for the district's contribution to the Municipal Retirement Fund;
  • In re Torski C., 395 Ill.App.3d 1010 (4th Dist., 2009), which involves the question of whether the definition of "dangerous conduct" found in the involuntary commitment statute is void for vagueness;
  • Ries v. City of Chicago, 396 Ill.App.3d 418 (1st Dist., 2009), a personal injury suit involving the scope of a city's immunity from liability for the conduct of a police officer during the pursuit of a stolen police vehicle;
  • Johnston v. Weil, 336 Ill.Dec. 285 (1st Dist., 2009), which involves the question of whether the Confidentiality Act applies to communications during an evaluation made by a court-appointed independent evaluator with respect to custody and visitation issues;
  • Kaufman v. Jersey Community Hospital, 396 Ill.App.3d 729 (4th Dist., 2009), which involves the construction of Section 8-101 of the Tort Immunity Act, 745 ILCS 10/8-101, providing limitations periods governing (a) claims against local entities or their employees; and (b) claims against such entities arising out of patient care;
  • Goodman v. Ward, 2010 WL 184081 (3rd Dist., 2010), which involves the question of whether a candidate for a judgeship in a particular subcircuit must be a resident of that subcircuit on the date of his ballot petition; and
  • Hossfeld v. Illinois State Board of Elections, 2010 WL 743877 (1st Dist., 2010), which involves the meaning of the requirement that a candidate for state Senate in a primary election must be a "qualified primary voter" of his or her party.

We will update Appellate Strategist's database of civil issues pending at the Illinois Supreme Court shortly with our analysis of these new cases.

Texas Supreme Court Civil Issues Pending: Family Law


Availability of Free Record.
Were petitioner’s due process rights violated when the trial court denied him a free clerk’s record and reporter’s record pursuant to Tex. Civ. Prac. & Rem. Code § 13.003? Did petitioner waive his complaint by failing to raise constitutional arguments at the hearing on his request for a free record? In the Interest of B.G., No. 07 0960, formerly 2007 WL 2713764 (Tex. App.—Tyler 2007), review granted 05/05/09.

Texas Supreme Court Civil Issues Pending: Constitutional Law


Takings, Standing.
Does the operator of non-consent towing and storage facility have a sufficient property interest in the stored vehicles to support a takings claim? May the operator assert a claim under the Declaratory Judgment Act? Are operator’s claims moot since it is no longer licensed to operate a vehicle storage facility? City of Dallas v. VSC, LLC, No. 08 0265, formerly 242 S.W.3d 584 (Tex. App.—Dallas 2008), review granted 10/23/09.

Takings, Breach Access Easements.
Does Texas recognize a “rolling” public beachfront access easement which migrates according to the naturally-caused changes in the location of the vegetation line? Is any such easement derived from common law doctrines or from a construction of the Open Beaches Act? To what extent is a landowner entitled to receive compensation under Texas law where any limitations on the use of the property are affected by a landward migration of a rolling easement?Severance v. Patterson, No. 09 0387, formerly 566 F.3d 490 (5th Cir. 2009), review granted 05/15/09.