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March 17, 2017

Chief Justice of California Tani Cantil-Sakauye '84 Objects to Immigration Enforcement Tactics at California Courthouses

Cross-posted from Immigration Prof Blog.

The Chief Justice of California Tani Cantil-Sakauye has expressed concerns with federal immigration tactics at California courthouses in the following letter:

Dear Attorney General Sessions and Secretary Kelly:

As Chief Justice of California responsible for the safe and fair delivery of justice in our state, I am deeply concerned about reports from some of our trial courts that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests. 

Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country's immigration laws.

Our courts are the main point of contact for millions of the most vulnerable Californians in times of anxiety, stress, and crises in their lives. Crime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families all come to our courts seeking justice and due process of law. As finders of fact, trial courts strive to mitigate fear to ensure fairness and protect legal rights. Our work is critical for ensuring public safety and the efficient administration of justice.

Most Americans have more daily contact with their state and local governments than with the federal government, and I am concerned about the impact on public trust and confidence in our state court system if the public feels that our state institutions are being used to facilitate other goals and objectives, no matter how expedient they may be.

Each layer of government - federal, state, and local - provides a portion of the fabric of our society that preserves law and order and protects the rights and freedoms of the people. The separation of powers and checks and balances at the various levels and branches of government ensure the harmonious existence of the rule of law.

The federal and state governments share power in countless ways, and our roles and responsibilities are balanced for the public good. As officers of the court, we judges uphold the constitutions of both the United States and California, and the executive branch does the same by ensuring that our laws are fairly and safely enforced. But enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair. They not only compromise our core value of fairness but they undermine the judiciary's ability to provide equal access to justice. I respectfully request that you refrain from this sort of enforcement in California's courthouses.

-Chief Justice Tani G. Cantil-Sakauye

February 4, 2016

California Legal History: A King Hall Issue

The 2015 issue of California Legal History could easily be titled the King Hall issue. A publication of the California Supreme Court Historical Society, it is an annual journal that publishes scholarly articles and the oral histories of prominent figures of the bench and bar of California.

Here are some of the articles in the new issue:

A tribute to Hon. Joseph R. Grodin by our own Cruz Reynoso.

My contribution on "Justice Cruz Reynoso: The People's Justice."

An oral history of Cruz Reynoso.

A student symposium on three intersections of federal and California law (which I blogged about previously).

The symposium features an introduction by Professor John Oakley and contributions by Kelsey Hollander '15, Megha Bhatt '15, and Elaine Won '16!

July 2, 2014

Follow-Up on California’s Legislative Effort to Repeal Proposition 187

Cross-posted from Justia's Verdict.

In my last column, I began analyzing SB 396, a laudable but legally questionable effort by the California legislature to repeal, by ordinary legislation, provisions of Proposition 187, a 1994 voter-enacted measure that imposed harsh restrictions on unlawful immigrants in the State, restrictions that have since been blocked indefinitely by a federal district court judge. As I explained, the main problem with the repeal effort is Article II, section 10(c) of California Constitution. This provision, designed to maintain the integrity of the initiative device, prevents the legislature from repealing any voter-enacted measure unless the repeal measure is itself "approved by the electors" (i.e., the voters).

The Legal Defense of SB 396 and How That Defense Overreads the Import of a Judicial Block on Enforcement

A few days after my column was posted, the State Assembly Committee on the Judiciary held a hearing on the proposed legislation. This hearing and the report it generated give a glimpse of the opinion offered by the State Legislative Counsel-an opinion legislators appear to be relying on-setting forth the view that SB 396 is lawful and that Proposition 187 can be repealed by simple legislation. Here is the passage of the Committee Report that lays out the Legislative Counsel's legal defense of the bill:

Because [Proposition 187 was] enacted by initiative, the question arises whether the Legislature may act to strike these provisions from the codes. The California Constitution provides that the Legislature may amend or repeal a statutory initiative 'by another statute that becomes effective only when approved by the electors. . . .' (Cal. Const., art II, § 10, subd.(c).) While it may be argued that this bill proposes an improper 'repeal,' the better view would appear to be reflected in an opinion by Legislative Counsel concluding that the Legislature is within its powers to delete statutes that have been abrogated by the courts. As Counsel notes, the evident intent of the subdivision (c) is to 'protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent.' . . . Accordingly a subsequent statute will 'amend' a statutory initiative within the meaning of subdivision (c) only if it changes the scope or effect of that initiative by adding or taking away from it. . . . Because the provisions that would be deleted by SB 396 have previously been held to be unenforceable, it seems reasonable to conclude that this bill would not make a substantive change in the law as prohibited by subdivision (c), and therefore would not unconstitutionally change the scope or effect of Proposition 187.

In other words, a legislative measure that does not "change the scope or effect" of a previously enacted initiative cannot be said to amend or repeal the initiative, and does not require voter approval. While creative, this argument is not persuasive. Even assuming that the "scope or effect" standard is the right one to apply, SB 396 fails the test. For starters, as I pointed out at length in my earlier column, a law that is blocked by a court but that remains on the code books has significant potential effect down the road, insofar as circumstances could change to remove the judicial block. Courts can revisit their prior rulings, higher courts can change the legal landscape against which lower courts make decisions (as the Supreme Court in fact did in the immigration regulation setting in 2012 in Arizona v. United States), parties can seek to reopen cases, etc. All of these possibilities exist in the context of Proposition 187. Indeed, because the district judge who struck down parts of Proposition 187 did so in part because of congressional laws on the books, there is yet another possible change that could trigger revisiting the judicial block on enforcement-subsequent congressional action. For all these reasons, we cannot say that Proposition 187's operative provisions that remain on the books lack effect; at most, we can say that the present effects are blunted, and that the future effects are hard to gauge but potentially significant.

How the Defense of SB 396 (Selectively) Ignores the Expressive Effects of a Law

But there is an even more fundamental flaw in the Legislative Counsel's position; the Legislative Counsel seems not to recognize that a law whose operative provisions are being blocked continues to have an expressive effect, insofar as a state's laws, as written, send a message to the world about the state's values. Indeed, it is that expressive effect-of having the mean-spirited language of Proposition 187 still on the books-to which SB 396 is itself a response; repealing the text is a good idea primarily because leaving the text intact continues to send a message. But the people who voted for Proposition 187 may have wanted to accomplish the harsh message that Proposition 187 conveys, irrespective of whether the operative provisions of the measure could be enforced.

Even if 187's message is odious, there is nothing unconstitutional about a state having that message codified in its books, which is why the District Court Judge did not order that Proposition 187 be stricken from the code books, only that its provisions not be enforced. (Some kinds of messages, regarding race or religion, may themselves be unconstitutional, but messages about immigration benefits do not violate the federal Constitution in the same way.) Voters of a state have authority to convey even unkind and unwise messages in the initiatives they enact, and the California Constitution does not seem to give the legislature the power to override those messages. Indeed, the legislature cannot have it both ways, saying that the message sent by Proposition 187's continued presence on the books creates problems, but then denying that the message has any "effect."

Perhaps an example from a different constitutional area will help drive the point home. Imagine the California voters were to pass an initiative that says: "Catholic doctrine is religious truth, and that all other religions are false." The measure, by its terms, does not go on to tell anybody to do or refrain from doing anything-it is a purely expressive initiative. Putting aside whether such a measure violates the Establishment Clause of the Constitution and what a court might do about that, no one could plausibly argue that that the legislature could repeal and remove this measure from the code books without popular approval the day after it was enacted on the ground that the initiative, and thus its legislative repeal, is purely expressive and has no scope or effect in the real world.

Changes in Legislative Text, Even Those That Don't Seem to Change the Real World, Must Go Through a Prescribed Process

The codified text of a statute (or state constitution) matters, and legislatures are given authority to amend that text, but only if they go through the required legislative procedures. As I argued in my last column, the requirement of popular approval may be analogized to the requirement of bicameralism; just as one house of the state legislature may not repeal text-whether or not the repeal changes the present-day operative effect of that text-without the other house, neither may the two houses accomplish repeal of initiatives or state constitutional provisions without involving the people.

We can see this even more clearly using yet another hypothetical, this one an attempt by the California Legislature to change the language of the state constitution rather than a statute adopted by the voters. As with initiative statutes, the California lawmakers can, under the terms of the California Constitution, propose changes in constitutional text, but such changes require voter approval to go into effect. Suppose the California Supreme Court (the ultimate interpreter of State law) were to rule that search and seizure protections under the California Constitution do not extend to automobiles. The legislature could not, without getting the required popular consent for all constitutional amendments, tweak the text of the California Constitution to add words making explicit that car searches aren't covered, simply because (under the prevailing judicial decisions at the time) this amendment wouldn't change the real-world "scope or effect" of the provision in question.

The Effort to Repeal Proposition 187 Should Proceed, but Should Include Popular Approval

None of this is to say the legislature should abandon the efforts to repeal Proposition 187. Instead, it is to say simply that the legislature should act to repeal the Proposition, but that the repeal should take effect only when the voters approve it. And having the voters remove the hateful Proposition 187 themselves is the best solution for expressive reasons anyway. If State Senator Kevin De Leon is correct, as I believe he is, that erasing the language of Proposition 187 would be powerfully symbolic, think of how much more powerful it would be if the very electorate that passed Proposition 187 now wants to make clear that this measure no longer represents the views or values of the State.

And I think popular approval would be easily forthcoming. The State and its attitudes about immigration and ethnicity have evolved a great deal in the past two decades. Since the measure could be put to the voters without having to assemble signatures, no signature-gathering money would need to be expended. Indeed, because I can't imagine any organized opposition to a measure proposing repeal, I don't see the need for any expensive campaign to obtain enactment.

Having the voters undo their own misguided handiwork would be poetic, practical and (legally) proper. And, importantly, it would avoid opening up the legislature to the charge that it is riding roughshod over the will of the people and the initiative process.

June 20, 2014

Why the California Legislature Can’t Simply Repeal the Judicially Invalidated Proposition 187

Cross-posted from Justia's Verdict.

In the space below, I analyze a pending effort by California lawmakers to cleanse the California statute books of (what are to my mind) some mean-spirited provisions concerning the treatment of undocumented immigrants in the State. While the goals of this legislative endeavor are understandable, the attempt reflects fundamental misunderstandings of the scope of the legislature's authority, and the essence of judicial review (i.e., the power of courts to declare enactments unconstitutional.)

How This Episode Has Arisen-Background on Proposition 187

The story really begins almost 20 years ago in November 1994, when California voters adopted Proposition 187, a statewide initiative statute that amended California's Education, Government, Penal, and Welfare and Institutions Codes. The measure sought to make immigrants unlawfully present in California ineligible for various public health, public social, and public education services. The proposition also required state and local agencies to investigate whether arrested persons in the State were in the country unlawfully, and report any suspected immigration violations to the state Attorney General and federal immigration authorities. In some respects, Proposition 187 was the intellectual forerunner of Arizona's SB 1070, the 2010 law regulating unlawful immigrants that received national attention and that was struck down (but only in part) by the U.S. Supreme Court in 2012 in Arizona v. United States.

Shortly after Proposition 187's passage, the provisions described above were challenged in a lawsuit and a few years later blocked by federal district judge Mariana Pfaelzer, who reasoned that the contested provisions conflicted with federal immigration law and policy, and were thus rendered unconstitutional by the Supremacy Clause of the U.S. Constitution (which makes federal law "supreme"). California Governor Pete Wilson appealed the district court ruling to the U.S. Court of Appeals for the Ninth Circuit, but in 1999 Wilson's replacement, Governor Gray Davis, withdrew the appeal and sent the legal dispute to mediation. The result has been that Judge Pfaelzer's order blocking Proposition 187's enforcement has remained in effect ever since.

The Recent Legislative Effort and the Essential Problem With It

Now enters a group of well-intentioned California legislators, who this month are introducing legislation, SB 396, that seeks to remove from the California statute books the provisions of Proposition 187 that were held unconstitutional by Judge Pfaelzer. As California Senator Kevin DeLeon-one of the bill's backers-put it in his "fact sheet": "[A]fter 20 years, it is fitting that California expressly acknowledge the harm caused to Californians through passage of the discriminatory and xenophobic Proposition 187 by removing its stain from the state's statutes." SB 396, styled as a measure that will become law if passed by a simple majority of both houses of the California legislature and signed by the Governor, attempts to repeal those portions of the State's Education, Government, Penal, and Welfare and Institutions Codes into which the now-invalidated portions of Proposition 187 are lodged.

From one angle, this legislative effort seems quite sensible. Why shouldn't California's statute books reflect the current state of things, and be purged of provisions that are not enforceable and that send demeaning messages to members of our community? As to the goals of this legislative effort-in the words of Seinfeld character Elaine Benes referring to another woman's efforts to free herself from the George Costanza character-"more sympathetic . . . I could not be." But the problem with SB 396 is that the California Constitution prohibits the state legislature from repealing any part of a voter-enacted initiative unless the measure explicitly empowers the legislature to do so, or unless the voters themselves approve of the repeal. Initiative measures, even those that take the form of statutes rather than state constitutional amendments, occupy a space in the state constitutional hierarchy above ordinary enactments by the legislature. In other words, a statutory initiative such as Proposition 187, like a state constitutional amendment, lies outside the control of the legislature to undo or modify. And this makes sense, if the initiative device is itself supposed to be a check on-and a response to dysfunction within-the state legislature. Importantly, Proposition 187, by its terms, does not authorize the legislature to undertake repeal by ordinary legislation without voter approval.

What's Wrong With Repealing Dead Letters?

But what about the fact that the parts of Proposition 187 at issue here have been declared unconstitutional by a federal judge? Shouldn't that fact change things? As Senator DeLeon's Chief of Staff has been quoted as saying: "These code sections are unenforceable. . . . Essentially, [SB 396 is] 'code cleaning.'" (The same press account that included this quote also quoted the Chief of Staff as saying that the California Legislative Counsel has opined that SB 396 could be implemented as ordinary legislation. If such an opinion were rendered, I would like to know how the Legislative Counsel thinks the California Constitution permits this.)

While initially appealing, the "code-cleaning-on-account-of-unenforceability" view reflects a fundamental misconception of judicial review and what it means when a court "invalidates" or "strikes down" an enactment. A judicial declaration that a statute is unconstitutional (accompanied by an injunction against the statute's enforcement) is in reality simply a statement that that court-and all courts that are bound by that court-will refuse to allow implementation of the statute as of that time. When a statute is struck down, it is not literally stricken from the statute books; it is simply held unenforceable for the time being-until and unless something changes. If something does change to undo the court's invalidation, then the statute can be enforced without having to be reenacted, since it remained on the statute books all along. (Indeed, SB 396 would not be needed except for the fact that Proposition 187 remains on the statute books.)

Well, what might change after a court invalidates a statute to bring it back to life? For one thing, a higher court could reverse the ruling that invalidates the statute. Certainly no one would argue that the California legislature could repeal Proposition 187 during the time it was pending on appeal to the Ninth Circuit, because we all know that many district court rulings are short-lived. But now that the appeal is dead, isn't Judge Pfaelzer's opinion permanent? Not quite. Intervening developments in the law-e.g., new Supreme Court cases handed down-could enable parties to seek the "reopening" of a case and get relief from a court order that no longer reflects the current legal or factual landscape. Indeed, although the political climate in California would likely prevent elected officials from trying to resurrect Proposition 187 anytime soon, there are parts of the Supreme Court opinion in Arizona v. United States that upheld some of Arizona's SB 1070 and that arguably call into question some of Judge Pfaelzer's analysis concerning the involvement of local law enforcement officials in policing immigration violations.

Would Supreme Court Invalidation of Proposition 187 Have Changed Anything?

Suppose Judge Pfaelzer's ruling had been appealed to, and affirmed by, the Supreme Court. Would the analysis be different then? Not really. Even a Supreme Court ruling invalidating a statute does no more than indicate a current unwillingness by a majority of the Justices to permit enforcement, but that too could change. Some of the most important (and righteous) decisions by the Supreme Court have involved overruling past Supreme Court decisions that we now think were wrongly decided, so we know that no ruling by the Supreme Court is truly permanent. While it is rare for the Court to overrule a past decision that had recognized an individual right or limited state power-it is more common, as in Brown v. Board of Education, to overrule a past ruling that had rejected, rather than embraced, limits on state power-there is nothing that prevents the Court from undoing past rulings that impose limits on government. For example, if the Justices were to overrule Roe. v. Wade and declare no constitutional protection for abortion rights, then states that had abortion regulations on the books that were adopted prior to Roe could begin to enforce those regulations without the need to reenact anything. To be sure, when a state chooses not to enforce a law for a long period of time, the doctrine of "desuetude" may prevent the state from attempting to revive the statute, but if the reason for non-enforcement was a now-considered-erroneous judicial injunction, then enforcement could resume after the constitutional error has been corrected.

Perhaps an easy way to see that SB 396 is legally problematic even though Proposition 187 is currently enjoined is to ask whether the California legislature could repeal Proposition 187 without a majority vote of both houses of the state legislature. Suppose SB 396 backers in the California Senate took the position that because Proposition 187 has been invalidated, they can repeal it from the books without involving the State Assembly. Everyone would readily see that this course of action would be illegitimate, because the California Constitution requires all laws to have bicameralism-and this requirement is independent of the merits of Proposition 187's unconstitutionality. But the requirement of bicameralism is no more important and no more independent than the requirement that the legislature seek the people's approval before repealing an initiative. If "code cleaning" cannot excuse ignoring the former, neither can it excuse ignoring the latter; failing to involve the Assembly is no different for these purposes than failing to involve the people.

None of this means there is no role for the California legislature to play in bringing about the formal repeal of Proposition 187. As I have been noting, the California Constitution does permit legislative repeal of initiatives, but only with approval of the voters. SB 396 could and should be restyled as a measure that is submitted to the voters, so that all Californians can reconsider whether Proposition 187 represents the will of the people. That is the proper and lawful way to lay Proposition 187 to rest.

June 9, 2014

Three Recently Accepted Cases Shed Light on the Supreme Court’s Process for Granting Review

Cross-posted from Justia's Verdict.

While many analysts this month are understandably focused on the blockbuster rulings that are due from the Supreme Court in June-the back end of the Supreme Court litigation process, if you will-in my column today I introduce and briefly analyze the front end of three cases on which the Court has granted review for the next Term, which begins this fall. Although the three disputes arrive at the Court from different kinds of lower courts and involve quite different kinds of questions on the merits, these cases taken together illustrate some nuances in the extremely important yet widely misunderstood principles that explain how the Court selects the 70-90 cases to review in full from among the thousands and thousands of requests for review each year. Quite often, the Supreme Court grants review because the lower court ruling in question (often from one of the U.S. Courts of Appeals) conflicts with other lower court rulings on precisely the same (and important) legal question, and the Court wants to provide guidance and uniformity. Indeed, one of the first things that incoming Supreme Court law clerks learn when they arrive at the Court is the fine art of differentiating true lower court conflicts from illusory ones. But the cases discussed below serve as helpful reminders that Supreme Court review involves much more than just resolving lower court conflicts.

The Boomerang of Zivotofsky v. Kerry and Respect for Congress

The first case is in the trio is one the Supreme Court has seen before. Zivotofsky v. Kerry involves an effort by Menachem Zivotofsky, a U.S. citizen born in Jerusalem to U.S. parents, to have his U.S.-issued passport (and U.S.-issued Consular Report of Birth) indicate his place of birth as "Jerusalem, Israel." For many years, U.S. Presidents and U.S. State Departments (who issue passports and consular records) have scrupulously avoided taking an official position on the contentious question whether Jerusalem is a part of Israel. Executive branch practice concerning the birth of U.S. citizens in Jerusalem follows this policy of neutrality, and consistently has been to record the place of birth of such citizens on U.S. documents simply as "Jerusalem," without mention of any country.

In 2002, Congress passed a law that, among many other things, requires the Secretary of State, upon the request of a citizen or the citizen's legal guardian, to record the place of birth for citizens born in the city of Jerusalem "as Israel." President Bush signed the entire statute into effect, but (as he did from time to time) issued a signing statement to disclaim the legal effect of this particular part of the statute, because (he said) forcing the State Department to record Jerusalem births as being in Israel would impermissibly interfere with the President's constitutional power to formulate and speak on behalf of American foreign policy. The plaintiff in Zivotofsky seeks to force the executive branch to follow the terms of Congress's 2002 statute, notwithstanding the President's signing-statement disclaimer.

A few years back, the U.S. Court of Appeals for the D.C. Circuit rejected the plaintiff's efforts, but not on the ground that the Secretary of State was acting permissibly in declining to follow the statute. Instead, the D.C. Circuit held, the lawsuit presented a "political question" over which federal courts have no power to speak. In other words, the court purported not to be exercising jurisdiction to resolve the lawsuit on the merits at all, saying instead that regardless of who is right and who is wrong under the law, this kind of matter is not susceptible of judicial resolution.

The Supreme Court reversed this decision in 2012, holding that the political question doctrine does not bar review of this case. The key question whether the 2002 statute improperly invades the President's foreign affairs power to decide which countries to recognize-and is thus not a permissible exercise of Congress's power to regulate passports or any other congressional authority-is a legal one, not a political one. The Justices, rather than resolving the merits-which the Court had the power to do-then sent the case back to the D.C. Circuit to decide the merits, by "careful[ly] examin[ing] . . . the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers."

That is precisely what the U.S. Court of Appeals for the D.C. Circuit did on remand, after which it concluded that the statute was indeed an impermissible invasion of presidential authority that he enjoys under the Constitution. Although the D.C. Circuit found the text of the Constitution less than clear, it found a strong historical record over the last two hundred years of the President asserting-and Congress seeming to allow-exclusive executive power to recognize foreign nations, which weighed heavily against the validity of the statute. And although the court conceded that Congress does have meaningful power to regulate passports, that power is not exclusively congressional in the way that the recognition power is exclusively presidential. Since the statute might be said to interfere with the President's foreign policy choice to remain neutral as to the legal authority over Jerusalem-indeed, challenging this neutrality policy was the reason Congress passed the provision-the statute conflicted with the President's foreign policy autonomy and thus could not be enforced.

Zivotofsky again sought Supreme Court review at the end of last year, and about a month ago the Justices agreed to hear the case again. Why would the Court choose to grant review on the merits, given that it consciously chose not to reach the merits in 2012? Part of the answer is that the Court in 2012 didn't have the benefit of full-fledged lower court analysis on the merits, and the Court's general practice is not to reach the merits of a dispute (even if it has the power to do so) when the courts below haven't. But that still doesn't quite explain why Zivotofsky is worthy of one of the Court's six- or seven-dozen precious slots for review in 2014-2015. After all, disputes over the validity of the statute are unlikely to recur very often, the D.C. Circuit opinion does not conflict with rulings from any other lower court, and there are no high financial stakes or life-death consequences of the ruling-the factors that most often account for a grant of review. On top of all that, the D.C. Circuit ruling was without a dissent, and appears to be carefully reasoned and likely (at least to many analysts) correct. Why grant, then?

I think the primary reason is that a federal appellate court has struck down a duly enacted congressional statute, and one way the Court shows its respect for Congress (even as it disrespects Congress in other ways) is to grant review in a high percentage of such cases, even when there is no likelihood of a lower court split and even when the ruling below is arguably quite solid. This may be especially true in separation of powers disputes. If the federal judiciary is going to side with the President against Congress, the least it can do is offer its "Supreme" forum to demonstrate it takes seriously Congress's interests and arguments and is not biased in favor of the President. The grant of review in this case may be as simple as that.

Comptroller v. Wynne: An Anomalous but Potentially Infectious Ruling

Comptroller v. Wynne comes to the Court not from a U.S. Court of Appeals Circuit, but from the Maryland state courts. They ruled that the Commerce Clause of the U.S. Constitution gives each taxpaying individual a constitutional right to reduce or eliminate the income tax he owes in his state of residence because of income taxes paid to other states on that same income. The Supreme Court granted review to take up this question a few weeks ago.

To understand why, let us begin by noting that the Supreme Court has already held that "a jurisdiction may tax all the income of its residents, even income earned outside the taxing jurisdiction." The Court reasoned that residents enjoy the privileges and benefits of living in their state of residence, and thus it is permissible to make them pay in that state even if the income was earned elsewhere. The Supreme Court has also held that a state can tax income of non-residents earned within that state. There is thus the possibility for income to be taxed multiple times, once by the state of the taxpayer's residence and again by the state(s) where the income was earned. The Supreme Court has intimated that this seeming unfairness is something states are free to redress by giving tax credits, but that the question is one of legislative grace rather than constitutional right.

In Wynne, the Maryland state courts (along with the taxpayers who were objecting to Maryland's tax) observed that the Supreme Court's consistent rulings upholding state tax regimes in this regard all involve challenges brought under the Due Process Clause of the Fourteenth Amendment, and that the Supreme Court has never spoken to whether the Commerce Clause of the Constitution permits multiple states to tax income multiple times in this way. Neither have the state supreme courts from states other than Maryland. For this reason, the ruling below in Wynne may not generate any clear conflict with other high appellate rulings. And yet the Supreme Court granted review. Again, the question is why. Part of the answer may be that the U.S. Solicitor General (SG)-invited by the Court to weigh in-urged the Justices to grant review. And why did the SG think review was warranted in spite of the absence of a clear split in lower court authority? Because the ruling below is most likely incorrect, because it introduces significant instability in at least one state's (Maryland's) tax regime, and because, if left unchecked, it has the potential to encourage a great deal of additional destabilizing litigation in other states. Once more, the absence of a clear lower court conflict does not make a case unworthy of review.

The Alabama Redistricting Disputes-Appeals Rather Than Petitions for Certiorari

The third case (or rather pair of cases) I will mention briefly arise out of the Alabama legislature's redrawing of election district lines throughout the state after the 2010 Census. The cases, Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, raise the question whether the State impermissibly considered race in the drawing of district lines by packing African American voters into districts so that these racial minorities would make up supermajorities in these voting districts. Such supermajorities would enable African American voters to elect candidates of their choice in those districts, but this would also would be the case with mere simple majorities. A second (and possibly intentional) effect of the redistricting is that it would reduce the influence African American voters have in other districts. The lower federal court (a so-called three-judge district court panel that Congress created to hear redistricting cases) upheld Alabama's line-drawing, and the Supreme Court accepted review. The questions raised on the merits under the Constitution and the federal Voting Rights Act are quite complex and potentially important, but as with Zivotofsky and Wynne,the lower court rulings in the Alabama cases do not conflict with rulings from other lower courts. Why, then, was Supreme Court review indicated? Here the answer is easier, but also more technical. These cases are among the kinds of disputes for which Congress has conferred so-called "appeals" jurisdiction of the Supreme Court, rather than the "certiorari" jurisdiction that accounts for the lion's share of the Court's docket. Unlike certiorari jurisdiction, which is entirely at the Court's discretion, appeals jurisdiction is mandatory. That is, persons who properly bring cases to the Court pursuant to an appeals route rather than via a petition for a writ of certiorari enjoy a "right" to have the Court to take their case and rule on the merits. Appeals cases today comprise a very small percentage of the Court's workload, but they used to be a much bigger component. When appeals are brought to the Court under one of the few remaining appellate access statutes that Congress has not repealed (and challenges to statewide apportionments decided by three-judge District Court panels are among the kinds of cases still to benefit from appeals jurisdiction), the Court must rule on the merits one way or another, and cannot simply deny review and express no view of whether the lower court properly applied the law. So the full briefing and oral argument ordered by the Court in the Alabama cases tells us little about how the Justices might feel on the merits, other than that the cases are difficult enough not to be susceptible to summary affirmance.

All three of these cases illustrate how complicated and multi-faceted the question of getting the Supreme Court to hear your dispute can be.

January 31, 2014

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors

Co-authored with Alan Brownstein. Cross-posted from Justia's Verdict.

In today's column, the first in a two-part series, we begin to analyze and assess an important decision handed down last week by the United States Court of Appeals for the Ninth Circuit concerning discrimination against would-be jurors who happen to be gay or lesbian. In SmithKline Beecham Corp. v. Abbott Laboratories, a unanimous three-judge panel ruled that it violates the Fourteenth Amendment's Equal Protection Clause for a lawyer to "strike" (that is, remove) individuals from a jury panel on account of their sexual orientation. As one of us explained more fully in an earlier column previewing the Ninth Circuit oral argument last fall, the antitrust lawsuit involved HIV medications, and an attorney for one of the companies (Abbott) exercised a so-called "peremptory strike" (also known as a "peremptory challenge")-effectively removing an individual from inclusion in the jury-because the would-be juror was "or appears to be, could be, homosexual." Peremptory challenges allow each side of a case to strike an equal number of would-be jurors for no supportable reason, solely because of a lawyer's hunches or intuitions about how a particular person might behave and decide as a juror.

In holding that judicial acceptance of Abbott's peremptory challenge would violate the Constitution, the Ninth Circuit opinion, authored by Judge Reinhardt, made a number of analytic moves. First, the panel had to determine whether an earlier three-judge Ninth Circuit panel ruling from 2008, Witt v. Department of the Air Force-which held that governmental actions discriminating on the basis of sexual orientation need only satisfy the lowest, most deferential, "rational basis" standard in order to be upheld under the Equal Protection Clause-is still good law. If Witt's teaching that sexual orientation discrimination is not, as a general matter, subject to any kind of beefed-up constitutional scrutiny is still good law, it would be binding on the SmithKline panel judges, and the panel would have been required to come out the other way in SmithKline, since the Supreme Court has stated that peremptories may be used to remove individuals who are members of a class that is protected only by rational-basis review.

The SmithKline panel instead decided that Witt's rational-basis-review approach is inconsistent with-and thus no longer binding because of-the Supreme Court's ruling in United States v. Windsor, the case decided last summer that struck down the Defense of Marriage Act (DOMA), the federal law denying recognition to same-sex marriages. The Ninth Circuit found Witt to be inconsistent with Windsor because the Court in Windsor, whether the Justices admitted it or not, effectively applied "heightened scrutiny" (rather than rational-basis review) in holding that the DOMA violated equal protection guarantees. The Ninth Circuit's reading of Windsor was crucial to getting around Witt. In this vein, the Ninth Circuit had to (and did) decide not only that Windsor applied heightened scrutiny to DOMA, but also that Windsor is not limited by the facts or context of that case, and instead stands for the legal proposition that heightened scrutiny now applies to all government actions that discriminate on the basis of sexual orientation. Based on that conclusion, the Ninth Circuit went on to determine the result of heightened-scrutiny review of sexual orientation-based peremptory challenges under the Fourteenth Amendment.

In the space below, we focus on the beginning of Judge Reinhardt's analysis and examine the Ninth Circuit's initial moves-the notion that subsequent Supreme Court authority could, by implication, reverse earlier clear Ninth Circuit precedent, the determination that Windsor is best read as applying heightened scrutiny to DOMA, and the contention that Windsor effectively requires heightened scrutiny to be applied to all government discrimination on the basis of sexual orientation. In Part Two of this series, we examine some of the later moves that the Ninth Circuit made-including the application of heightened scrutiny in the peremptory challenge context-and also explore where the case may go from here.

Was the Ninth Circuit Right That Supreme Court Authority Can Implicitly Erase Earlier Circuit Precedent?

No one would deny that a Supreme Court ruling that directly contradicts a Circuit Court opinion, whether the Circuit opinion is recent or old, would effectively eliminate the precedential authority of the lower court's ruling. But the issue in SmithKline is a little different. The Ninth Circuit conceded that Windsor (the recent Supreme Court case) doesn't directly contradict Witt (the older Ninth Circuit ruling), but determined instead that the reasoning of Windsor is in tension with Witt-that the two cases seem to reflect different mindsets-so that if we had to predict how today's Supreme Court would decide Witt, we might bet that the Court would reach a result that is different from that reached by the Ninth Circuit in Witt.

One possible problem with the Ninth Circuit's getting around Witt by noting some analytic tension between it and Windsor's reasoning is the Supreme Court's own admonition that lower courts should not "underrule" older cases based on predictions about the direction in which the Supreme Court is headed. As the Court put the point in 1989 in Rodriguez de Quijas v. Shearson/American Express, Inc.: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."

One might think that this principle prevents the Ninth Circuit from ignoring Witt in favor of the new direction that is reflected by Windsor. But, in fact, the Shearson/American Express principle may have no application in this setting, because Witt (the older case that is arguably on point) is not a Supreme Court case, but rather simply a prior three-judge panel case from the Ninth Circuit. It is not obvious why three-judge panels of a Circuit court should bind subsequent three-judge panels of the same court in any event. The best answer is probably the need for some stability so that persons within a Circuit can know "what the law is." But these intra-court stability concerns are less weighty than the reasons that explain why Circuit courts have to obey older rulings from a superior court-the Supreme Court (or an en banc panel of the Circuit). "Vertical" hierarchy and obedience to precedents of higher courts implicate different concerns than "horizontal" stare decisis (whereby a court pays deference, even strict deference, to its own rulings). So the Ninth Circuit was correct to carefully examine Windsor to assess the level of tension between it and Witt. (If the Supreme Court had, in some prior case, clearly ruled that sexual orientation discrimination implicates only minimum-rationality review and not heightened review, then the Shearson/American Express principle might apply here. But the clear holding in Witt-that minimum rationality review applies-came from a three-judge Ninth Circuit panel, not the Supreme Court.)

Did the Court Properly Read Windsor as a Case Employing Heightened Scrutiny?

Judge Reinhardt concedes, as he must, that the Windsor opinion does not explicitly state the level of scrutiny that the Court is employing to strike down DOMA. Accordingly, he looks to three factors that Ninth Circuit precedent requires him to consider in order to determine whether the level of scrutiny utilized in Windsor was, in fact, more rigorous than the highly deferential, rational-basis standard of review. The three factors are: (1) whether the Windsor opinion considered post-hoc rationalizations for DOMA-hypothetical purposes that might conceivably justify the law-or instead focused only on the actual goals Congress relied upon in enacting the statute; (2) whether the Windsor opinion required that there be a "legitimate" state interest to "justify" the effect of the law; and (3) whether the cases that were cited in Windsor themselves applied rational-basis review or heightened scrutiny.

With regard to the first factor, Judge Reinhardt correctly concludes that Justice Kennedy's opinion in Windsor examines the actual purpose of DOMA in considerable detail, and that an emphasis on the legislature's actual purpose strongly suggests that some form of heightened scrutiny is being applied.

An analysis of the second factor-the requirement that there must be a legitimate state interest to justify the challenged law-is more complicated, however, because, in some circumstances, we think the insistence on "legitimate" purposes for upholding a law is consistent with an application of rational basis review. And in other contexts, doubts about the legitimacy of the state's purpose may undermine the validity of the law, but they do so outside of the framework of rational basis review, intermediate level scrutiny, or strict scrutiny. For these reasons, the use of the word "legitimate" is not a signal of heightened scrutiny.

When courts focus on the state's interest in equal protection cases, what differentiates rational basis review from intermediate-level scrutiny or strict scrutiny, as a formal doctrinal matter, is that the latter two standards require, respectively, an "important" or "compelling" state interest. Conversely, a modest or even marginal state interest can satisfy rational basis review. But under all three standards, the state's interest must be "legitimate." Suppose, for example, that Congress had adopted DOMA for the express purpose of complying with what Congress understood to be divine law condemning same-sex marriage. Obedience to religious requirements is not a legitimate state purpose. Even under rational basis review, a court cannot use this purpose as a post-hoc rationalization to sustain a law.

Another state interest that lacks legitimacy, and which is relied on in cases cited in Windsor, such as Texas v. Lawrence and Moreno v. Department of Agriculture, is the goal of degrading or demeaning a group because of bare animus toward its members. The nature and scope of this characterization of a purpose as "illegitimate" remain unclear. Certainly, the goal of demeaning and punishing drug dealers would not undermine the constitutionality of statutes criminalizing drug trafficking.

Moreover, and more directly relevant here, the conclusion that a law serves an illegitimate state interest does not trigger the application of heightened scrutiny so much as it does an automatic invalidation of the law without further review. Heightened scrutiny is often described as mechanism that enables courts to flesh out impermissible state purposes. If a court determines at the outset that a law serves illegitimate purposes through an independent analysis, there is no reason to "flesh out" what the court already knows.

Indeed, if we examine this section of Judge Reinhardt's opinion more closely, it appears that his emphasis on an inquiry into the legitimacy of a law does not really pertain to questions about whether a law serves impermissible purposes. Instead, Judge Reinhardt seems primarily concerned that the Windsor opinion discussed the harm caused by DOMA and the government's need to justify such consequences if the law was to withstand the equal protection challenge directed against it. Reinhardt argues that this kind of implicit balancing of interests suggests more rigorous scrutiny than the highly deferential rational basis standard of review.

Indeed, it does. But does this necessarily mean that the Windsor opinion was applying heightened scrutiny to DOMA? As Judge Reinhardt acknowledges in his discussion of the third factor-an examination of the cases cited in Windsor to determine whether or not they themselves employed heightened scrutiny-sometimes the Supreme Court has applied rational basis review to a law, but the scrutiny it employed was more rigorous than the conventional leniency associated with a rational basis analysis. Moreno, dealing with discrimination against "hippie" households, was one such case. Romer v. Evans, involving discrimination against gays and lesbians, also cited in Windsor, is another, as is Cleburne v. Cleburne Living Center, Inc., (a case that wasn't cited in Windsor) involving discrimination against the mentally retarded. One can certainly argue with some justification that the analysis in these hybrid rational basis cases arguably parallels the analysis in Windsor.

But it is less clear to us than it is to Judge Reinhardt that these "rational basis with teeth" cases should be characterized as applying heightened scrutiny, such that other laws burdening the same groups at issue in those cases in other settings would be subjected to rigorous review. As a general matter, we see no evidence that Cleburne or Moreno has changed the level of review applied to laws discriminating against the mentally retarded or "hippie" groups. True, these not-so-deferential rational-basis cases cannot easily be incorporated into the multi-tier system of review that the Court utilizes in equal protection cases. But at least for now, until the Supreme Court tells us otherwise, they are rational-basis cases.

As Judge Reinhardt acknowledges (and as we noted earlier), the Supreme Court has stated that "'(p)arties may . . . exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review.'" Accordingly, one may argue with considerable force that as long the Court considers cases like Romer, Moreno, and Cleburne to have been decided under rational basis review, lower courts adjudicating equal protection claims against the use of peremptory challenges to strike gays, hippies, and the disabled from juries have no discretion to invalidate these jury selection decisions.

Even if Windsor Applied Heightened Scrutiny, Did It Do So Under Equal Protection Alone?

Finally, Judge Reinhardt's opinion is as notable for what it omits as for what it says. There is virtually no mention in SmithKline of the federalism argument that makes up so much of Justice Kennedy's opinion in Windsor. Clearly, Justice Kennedy's majority writing in Windsor emphasizes the fact that the institution of marriage has been, and should be, a subject of state, rather than federal regulation. What is less clear in Windsor, however, is how this federalism analysis fits together with Justice Kennedy's equal protection arguments. The uncertainty about precisely how the structural (federalism) and rights-based (equal protection) arguments fit together to support the Court's holding in Windsor may have contributed to Judge Reinhardt's decision to ignore the federalism aspect of Windsor altogether, and discuss the equal protection analysis in isolation.

Yet we think there may be a meaningful way to integrate the federalism and rights-based arguments in Windsor. There is sometimes a structural dimension to equal protection doctrine. In equal protection cases involving discrimination against non-citizens, for example, the Court sharply distinguishes between the level of review applicable to state laws discriminating against non-citizens, and the standard applicable to federal laws involving similar discrimination. Because the power to regulate immigration and naturalization is vested in the national government, state laws discriminating against non-citizens are more problematic and suspicious than discriminatory federal legislation. Accordingly, state laws discriminating against non-citizens receive much more rigorous review. Even if the federal government can permissibly regulate where resident aliens may live in the United States, a state has no business burdening their mobility.

A similar but mirror image analysis arguably applies in Windsor. Because marriage is quintessentially a matter of state sovereignty and control, it is federal laws discriminating against couples a state deems to be married that seem suspicious and problematic and warrant at least rational basis with teeth review. Under this analysis, however, it is harder to read Windsor as holding that all laws discriminating against gays and lesbians should receive heightened scrutiny, where there is no structural basis for distinguishing between the exercise of federal or state sovereignty in the government's actions.

In Part Two of this series, which will appear on this site on February 14, we will continue our analysis of Judge Reinhardt's approach, and also discuss the likelihood that the Supreme Court would be interested in this case.

January 13, 2014

New UC Davis study reveals how people want their lawsuits resolved

UC Davis issued this news release today, highlighting Professor Donna Shestowsky's exciting new research.

New UC Davis study reveals how people want their lawsuits resolved

As court systems throughout the country struggle to deliver civil justice in the face of budget cuts, a new study by a UC Davis law professor finds that people involved in civil lawsuits prefer mediation to nonbinding arbitration and like judge trials more than jury trials.

In her study, "The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante," Donna Shestowsky, who teaches negotiation strategy, alternative dispute resolution and legal psychology, reveals the legal procedures preferred by people involved in civil lawsuits at the start of their cases. The findings could help court systems design future generations of court-connected alternative dispute resolution programs by providing guidance on which procedures litigants find more appealing.

ADR programs offer procedures that are alternatives to trial; mediation and nonbinding arbitration are common forms of ADR.

"The clear overall preference that litigants expressed for mediation over nonbinding arbitration has important implications for courts that want to draw litigants into their voluntary ADR programs, especially if they offer only one ADR procedure," she said. "This finding helps to resolve a long-standing debate over which of the two procedures litigants prefer."

Overall, litigants liked mediation, the judge trial, and negotiations that included the litigants along with their attorneys more than all other examined procedures. A judge trial is where a judge determines the verdict rather than a jury.

The study also found that compared to men, women were significantly less attracted to jury trials and binding arbitration.

Repeat players - those who had been either a defendant or plaintiff in a prior case - liked the idea of using binding arbitration for their case more than first-time litigants. "This finding resonates with the idea that repeat litigants are more likely than first-time litigants to appreciate the fact that trials are often associated with painful, protracted discovery and the threat of an appeal."

The study also found that litigants preferred negotiations that included the parties along with their attorneys to negotiations that took place between the attorneys only. And the more litigants were confident of a trial win, the less they liked the option of the attorneys negotiating without the parties also being present.

Shestowsky's project is the first multijurisdictional study that will explore how civil litigants assess procedures at various points during the same lawsuit. This is the first publication in a multipaper series, looking at litigants' preferences at the beginning of a case. Subsequent papers will explore litigants' views at the end of their lawsuit. This article appears in the latest edition of the Iowa Law Review, released Jan. 1.

The article is available online.

Shestowsky collected extensive data from more than 400 litigants, in 19 different states, whose cases were filed in court systems in California, Oregon and Utah.

Case types included contract, employment, civil rights, medical malpractice, personal injury, and property disputes. This project was funded by competitive grants from the National Science Foundation, the American Bar Association Section on Litigation and the University of California.

July 17, 2013

Why the Proponents of California’s Same-Sex Marriage Ban Are Unlikely to Succeed in Getting the California Supreme Court to Enforce Proposition 8

Part One in a Two-Part Series on What Should Happen to Same-Sex Marriage in California after Hollingsworth v. Perry. Cross-posted from Justia's Verdict.

Last month's ruling by the U.S. Supreme Court that the proponents of California's voter-enacted ban on same-sex marriage, Proposition 8, lacked standing to represent the voters of the State even when the Attorney General and Governor declined to defend, combined with the decision by the U.S. Court of Appeals for the Ninth Circuit to lift the stay on trial judge Vaughn Walker's order blocking enforcement of the ban, effectively killed Proposition 8. But like a chicken with its head cut off, Proposition 8 is trying to act alive, even though it has no real chance of being revived. In the space below, Part One of a Two-Part series on the future of same-sex marriage in California, I analyze the latest developments in the struggle, especially the petition filed last week by the initiative's proponents in the California Supreme Court asking it to stop the issuance of same-sex marriage licenses. In Part Two of the series, scheduled to run August 2, 2013, I will sketch out what I think Californians should do to properly and finally lay Proposition 8 fully to rest.

A Quick Recap of the Action So Far

Let us begin by reviewing key aspects of the story to date: California voters passed Proposition 8 in 2008. In 2009, two same-sex couples (one from LA County and one from Alameda County) brought suit in federal court in San Francisco against, among others, the County Clerks in their respective counties, the Governor, the Attorney General and the State Registrar, alleging that Proposition 8 violated the federal Constitution. None of the named defendants defended on the merits-the Governor and Attorney General actually expressed agreement with the challengers-and federal trial court Judge Walker allowed the proponents (i.e., the measure's drafters/signature gatherers) to intervene to defend Proposition 8. In 2010, Judge Walker found that Proposition 8 violated the 14th Amendment to the U.S. Constitution, and issued an order preventing all defendants, and any persons under their "control or supervision," from "applying or enforcing" Proposition 8. The proponents appealed to the Ninth Circuit, which promptly put a stay (hold) on Judge Walker's order, and then later (in 2012) affirmed Walker's ruling that Proposition 8 violates the federal Constitution (but left the stay intact pending possible Supreme Court review.)

Last month, the Supreme Court ruled that the proponents never had "standing" in federal court to represent the voters, and thus that they had no business appealing Judge Walker's ruling to either the Ninth Circuit or the Supreme Court. Accordingly, the Supreme Court vacated (erased) the Ninth Circuit's constitutional ruling, but the high Court left intact Judge Walker's decision (since the two same-sex couples clearly had to have the ability to challenge Proposition 8 in the trial court.) After this, the Ninth Circuit quickly lifted its stay on Judge Walker's order, and Governor Jerry Brown and Attorney General Kamala Harris instructed all county clerks to ignore Proposition 8 and issue same-sex marriage licenses. According to numerous press accounts, Clerks throughout the state have been doing exactly that since early July.

Last Week's Request by the Proponents to the California Supreme Court

On July 11, the proponents asked the California Supreme Court to order all County Clerks to stop issuing same-sex marriage licenses. Their papers argue that Judge Walker's ruling-now being implemented-cannot legally apply, and does not apply, to anyone other than the two same-sex couples who filed suit. And since these two couples already have their licenses (they were among the first to be married after the Ninth Circuit lifted the stay), Judge Walker's order has done all that it was intended to do, and all it permissibly could do. The proponents argue that since Judge Walker's order is no longer relevant to any of the defendants or to any other same-sex California couples who wish to marry, County Clerks who continue to issue same-sex marriage licenses are violating Proposition 8, and are also violating state law principles that prevents any executive agency from failing to enforce a state law on the ground that it is unconstitutional unless any court is ordering the agency to do so, or unless an appellate court somewhere has invalidated the state law. Because the Ninth Circuit ruling striking down Proposition 8 was erased, the latter exception does not apply. And, again, because (the proponents say) Judge Walker's order is now completely satisfied, the former exception does not apply either.

To summarize, the proponents' request is based on three key assertions: (1) Judge Walker's order should not, as a matter of federal remedies law, have any effect beyond two couples who sued; (2) Judge Walker's order does not apply to any defendant any longer; (3) if Judge Walker's order is understood as being limited in this way, Clerks who ignore Proposition 8 are violating state law.

The Big Reason Proponents Are Unlikely to Succeed: Their Petition Rests on Contested Issues of Federal, Rather than State, Law

I do not think the California Supreme Court is likely to accept the proponents' invitation to stop same-sex marriage licenses from being issued. On Monday of this week, the court indicated it would not stop the marriages right away, but the full briefing schedule indicates that the court will not make a final decision on the proponents' petition until August at the earliest. It is telling, though, that the court did not enter an order directing Clerks to stop issuing same-sex marriage licenses right now; if the court thought there was ultimately any significant chance it would grant the relief the proponents seek (ordering the enforcement of Proposition 8), the California Justices probably would have granted an immediate injunction, to reduce the number of same-sex marriages whose validity the court might have to deal with after all is said and done.

Why would the California Supreme Court be inclined to stay out of this matter? For starters, the California Supreme Court's review here is discretionary, not mandatory, and I expect the Justices will look for plausible, prudential reasons to stay out of, rather than excuses to jump into, a situation in which the Proposition 8 likely no longer reflects the desires of the California electorate. (A recent LA Times poll suggested same-sex marriage rights are favored by California registered voters by a margin of around 56-38.) To be sure, the Proposition 8 proponents are arguing that more is at stake here than simply same-sex marriage; the proponents claim that state officials are flouting the rule of law by refusing to comply with Proposition 8 until an appellate court has invalidated it on the merits. But the proponents' claim that the California Supreme Court can and should address this alleged lawlessness by state officials is open to some serious complexity and significant doubt.

The sponsors may be right (and I have written about this before) in saying that Judge Walker should not, as a matter of federal remedies law, have issued an order that granted relief beyond the two couples who actually sued. That is to say, the proponents may be right about the first of the three assertions I listed above. As I explained in an earlier column:

Under [a very plausible reading of the relevant cases,] the law of the Ninth Circuit (and perhaps also that of the Supreme Court) [suggests that] a district judge has no power, outside of a class action setting, to order relief that goes beyond protecting the named plaintiffs to also protect other would-be plaintiffs, unless full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants' interactions with other persons. In the present setting, full relief (i.e., marriage licenses) can be given to the named plaintiffs [, the two couples who sued,] without ordering the defendants to give licenses to anyone else.

But even if the proponents are correct about this first point under federal remedies law (and some may argue that the Ninth Circuit cases don't mean what I think they do), the bigger problem for the proponents is their second assertion-that Judge Walker's order in fact does not go beyond the named plaintiffs. For whether he was right or wrong to do so, Judge Walker wrote and entered an order that-read most straightforwardly-does go beyond those two couples, to grant same-sex marriage rights to other couples in the State as well. This is most clear when it comes to the Clerks of Los Angeles and Alameda counties; Judge Walker's order directs them, in broad terms, not to enforce Proposition 8. Period. Whether Judge Walker should have added a phrase "as to the named plaintiffs," to this part of order, he did not. The most natural reading of the order is that these two defendant Clerks, as least, are simply not supposed to enforce Proposition 8.

The proponents' best argument (although they don't quite frame it this way), is that because it would be likely unlawful under federal law for Judge Walker to have granted relief to persons who weren't plaintiffs, we should in effect add the words "as to the named plaintiffs" to his directive to the LA and Alameda Clerks. In other words, because Judge Walker nowhere explicitly said his order should apply to non-plaintiffs, and because he doesn't have the power to provide a remedy to non-plaintiffs, we should read his order as if he agreed with the proponents that his order is in fact limited.

But I think it would be difficult, and perhaps violative of federalism principles, for the California Supreme Court to effectively add limiting words to Judge Walker's order. Ordinarily, interpreting or changing the scope of a federal court order is a matter for federal courts-not state courts-to undertake. And because the proponents' argument about the permissible power of a federal court to protect non-plaintiffs is itself a point of some contention under federal law, I don't think the California Supreme Court can easily agree with the proponents in resolving this federal question; questions about the scope of federal district court powers are not the kind the California Supreme Court exists to decide.

A federal court would be the more natural place, in the first instance, to argue that Judge Walker's order, as written, exceeds federal trial court powers and, for that reason, should be construed as narrowly as possible. After such guidance from the federal courts, the proponents could then make their state law claims in the California Supreme Court. But the proponents don't have standing in federal court to raise such an argument-that is what the U.S. Supreme Court held in Hollingsworth. The proponents filed last week's request in the State Supreme Court in part because California courts don't have the same rigid standing requirements, but that doesn't mean that the state court is going to be interested in resolving these thorny questions of what the federal court order could, and does, mean. (And notice that the Ninth Circuit could have narrowed Judge Walker's order to the named plaintiffs only before lifting the stay, but apparently chose to leave Judge Walker's edict completely intact.)

The Questions of State Law Raised by the Proponents' Request

It is true that, as to the other 56 County Clerks-who were not named in the federal lawsuit in Judge Walker's court-there is a question whether these Clerks are under the "control or supervision" of one of the defendants who is directly subject to Judge Walker's order, most plausibly the Governor or the State Registrar. And the question of whether County Clerks are under the control or supervision of the Governor or the State Registrar might very well be a question of state law as to which the California Supreme Court may someday want to provide a definitive answer. In a similar vein, the California Supreme Court may someday also want to answer the question whether a County Clerk who is not subject to a court order or to the control of the Governor or Registrar can refuse to enforce a state law on the ground that it is unconstitutional. (This is matter addressed by the third contention I identified in the proponents' papers.) But the California Supreme Court might feel that what is meant by "control or supervision," as the term is used in Judge Walker's order, is not determined by state law, but rather by what Judge Walker intended, in which case we are back to the problem of a state court trying to interpret and perhaps limit the effect of a federal court order.

Moreover, and more important, even if the 56 non-named County Clerks are not covered by Judge Walker's order (and thus should not, under the proponents' contested reading of state law, be ignoring Proposition 8), same-sex couples can go to LA or Alameda counties for marriage licenses (since, as discussed above, these two clerks at least would seem clearly to be covered by Walker's order.) And the California Supreme Court may rightly say to itself: "If Proposition 8 is going to die anyway-because the LA and Alameda County Clerks are required to issue same-sex marriage licenses-then there is no practical import of resolving big questions of state law, concerning the independence of County Clerks and the requirement to follow a state law until the law has been invalidated by an appellate court, in this setting. Better, perhaps, to wait for a case that is less politically charged, and one in which the resolution of these state law questions will affect the real-world state of affairs more."

Thus, although the California Supreme Court has asked the Attorney General to file full briefs explaining why the court should reject the proponents' requests for relief, and although the court will consider the matter carefully and likely not act in a final way on the proponents' petition until next month at the earliest, I don't expect the proponents to make any real headway. The federalism issues presented by a state court trying to read a federal court order in a particular way in order to justify reaching state law issues are, I think, too daunting. And on that basis the California Supremes will probably let things continue to run the course they are on-with same-sex marriage licenses continuing to be issued.

In Part Two of this series, I will explain why, even if the California Supreme Court stays out, and even if same-sex marriages continue in California indefinitely, there is virtue in the voters of the State formally repealing the no-longer-favored measure. And I will analyze how that could come about without great cost or delay.

June 20, 2013

UC Davis Clinic Highlighted in California Supreme Court Historical Society Newsletter

By California Supreme Court Clinic Director Aimee Feinberg. Cross-posted from the California Supreme Court Historical Society Newsletter.

The California Supreme Court touches the lives of every Californian. The Court reviews the work of about 2,000 judicial officers, the largest law-trained judiciary in the world, and issues rulings governing countless day-to-day activities of the state’s residents. According to the National Center for State Courts, the California Supreme Court processed a staggering 9,562 matters in 2010, thousands of cases more than the next busiest state high court.

The Court’s reach extends beyond the state’s borders. In a comprehensive study published in 2007, Jake Dear and Edward Jessen concluded that the California Supreme Court is the most followed state high court in the United States. Thus, when it comes to tort law, insurance law, criminal law, and others, the saying rings true: as California goes, so goes the nation.

It is fitting, then, that one of the state’s newest legal clinics should train its attention on the state Supreme Court. In the fall of 2012, UC Davis School of Law launched the first and only law school clinic in the state to focus exclusively on the California Supreme Court. Inspired by a 2010 speech by former State Bar President Jeff Bleich and modeled to a large extent on Stanford’s first-in-the-nation U.S. Supreme Court clinic, UC Davis’s California Supreme Court Clinic provides pro bono representation to parties and amici in both civil and criminal cases pending before the state’s High Court. The Clinic’s six students, each of whom is selected to participate by application, become immersed in California Supreme Court practice and procedure. During the semester-long program, Clinic participants study the Court’s rules, learn principles of effective appellate advocacy, hear from seasoned practitioners, and, under faculty supervision, research and draft briefs to be filed in cases pending before the Court.

Like many appellate advocacy programs, the Clinic aims to teach students critical brief-writing skills. But focusing exclusively on the California Supreme Court offers students other important learning opportunities. Because the Court grapples with some of the most complex and consequential issues facing the state, students in the Clinic learn to research and analyze legal questions at an exceptionally deep level. They are called on to leave no stone unturned in their case research, to comb through legislative history, to examine agency regulations, to canvass laws in other jurisdictions, and to marshal policy arguments. By concentrating on the state’s highest court, moreover, the Clinic offers students the chance to see how a legal issue travels through the state system from start to finish. Likewise, because the Court (for the most part) has discretion to decide what cases it will hear, Clinic enrollees learn about the petition-for-review process and the characteristics of cases that may find their way onto the docket of a court of last resort. At the same time, focusing on a court with a docket as diverse as that of the California Supreme Court exposes students to an unusually broad array of legal issues. And by observing the Court’s oral argument sessions, students see some of the nation’s most respected jurists question advocates and explore the intricacies of complicated legal questions.

Litigating cases before the California Supreme Court also provides students with an important opportunity to serve the public interest. Although the federal courts undoubtedly decide significant issues, the California state courts provide the forum for many more disputes to be resolved: in 2012, litigants filed 372,563 matters in federal district court; in fiscal year 2010–2011, filings in California superior courts surpassed 9.4 million. At the same time, the state system often adjudicates cases

in the areas of law most likely to affect people’s everyday lives — how contracts are enforced, the accused are tried, businesses are regulated, marriages are dissolved, children are reared, and property is owned. By working on cases pending before the state’s highest court, Clinic enrollees have the chance to present their clients’ arguments knowing that a case’s outcome will almost certainly impact the lives of many people.

The Court’s special place in the state’s judicial system offers special opportunities for law students. For the participants in the Clinic, it is an honor to litigate before the Court.

 

February 19, 2010

Formalism, Holism, and Technological Engagement in Patent Law

Last November, the Supreme Court heard oral argument in Bilski v. Kappos, a patent case with significant implications. At issue in Bilski is whether a method for hedging risks in commodities trading comprises patentable subject matter. Many have criticized the prospect of granting exclusive rights on processes so divorced from traditional conceptions of “technology.” Others, however, contend that in today’s information economy, such valuable yet intangible innovations should be eligible for patent protection.

The patent community is now eagerly awaiting the Supreme Court’s resolution of the case, and much hangs in the balance. Commentators argue that Bilski could affect the patentability of everything from business methods and software to diagnostic tests and medical correlations. The case has attracted dozens of amicus briefs from parties such as the ACLU, American Express, Microsoft, IBM, and Yahoo!.

I offer no predictions on the Supreme Court’s substantive resolution of Bilski, but I do wish to highlight one methodological point. In prior proceedings, the Federal Circuit had denied the patentability of this invention based on its newly-articulated “machine or transformation test.” According to this test, a process is only eligible for patenting if 1) it is tied to a particular machine or 2) it transforms a particular article into a different state or thing. In many ways, this test reflects the Federal Circuit’s well-recognized preference for formalistic patent doctrine. In a variety of areas, the Federal Circuit has crafted bright-line rules that limit inquiries to a few core questions and discourage consideration of “extraneous” context.

Among other functions, such formalism partially shields judges from technologically difficult inquiries about patented inventions. For example, the Federal Circuit’s historic approach to patent infringement remedies followed a simple syllogism: if infringement, then injunction. According to this formalistic framework, courts would not consider the “value” of a patented technology or its social importance in determining whether to grant an injunction; they would issue such relief almost as a matter of course.

While the Federal Circuit favors formalistic rules, the Supreme Court’s recent forays into patent law reflect a preference for holistic standards. In areas as diverse as prosecution history estoppel, nonobviousness, and remedies, the Court has produced doctrine compelling judges to delve deeper into inventions and their technological context.

These methodological observations add another layer of complexity to Bilski. Substantively, the patentability of “intangible” processes has significant implications for the financial services, information technology, and biomedical industries. However, whether the Supreme Court answers this question with a holistic standard or a set of bright-line rules may significantly impact the administration of patent law.

Among other effects, the Supreme Court’s preference for holistic standards invites greater judicial engagement with technology and its context. In the realm of cutting-edge innovations, such contextual engagement can significantly increase the difficulty of adjudication. (Indeed, there is some indication that lower courts have struggled to apply the Court’s recent holistic standards.) Thus, while observers are eagerly awaiting the Supreme Court's substantive resolution of Bilski, the form of the Court's ruling may matter a great deal as well.