The Right Wing Attempts to Make Ohio's Constitution Unconstitutional

The Tea Party-backed effort to put an issue on the ballot "nullifying" the health care reform's individual mandate is in the news because its supporters aren't getting enough signatures. The even wackier "Ohio Sovereignty Amendment" is not in the news, presumably because it is doing even worse.

If they passed, neither of these amendments to the Ohio Constitution would actually accomplish much, other than pulling the state into Federal litigation that it would lose.

The health care amendment states that no Ohioan can be required to purchase health insurance. The Sovereignty Amendment goes farther, purportedly restricting the Federal Government's jurisdiction in Ohio and therefore its ability to enforce any number of laws.

But the states can't do that. Article VI of the U.S. Constitution includes the "Supremacy Clause" which states:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."

Sounds pretty definitive, doesn't it. If state law contradicts Federal law, Federal law wins. Every time.

It is odd that the news coverage of these amendments does not mention this problem. It isn't a big deal at this point, given that they are no where close to getting either amendment on the ballot, but even when the amendments first made news, the supremacy problem has generally received scant attention. If either amendment unexpectedly grows legs, it would be a good thing for the media to start paying attention to the fact that neither actually accomplishes what the proponents claim.

The supporters of both amendments answer that they can nullify Federal laws when the national government has overstepped its authority. The short answer to this is that it's still the Supreme Court that has the final say over whether the Federal government has exceeded its jurisdiction, not the states.

Take this as my first post in a promised series regarding the Sovereignty Amendment. The longer answer to the jurisdiction question will be upcoming.

Early Thoughts on Elena Kagan

A couple of friends asked me what I think of Obama's pick for Supreme Court. I've been reading this and that, but by no means have I made a comprehensive review of all things Kagan. In no particular order, here's my initial set of reactions.

• On Average, She's About on Par with Stevens. Justice Stevens is being touted as a great progressive hero. In fact he is a pragmatist and a moderate who looks liberal only due to what passes for the center on the current court. He is responsible for some strong liberal decisions -- his dissent in Bowers v. Hardwick became the law when the Court struck down sodomy laws in Lawrence v. Texas. On the other hand, he also took some less-than-progressive positions, such as his dissent in the Texas flag-burning case. Kagan looks about the same, though probably with a different issue mix.
• In any Event, She's Certainly Left of Kennedy. This is all matters a whole lot less, given that Justice Kennedy is the swing vote. It's unlikely a liberal position will get Kennedy's vote, but not Kagan's.
• She Was Nominated for Her Intangibles. Intangibles were the "it" topic during this year's NFL draft -- that bundles of leadership qualities that don't fit on a stat sheet. By all reports, Ms. Kagan's big strength is her intangibles. She's the Tim Tebow of high-flying legal talent. Justice Stevens was known as the last great compromiser on the Court, able to occasionally bring a conservative or two over to an otherwise liberal side. My guess is that Obama wanted someone to fill that role on the Court and Kagan had the best mix of professional qualifications, youth and consensus building chops.
• At Some Point, the President's Selection Should Be Respected. The grumbling on the Left is that Obama should have picked a through-and-through orthodox liberal. I've never been terribly comfortable with trying to defeat a nominee simply on the basis of ideology -- I'm more interested in legal method. In any event, mobilizing against a nominee because she may be liberal but not liberal enough embraces a rigid orthodoxy that we should let the Right keep to themselves.
• The Experience Thing. She's not the next Harriet Myers as Mitch McConnell's office is apparently hinting. Her experience is more analogous to -- though more extensive than -- that of William Rehnquist. And setting ideology aside, Rehnquist was a good Justice and a great Chief Justice at a time the Court needed strong leadership to recover from the damage Warren Burger wreaked.
• Enemy of My Enemy. Anyone attacked by Jeff Sessions is worth a serious look.

As time goes on and more information sees daylight, I may get more specific. For now, you know where I'm coming from

Hubbard High School and Why We Have a First Amendment

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
-Justice Robert Jackson, West Virginia State Board of Education v. Barnette

The Vindy (h/t ABJ) reports today about an Ohio high school student who was disciplined for not standing and reciting the Pledge of Allegiance:

Roxanne Westover, 17, of Elmwood Drive, had been reprimanded by the school for refusing to stand during the pledge, which is recited each morning. She said it contradicts her beliefs and she elected not to participate.

“I’m an atheist, and I believe the pledge isn’t something toward our nation,” she said. “It’s more like a religious oath, and I believe that if I stand I’m still participating in it.”

Westover said she had been written up and sent to the principal’s office multiple times for her refusal over the course of the past few weeks. The ACLU sent a letter requesting the school to stop requiring students to say the pledge.

In fact the question of compelling students to recite the Pledge was resolved back in 1943 in the Barnette case cited up top. The school is listening to the ACLU and in fact have discovered that school policy says students aren't required to recite.

All of which points up why civil libertarians work so hard to hold a strict line on attempts to introduce anything religious into schools. The pro-school prayer folks wonder ingenuously what could possibly wrong with a voluntary teacher-led prayer. This is what could -- and almost certainly would -- go wrong. Here is a school violating not only a decades-old Supreme Court precedent, but their own school policy. But we are supposed to trust that teacher-lead school prayer would never coerce non- or different believers.

Conservative Christians who pen thumb suckers about being oppressed. In fact they are angry that they can't use the mechanisms of the state to evangelize. That's not oppression. The plaintiffs in the Barnette case were Jehovah's Witnesses. Their children were expelled from school and their homes picketed. In other communities Witnesses were assaulted for their beliefs. That's oppression.

What Roxanne Westover experienced is hardly comparable to some of the outrages Americans past have experienced, but she did suffer real consequences just for believing something different than the majority. Happily we have a First Amendment to protect Roxanne -- and the rest of us.

McDonald v. Chicago; Another Attempt to Explain 2nd Amendment Incorporation

Yesterday was the First Monday in October, meaning that the season has begun for Supreme Court watchers. One of the more interesting cases to watch will be McDonald v. Chicago -- another go-round for the new improved Second Amendment.

Recall that in Heller v. DC, the Supreme Court found for the first time in constitutional history that the Second Amendment includes a personal right to have weapons and that an outright ban on handguns violates that right. But the District of Columbia is Federal territory. We still don't know if this freshly invigorated right applies to the states.

I've referenced this before when Sotomayor was getting NRA hateburgers thrown her way by a certain failed gubernatorial candidate, and again referencing my Akron Legal News column about nunchucks. The feedback was my drive by treatment of the issue left some of my non-lawyer readers confused. But that they really liked seeing Bruce Lee play ping pong with nunchucks.

So here again is an attempt to explain the background of the case. I'll have more specific thoughts on the case and some of the strange bedfellowships it has inspired.

In the beginning, there was the Bill of Rights. And it was good. But it was only good against the Federal Government. Recall that the first words in the First Amendment are "Congress shall make no law." The Constitution wasn't about creating rights, it was about creating a newly powerful national government after the disaster that was the Articles of Confederation. Not everyone was comfortable with a national government with real power. The original purpose of the Bill of Rights was to secure individual rights against this new government.

Not to say that states could do whatever they wanted. Each state had a constitution with some version of the freedoms in the Bill of Rights. But for the first several decades of the nation, states were not under Federal Constitutional constraints.

That changed after the Civil War. In light of all that had just happened, the Northern states thought that just maybe states had a wee bit too much freedom under the Constitution. And so the Restoration Amendments were passed -- the 13th, 14th and 15th. The purpose of these amendments was to codify certain results of the war (the 13th abolished slavery; the 15th guarnateed voting rights to freed slaves), and more generally to guarantee freedoms against state intrusion.

Nestled in the 14th amendment is the Due Process clause, which says that no state shall "deprive any person of life, liberty, or property, without due process of law." Starting in the early 20th Century, the Supreme Court began reading the clause as incorporating Bill of Rights guarantees against the states. What does due process mean? Look to the process guarantees in the Bill. What "liberty" cannot be denied? Look to the substantive rights in the first ten amendments.

The Court rejected calls to simply incorporate the whole Bill in one fell swoop. Instead it adopted an approach called selective incorporation. Selective incorporation says that only fundamental rights are incorporated. Fundamental rights are those that are "essential" for "ordered liberty" or are rights out of which all other rights flow. Not a rigorous standard, to be sure.

For a number of reasons to be saved for later posts, I (along with most anyone paying attention) expect the Supremes to incorporate the Second Amendment in McDonald. But how they go about it will be interesting, and will have implications for future decisions about the metes and bounds of the right to bear arms.

In the meantime, you can read up on McDonald on SCOTUSwiki and Wikipedia if you wish.

In re Rifqa

Later this month judges in Ohio and Florida will step into the culture war skirmish that is the Rifqa Bary case. If you haven't heard about the case, the facts outline as follows. A teenage girl of immigrant parents gets involved with things the parents aren't wild about. The parents find out, harsh words are exchanged and the child thinks she's been threatened.

So far this is a case I saw more than once in my days as a prosecutor. I've seen cases where I sympathized with the parents (child acting sexually precocious, running with a criminal element) and with the child (child dating someone of a different race.) The Bary case worked its way into a national story of sorts because in this case Rifqa's means of pissing off her parents was converting from Islam to Christianity.

One of the few facts in the case which everyone agrees on is that Rifqa got interested in Christianity by meeting Christians at school and online, converted and kept it hidden from her parents. She claims that when her father found out, he picked up a laptop, threatened to hit her with it and threatened to kill her. She left home and somehow got a bus to Florida where she was sheltered by a Christian pastor and his wife.

So far a difficult but still less than Earth-shattering case. Enter the right wing blogosphere. Righty bloggers have elevated the case to no less than a referendum on America's willingness to stand up to the apocolyptic threat that Islam poses. They say.

The conservative attorneys on Rifqa's side argue that Rifqa's life is in danger if she is returned to her parents and to the Muslim community in suburban Columbus. They base the claim on the alleged threat from her father and the alleged ties of the mosque they attend to radical Islamists. They also note the thread of Islamic thought calling for death to apostates, and the threat of honor killings.

The stance of the right wing bloggers (and the more nutty elements of the right-wing media that have picked up the story) is remarkably -- but not surprisingly -- anti-family. If the term pro-family means something other than code for anti-gay, it presumably means that policies favoring keeping families intact are better than those that don't. But the pro-Rifqa side of the debate has argued consistently that she should be kept in Florida, well away from her parents.

To be sure, one does not need to be a right wing Islamaphobe to have concerns about the case. Regardless of whether killing apostates is a core belief of Islam, it certainly is true that a fair number of Muslims believe it. Similarly, honor killings are a real phenomenon. (Though I must ask here whether they are a real phenomenon in Sri Lanka where the family originates. My understanding is that honor killings are more a matter of custom among Arabic tribes than a feature of Islam. The custom extend to Sri Lanka -- I just don't know.) And frankly the apologists on the left go too far in pretending such threats do not exist.

But the rightysphere allows for no grey in this story. The parents are Muslim and have attended a mosque in which people have spoken who associate with people who associate with people in the Muslim Brotherhood, so case closed. The parents claim, in the first instance, that they aren't all that devout and only attend the mosque infrequently. While we can question the extent to which a threat assessment should take into account the associations of a parent's place of worship, we really should be concerned if the parents are the equivalent of C&E Muslims.

Voices in the right in this debate are -- OK I've said it once, so let's not mince words -- are mostly whack jobs. For example, one of the lead bloggers on the story is Pamela Gellar from Atlas Shrugs. Check out this piece she did on Obama's speech before the NAACP, contrasted with the actual speech. You can't argue with a piece like that. Either her perception of reality is hopelessly skewed or mine is. I prefer to assume my own sanity.

The customary procedure for a case like this is to put the child in foster care and begin a series of supervised visitations to a) try to reunify the family and b) continue to assess the threat to the child. The best first step would be transferring the case (and Rifqa) to Ohio. Hopefully the judges will put the holy war nonsense aside and do what's best for this girl and her family.

Today in the Akron Legal News -- Nunchucks!

Today's column in the Legal News takes on the nunchuck colloquy during the Sotomayor hearings. If you missed it, the Second Circuit case regarding Second Amendment incorporation considered a New York State ban on nunchucks.

OK, once more in English. The Bill of Rights as written limits only the power of the national government (thus the "Congress shall make no law" language opening the First Amendment.) That changed after the Civil War and the ratification of the 13th, 14th and 15th Amendments. The 14th, which among other things says that no state can deny life, liberty or property without due process of law, is read as incorporating fundamental rights against the states.

Which is to say, the Due Process Clause doesn't incorporate all of the Bill of Rights. After a certain amount of judicial back and forth (which is virtually impossible to teach coherently to undergrads, thanks very much) the Court worked up a fundamental rights test to determine whether a given right is incorporated. Fundamental rights are those from which all other rights flow, and/or those essential to the concept of ordered liberty. Yes, that's not the most definitive test in the history of American jurisprudence, but it's what we've got.

The newly discovered individual Second Amendment right has yet to be incorporated. Heller v. DC overturned a District of Columbia law which is functionally a Federal law given the special status of the District.

So, back to nunchucks. The 1970s saw a martial arts craze during which nunchucks acquired an inflated reputation as some kind of super weapon. Nunchucks can indeed be effective in hand-to-hand combat, but only in the hands of someone well-schooled in their use. In the column I draw on my own martial arts experience which has taught me little other than how easy it is to ding yourself in the face as you try to learn how to control these things.

Anyway, during the 70s martial arts fad, apparently some gansta types started rocking nunchucks and the New York Assembly responded by banning. The sponsor of the legislation said that they serve no purpose other than to maim or kill. Obviously he never saw this:



Anyway, the New York law was challenged in Maloney v. Cuomo and the Second Circuit held that Heller doesn't apply. In doing so, the court followed a Supreme Court precedent saying that the Second Amendment doesn't apply against the States. My guess is that the precedent will be overturned when an incorporation case comes before the Court, but the Second Circuit's position was that until it is, the precedent controls.

Wingers and Gunnutistanis on the Judiciary Committee tried to make the case that Sotomayor is anti-gun. Which she may or may not be, but in following precedent she was the opposite of the activist judge the Republicans made her out to be.

My point in writing up the nunchucks case is that a) the New York law is foolish and misbegotten and bases on false assumptions about the overwhelming power of nunchucks, but b) the way Heller pegs the Second Amendment right to weapons traditionally used for self-defense makes it hard to argue that the law violates the Second Amendment. We'll see what the Court does, but ruling against the state in Maloney would be an expansion of Heller that could make the right far broader and more unwieldy than Scalia seemed to be bargaining for.

So if you have a chance to pick up the Legal News, that's what you get today. I'll continue to lobby for some online reproduction and continue to occasionally post summaries here.

Why the Marburger Plan to Save Newspapers Won't Actually Save Newspapers

Yesterday we looked over the so-called Marburger proposal to allow newspapers (and presumably other content providers) to sue news aggregators for unjust enrichment. Since that post I've seen a couple others talking about monopoly of information, so I say again -- the Marburger plan would only protect reporter work product, not the information itself. If a reporter can obtain the same information independently, the cause of action should fail. (Accent on should -- the Marburgers do not entertain the possibility that the cause of action will drift and morph beyond what they envision, but that's another post.)

Before we get started on the problems with the proposal, a couple of caveats. First off, what I know about the newspaper business is what I read. Same with some internet use patterns. The difference between what lies below and what the Marburgers have done is that I have paid attention to things they haven't. Again I restate my central objection -- the Marburgers prove propositions with thought experiments that should be tested with data.

Finally a couple of links that got left off of yesterday's post. First off, Editor and Publisher covers the proposal, but with no critical comment. New media guy Marc Cantor weighs in with ideas about what the newspapers themselves can do to maintain an audience. (h/t Brewed Fresh.) A piece from the UK looks at the Marburger plan in the context of the far more draconian proposal from Judge Richard Posner to give papers intellectual property rights over their links. And if you really wanna get geeky wit it, here's a Coase Theorem treatment of the Posner idea. There has also been more dogpiling on Connie Schultz from various blogs. You can look through the links in yesterday's post and extrapolate if you really want to see more of that sort of thing.

Now on to the show.

Marburger Cures the Wrong Disease.

My biggest objection to Marburger (for want of another name, this is what we'll call it) is that it assumes that the gravest threat to newspapers is losing readers. While papers have lost readers steadily throughout the Twentieth Century due to competing media (radio was killing off papers long before the internets) the precipitous drop in revenues has happened on the advertising side.

Advertisers have been migrating steadily to online sources that have nothing to do with newspapers. This is particularly true of classified advertising which has traditionally been an indespensible revenue stream for newspapers -- up to 70% of profits. Craigslist has done the most damage, but Monster, Cars.com and for that matter Ebay have all taken away business that newspapers once dominated. As a result, classified revenues have dropped by half since 2000. Analysts like Lauren Rich Fine (that's the source of the 70% figure) have been warning for years that newspapers cannot survive ad revenue losses of this magnitude.

Online classified services offer advantages that newspapers cannot match. If you are paying for a newspaper classified, you are subsidizing that news gathering operation whose expense the Marburgers so persuasively described. Your cost is based on total circulation, despite the fact that only a tiny percentage of those readers are likely to have any interest in your ad. With online classifieds, on the other hand, every pair of eyes that wanders into the site is at least in the market for something along the lines of what you want to advertise. No one goes onto Cars.com to read about Michael Jackson's kids. They go to buy a car.

(By the way I have a theory that computer-based advertizing is a general danger to both content providers and content consumers. Advertizing is generally really inefficient. Again only a tiny percentage of whoever sees an ad has an interest in the subject of the ad. As computerization allows greater targeting, advertizing becomes more efficient. The more efficient it is, the less businesses have to buy it.)

Marburger does nothing about the loss of classified advertising. By their admission, they are talking about marginal increases in traffic. But traffic doesn't matter if it doesn't attract advertizing.

Curing the Wrong Disease, Part 2 -- Problems in Monitizing Websites.

The Marburgers would no doubt object that online ad pricing is dictated by traffic, which is true. But its not like newspaper website advertising was profitable, then the profits started to erode due to unfair competition from aggregators.

The fact is that it's really difficult to sell enough advertising to support web-based journalism. There isn't as much real estate on a web page (versus print where, among other things, you have facing pages that don't have an analog online). And people can block ads. And web advertising is still working to overcome a past rife with charlatans (remember the commercial about the poor sap who shot the duck in the banner ad?)

And of course news organizations are competing with sites that allow better targeting (see above.)

Over time, changes in technology may make monitizing online content easier (the rise in video allows commercials that you can't fwd past) or harder (written content on mobile web allows pretty much no space for ads). But between the loss of advertizing to other providers and the basic difficulty of paying for journalism with online ads, the newspapers are facing an inevitable decline that tinkering with intellectual property will not fix.

That said, the free rider effect that the Marburgers identify is the sort of thing that lawyers should seek a remedy for. Whether the Marburgers have correctly identified that effect and whether their proposal would provide an adequate remedy is another question.

The Marburger Proposal to "Save Newspapers" Round up and Initial Thoughts

Connie Schultz began what is rapidly becoming a national conversation about the economic future of newspapers with her Sunday column about a proposal by the brothers Marburger. Daniel is an economist at Arkansas State University, David is a partner at Baker Hostetler who represents newspapers, including the PD.

You can find a pdf of the proposal on the "blog" version of the column.

The default blogger reaction has been to hate on this mercilessly. Of course any time Connie Schultz ventures anywhere near blog world, Tim Russo's melon explodes, so the Marburger plan has taken over #JamesRenner among Russo Trending Topics. But other negative reaction has been nearly as intemperate from Jeff Jarvis, Anastasia at ODB, Mediactive, you get the idea. Some reaction has been a bit more measured and some has been borderline positive, but overall, it hasn't gone well.

I also have problems with the proposal, but since the haters have had their vein-bulging, spit-flying fun, I will try to break things down a little more soberly. Not as much fun, I know, but the proposal raises real issues that merit serious discussion. And let's face it, I'm generally the wet blanket at the hater party.

So. Let's start with what the proposal is. And isn't.

Aggregation Aggravation.

The Marburger proposal takes aim at news aggregators, in particular those they call "parasitic aggregators." The Marburgers begin with the assumption that some news aggregators summarize and rewrite reporting from online newspaper sites, and by doing so skim some would-be visitors to the site that did the actual reporting to put that information online. Whether this actually happens is highly questionable, but let's leave it for now. I know you want to stop and yell and scream about strawman scenarios, but seriously, let's lay this out before we pick it apart.

The problem is that copyright protection traditionally protects expression, not information. So while it would violate copyright to simply reproduce news stories verbatim, it does not violate copyright to write up the information into a new story.

So assuming aggregators are actually taking eyes away from newspaper site, they are doing so using the work product of newspaper reporters. The Marbugers spend a large chunk of their 51 pages making the case that because doing journalism is labor intensive and expensive and aggregating is relatively cheap, that aggregators work at a comparative advantage that will eventually drive newspapers under.

While the argument that aggregators are cheaper to run than news sites is well-established, the authors also claim that the loss of traffic to aggregators is a big reason newspapers cannot monitize their website traffic. This part of the argument they extrapolate from their talk of aggregators. It is entirely data-free. Indeed, to preview one blanket criticism of the paper, the authors engage largely in thought experiments to establish propositions that should be testable by examining actual data.

The Unjust Enrichment Solution.

In the early days of the teletype (1918) the AP successfully sued to prevent a competitor from rewriting its stories and selling them to newspapers. The case went all the way up to the U.S. Supreme Court and according to the Marburgers (I haven't researched it directly yet) won under a theory of unjust enrichment pursuant to what was then called Federal common law. The Court has since declared that there is in fact no Federal common law and that instead, a Federal court not deciding a case under a Federal statute has to choose some state's common law under which to decide. Bear that in mind when we talk about problems with the proposal, a post or two down the line.

Unjust enrichment is a well-established common law doctrine. Basically it means you can't profit from someone else's work. In law school we mostly study it under contract law. If two parties do not agree to a contract but one mistakenly starts doing work, the party that profits from that work can't refuse to pay because the contract wasn't finalized.

After the AP case, the particular strain of unjust enrichment enshrined there was referred to as the "hot news" doctrine. Importantly, the doctrine limited the use of information contained in a "hot" news story, but did not prevent enterprising reporters tipped off by a story from going out and doing their own reporting on it.

Problem is copyright law is a federal statute and federal laws generally preempt state laws. During a 1980s rewrite of copyright laws, Congress explicitly stated that state law remedies for copyright violation are preempted; copyright is the exclusive remedy for violations.

The Marburger proposal reverses that decision. Copyright law would be rewritten to allow state law claims for unjust enrichment. The individual states would then thrash out what constitutes unjust enrichment, what the remedies are and so forth. While commentators have called it an expansion or tightening of copyright, it isn't. It is more of copyright-plus regime, where the plus is the "hot news" unjust enrichment doctrine.

The Marburger proposal is neither benign toward First Amendment freedoms, nor the total squelching of those freedoms some critics have claimed. It is not the information land grab some have predicted, but it does expand rights to control of information under very limited circumstances. In sum, the proposal will benefit newspapers and put some burdens on other content providers, though the extent of those burdens would have to be hashed out in court.

Given the problems/burdens attendent in the proposal, my biggest problem with it is that it will not work. We'll take that up in the next post.

Casino Effort Calls and Raises

Following up on posts from last week, the would-be casino operators who were subject to an injunction last week have moved to have the whole thing vacated. Their theory -- that Mahoning County Common Pleas doesn't have jurisdiction over a statewide petition effort makes little sense. Where violation of a state law is alleged, you are going to start at the county level somewhere -- there is no statewide court with original jurisdiction. Without seeing the actual motion, it's hard to opine further.

Having said that, this description of the argument in the Dispatch's Daily Briefing blog is pretty funny. Granted this is a reporter putting the position into non-legalese, but it's pretty funny:

In today's legal filings, the Ohio Jobs and Growth Committee asks Mahoning County Common Pleas Judge James Evans to dismiss the party's lawsuit and lift the restraining order against lying. The committee's lawyers say the Mahoning County court has no jurisdiction over a statewide signature-gathering process and that the Democratic Party is playing politics.

Objecting to an injunction against lying? Accusing a political party of playing politics? Yep, sounds like a gambling initiative.

Law Dork pwns Time Magazine

Yesterday the Supreme Court decided against hearing on appeal a challenge to the military's Don't Ask/Don't Tell policy. So first off, a pox on every headline writer who announced that the Court "upheld" the policy. One of the first things you learn in law school is that the Court declining to hear an appeal (denying certiorari in lawyerspeak) is not the same as upholding the result below. Often the Court just doesn't feel the case isn't the best for deciding the issue.

Chris Geidner blogging at Law Dork explained this and more, including what he calls the "odd background posture" of the case:

Servicemembers Legal Defense Network, a legal group dedicated to supporting lesbian and gay soldiers, had been involved in this case, originally representing the 12 individuals challenging the policy. The organization, however, was no longer representing James Pietrangelo when he sought certiorari. SLDN continued to represent the other 11 individuals and filed a brief opposing having the Court accept this case.

Chris goes on to note that Pietrangelo then tried to have the SLDN brief in opposition struck from the record. Reading between the lines, Pietrangelo comes off as a bit of a loose cannon.

For a little broader context, consider the dissent among gay activists over the high profile suit challenging California's Prop 8 gay marriage ban. Again, just reading this from afar it appears that gay activists are seeing greater chances of success (and of minimizing backlash) by securing legislative victories as opposed to court challenges.

Enter Time Magazine. They've posted a story headlined "Dismay Over Obama's Turnabout on 'Don't Ask Don't Tell.' Who is dismayed? Well, the entire story consists of Pietrangelo hurling invective at Obama. Not one recognized leader of the gay community is quoted. If Chris Geidner, a blogger in flyover country (though granted an extremely well-read and well-connected one) understands the backstory of the case, why can't Time at least offer a little balancing perspective before winding Pietrangelo up and watching him go?

But no worries. This post will soon hit my Twitter feed. And that will change everything.

Casino Petition Update: Circulators Enjoined from Lying

Mahoning County Common Pleas Judge James Evans handed the anti-casino crew a partial victory today. The judge found enough evidence of shenanigans (excuse the legalese) to intervene, but stopped well short of enjoining the petition drive.

It is therefore Ordered that Defendant Ohio Jobs and Growth Committee and all persons who act in concert or participation with Defendant Ohio Jobs and Growth Committee are enjoined from misrepresenting the contents, purpose or effect of the initiative petition proposing an Amendment to the Ohio Constitution to authorize a single casino with each of the cities of Cleveland, Columbus, Cincinnati and Toledo.

What does it mean? Basically that if circulators are caught dealing from the bottom again the judge can levy fines and possibly a harsher injunction.

Some unsolicited strategic advice based on the discussion in the comments to the last post. If the plaintiffs do find evidence of further misrepresentation, they should do discovery to establish how the circulators are paid. If they are paid per circulator, you can make a case for enjoining the practice (which is generally a pesitilent practice, infesting the political practice with this sort of low-level fraud.)

Today in Akron Legal News

In today's column I consider the recall effort. For the most part I discuss the merits of Change Akron Now's arguments only to say that they mostly come down to policy disagreements, which generally aren't considered the stuff of a recall campaign. Mostly the column considers whether Akron should consider raising the threshold for getting a recall on the ballot. Surveying the recall laws in major cities in Ohio reveals that Akron has arguably the lowest threshold. This is from the column:

• Cleveland uses 20% of the total vote in the last municipal election.
• Parma uses 25% of the total vote in the preceding municipal election, as does Toledo, whose mayor is also fighting a recall effort.
• Dayton bases its threshold on the number of registered voters in the city. A recall effort needs 25% to reach the ballot.
• Columbus also sets the threshold as a percentage of registered voters, requiring 15%. As an additional barrier, Columbus does not allow petitions to be circulated; they are posted in firehouses and the city clerk’s office so that interested citizens must go to the petition to sign.
• Youngstown doesn’t peg the threshold to any variable, instead having set the threshold at a constant 5000 registered voters, which currently amounts to about six percent of the total population.
• Neither Canton nor Cincinnati currently allows for a recall, though the local NAACP in Cincinnati is currently spearheading a drive to add recall provisions there.
  

(BTW, if you want to follow the Toledo recall story, my friend Lisa Renee's local blog Glass City Jungle is a good place to start.)

From there I make arguments in favor of a higher bar. Irate comment coming from Mendenhall in 3, 2, 1. . .

Coughlin v. Renner and NY Times v. Sullivan

While the blogosphere has been tittering about whether State Sen. Kevin Coughlin dallied with a staffer, some of us have been wondering why an alleged libel suit threat could possibly have spiked the story.

If you are late to the story, Scene Magazine reporter James Renner was fired last week for his reaction to news that his editor and publisher were burying a story alleging that Coughlin was having an affair with an identified former staffer. Renner sent the story to Tim Russo who published it. Professor Idontlink at Pol. Sci. 216 has also picked up the story and followed up with more detail from Renner

According to Renner's story posted on BI, Scene decided to kill the story after getting letters from Sen. Coughlin's attorney threatening a libel suit if the story went to press. The posted story also details Renner's reporting which includes interviewing multiple and an entertaining attempt to secure comment from Coughin's alleged paramour.

Based on the facts as presented by Renner, Scene's action is inexplicable. Coughlin is a public figure. As such any libel action he brings would have to meet the high constitutional standard set by the Supreme Court in New York Times v. Sullivan. The Court held that:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made [280] with "actual malice"--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Recall that Renner says he has the roommate of alleged Coughlin squeeze on tape verifying the affair, plus other witnesses, put squeeze's patently evasive response to an interview request. Put it together and Coughlin has a nearly impossible task of proving that Renner was reckless.

And the Sullivan standard assumes that allegations in a story are false and therefore defamatory. If the allegations are true, Scene also wins. The Sullivan actual malice requirement offers news organizations a way to avoid the long, expensive business of proving truth. Which in a way is a pity as (from what I've heard) the defense would be able to put together a long and impressive witness list.

Scene management knows (or at least should know) all of the above. Their abject surrender to Coughlin is puzzling.

Brett Hartman Gets Stay of Execution

From a joint statement by Attorney General Cordray and Prosecutor Sherri Bevan Walsh:

We are in the process of reviewing the decision of the Sixth Circuit Court of Appeals. A stay has been temporarily granted by the Sixth Circuit and will remain in effect until the U.S. Supreme Court issues its opinion in District Attorney's Office for the Third Judicial District v. Osborne. Based upon today's order, the execution of Brett Hartman will not go forward on Tuesday, April 7.

The SCOTUSWiki page for the Osborne case is here. The issue is whether a defendant has a due process right to examine the state's evidence using updated technology post-conviction. There's a secondary issue the Court may reach which is -- sit down for this -- whether a person has a due process right to have a conviction overturned based on being actually innocent without any allegation of trial error. I'll try to come back to that one in a later post, but yes it is as jacked up as it sounds.

Hartman has been arguing for the right to retest evidence from the scene. On appeal to the Ohio Supreme Court he argued for limited testing basically to rule out an inconsistency between his story and the physical evidence. The claimed right to retest as described by the paper is more extensive -- basically retesting everything even though he pretty much admitted that he was in the victim's apartment so that physical evidence putting him there isn't a big surprise. The Supreme Court opinion, by the way, is available on this Brett Hartman Is Innocent site. As the opinion demonstrates, the evidence against him is actually quite overwhelming.

I don't know where the Supreme Court will come out on Osborne, so it's dicey to say when Hartman's planned execution will get back on track. By coincidence, this makes two consecutive Summit County defendants who got a stay pending a Supreme Court decision. The first, Richard Wade Cooey, has subsequently been put to death.

Warner Mendenhall Grasps at Straws

Akron News Now has begun what they promise will be a continuing series on the back-and-forth between Warner Mendenhall and, apparently, anyone who works for the city of Akron but doesn't carry a union card. The first report concerns an email statement Mendenhall sent out about his lawsuit against the city's speed zone cameras:

The fight over Akron's method of catching speeders through the use of cameras attached to some traffic lights continues, but now it's being woven into the fight to oust Akron's mayor from office. The case is now pending in the 6th Circuit Court Of Appeals, where judges routinely mandate conference calls to determine if cases will move forward. That happened in the traffic cam case as well, but Attorney Warner Mendenhall says the city wasted time and money by not having Akron City Council present for the talks.

"It's mandatory for the decision makers to be present when we're in a mediation and the city did not meet the requirements of that rule," said Mendenhall.

* * *

Mendenhall's allegation, in an email sent to the media, that it was a "waste of thousands of dollars worth of attorney time" is raised because he says that the session could not possibly be productive if city council - the client - wasn't present to consider any offers that might be made.

This is all curious to me because I've been on a Sixth Circuit mediation call without my client and my opposing counsel -- in general even more of a self righteous hysteric than Mendenhall -- didn't say boo about it.

Let's break all this down, one issue at a time. First off, the Sixth Circuit's mediation rule:

The court may direct the attorneys - and, when appropriate, the parties - to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceeding or implementing any settlement agreement.

So, presence isn't required unless specifically ordered by the court. The attorneys do need to know what settlement authority they have. Mendenhall claims in the audio interview linked on ANN that the city attorneys didn't do that, citing as evidence that they didn't tell Council about the conference call.

That as may be, but attorneys serving public boards don't tell clients about every step in litigation, just the ones they need to know about. In a lawsuit that is purely about the legality of city actions (which is to say, not about money damages) the chances of a settlement are remote and the attorney and the clien board generally understand that their posture is not to settle but to get a legal opinion from the court and go forward from there.

Which brings up the second issue: The settlement that Mendenhall is talking about appears to be entirely hypothetical. Throughout the interview he never mentions making a settlement offer. It seems unlikely that, having gone through the trial court proceedings, the parties could suddenly come up with some consent decree that would make the litigation go away. The litigation exists to get a court opinion.

Finally, there's the matter of "thousands of dollars worth of attorney time" he alleges were wasted. Thousands of dollars? Not on the city side. I'm confident that city attorneys aren't pulling down that kind of coin. As for Mendenhall, if he spent more than an hour total on this call, he's a fool. The call takes maybe fifteen minutes and that's if the attorneys are particularly chatty. Prep is no more than a review of the file. And I'm quite confident that an hour of Mr. Mendenhall's time won't result in a four figure bill.

Once again, Warner Mendenhall could be an effective critic of the administration. Instead he stamps his feet and carries on about every little thing, making even his decent points look silly.

Disclosure One: The city attorney quoted in the story is a family friend, and Warner Mendenhall . . . isn't.

Disclosure Two: I agree that speed cameras need to comport with basic requirements of due process. That said, last Thursday some idiot flew past my daughter's school during pick up at what had to be forty, minimum. So I'm OK with the city finding innovative ways to enforce speed zones around schools.

I Believe this License Plate is Unconstitutional

. . .though I don't believe the suit against it will ultimately be successful.

This blog has reported earlier about efforts in Florida to create a Christian-themed specialty license plate. South Carolina has begun production and, as of this week, been ordered to stop. Americans United, who brought the suit, has been crowing about a preliminary injunction handed down this week.

Just to be clear about this, a preliminary injunction does give an indication that the judge is leaning toward the party who secures it, but it isn't a complete win, even at the trial court level. It is what it say -- preliminary. Under the right circumstances a judge will make one party or the other stop what they are doing to preserve the status quo pending the ultimate decision. While one part of the calculus is a judgment that the moving party is likely to succeed on the merits, it's entirely possible to obtain a preliminary injunction, then ultimately lose.

To say nothing of the appeal. The Fourth Circuit runs shoulder to shoulder with DC in the race for the most conservative appellate panel. And at some point the Supremes will weigh in as well and the current Court is not friendly to Establishment Clause claims.

In the opinion granting the injunction, the trial court notes:

As the Supreme Court has further explained, "Government may not promote or affiliate itself with any religious doctrine or organization." [quoting County of Allegheny v. ACLU].

Allegheny County is a 1989 case regarding a government-sponsored Christmas and Chanuka display. Of the five member majority, only one -- Justice John Paul Stevens -- still sits on the Court. On the other hand, Justice Anthony Kennedy now the swing justice authored a dissenting opinion which offers his views at the time regarding government-sponsored religious speech. Kennedy rejects the argument that government religious endorsement is unconstitutional if it conveys the message to non-believers that the are not part of the political culture. Instead, he argues that Establishment Clause cases turn on whether the government conduct is in some way coercive to non-believers.

A lot has happened to Kennedy's jurisprudence since 1989s- he is the one conservative justice who has drifted toward the center. So it remains to be seen whether that is still his view and whether he will forego that view given that the majority decided differently. Personally I'm not confident that he will.

And so what's the harm, you ask? If the standard is actual coercion, shouldn't that offer enough protection to reprobates and heretics like yr humble blogger and his friends. Well, a couple of things. First off, make no mistake -- making nonbelievers feel as if they are outside the American community isn't a side effect of efforts like the SC license plate, it's a goal. And a constant drumbeat of messages that certain people are not "real" Americans pushes closer and closer to the level of coercion.

In other words, the line between government conveying the message that nonbelievers are truly part of the community and "coercion" is far more difficult to draw that Justice Kennedy seems to believe.

Party Animals in the Sixth Circuit

Remember the HAVA suit against Jennifer Brunner during the runup to the election? The Republicans filed suit against Ohio's Secretary of State alleging that she was violating the Help America Vote Act¹. A three judge panel of the Sixth Circuit ruled that the suit should be dismissed, then the entire Sixth Circuit sitting en banc overturned the panel's decision. Then the Supreme Court reversed again.

A story in last week's Washington Post put the case in a broader context. The Republican dominated Circuit hs been using its discretionary power to rehear en banc to overturn panel decisions the majority doesn't like:

"Anytime two of us show up on a panel and they don't like it, they yank it," said one Democratic-appointed judge on the circuit, who spoke on the condition of anonymity to avoid directly provoking colleagues.

That may be only a slight exaggeration, according to a Washington Post review of all of the circuit's en banc rulings in the past decade. In the past five years, initial verdicts by panels dominated by Democratic appointees were clearly reversed by Bush's appointees and other Republican picks 17 times, out of 28 decisions issued by the full court.

This is arguably an abuse of the en banc power:

Under 6th Circuit rules, full court, or "en banc," hearings are allowed in order to ensure "uniformity of the court's decisions" when separate panels of three randomly appointed judges disagree, or when questions of "exceptional importance" are at stake. But some of the court's Democratic appointees allege that the Republican-appointed majority is grabbing and reversing cases whenever those judges disapprove of the social consequences of the Democratic appointees' rulings.

Much of the article focuses on criminal appeals and the whole thing is worth the click-thru. H/t Stefan Padfield at Akron Law Cafe whose link eventually gets you there.

One last point. The accompanying graphic shows that in 2001 the circuit was essentially split with 27 vacancies. The vacancies at that time pretty much account for the shift during the Bush years. In the second Clinton term Republican Senators were refusing to allow dozens of Clinton's appointees an "up or down vote" leaving several circuits and district courts with similar gaping vacancies. We cannot allow whatever shenanigans the Rs try to pull with Obama's nominees this time around.

¹The suit itself was somewhat Bizarro World. The Act requires state election officials to compare voter rolls against public databases to create a sort of EZ Pass for voters deemed bona fide before showing up at the polls. Republicans being Republicans wanted to covert it into a Help REAL America Supress the Vote Act.

The Legal Road to Guantanamo: An Introduction

With President-Elect Obama promising to close the detention facility at Guantanamo Bay, Cuba, we are on the verge of a national conversation on the matter. As my humble contribution in my humble corner of the internets, I will offer a brief history of the legal precedents that led up to the current morass. Beginning in the Civil War era, a series of Supreme Court decisions -- some franky sloppily decided -- helped get us where we are. And since my students are studying them, the work here does double duty.

A few caveats are in order. First off, there are plenty of actual experts out there who study this stuff full time. I'm not that guy. As such, I'll offer some basic outlines of the history, but don't expect the final word. Also, I'll be focusing on the legal side, but we all know some opinionating will sneak in. And of course if I actually finish this series, it may be my first.

All that said, we'll get started in the morning.

The Election and the Supreme Court

While wading through some long neglected corners of my Google Reader, I ran across this anti-Obama rant by Holly in Cincinnati on Moderate Voice. Holly was one of the most stridently anti-Obama voices during the primary and apparently is feeling quite PUMA-ish.

Holly will do what she will do, but one item in particular caught my eye. She rejects the argument that a vote for McCain is a vote for a right wing lurch on the Supreme Court, "because SCOTUS appointees historically tend to moderate their views and do the very best job that they can to serve the American people and our judicial system."

That's not an argument. That's denial.

First off, understand what we are talking about. Currently the Court is composed of four predictably conservative judges -- Roberts, Alito, Thomas and Scalia -- and four judges that vote in what passes these days as liberally -- Breyer, Ginsburg, Souter and Stevens. Kennedy is currently the swing vote.

Holly is right that some justices moderate their views. Kennedy is an example. He is by nature a conservative, but unlike the right wing of the court, his conservatism includes respecting stare decisis (the principle that says precedent should be followed) and worries about a drastic change by the Court disrupting society. In addition, he has allowed life experience (for example, getting to know gay clerks and employees, attending international law conferences) to influence his jurisprudence. O'Connor, the previous swing vote, what much the same.

On the other hand, Thomas and Scalia have not moderated their views one iota. For example, in a concurrence in the early Nineties Thomas outlined a view of the Constitution that would render most government regulation of the economy -- including labor, health and environmental legislation -- unconstitutional. Scalia recently declared that the decision that simply allowed Guantanamo detainees to have a day in court would inevitably result in more people dying in terrorist attacks.

Court watchers generally agree that Roberts and Alito are similarly unlikely to moderate their views. Alito for one is still the same jurist who declared a Pennsylvania law requireing a woman to notify her spouse before having an abortion constitutional before the Court struck it down in Casey v. Planned Parenthood.

Not only are some judges disinclined to change their views, the right wing seems to be getting better at making the prediction. The three most recent Republican appointments -- Thomas, Roberts and Alito, are also the most recalcitrantly conservative.

This matters now more than ever. The next President will almost certainly replace two, if not three members of the liberal block. Stevens is 88. Ginsberg is 75 and a cancer survivor. Souter is 69 but reportedly loathes DC. (Scalia at 72 is the only conservative near any possible retirement age.)

So the next President will almost certainly replace a large segement of the liberal bloc. McCain has signaled his intention to nominate justices in the mold of Roberts, Alito, Scalia and Thomas. In point of fact you have at least three different molds there, but the message is clear -- no more compromisers like Kennedy and O'Connor.

If this happens, losing Roe v. Wade will look like a relatively mild consequence. Large swaths of legislation protecting consumers, guaranteeing bargaining rights and safeguarding the environment will be at risk. Individual civil liberties on the other hand will be given a back of the hand. In particular, the righty bloc has little patience for challenges to government religious speech or limits on law enforcement. Whatver moderating effect on all this Kennedy has had would be gone as Scalia would take his place at an increasingly rightward center. (Prof. Will Huhn has a series of posts getting more specific on all this. Click here and scroll down to the Court in the Balance posts.)

For my conservative friends, this is all fine of course. But if you do not want to see a simultaneously ultraconservative and activist court, vote Obama. It's your one chance to shape the Court.

Matchmaker, Matchmaker, Pt. 1: The Roundup.

For those of us watching the various court rulings on the ORP/Jennifer Brunner voter matching case, the last week has been as dizzying as it is for those of us watching the stock market. Another turn this afternoon as the U.S. Supreme Court vacated the Sixth Circuit's en banc ruling. The tally so far is as follows:

District Court: Temporary Restraining Order [TRO] granted
Sixth Circuit Panel: TRO vacated
Sixth Circuit en banc: TRO reinstated
Supreme Court: TRO vacated

Jill has been following the story all day. You can read the Court's per curiam opinion here. As Jill found, Lyle Deniston comments on SCOTUS blog and Rich Hasen on Election Law Blog. In addition ACS Blog (that's American Constitutional Society) has a very pointed post accusing the Sixth Circuit decision of applying a double standard regarding private rights of action. Orin Kerr promises to blog more from the right, although the comments he elicits from Rampant Voter Fraud Guy are worth perusing.

Nothing yet from OSU election law expert Daniel Tokaji who apparently posts about once per season. But his last extant post from July predicted just this problem. A worthwhile point -- if the state's leading election law specialist was flagging the problem in July, why exactly did the ORP start its lawsuit in October?

On the fact side of the dispute, Tokaji's post notes the various reasons why the high number of computer mismatches. NY Times and Tapped both offer updated versions of the same story, both quoting Tokaji. Also, Tokaji notes that the central state database is supposed to be something that makes voting easier, not something that one or the other party can uses as a vote-caging tool.

Finally, FiveThirtyEight predicts that the effect in the end is likely to be less than one percent either way.

More to come . . .