The Volokh Conspiracy

I’m told that such arrests and charges are very rare, so I thought this was noteworthy, from the Austin American-Statesman, April 19, 2013 (thanks to Lawrence Goldman [White Collar Crim Prof Blog] for the pointer):

Former Williamson County District Attorney Ken Anderson was arrested ... after a specially convened court found that he intentionally hid evidence to secure Michael Morton’s 1987 conviction for murder.

In a blunt and scathing ruling, District Judge Louis Sturns said Anderson acted to defraud the trial court and Morton’s defense lawyers, resulting in an innocent man serving almost 25 years in prison.

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

Sturns, presiding over a court of inquiry that examined the Morton prosecution, found probable cause to believe that Anderson broke two state laws and committed criminal contempt of court for lying to Morton’s trial judge. He then signed a warrant for Anderson’s arrest as required under state law governing courts of inquiry....

Sturns’ ruling is the first step in a potential criminal case against Anderson, who was Williamson County’s celebrated law-and-order district attorney for 16 years before he became a district judge in 2002. His current term as judge will end in 2014. State law does not require him to step down as the case against him progresses....

Morton was sentenced to life in prison for the murder of his first wife, Christine, in their Williamson County home. He was freed and declared innocent in 2011 after DNA tests pointed to another man as the killer....
Sturns told the standing-room-only courtroom that the evidence showed that Anderson improperly concealed two pieces of evidence that could have helped Morton fight the murder charge:

• The transcript of a police interview revealing that the Mortons’ 3-year-old son, Eric, witnessed the murder and said Michael Morton wasn’t home at the time.

• A police report about a suspicious man who had parked a green van near the Morton home and, on several occasions, walked into the wooded area behind the house.

Anderson also improperly concealed the documents from District Judge William Lott, who presided over Morton’s trial, Sturns said.

“Judge Lott specifically asked Mr. Anderson in open court whether the state had any evidence that was favorable to the accused,” Sturns said. “To which Anderson replied, ‘No, sir.’ ” ...

Judge Sturns’ report is here (thanks to Grits for Breakfast for the pointer).

A comment reminded me of this passage from Justice Stevens’ opinion in County of Allegheny v. ACLU:

It is also significant that the final draft [of the Establishment Clause] contains the word “respecting.” Like “touching,” “respecting” means concerning, or with reference to. But it also means with respect — that is, “reverence,” “good will,” “regard” — to. [Footnote: "Respect," as defined in T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). See S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Oxford English Dictionary 733-734 (1989); Webster's Ninth New Collegiate Dictionary 1004 (1988).] Taking into account this richer meaning, the Establishment Clause, in banning laws that concern religion, especially prohibits those that pay homage to religion.

This seems to be a very weak argument — more a play on words than legal analysis.

First, the Clause doesn’t ban laws respecting religion. It bans laws respecting an establishment of religion.

Second, the fact that an English word has multiple meanings doesn’t mean all those meanings are applicable in each context. Indeed, any usage of a word in a legal document (rather than in a joke or in a poem) is usually understood as triggering just one meaning, at least when the meanings are relatively far removed from each other.

For instance, one can debate what “common law” means in the Seventh Amendment protection of a jury trial in suits “at common law,” since at various times (and even at the time of the Framing) “common law” has meant several things: (1) judge-made law (or, if you prefer, judge-found law, though that’s a legal fiction) as opposed to statutes, (2) a particular body of law that was once made by judges, even if now it is codified in statute, as opposed to law that was originally created by a legislature, (3) Anglo-American law as opposed to European civil law, which is derived from Roman law, and (4) law that is sufficiently linked to the sort of law historically enforced in common-law courts as opposed to the sort of law historically enforced in so-called courts of equity. But once courts conclude — and rightly so, I think — that “common law” in the Seventh Amendment is rightly understood using definition 4, they don’t then also bring in the other definitions.

“Congress shall make no law respecting an establishment of religion” has long been understood to mean “no law with reference to establishment of religion” [UPDATE: i.e., either an establishment of a national religion or an interference with state establishments of religion] and this understanding of the word “respecting” was pretty clearly the understanding at the time of the Framing (as well as the Fourteenth Amendment). Compare, for instance, article IV, sec. 3, cl. 2 (emphasis added): “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Or compare the uses of the word “respecting” in the Federalist. That doesn’t tell us just what qualifies as a law that is with reference to establishment of religion [UPDATE: nor does it tell us how the Fourteenth Amendment should affect all this]; but it does give us a general sense of the meaning of “respecting,” though not the meaning of “establishment of religion.”

What reason is there to then read “no law respecting an establishment of religion” as also having the “richer” meaning of “no law that expresses reverence for religion” (omitting the phrase “establishment of” before “religion”)? I see none, other than an interpreter’s preference for the particular result.

The Huffington Post has an article titled, “Kaitlyn Hunt, Florida Teen, Faces Felony Charges Over Same-Sex Relationship”; Opposing Views picks it up as, “Florida Teen Kaitlyn Hunt Arrested, Expelled Over Same-Sex Relationship”; Examiner.com, which is linked to by the Huffington Post piece, has the headline, “Florida teen fights expulsion and criminal charges for same sex relationship”; Think Progress has the headline, “What’s Next For Kaitlyn Hunt, The Teen Charged With A Felony For Same-Sex Relationship With Classmate.”

Except that, as the bodies of the articles indicate, the charge isn’t “same-sex relationship” — it’s the non-sexual-orientation-specific statutory rape statute, Fla. Stats. § 800.04, which says, in relevant part,

A person who:

(a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age ...

commits lewd or lascivious battery, a felony of the second degree ....

Kaitlyn Hunt, who is now 18, is continuing a sexual relationship with a 15-year-old girl; that seems to me to be a pretty clear violation of the statute. And while statutory rape laws are notoriously underenforced, I would imagine that it would be hardly unheard of for an 18-year-old boy in Florida to be arrested and expelled for having sex with a 15-year-old girl. The ThinkProgress article states, “Kaitlyn’s father suggests his daughters arrest — and the substantial sentence sought by the prosecutor — are motivated by anti-gay bias.” (The proposed deal from the prosecutor was, “She could plead guilty to child abuse, a felony, and spend two years under house arrest. The judge would determine if she would have to register as a sex offender.”) But are Florida prosecutors really materially more lenient when the parents of 15-year-old girls complain about 18-year-old men having sex with those girls? I’ve heard nothing suggesting that this is so.

The story alleges that the 15-year-old girl’s parents are upset about the same-sex nature of the relationship, so it’s possible that their motivation in complaining to the police relates to that. (I’m not certain that this is so, since it’s quite possible that the parents would also be upset about their 15-year-old daughter having an opposite-sex relationship with an 18-year-old man, so the same-sex nature of the relationship may not even be a but-for cause of the complaint; but let’s set that aside for now.) But the police and the school can’t just say, “Your motivation for the complaint is hostility against lesbianism, so we’ll refuse to act on the complaint, even though this is a crime that we’d take seriously if we thought your complaint was motivated by general disapproval of sex between 15- and 18-year-olds.” And absent some evidence that Florida authorities turn a blind eye on parental complaints about 18-year-old men having sex with 15-year-old girls, I don’t really see this as a case about “same-sex relationship[s]” as such.

Now this having been said, one can actually make a rational argument for treating lesbian relationships less severely than opposite-sex relationships. Lesbian relationships can’t lead to unwanted pregnancy, and, to my knowledge, are much less likely to spread the most serious sexually transmitted diseases. And while they can involve lies, lead to heartbreak, leave one or both members with a sense that one has been emotionally mistreated and taken advantage of, and so on, one can imagine a parent who can reasonably think “Phew, better that my daughter is having sex with a woman than with a man.”

One can even imagine legal rules that draw this distinction, and constitutional rules that uphold such a distinction. Michael M. v. Superior Court (1980) upheld a sex-specific statutory rape law, which punished only males and not females, on the grounds that the law reflects real sex differences, including differential susceptibility to pregnancy. That argument would be even stronger as to a distinction between women-women relationships and other relationships, even given that sex classifications are subjected to heightened constitutional scrutiny (see Michael M. itself), and even if sexual orientation classifications come to be subjected to heightened constitutional scrutiny as well.

But such an approach, while not irrational, is certainly not the law in Florida, and it’s far from clear that it is correct. The risk of emotional harm to 15-year-olds — harm that they may be even less prepared to deal with than older people are, and harm that they can’t reasonably be seen as consenting to, given their immaturity — remains in lesbian relationships even if the risk of pregnancy is removed and the risk of disease is very low. And in any event this is not, I take it, the argument being made by the articles I cite.

The Court just agreed to hear Town of Greece v. Galloway, a case involving legislative prayer. In Marsh v. Chambers (1983), the Supreme Court upheld legislative prayers against an Establishment Clause challenge, based on the very long American tradition of such prayers (dating back to the same First Congress that proposed the Establishment Clause); nonetheless, the scope of Marsh is unclear, and in particular it’s unclear to what extent legislative prayers might be seen as unconstitutionally preferring a particular religion or denomination.

Or that at least is the narrow question raised by the case. But I think it’s also possible that the Court may use the case as a means of reconsidering the “endorsement test,” under which the Establishment Clause is read as barring government speech (or even government action) that a “reasonable observer” would see as “endorsing or disapproving” of religion (either a particular religion or religion generally). The test has long been controversial; it was relied on by the decision below, so it’s very much in play in this case; and I suspect that there are five votes to overrule it. (Justices Kennedy, Scalia, and Thomas are on the record as rejecting it, and I suspect Chief Justice Roberts and Justice Alito take a similar view.) Should be a very interesting decision, which will be out in the first half of next year.

A very interesting question, raised in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, a certiorari petition now pending before the Court. Profs. John Duffy (Virginia), Peter Strauss (Columbia), and Michael Herz (Cardozo) — an illustrious trio who often take quite different views about other subjects — have an item about this at Concurring Opinions; here’s an excerpt (click on the Concurring Opinions post for links):

Earlier this year, more than 100,000 citizens petitioned the White House to overturn a copyright rule issued by the Librarian of Congress that made unlocking a cell phone a crime. The White House responded by promising to seek legislation to overturn the Librarian’s rule. That was the most the President would or could do because “[t]he law gives the Librarian the authority,” and the Administration would “respect that process,” even though the Librarian acted contrary to the Administration’s views. See here. As the New York Times reported, “because the Library of Congress, and therefore the copyright office, are part of the legislative branch, the White House cannot simply overturn the current ruling.” See here.

There’s only one problem with all of this: The Department of Justice has been vigorously arguing precisely the contrary constitutional position in the federal courts.

According to the Administration’s filings in litigation that has now reached the Supreme Court, the Library of Congress is “an executive Department,” and the Librarian himself is “subject to plenary oversight by the President.” Justice Department lawyers have explained that Congress made a “purposeful decision to place the Library under the President’s direct control and supervision”; that the Librarian of Congress is the “Head” of this “executive Department”; that the President may remove the Librarian “at will” just as he may remove other heads of executive departments; and that this removal power creates the Librarian’s “here-and-now subservience” to the President. See pages 16 & 17 of the Government’s Brief in Opposition filed at the Supreme Court, available here and pages 23, 29 & 37 the Government’s Brief for Appellees filed in the Court of Appeals, available here.

In light of that clear legal position, an obvious question arises: If the Librarian is really a head of an executive Department subject to “plenary oversight by the President,” why hasn’t the President either taken responsibility for criminalizing cell phone unlocking or ordered the Librarian to reverse his decision?

The answer is that no one in the political arena actually believes for one minute that the Librarian is the head of an executive department. The current Librarian has repeatedly testified to Congress that the Library is “arm of the United States Congress,” “a “branch of the Legislative branch,” and “a unique part of the Legislative Branch of the government.” Members of Congress also understand this to be true. To take but one prominent example, Senator Orrin Hatch has noted not only that “the Copyright Office is in the legislative branch of the Government” but also that this arrangement presents difficulty because “whenever the Copyright Office is tasked with an executive-type function, [a] constitutional question arises.”

The President’s supposed powers of “plenary oversight” and at-will removal are utter fiction, as the controversy about cell phone unlocking shows....

Why then are the Administration’s lawyers arguing that the Librarian is a presidential underling? The answer is easy. The Librarian has been vested with the power to appoint all of the officers who execute the copyright laws—including the Registrar of Copyrights and the judges of the Copyright Royalty Board—but the “Appointments Clause” of the Constitution makes clear that such power can be lodged in the Librarian only if he is the head of an Executive Department....

Prof. Dennis Crouch, at the respected and often-cited Patently-O blog, had a post several weeks ago with a heading that was good advice, Don’t Write This Letter to the Patent Office:

We all get frustrated. After an examiner rejected his client’s application for a telescoping tripod sprinkler, patent attorney Andrew Schroeder could no longer resist and filed the following remarks:

REMARKS: Are you drunk? No, seriously…are you drinking scotch and whiskey with a side of crack cocaine while you “examine” patent applications? (Heavy emphasis on the quotes.) Do you just mail merge rejection letters from your home? Is that what taxpayers are getting in exchange for your services? Have you even read the patent application? I’m curious. Because you either haven’t read the patent application or are… (I don’t want to say the “R” word) “Special.”

Numerous examples abound in terms of this particular Examiner not following the law. Clearly, the combination of references would render the final product to be inoperable for its intended use. However, for this Special Needs Examiner, logic just doesn’t cut it. It is manifestly clear that this Examiner has a huge financial incentive to reject patent applications so he gets a nice Christmas bonus at the end of the year. When in doubt, reject right?

Since when did the USPTO become a post World War II jobs program? What’s the point of hiring 2,000 additional examiners when 2,000 rubber stamps would suffice just fine? So, tell me something Corky…what would it take for a patent application to be approved? Do we have to write patent applications in crayon? Does a patent application have to come with some sort of pop-up book? Do you have to be a family member or some big law firm who incentivizes you with some other special deal? What does it take Corky?

Perhaps you might want to take your job seriously and actually give a sh.t! What’s the point in having to deal with you Special Olympics rejects when we should just go straight to Appeals? While you idiots sit around in bathtubs farting and picking your noses, you should know that there are people out here who actually give a sh.t about their careers, their work, and their dreams.

Your job is not a joke, but you are turning it into a regular three ring circus. If you can’t motivate yourself to take your job seriously, then you need to quit and let someone else take over what that actually wants to do the job right.

See U.S. Patent Application No. 13/068530 (PAIR). [Update: It appears that the PTO has now removed the letter from the file history.] ...

An effective way for a patent lawyer to communicate with the patent office? You decide.

But Andrew Schroeder wasn’t done — instead of posting an apology (which I expect Patently-O would have been glad to post), or even just ignoring the publicity, he doubled down on rude, with several posts such as this one, calling Prof. Crouch a “dickhead” and then using various further vulgarities. This unsurprisingly led to more coverage, for instance at Above The Law and TechDirt.

The reputational consequences of these communications to Mr. Schroeder can be seen by Googling Andrew Schroeder patent. There is one bit of good news from this, though: The winners are Mr. Schroeder’s prospective clients, who can now more easily get a sense of the sort of conduct that they can expect from him.

Here’s a newspaper article containing an allegedly defamatory statement by Gov. Sundquist:

[Some death row inmates] accuse the governor of being “mean spirited” because he took away their satellite dish.

Three inmates and four citizens have filed a federal lawsuit against the governor and correction officials, claiming the satellite dish was paid for by donors and that the governor had no right to remove it.

“That was the guy who committed 14 murders and two rapes on death row who said I’m mean spirited,” Sundquist said. “If they think I’m mean-spirited, I would question the origin of the statement. How can someone who’s committed the most grievous crimes imaginable — who is slated to be executed — expect to have television access that most people in Tennessee don’t have.”

“A satellite dish with all the Playboy channels may be dangerous to their health.”

The dish carried HBO and Cinemax to the prisons at Nashville’s Riverbend Maximum Security Institution. The suit was filed by convicted murders Terry King, Rocky Lee Coker and Michael Sample....

Here’s what the Tennessee Commission said in rejecting Coker’s defamation lawsuit, see Coker v. Sundquist (Tenn. Ct. App. 1998) (nonprecedential) (patragraph breaks added):

The main reason why this Commission finds this to be a claim on which relief cannot be granted is that the newspaper article in question is not libelous or injurious at all. Any body who reads that newspaper article gets the message: men who have been sentenced to death in a Tennessee Court deserve to be deprived of entertainment, and when such men use language like “mean spirited” and go to Court to get their entertainment back then they are being ridiculous. Anybody who reads that newspaper article recognizes that the quotation, “That was the guy who committed 14 murders and two rapes on death row who said I’m mean spirited,” was an exaggeration, just a piece of mockery; anybody who reads that newspaper sees that this statement is not statistically precise.

All human-beings — not just holders of high offices and newspaperwomen — use exaggeration sometimes. People may say that men sentenced to death by Tennessee juries have “committed the most grievous crimes imaginable,” while they know that only people like Mao Tse-Tung and Pol Pot really have “committed the most grievous crimes imaginable.” We all talk like that sometimes, and talking like that is not slander or libel. And there is a very good reason why it is not slander or libel: because nobody who hears it takes it with nit-picking precision.

Take the case of the mother who says to her child, “You’re just the worst little boy I’ve ever seen!” Nobody would say to her seriously, “You’re a liar! You’ve seen two little boys this morning who are worse than he is!” This claimant is arguing that mockery is libel, and it is not....

Apropos the recent stories about the IRS’s quizzing conservative groups about their intentions and their speech, and delaying approval of those groups’ tax-exempt status, here are two items from a few years ago:

1. In 2011, the IRS quizzed Christian Voices for Life about whether they “[do] education on both sides of the issues” and whether they “attempt to talk to [people] trying to enter a medical clinic, or any other building facility.”

But though groups that engage in advocacy related to political campaigns, or that engage in substantial advocacy related to legislation, can’t have 26 U.S.C. § 501(c)(3) status, there is no such limitation for groups that try to talk to people entering medical clinics. Moreover, Big Mama Rag, Inc. v. United States (D.C. Cir. 1980) pretty strongly suggests that § 501(c)(3) status can’t be limited to groups that are evenhanded in their speech (“[w]e can conceive of no value-free measurement of the extent to which material is doctrinaire”), and indeed many groups that engage in one-sided advocacy (PETA, the ACLU Foundation, and more) have § 501(c)(3) status. After the group got a lawyer to write a letter to the IRS about this, the IRS approved the exemption request.

2. In 2009, the IRS allegedly demanded that the Coalition for Life of Iowa promise, as a condition of getting tax-exempt status, that it wouldn’t “picket” or “protest” outside Planned Parenthood or similar groups, or organize others to do so. It also demanded that the Coalition “explain how all of your activities, including the prayer meetings held outside of Planned Parenthood are considered educational as defined under 501(c)(3),” “explain in detail the activities at these prayer meetings,” and “explain in detail the signs that are being held up outside of Planned Parenthood and explain how they are considered educational.”

If it is indeed standard practice for the IRS to demand that all groups that engage in protesting and demonstrating — liberal, conservative, or otherwise –”explain in detail” all their past speech qualifies as “educational,” I’d like to hear that; § 501(c)(3) does limit the exemption to (among other things) “charitable” and “educational” groups, and if the IRS is defining “educational” narrowly and applying the narrow definition evenhandedly, then that may explain why it was applied to the Coalition for Life of Iowa. But my suspicion is that most groups aren’t required to provide such detail about their speech. Again, after the group got a lawyer to write a letter to the IRS about this, the IRS approved the exemption request.

Thanks to Paul Milligan for the pointer. I should note that the groups I mention were represented by the Thomas More Society, with which I’m working on my pro bono Scott v. Saint John’s Church in the Wilderness petition; but they didn’t approach me about blogging on this subject.

Jonathan posted earlier today about Romeike v. Holder (6th Cir. May 14, 2013), which reject German homeschoolers’ asylum claim. The opinion is quite readable and persuasive, and I recommend it to those interested in the subject. But here’s my general thinking (reprised from 2010 post on the original immigration judge decision in the case), and stressing that I’m not an expert on asylum law:

It’s not clear that homeschooling (as opposed to private schooling) is constitutionally protected in the U.S. There appears to be no such general constitutional right, though there might be such a right under the Free Exercise Clause, at least as to children 14 and above, if the parents feel a religious obligation not to send their children to any school, private or public.

But even if the U.S. Constitution is read as securing such a right, can that be enough to secure asylum to everyone who wants to exercise the right, and can’t do so in their home country? Everyone who wants to own a handgun, but can’t do so under his or her home country’s law? Everyone who wants the ability to have an abortion should she get pregnant, but is not allowed to do so under her home country’s law? If the U.S. Constitution is read as recognizing a right to same-sex marriage, everyone who wants the ability to live in a recognized same-sex marriage, but is not allowed to do so under his or her home country’s law? That seems like an odd way of rationing the right to come to the U.S. (whatever one may think more generally about how open or closed our borders ought to be).

I should note that my family and I did come here as refugees from the Soviet Union. But whether or not that policy was sound (and the fact that it helped me, and that I’m grateful that it did, doesn’t tell us that much about whether it was sound), it seems to me that asylum from a country where a vast range of human rights is pervasively denied is quite different from asylum where the right at stake is solely the right to home-school, important as that is for many people.

Today’s New York Times has an article by Adam Liptak about Scott v. Saint John’s Church in the Wilderness, the case in which I filed a cert petition recently. In that case, as many readers may recall, the Colorado Court of Appeals upheld an injunction that bars my clients from (among other things) displaying “gruesome images” of aborted fetuses outside a church. The court acknowledged that this was a content-based speech restriction, but said that the injunction passed the “strict scrutiny” required for such restrictions, because it was supposedly narrowly tailored to a compelling government interest in shielding children from such speech. Our petition argues that the Supreme Court should consider the case, because lower courts disagree on whether such content-based restrictions are constitutional.

The briefing is now done — just yesterday I filed the reply brief — and we expect the Court to consider the case in late May or early June. [UPDATE: Today the clerk's office noted in the docket that the petition would be first considered at the Court's conference on May 30.] Here is where you can get the material, if you’re interested in the case:

1. The decision below.
2. The petition for certiorari.
3. The amicus brief of free speech scholars (Profs. Floyd Abrams, Amy Adler, Jack Balkin, Vince Blasi, David Cole, Ronald Collins, Alan Dershowitz, Norman Dorsen, Daniel Farber, Kent Greenfield, Seth Kreimer, Sanford Levinson, Robert O’Neil, Martin Redish, Suzanna Sherry, Geoffrey Stone, Nadine Strossen, Jonathan Varat, and James Weinstein).
4. The amicus brief of Religion Clauses scholars (Salam Al-Marayti and Profs. Michael Ariens, Thomas Berg, Zachary Calo, Bob Destro, Carl Esbeck, Marie Failinger, Edward Gaffney, Richard Garnett, Douglas Kmiec, Faisal Kutty, Michael Stokes Paulsen, Michael Perry, Richard Stith, and Lynn Wardle).
5. The amicus brief of historians of art and photography (Profs. Dora Apel, Stephen Eisenman, Renée C. Hoogland, Paul Jaskot, William J. Thomas Mitchell, Terence Smith, John Tagg, and Rebecca Zorach).
6. The amicus brief of the Center for Bio-Ethical Reform.
7. Respondents’ Brief in Opposition.
8. Our Reply Brief.

That’s very unusual. A bit of background: If a litigant loses below, and petitions for certiorari (i.e., Supreme Court review), he is labeled the “petitioner,” and the winner the “respondent.” When respondents see a petition filed, they sometimes file a brief in opposition (called a BIO), but often waive their right to respond. If the respondents waive that right, and a Justice thinks there might be something to the petition, that Justice can “call for a response” (CFR), and the respondents will almost always respond. The Court never grants review without having either gotten a response at the outset, or having CFR’d, because it’s generally helpful for the Court to hear both sides’ views before granting.

But in Burnside v. Walters, which the Court granted today, the Court CFR’d — technically, “Requested” a “Response” — but did not get a response. The Court then considered just the petition, together with an amicus curiae brief from the American Friends Service Committee supporting the petition (now there are some Friends of the Court for you, though, as it happens, not in Pennsylvania), and agreed to hear the case.

What happened to the respondents? Well, for starters, they apparently never got a lawyer. This is probably because of the procedural posture of the case, which relates to the question presented by the case: Under the federal “in forma pauperis” statute (the one that allows people who can’t afford filing fees to have those fees waived), as amended in 1995, federal courts act as gatekeepers for in forma pauperis claims, and dismiss them without the other side even being served if they fail to state a legally sufficient claim. This is what happened to plaintiff-petitioner’s claim against the defendant police officers (and the local YMCA, where he lived). But then the district court also read the statute as barring the plaintiff from amending his complaint and refiling, and the Sixth Circuit (unlike most other circuits to consider the claim) agreed.

Because of this, defendants were never served below — since the federal courts thought the case against them was frivolous — and never got a lawyer. The Court must have sent them the request for a response (at their businesses addresses), but they either didn’t properly understand its significance or chose not to get a lawyer, though I assume that the city would likely have gotten a lawyer to represent them. Presumably at this point they will remedy that condition.

“A revised version of David Bowie’s Space Oddity, recorded by Commander Chris Hadfield on board the International Space Station.” Way cool.

The bill, HB1317, provides that an agency must set rules

Requiring that magazines whose primary focus is marijuana or marijuana businesses are only sold in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present.

Uh, no, you can’t do that. That the government may regulate marijuana doesn’t mean that it may regulate magazines that are about marijuana or marijuana businesses. Thanks to the Media Law Resource Center MediaLawDaily.

The Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights is telling universities to institute speech codes. And not just any old speech codes: Under these speech codes, universities would be required to prohibit students from, for instance,

1. saying “unwelcome” “sexual or dirty jokes”
2. spreading “unwelcome” “sexual rumors” (without any limitation to false rumors”
3. engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
4. engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, picture,s or written materials”
5. making “unwelcome” sexual invitations.

This is not limited to material that a reasonable person would find offensive. Nor is limited to material that, put together, creates a “hostile, abusive, or offensive educational environment.” (I think even speech codes that would have these requirements are unconstitutional, but the speech codes that the government is urging would in any event not have these requirements.) Every instance of such material of a “sexual nature,” under the government’s approach, would be “sexual harassment” and would need to be banned.

Why do I say this? The explanation has quite a few moving parts, because of how the government has articulated its theory. But here’s a brief summary.

Continue reading ‘The Administration Says Universities Must Implement Broad Speech Codes’ »

From RLI Insurance Co v. JDJ Marine (2d Cir. May 10, 2013):

John F. Karpousis, Freehill, Hogan & Mahar, LLP, New York, New York, for Movant–Defendant–Counter–Claimant–Appellant....

PER CURIAM:

Appellant JDJ Marine, Inc., moves to reinstate an appeal dismissed after its failure to comply with this court’s second scheduling order for filing a brief. The motion is denied.

BACKGROUND
On September 28, 2012, appellant filed its notice of appeal. It filed a scheduling letter on November 13, 2012 pursuant to Local Rule 31.2(a)(1) selecting a date of January 15, 2013 on which its opening brief and appendix would be due. The court so ordered the deadline. [Footnote: Local Rule 31.2(a) establishes the court's brief scheduling procedure. Under this rule, parties set their own deadlines within a period of 91 days of the applicable “ready date” -- typically, for appellants, the date on which the last transcript is received, and, for appellees, the date on which an appellant's brief is filed.]

On January 10, 2013, five days before the brief was due, appellant filed a motion for an extension of time. In the papers accompanying the motion, appellant stated that counsel had been unable to complete the brief because his offices were significantly affected by the October 28, 2012 storm Hurricane Sandy.

On January 17, 2013, we granted the motion for an extension giving counsel an additional month and one-half, as requested, to file a brief. This extension was considerably longer than those normally granted but was believed by the court to be justified by the storm. However, the order stated,

[T]he appeal is dismissed effective March 1, 2013 unless a brief is filed by that date. A motion for reconsideration or other relief will not stay the effectiveness of this order.

On February 26, 2013, three days before the extended due date, appellant moved for another extension, this time for thirty days. Counsel’s supporting affidavit stated that preparation for other cases, out-of-state business travel, and responsibilities as a mediator precluded him from submitting the brief by the due date.

Because this court’s order of January 17, 2013, directed that the appeal “is dismissed effective March 1 unless a brief is filed by that date” and that “a motion for reconsideration or other relief will not stay the effectiveness of this order,” the second motion for an extension, decided on March 8, 2013, was denied as moot in light of the dismissal of the appeal.

On March 8, 2013, appellant filed the present motion to reinstate the appeal. In the accompanying affidavit, counsel stated that he was “prejudiced” because, rather than “decide [his motion] on a timely basis,” this court left the motion “open and undecided ... seven ... full days after the filing deadline.” Counsel outlined again in the affidavit the press of other business as the reason for the failure to file a brief....

A brief discussion is necessary to understand our decision to deny the motion. About ten years ago, the court faced a caseload crisis. The number of cases briefed and ready to be calendared for argument was at an historic low, so low that calendars sometimes could not be filled. This was not the result of a diminished caseload; in fact, pending cases numbered in the thousands above historic levels because of a huge influx of immigration matters.

The problem of so few cases ready for argument was determined to be the result of a culture in which the bar had come to believe that the 40– (for appellant) and 30–(for appellee) day time periods set out in Federal Rule of Appellate Procedure 31(a)(1) were meaningless and that motions for extensions of time, usually for 30 days, to file briefs would be routinely granted time after time. This belief existed in spite of the fact that the orders granting the extensions would just as routinely state, in boldface type no less, that only “EXTRAORDINARY CIRCUMSTANCES” would justify another extension. The cause of the failure of the “EXTRAORDINARY CIRCUMSTANCES” warnings was that the Clerk’s Office, which ruled on the motions, was reluctant to resort to coercive measures — and was so perceived by the bar. It was, therefore, decided that motions for extensions would be sent to a judge for decision and that, with warnings appropriate to the particular case, coercive measures, including dismissal, would be used when the warnings failed to produce a brief.

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