Michigan A.G. to Continue Health Care Opposition

From Bloomberg:

Michigan Attorney General Bill Schuette says he will continue the state's role in a legal challenge to the federal health care overhaul. Schuette is in his first week as Michigan's attorney general. He said Wednesday he will add his name to the lawsuit challenging the law. That continues a legal strategy from former Michigan Attorney General Mike Cox. Both Schuette and Cox are Republicans.

Attorneys for 20 states are challenging the new federal health care law in a case before a federal court in Florida. The states argue the law violates people's rights by forcing them to buy health insurance by 2014 or face penalties.

A Curious Framing of First Amendment Rights

From the Seattle Times:

A Clackamas [Oregon] man has filed a federal lawsuit over what he says is his First Amendment right to express himself by giving the finger to sheriff's deputies.

Robert Ekas tells The Oregonian that he flipped off Clackamas County sheriff's deputies because he has a constitutional right to do it. Ekas also says he is protesting police violence.

In his lawsuit, Ekas says that in July 2007 he flipped off a Clackamas deputy while driving, and the deputy gave him tickets for illegal lane change and improper display of license plates. He was acquitted on the citations. A month later, he gave the finger to another deputy, who detained him but wrote no tickets.

Hmm. . . . I wonder whether this constitutes "protected" speech.

Senator Kerry's Quest to Amend the Constitution

Citizens United v. Federal Election Commission should be stale news to you by now. The new debate is how the disappointed executive and legislative branches will react to the judiciary's (alleged) overreaching.

Senator Kerry suggests starting at the source: amend the constitution. From the Huffington Post:

At a hearing on Tuesday, Kerry said that in the short term he wanted Congress to quickly pass countermeasures that would require corporations to get shareholder approval for political spending and prohibit spending by domestic subsidiaries of foreign corporations and government contractors.

'But we may also need to think bigger,' Kerry said. 'I think we need a constitutional amendment to make it clear once and for all that corporations do not have the same free speech rights as individuals.'

While, undoubtedly, Justice Scalia would be proud of Senator Kerry for actually changing the constitution's text to effect a change in its meaning, I can't imagine a bigger third-rail for the Senior Senator than running on a platform of "let's fix the first amendment."

More likely than not, Citizens United will be somewhat curtailed by a more mundane act of Congress. Proposals have ranged from requiring shareholder approval of any corporate campaign spending to preventing corporations from listing on exchanges if they fund campaign speech. Whether such an act will withstand the scrutiny of SCOTUS' all seeing eyes is another question (but commentators seem to say no).

So we may be in for a show. Hopefully the 28th Amendment will be a little more spicy than the underwhelming 27th Amendment.

Historic Redline - Early Draft of U.S. Constitution Found in Philadelphia

Historians in Philadelphia were perusing some of the more than 21 million documents in the Historical Society of Philadelphia's collection when they stumbled upon what appeared to be an original draft of the U.S. Constitution. From the Inquirer Journal:

Researcher Lorianne Updike Toler was intrigued by the centuries-old document at the Historical Society of Pennsylvania. On the back of a treasured draft of the U.S. Constitution was a truncated version of the same document, starting with the familiar words: "We The People. . . ."

An Opportunity to Clarify Atkins v. Virgina?

Maybe. As the New York Times reports:

A 44-year-man whose lawyers claim he is mentally retarded is scheduled to be executed Thursday evening in Huntsville, Tex., unless the United States Supreme Court agrees to hear his case.

The man, Bobby Wayne Woods, whose I.Q. hovers around the level of a mildly retarded person’s, was convicted of the brutal killing of an 11-year-old girl in 1997 and sentenced to death.

While the Court, in Atkins v. Virginia, 536 U.S. 304 (2002), held that executing the mentally retarded violates the Eighth Amendment prohibition on cruel and unusual punishment, state practice following the decision has--as the Times notes--been inconsistent.

We'll be sure to keep you posted on any developments in this case.

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Update: Mr. Woods was executed as scheduled.

Next Stop: Poor House

California just can't get a break. From the LA Times:

Less than four months after California leaders stitched together a patchwork budget, a projected deficit of nearly $21 billion already looms over Sacramento, according to a report to be released today by the chief budget analyst.

Yeesh. And unlike the Federal Government, California cannot print money or use quantitative easing to deal with the shortfall. Things are so bad that California is researching ways to declare bankruptcy:

California's finances have been so bad that the governor's finance director, Mike Genest, told a budget forum in Washington last week that back in February he had combed through the U.S. Constitution to research whether California could legally declare bankruptcy -- or revert to some kind of territorial status. (Neither was realistic, he determined.)

California's fiscal implosion may end up being a con law professor's dream. Can a state declare bankruptcy (note: the current bankruptcy code only provides a reorganization option for municipalities, not states)? Can a state revert to a territory? If Californians revolt and install a dictator, would Congress enforce the guarantee clause?

Whatever the answers may be to such heady constitutional questions, the reality is that life in California is going to get a whole lot worse in the very near future.

Wholly Racial Questioning, Batson!

Do this: open another tab, and play this clip in the background before reading.

Did you do that?

Alright, on to the main show.

What happens when you strike jurors on the basis of race? Batson hearings, that's what! Well, what happens when, according to the Las Vegas Sun, "the prosecution ask[s a] black juror if he would feel ridicule from the black community if he voted to put [the defendant] to death . . . and the juror did not take offense to the question?" Further, what happens when the appellate prosecutor claims that "the juror had 14 relatives of which only three were not in prison and the juror also had a personal relationship with the defense lawyer?" Even more, according to the prosecutor, the juror was also excluded for other reasons. There's a (compound) question the Nevada Supreme Court will have to decide.

You Say, We Say, We All Say, Hearsay!

Question: Whether prior statements made by an alleged murder victim and another, separate missing victim to family and friends in letters can be admitted over hearsay and Confrontation clause objections, when they are to be used against the alleged perpetrator of both crimes?

Brief Answer: According to the Illinois General Assembly, possibly yes.

A Quake in the Golden State

From the LA Times:

Today, a [constitutional] convention moves an important step closer to reality as Repair California -- the coalition spearheaded by the Bay Area Council together with organizations of various philosophies across the state -- files its language for two measures to appear on the November 2010 ballot. Voters will be asked first to amend the Constitution to permit themselves to call a convention, then, second, they'll be asked to actually call it. A convention can work. It can give the constantly evolving state an updated government that better serves its restless people.

It's coming California. There is light at the end of the tunnel. More to follow.

The name is Bonds... War Bonds

Here's an interesting ConLaw question: Can States "stand in the shoes" of people who owned World War II war-bonds and failed to collect?

Convert? Steal? What's the Big Difference?

Oh, the difference one word can make. John Salzano had been accused of converting hundreds of thousands of dollars in funds from his father’s company. Don’t you dare say he was accused of stealing the funds! Why, you ask? Because he’ll sue you and take the case all the way to the state supreme court.

The WSJ Law Blog reported that Salzano sued a New Jersey newspaper, The Record of Hackensack (or The Bergen Record), because it referenced a complaint as alleging that Salzano stole, as opposed to converted, the funds. The case has now reached the New Jersey Supreme Court, which heard arguments earlier this week. The newspaper argues that journalists may not be expected to know legal terms of art and, citing the “fair-report privilege,” maintains that the media should be free to report on allegations in complaints without the risk of liability.

The appellate court, however, ruled that the “fair-report” privilege did not apply to situations where a complaint is newly filed and the claims don’t stick. And, apparently at least one Justice was very skeptical of the “journalist’s aren’t lawyers” argument. Justice Robert Rivera-Soto stated that “If [a complaint] were written in Sanskrit, you’d have to get someone translate it.”

To be honest, I’m not convinced by the Record’s arguments either. While I admit that I’m not familiar with the intricacies of the fair-report privilege, any argument that journalists should categorically be let off the hook when legal terminology is used strikes me as asinine. And the standard here is one of negligence, as opposed to actual malice, because it appears Salzano is a private figure. Ignorance of legal terminology certainly rises to the standard of negligence.

That isn’t to say that I believe the paper should be held liable. As a matter of fact, I feel very strongly that they should not. A more compelling legal argument could have been made in their favor. Specifically, it must be proven that the defamatory statement (i.e. that he was accused of converting the funds) was false. Typically, the plaintiff bears this burden. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). Although the statement that Salzano was accused of stealing funds is literally false, more is necessary. See Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993) (the law protects false “details that, while not trivial, would not if corrected have altered the picture that the true facts paint”). Technical falsity is insufficient to overcome the burden of proving falsity; “material falsity” is required. See Masson v. New Yorker Magazine, 501 U.S. 496 (1991) (requiring “substantial truth”); Rouch v. Enquirer & News of Battle Creek, 440 Mich. 238 (1992) (requiring “material falsity” as opposed to "substantial truth" after the burden was switched from defendant to plaintiff).

Is the statement that Salzano was alleged to have stolen funds, when in actuality he was alleged to have converted them, materially false? I don’t think so, although I suppose it is debatable. What do you think?

More Bad News for the Golden State

Things have not been going well for California. Despite the State's efforts to balance its budget and reform its tax system, revenue is still declining.

From Bloomberg:

Revenue in the three months ended Sept. 30 was 5.3 percent less than assumed in the $85 billion annual budget, state controller John Chiang reported yesterday. Income tax receipts led the gap, as unemployment reached 12.2 percent in August.

And this is after drastic shock treatment:

The latest figures show that California is facing resurgent fiscal strains brought on by the U.S. recession. Since February, Schwarzenegger and lawmakers have cut $32 billion from spending, raised taxes by $12.5 billion and covered $6 billion more with accounting gimmicks and borrowing. Even with those actions, state budget officials predict an additional $38 billion in deficits in the next three fiscal years combined, including $7.4 billion in the year starting July 1.

Other than Professor Stark's novel proposal, no one seems to have a good solution for what ails California. Meg Whitman, the former CEO of eBay and a candidate for governor, suggests that California should fire 40,000 state employees to help reduce spending. Of course, firing that many politically well-connected people smells a bit of unreality to me.

Alas, without further spending cuts and with a legislature unable to secure public approval for more tax increases, it looks increasingly likely that California will need a constitutional convention to save itself from the poor house.

Stay tuned for an article about what the California constitutional convention would entail and how it would reform the State's budget system. Creating a government from scratch? It's a law student's delight.

Today's Media Threatens Our Criminal Justice System

Am I the only one who wonders what has become of the media? Even the supposedly reputable news outlets have become glorified tabloids. As much as I dislike Glen Beck, Sean Hannity, and yes, even Keith Olbermann, there is one “newscaster” that I reserve the bulk of my anger for: Nancy Grace.

To put it simply, Nancy Grace is bad for America. CNN’s website describes the program as “television's only justice themed/interview/debate show, designed for those interested in the breaking crime news of the day.” I describe it as a threat to the integrity of our criminal justice system.

The recent coverage of the Annie Le murder at Yale is a prime example of what I am referring to. It was a heinous, truly sickening crime, and the culprit obviously deserves the harshest of punishments. However, the media in general, and especially Ms. Grace, often forget that defendants are presumed innocent until proven guilty. They overlook the Sixth Amendment guarantee to a fair trial (and, specifically, a trial “by an impartial jury”) and the due process guaranteed by the Fifth and Fourteenth Amendments.

The media began its assault on alleged murderer Raymond Clark III immediately upon his being named a person of interest. For starters, news quickly leaked that Mr. Clark had failed a lie detector test. Some news outlets even used the above picture of Mr. Clark dressed as a devil for Halloween. Many news shows then began hypothesizing what Mr. Clark’s motive was. I recall a guest psychologist stating that Mr. Clark was clearly a misogynist. Others claimed that he had an infatuation with Asians, as evidenced by his membership to the Asian Awareness Club in high school, or that he perhaps suffered from jealously due to the fact that he never attended any college (never mind a prestigious one such as Yale). Unfortunately, this speculative drivel was being fed to the potential juror pool.

Obviously the defendant’s constitutional rights must be balanced against the First Amendment guarantee to free speech and press. The trial judge does have an affirmative duty to limit prejudice, whether by delaying trial, changing venue, or conducting a searching voir dire. See Sheppard v. Maxwell, 384 U.S. 333, 362-63 (1966). If such a duty is not fulfilled, there is serious risk that a conviction will be reversed. Id. Justice Burger acknowledged that “[t]he extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibility.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 560 (1976). He went on to explain that “[i]t is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors.” Id. Ultimately, however, Justice Burger held a gag order on the press unconstitutional, and it appears that Nancy Grace has a constitutional right to spew as much garbage as she would like. Id. at 568.

My question is this: Even though journalists such as Ms. Grace have a constitutional right to broadcast information that threatens a defendant’s right to a fair trial, do they not have a moral duty to avoid doing so? Go ahead and call me an idealistic law student, but I believe that just because you have a constitutional right to engage in certain types of action doesn’t necessarily mean that such action isn’t morally reprehensible. Whatever happened to journalistic integrity?

Berlusconi Immunity Law Tossed

From the Guardian:

Italy was cast back into political turmoil tonight when the country's constitutional court threw out a law passed by Silvio Berlusconi's government that gave him immunity from prosecution for as long as he remained prime minister. . . . The majority decision represented a severe blow for Berlusconi, who was already struggling to contain the damage from a lurid sex and drugs scandal in which he is accused of using the services of prostitutes.

The court held the immunity law to be unconstitutional under both Articles 3 and 138 of the Italian Constitution. Article 3 states in relevant part that "[a]ll citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions"; Article 138 deals principally with procedures for constitutional amendment. Despite the court's latter brief statement on the basis of its holding, "[t]he detailed reasoning behind the judges' decision will not be released for several weeks."

Berlusconi did not have very positive words for the court, noting that "[t]his system, and above all the way in which the members of the court are chosen, risks upsetting over time the correct balance between the powers of the state." His frustration is less than surprising, however, as it has consistently been his contention that he is the political target of "left-wing" judges.

This case sort of reminds me of another famous (albeit, quite older) case dealing with the political friction between the executive and judiciary.

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UPDATE: Berlusconi to defend himself on TV, in courtrooms. AP.

Pay As You Drive Auto Insurance: Be Afraid, Be Very Afraid

Please welcome the latest invasion of our privacy. It’s called Pay As You Drive (PAYD) auto insurance. The concept is a simple one: a customer’s premium is tailored to his/her driving habits. This includes the number of miles driven, and also often includes the style (i.e. speed and acceleration) and time of driving. Many insurance carriers allow their customers to voluntarily select a PAYD plan. For example, Progressive offers the “My Rate” Program, and the company’s website boasts that “[i]f you’re a safe and/or occasional driver, you could pay less for auto insurance- a lot less!” In return for the discounted auto insurance, however, customers sacrifice their privacy. GPS tracking devices are installed to register customers’ driving habits. Is a better rate on auto insurance really worth sacrificing the constitutionally protected right to privacy?

Although programs like Progressive’s “My Rate” are cause for concern (especially in this harsh economic climate where we’re all trying to save a buck), proposed legislation in California downright scares me. The proposal allows an insurer to offer self-reported estimated mileage plans (“EM”) and/or actual-mileage driven plans (“AMD”). An insurer may exclusively offer AMD plans, and, may, in turn, mandate the installation of GPS tracking devices. Insurance companies understandably wish to attain the most information possible so as to accurately measure a policyholder's risk. But, with increased technology, the question becomes how much is too much? We don’t want insurance companies knowing every detail of our personal life, no matter how helpful it may be for calculating risk.

There are not any direct constitutional issues, as the constitution obviously does not limit private companies and individuals. However, with PAYD, insurers will have access to information such as speed and style of driving (and maybe even location, although supposedly the location of the vehicle will be left out of the data collected), and it is hard to imagine that the government wouldn’t try to get its hands on such information. For example, if the government is prosecuting an individual for vehicular manslaughter, it would likely seek to subpoena the information collected by PAYD insurers--information that would be more readily available than it would generally be.

There are, to be sure, benefits that come along with PAYD auto insurance. At least theoretically, those with PAYD policies will curtail the amount they drive, and, thus, reduce carbon dioxide emissions. However, if the insurance market becomes dominated by AMD plans, our privacy will be seriously jeopardized. Do the potentially lower insurance rates and environmental benefits justify an infringement on our constitutional right to privacy?

Proposition 8 Opinion Forthcoming

The California Supreme Court has provided notice of its forthcoming opinion in Strauss v. Horton, the case testing Proposition 8's legality. We will keep you updated as we learn more.


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UPDATE: According to the Court's website, the opinion will be issued this coming Tuesday, May 26th.

Maine Legalizes Gay Marriage

As the world waits for the California Court's Proposition 8 decision (the demise of which may be "refuted on InTrade"), another state has legalized gay marriage.

MSNBC reports that Maine's Governor, John Baldacci, has signed legislation passed yesterday legalizing gay marriage. Though he had "opposed gay marriage while supporting the idea of civil unions," in the past, Baldacci indicated that he had "come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage."

For those of you keeping track at home, Maine is the fifth state to legalize gay marriage (whether legislatively or via judicial decree) following--most recently--Vermont, and Iowa.

Supreme Court Limits "SIVA" Doctrine

The Supreme Court today in Arizona v. Gant, 556 U.S. ____ (2009), limited its holding in New York v. Belton, 453 U.S. 454 (1981), which held in part that officers--in effectuating a valid arrest--may search the passenger compartment of a vehicle in which the suspect was a recent occupant. In Gant, a suspect was arrested for driving with a suspended license, handcuffed, and placed in the back of a squad car before officers "discovered cocaine in the pocket of his jacket on the backseat [of his car]." See Gant, 556 U.S. at 1-2. The Court, via Justice Stevens, held that Belton (if not overruled) no longer "authorize[s] a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle." Id. at 3-4.

Although the opinion was criticized for a blatant departure from stare decisis, see id. (Alito, J., dissenting) (arguing that, although stare decisis is not an "'inexorable command' . . . constitutional precedent should be followed unless there is a 'special justification' for its abandonment."), Justice Stevens noted in dictum that "[b]lind adherence to [a misreading of Belton] would authorize myriad unconstitutional searches."

For a copy of the opinion, click here. Further, Professor Kerr at Volokh has posted an interesting take on this story as well.

Court to Hear School Stripping Case Today

Back in March, Josh reported that the Supreme Court would be hearing the Safford United School District v. Redding case regarding the constitutionality of school strip searches, and offered his opinion that "the Court should hold the strip search to be unconstitutional."

The Court is hearing the case today, and Professor Kerr at Volokh has weighed in on the matter, predicting "that the Supreme Court will agree with the Ninth Circuit that the strip searches . . . are unconstitutional."

We'll continue tracking the story, and will alert you to any new developments. In the interim, we recommend you check out the briefs (linked at Volokh) and invite you to share your thoughts on how the Court will rule.

Ninth Circuit Incorporates Second Amendment

If you've been too busy obsessing (or lamenting) over the "results" of the new US News Rankings, you probably missed the biggest news to hit the legal world today: a Ninth Circuit panel issued its decision in Nordyke v. King, incorporating the Second Amendment against the states via the Fourteenth Amendment.

As Volokh Conspiracy notes:

The panel avoids the late 19th-century cases United States v. Cruikshank (1876) and Presser v. Illinois (1886) by reading them as simply foreclosing the direct application of the Second Amendment to the states, or the application of the Second Amendment to the states via the Privileges or Immunities Clause. The panel instead follows the Supreme Court's "selective incorporation" cases under the Due Process Clause, and concludes that the right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'

We encourage everyone to check out Volokh's coverage; they've already discussed an array of interesting issues including Judge Gould's concurring opinion, and the future of Second Amendment incorporation. As to the latter, Professor Volokh predicts:

[T]he Supreme Court would prefer to consider the incorporation question in a case that involves more common facts, and that doesn't raise the additional legal question of whether nunchakus qualify as "arms" for Second Amendment purposes. . . .[o]n the other hand, there is indeed a split on the incorporation question now, and the Court could certainly agree to consider only that aspect of the case, and remand to the Second Circuit [in Maloney v. Cuomo, sub nom. Maloney v. Rice] for more consideration of the splitless and underexplored question of which non-firearms qualify as "arms." This will push into the background the exotic nunchakus, and will instead allow the Court to focus on the common and important question of whether the Second Amendment applies, via the Fourteenth, to state and local governments.

It will be interesting to track this story's development.