Today's Brian Teaser: Collegiality, History and the Law

In advance of the four-part PBS series “The Supreme Court,” which debuts this evening, the News Hour with Jim Lehrer hosted an interview with George Washington University Law Professor Jeffrey Rosen, and ABC news legal correspondent Jan Crawford Greenburg. Both Rosen and Greenburg have recently released books on the High Court.

During the interview, Professor Rosen remarked that through his research on the Justices and the Court:

I learned that personality matters, character matters, temperament matters. Brilliance is not enough.

You see over and over again the brilliant ideologue shooting himself in the foot, the collegial pragmatist creating majorities. The self-serving justice is temporarily vindicated, but ultimately scorned by history, whereas those who get along well with their colleagues are able to reshape the court in their own image.

If I were a president picking a justice, I would, first of all, read a lot of judicial biographies, because it's incredibly fun, and then pick a justice whose character you trust, who's able to find common ground, and realize that the court ultimately, as an institution, is more important than the individual ideologies of any particular justice at any moment in time.

If by "individual ideologies" Professor Rosen means a judge's views on the law, the tug and tension between collegiality, on the one hand, and the judge's obligation to state forthrightly what he or she believes the law to be in a given case, on the other, could have very profound implications. Admittedly, it is not clear from the context of the interview whether Rosen believes that judges who work in panels should make substantive alterations in their positions in order to get along with their colleagues, or rather merely state those positions in ways that avoid clashes with their workmates (I will buy his book and see), but if it is the former, a number of important questions arise.

Should the panel members' need for collegiality shape the substantive result for litigants in a pending case?

If the ability of panel members to "split the difference" with each other is a key factor in judicial decision-making, is this really a call for the selection and promotion of judges who have no quarrels with our current body of precedents?

The complete interview with the authors is accessible here.

Lots to think about during the debut of the PBS series tonight.

Hopper Watch: Monday

I have often thought that one could teach an entire law school course on constitutional law, without a casebook, with nothing more than a sheaf of bills introduced during the preceding Session of the Minnesota Legislature.

The last few days would have added mightily to this would-be seminar; with a number of really interesting and noteworthy bill introductions happening this week. Among the bills that readers may wish to add to their own personal watch lists this Legislative Session (or at least until the Learning Annex will host that course) are:

Senate File 324: Senator Neuville's Appointive System for State Judges (accessible here).

Senate File 335 / House File 353: The Sieben-Bigham One-Year Lobbying Ban for Former State Officials (accessible here).

House File 403: Representative Sandra Peterson's Revival of Disclaimers on Campaign Literature (accessible here).

Due Process and the Unique Prisoner

On Wednesday, the U.S. Court of Appeals for the Tenth Circuit handed down an interesting opinion on the rights of prisoners to challenge the conditions of their confinement, under the Due Process Clause of the Fourteenth Amendment.

The case arises out of the decision of Wyoming prison officials to place Miki Ann DiMarco, an inmate who had earlier been convicted of check fraud, into “administrative segregation” for the whole of her 14 month prison term. Ms. DiMarco, the jailers learned after her arrival in state prison, was a hermaphrodite – a person who was born with both male and female characteristics. Because Ms. DiMarco possessed both female features, and male genitalia, prison officials were concerned that housing her in the general population of the prison might place her, or others, at risk. In administrative segregation, Ms. DiMarco was separated from contact with other inmates and the programming that regularly occurs at the prison.

Following her release from prison, DiMarco sued the state for civil rights violations. Finding that the circumstances of DiMarco’s imprisonment departed substantially from the “ordinary incidents of prison life,” and that she had a right to be protected from such a deprivation, the District Court concluded that DiMarco did not receive adequate due process.

Reversing the lower court’s judgment, the appellate panel held that while DiMarco’s living conditions were “isolating” and “spartan,” the prison was under “no constitutional duty to equalize these types of amenities in every detail.” As the panel reasoned, the unique circumstances of DiMarco’s condition, and the potential threats to her or others, justified the jailers’ response.

The complete opinion is accessible here.

Intervention Tension: Litigants Tussle Over Who Should Stay in S.D. Abortion Case

While I have earlier written about the legal challenge to South Dakota’s abortion disclosure law (see earlier post here), this week brought still other developments in the case.

One provision of the law that is being challenged obliges those who perform abortions to inform their patients about nearby crisis pregnancy centers before undertaking the abortion procedure. The question before the Eighth Circuit this week was whether local crisis pregnancy centers (which had intervened in the lawsuit after it was filed) should be excluded from the suit after the plaintiffs, including Planned Parenthood, dropped their challenge to that part of the law. Planned Parenthood asserted that the only interest of the crisis centers in the suit was ensuring the survival of the referral law; a matter that was resolved when that portion of the challenge was withdrawn.

The appellate court disagreed, ruling that the interests of the crisis pregnancy centers were broader than supporting the referral provisions, and that these interests would not be adequately represented by the State of South Dakota if the crisis pregnancy centers were excluded from the suit.

The brief but interesting Order, is accessible here.

Fine v. Bernstein is In

For election lawyers, it has been the most eagerly awaited decision of the season; and today, a panel of the Minnesota Court of Appeals handed it down. Fine v. Bernstein is in.

The case arises out of a 2005 campaign for election to the Minneapolis Park Board, and involved both First Amendment and Administrative Procedures Act challenges to Minnesota's system of resolving election-related complaints.

Among the noteworthy holdings in the opinion is the appellate panel’s conclusion that the Office of Administrative Hearings’ use of a “penalty matrix, as guidance, for consistency, coupled with the recognition that each case is fact specific, did not constitute de facto rulemaking.”

The complete opinion is accessible here.

U.S. Supreme Court's Conference on Friday Yields Noteworthy Results

By way of an Order issued yesterday, the U.S. Supreme Court accepted review of two cases – Federal Election Commission v. Wisconsin Right to Life (discussed at an earlier post here) and Office of Senator Mark Dayton v. Hanson – but in so doing, deferred issues relating to the Court’s jurisdiction to decide these cases until after hearing from the lawyers during oral argument. The Court’s Order is accessible here.

These actions tentatively place these cases on track to be decided as part of the High Court’s current term, which ends on June 30.

The second case, involving the Office of former U.S. Senator Mark Dayton, arises out of the discharge of an employee from the Senator’s District office in Fort Snelling. Below, the U.S. Court of Appeals for the District of Columbia Circuit held that the discrimination claims of congressional staffers are not barred by the U.S. Constitution’s Speech and Debate Clause, in cases where the claims do not require a court to probe “into how the Member spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation ….” The Circuit Court’s opinion and analysis is accessible here.

Tips on Writing Well from Famous Judges

While mindful that they are part of a larger advertisement for his courses on writing, Bryan Gardner has posted (for free) snippets of interviews he has done with the legal field's more celebrated and accomplished writers.

Included among the list of 60 video clips are suggestions for better writing from four famous Minnesotans: Justice Paul Anderson (On the Writing Process); Judge Harriet Lansing (On Legalese); Judge Bruce Willis (On Page Limits and Trimming Arguments); and Judge Wilhelmina Wright (On Organizing the Appellee's Brief).

To his credit, Mr. Gardner has avoided the trap of appearing too much the schoolmarm when rendering this free advice, because he has posted some of the funnier and more pointed clips from his interview collection. Thus, the admonitions from celebrity judges on the things that they hope for, and hate, in legal writing, make an amusing blend; they are one part infomercial for Gardner and one-part public service announcement for the rest of us.

The complete list of clips is accessible here.

Betzold and Thissen Propose Open Architecture State Records

In bill introductions yesterday and today, Senator Don Betzold (Chairman of the State Government Budget Division) and State Representative Paul Thissen (Chairman of the House Health and Human Services Committee), have introduced the "Preservation of State Documents Act."

The legislation provides that after July 1, 2008, “all documents including text, spreadsheets, and presentations of the state of Minnesota shall be created, exchanged, maintained, and preserved in an open, XML-based file format, as specified by the chief information office of the state ....”

The Senate version of the bill, and the set of proposed requirements for government records, is accessible here.

Interestingly enough, this measure would apparently resolve the long-simmering debate as to whether Minnesota would benefit from an “official language” – the state apparently would; although not either English or Spanish. Were the bill to pass, the language of government would be XML.

Legislative Auditor to Release Evaluations of State and Local Pension Systems

On Monday, January 22, the Legislative Audit Commission will publicly receive two key evaluation reports on aspects of Minnesota's public pension systems. Over the last several months, the Legislative Auditor has been delving into the management practices of the state's public employee pension funds and some of the more than 700 volunteer firefighter relief associations in Minnesota.

The Auditor's office, which has a reputation for rendering blunt and straight-talking assessments of government programs, will release its comparison of the costs and benefits of our state’s pension systems with those of other states. Such charts could make for real drama at the State Capitol.

Notice of the meeting is available here. A preview of the state pension system evaluation is available here and a preview of the firefighter relief association evaluation is available here.

UPDATE: The first committee stop for the Reports after the Legislative Audit Commission, has been announced: The State Government Budget Division will take up the Report on Post Employment Benefits for Public Employees on Wednesday, January 24 at 12:30 p.m.

Court of Appeals Issues Blockbuster Opinion in Risk Assessment Case

Today, a unanimous panel of the Minnesota Court of Appeals held that the Minnesota Department of Corrections is obliged to apply a “weighted risk level assessment” to female sex offenders, notwithstanding the fact that none of the available risk assessment tools have ever been actuarially validated on female offenders.

Today’s case arises out of the end-of-confinement review for a female sex offender, S.S. The Department of Corrections is obliged by statute to conduct a risk assessment on all predatory offenders, and to assign a risk level, prior to the offender’s release from state prison. The catch for the Department, however, is that only a tiny minority of the offenders serving time for criminal sexual conduct offenses are women. The assessment tool that the Department developed in order to predict the risk of later sexual offending – the MnSOST-R – has only been validated on male offenders. Neither the MnSOST-R, nor other similar assessment tools, has ever been validated on female offenders.

Concluded the appellate panel, “the Department’s present ability to develop a statistically significant scale for females comparable to the MnSOST-R is dubious … [yet the statute] does not require the Department to develop a scale based on statistically determined criteria.” Moreover, the panel observed that, with respect to male offenders, the statistically validated MnSOST-R “may exceed the requirements of section 244.052 in the vast majority of cases.”

For those interested in risk assessment issues, this must-read opinion is accessible here.

Zoning Permits and the End of Days

Last week, a panel of the U.S. Court of Appeals for the Eighth Circuit divided over the question of whether the Duluth City Council had timely rejected the application of a local developer to erect a 195-foot cell phone tower within the city limits. Under Minnesota law, if the City Council did not render an effective rejection of the application within 60 days of when the application was submitted, the application is deemed approved.

The District Court concluded that because the City Council did not render a written statement detailing the reasons for the rejection of the application within the 60 day period, the tower application was deemed approved.

Reversing, a majority of the appellate panel held that when the City Council acted to reject the application by oral motion within the 60 day period, and announced reasons for the rejection, the rejection was effective notwithstanding the fact that a written statement summarizing the reasons was not also tendered within the 60 day period.

The majority’s parsing of the statute, and Circuit Judge Beam’s dissent, are accessible here.

UPDATE: Ironically enough, at the very moment that the U.S. Court of Appeals for the Eighth Circuit was handing down its decision in the Minnesota Towers case described above, in which the Circuit panel surmised what the Minnesota Supreme Court would do in a like circumstance, oral argument in a similar case was underway. The Minnesota Supreme Court oral argument in that other case – Hans Hagen Homes, Inc. v. City of Minnetrista – is accessible here.

Norquist List Had Value, But Not Worth Fighting Over

On Friday, the U.S. Court of Appeals for the District of Columbia Circuit issued an interesting opinion on a challenge to an agency’s decision not to prosecute a regulatory violation.

The case arises out of the transfer of a mailing list of prominent conservatives from Grover Norquist, the President of Americans for Tax Reform, to Ken Mehlman, who then was the Campaign Manager of President George W. Bush’s re-election campaign. The Citizens for Responsibility and Ethics in Washington – or CREW – complained to the Federal Election Commission that the transfer of the list was an unreported “in-kind contribution” in favor of the Bush campaign, and one that was valued in excess of the $2,000 that Mr. Norquist could legally contribute. The FEC agreed that the list had value, and therefore was an in-kind contribution to the President’s campaign, but determined that the value of the list was actually quite low. Further, while the precise dollar value of list was uncertain, the FEC declined to use its scarce prosecutorial resources to litigate the matter through an enforcement action – and accordingly decided not to take further action.

CREW appealed the determination not to proceed further with the case. A panel of the D.C. Circuit dismissed the challenge, concluding that the lack of precision regarding the list’s dollar value was: “a trifle” as to which the law was not concerned; resulted in no real injury to CREW; and was a matter that the FEC could properly decline to pursue.

The complete opinion is accessible here.

Union Contribution Case Argued at the U.S. Supreme Court

Today at the U.S. Supreme Court, the Justices heard oral argument in the consolidated cases of Davenport v. Washington Education Association and Washington v. Washington Education Association. The cases probe the constitutionality of a Washington state law that requires labor unions to segregate (and upon request, return) those portions of fees paid by non-members that are not used for collective bargaining purposes.

Below, the Supreme Court of Washington held that the state law requirements that non-members affirmatively “opt into” the union's use their payments for political activities, unconstitutionally burdened on the First Amendment rights of labor unions to engage in political speech.

The transcript of the oral argument at the High Court is accessible here.

Eighth Circuit Grants En Banc Review of Challenge to S.D. Abortion Law

By way of a one-page order issued today, the U.S. Court of Appeals for the Eighth Circuit granted en banc review of the decision of a divided panel, issued last October, as to the enforceability of a South Dakota abortion disclosure law.

In October, a divided three-judge panel affirmed a lower court ruling enjoining the enforcement of a statute requiring mandatory disclosures to women contemplating an abortion. The South Dakota statute required, among other matters, that abortion providers advise women seeking an abortion that the procedure “will terminate the life of a whole, separate, unique, living human being.” As Circuit Judge Diana Murphy summarized for the panel majority: “Governmentally compelled expression is particularly problematic when a speaker is required by the state to impart a political or ideological message contrary to the individual's own views.”

With the grant of review by the full Circuit Court, today, the panel's earlier decision is vacated and the matter is set for another round of argument on April 11, 2007.

The Opening Gambits

Among the perks inuring to a legislative majority is the privilege of ordering the introductions of bills to the Chamber. These opportunities are often used by the party in power for broader agenda-setting and tone-setting purposes. For that reason, it is always interesting to note the early introductions.

In the 85th Legislative Session, “House File 1” (accessible here) would create a Children’s Health Security account and expand health care coverage of children in Minnesota. “Senate File 1” (accessible here) would increase state aids to school districts and local governments, and provide property tax relief. (Compare with this item here.)

Also noteworthy, is that among the first bills introduced were three different measures to provide for continuing appropriations (and avoiding government shutdowns) from the House, and a fourth, distinct measure, from the Senate. (Those items are House Files 7, 42 and 66, and Senate File 11 respectively.)

Complete lists of the House and Senate first introductions are accessible here and here.

The Cost of Cloak and Dagger Research

Mindful of the battles that waged here in Minnesota in 2005, in order to set the price for copying state government documents (see here), it was interesting to learn that the Central Intelligence Agency, today, has proposed a similar (but not identical) approach.

So, if you want to know whether outgoing spy chief John Negroponte took his martinis shaken or stirred, while he was on government travel, the CIA will not charge you a red cent for this information – provided, of course, that the requested documents do not take more than 2 hours to find or number more than 100 sheets of paper.

The proposed rules setting prices for accessing all that is not secret at the CIA is accessible here.

WRTL Case and the January 19 Conference

On the heals of its victory before a special three-judge panel in December (see my earlier post here), Wisconsin Right to Life has petitioned the U.S. Supreme Court for expedited review of the Federal Elections Commission's appeal of that same ruling.

Central to WRTL's request for early briefing and consideration of the case (before the High Court concludes its current term on June 30), is that the Bi-Partisan Campaign Reform Act's “rolling blackouts” of “electioneering communications” will begin in Iowa on December 14, 2007 – 30 days before that state convenes its 2008 Presidential Caucuses. WRTL asserts that “it would be desirable to have [the Court's] decision this term, well before that electioneering communication period begins in 2007.”

An interesting feature of WRTL's motion, however, is the fact that it is not clear whether WRTL ever had any plans to run issue advertisements in Iowa during the 2008 caucuses, or even in Wisconsin's presidential contest. In Wisconsin, the “rolling blackout” would not touch down until a month after it hits Iowa – 30 days in advance of its February 19 primary. The benefit of an early decision, therefore, seems to be for other "regulated parties;" more so than WRTL.

U.S. Solicitor General Paul Clement seems to share that view. In papers filed earlier this week, he asserted, on behalf of the FEC, that the case could be timely briefed and argued this autumn, but that “both the Commission and regulated parties may benefit if the Court were to hear argument and decide this case during the current Term.”

Lastly, Lyle Denniston (reporter for the Baltimore Sun, Adjunct Professor of the Georgetown University Law Center and star-contributor to SCOTUSblog) reports that the attorneys in this case “were told that the case would be considered at the January 19 Conference of the Court;” a matter that would permit it to hear and decide the dispute before June 30.

Truthiness, the Seventh Circuit and Photo ID

Late-night comedian Stephen Colbert has coined and popularized the term “Truthiness” – the quality by which a matter certainly seems true, but which may or may not be buttressed by actual facts.

Reading the recently issued opinion of Crawford v. Marion County Election Board, which involved a challenge to an Indiana law that requires voters to proffer photo identification before casting a ballot at the polls, I was reminded again and again of Colbert and his satirical claims. The majority and dissenting opinions snap with very sharp language, and sweeping declarations as to the current electoral climate; all of which seem true enough, but which aren't tethered by actual citations to the underlying record. Consider, for example, the following two unadorned excerpts from the majority opinion by Circuit Judge Richard Posner, and then the last, by dissenting Circuit Judge Terence T. Evans:

Without requiring a photo ID, there is little if any chance of preventing this kind of [voter] fraud because busy poll workers are unlikely to scrutinize signatures carefully and argue with people who deny having forged someone else’s signature.

...

[The] absence of prosecutions [for voter fraud] is explained by the endemic underenforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator. He enters the polling place, gives a name that is not his own, votes, and leaves. If later it is discovered that the name he gave is that of a dead person, no one at the polling place will remember the face of the person who gave that name, and if someone did remember it, what would he do with the information? The impersonator and the person impersonated (if living) might show up at the polls at the same time and a confrontation might ensue that might lead to a citizen arrest or a call to the police who would arrive before the impersonator had fled, and arrest him.

...

Let’s not beat around the bush: The Indiana voter photo ID law is a not-too thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic. We should subject this law to strict scrutiny....

Truthiness or not, the complete opinion (which is accessible here) is a must-read for election lawyers of all stripes; and would be an interesting half-hour for many civic-minded others.

As Colbert himself would conclude: That's the WØRD.

Legislative Committees Announce Joint “Overview of Regulatory Functions"

The Senate Health and Human Services Budget Division, the Senate Health, Housing and Family Security Committee, and the House Health and Human Services Finance Division today announced a joint legislative hearing that will conduct an "overview of regulatory functions" at the Department of Human Services and the Minnesota Department of Health.

The announcement for the hearing, set for Wednesday, January 17, 2007, is accessible here.

The High Bar for Civil Rights Claimants

The bane of civil rights lawyers with claims against local officials, is the rule that a claim brought against a municipality under 42 U.S.C. § 1983 is sustainable only if a constitutional violation has been committed pursuant to “an official custom, policy, or practice of the city,” or is so pervasive among non-policymaking employees of the municipality so “as to constitute a custom or usage with the force of law.” That can be a high bar indeed.

We were reminded of the scale of the challenge for such claimants, yesterday, in an opinion issued by the U.S. Court of Appeals for the Eighth Circuit.

In Granda v. City of Saint Louis, Granda filed 1983 claims against a judge on the Municipal Court of St. Louis. The Judge had earlier ordered Granda's incarceration in a local correctional facility, after Granda's minor daughter failed to regularly attend school. Notwithstanding Granda's claim that the same Municipal Judge had ordered the jailing of 31 other parents, whose children had likewise violated the local Truancy Ordinance, the panel concluded that the errant decisions of a single judge were not the general policy of the City of Saint Louis, but rather matters to be corrected by other, higher state courts.

The full opinion is accessible here.

Chief Judge Easterbrook – Pointed and Purposeful

Last Thursday, the U.S. Court of Appeals for the Seventh Circuit issued two sharply-worded and interesting opinions; both authored by Chief Judge Frank H. Easterbrook. In each case, federal law was of no aid to the dismissed plaintiff-employees.

In the first opinion, Chief Judge Easterbrook turns away the appeal of a local administrative hearing officer, who attributed his firing to his supporting the losing candidate in a recent mayoral election. Unphased, Easterbrook and the other panel members ruled that the hearing officer's politics (or more broadly, his views on the sanctions that should follow the violation of local ordinances) were properly matters that the local appointing authorities could consider when deciding not to retain the hearing officer. As the Chief Judge summarized: “If the people are to choose policy at the polls, the representatives they elect must be able to make enough changes in the bureaucracy to put the winning side’s program into effect rather than be frustrated by a permanent officialdom with its own ideas about governance.”

The complete opinion is accessible here.

In the second opinion, Chief Judge Easterbrook levels a withering rebuke of the plaintiff-employee who sued her former employer under the federal False Claims Act following her discharge; but without a reasonable basis for believing that the former employer had been involved in criminal misconduct. One volley from the bench concludes: “[The employee] Lang may have been a thorn in management’s side, but the statute is not designed to protect pests, who are more trouble than they are worth. The statute protects genuine private attorneys general from the sort of employers who do not take kindly to having their crimes nosed out.”

The complete opinion is accessible here.

Happy, Happy New Year

From the tropical climes of the Third Circuit, and the Within the Scope villa on Saint Johns Virgin Islands, please accept my warmest wishes for a happy and healthy 2007.

Your readership has made this foray into the case law fun, thought-provoking and very worthwhile.