Prevailing Parties

In the current issue of The Weekly Standard magazine, Publisher Terry Eastland argues that depending upon which political party is successful in electing the next President of the United States, the “partisan balance” of the appointments on 8 of the 13 federal circuits of appeal will tip in favor of that party. Specifically, Eastland predicts a change in the balance of appointments that were made by either a Democratic or Republican President to move in favor of the party that prevails in 2008, in the First, Second, Fourth, Sixth, Ninth, Tenth, Eleventh and District of Columbia Circuits.

Concludes Eastland, particularly in an age where the Supreme Court is taking 85 cases each term, the opportunity to effect the balance of appointments on the Circuit Courts of Appeal and federal district courts is “why the election matters.”

The complete editorial is accessible here.

Chosen People

Orthodox Jewish circles are delighting in the news that Associate Justice of the U.S. Supreme Court Antonin Scalia has not just hired one, but two Orthodox Jewish law clerks for the 2008 Term. Harvard Law School graduates Moshe Spinowitz and Yaakov Roth, both of whom are now law clerks for Circuit Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit, will make their way together to new offices on First Street, N.E. in Washington this summer.

Nathan Lewin, a Washington attorney and law school classmate of Justice Scalia, remarked to The Jewish Daily Forward that Scalia, impressed with Lewin’s observant practices during their years at Harvard, “commented at times on the fact that he thought that people who had a Talmudic training had a head start ….”

Mazel tov to Moshe and Yaakov – as a head start is certain to come in handy at the High Court.

Two Business-Related Ordinances Survive Challenges

In recent weeks, two decisions have been handed down – one from the U.S. District Court for the District of Minnesota and another by a panel of the Minnesota Court of Appeals – on the powers of cities to enact ordinances that burden local businesses.

In the federal case, U.S. District Court Judge Patrick J. Schiltz turned away a set of challenges by the former Chief Building Inspector of Monticello, Minnesota, Frederick Patch. Patch filed civil rights claims after the City Council enacted an Ordinance which prevented him (and other high-ranking City officials) from moon-lighting for other local units of government and performing "the same or substantially similar duties."

Addressing in turn Patch's equal protection, due process and impairment of contract claims, perhaps the most interesting discussion follows from Patch’s assertion that the anti-moonlighting ordinance amounted to a Bill of Attainder aimed at punishing him. Rejecting the claim, Judge Schiltz held that even if Patch's consulting agreements with other municipalities prompted the City Council's concerns, and inspired the more restrictive Ordinance, because the restriction was contemporaneous only with service in the senior echelons of City Government (and would not bind him if he left City Government) the Ordinance was not a "punishment" under the Bill of Attainder clause.

The Court's complete analysis is accessible here.

Likewise interesting, was the conclusion from a panel of the Minnesota Court of Appeals that the City of St. Paul's action doubling the fee on pawnshop transactions – from $1.50 to $3.00 per transaction – did not single out pawnshop owners for a special tax that underwrote the general duties of local government. While acknowledging that the increased fee might render small surpluses over the costs of administering local pawnshop regulations, the panel held that those "revenue yields" were not substantially beyond the costs incurred in regulating these businesses.

The panel's complete analysis in accessible here.

The Scarlet Console?

In an interesting opinion issued last week, a divided panel of the U.S. Court of Appeals for the Sixth Circuit turned away the challenge of a Tennessee sex offender who asserted that the requirement that he wear a Global Positioning Satellite monitoring device at all times during the period of his probation, was so punitive as to violate the Ex Post Facto clause of the U.S. Constitution. In his challenge, the offender alleged that "the GPS tracking device is not realistically concealable," and that, as a result of the technical limitations of the equipment, had "a marked effect on his lifestyle and freedom of movement and action."

As Circuit Judge Richard Allen Griffin wrote for the majority:

The dissent characterizes the wearing of the GPS monitoring system as ‘a catalyst for public ridicule’ akin to traditional forms of community shaming or humiliation. We disagree. The device that Doe must wear is relatively unobtrusive, measuring only 6 inches by 3.25 inches by 1.75 inches and weighing less than a pound. In its size, shape, and placement (hooked to a belt), it appears very similar to a walkie-talkie or other nondescript electronic device. Furthermore, we have every reason to believe that the dimensions of the system, while not presently conspicuous, will only become smaller and less cumbersome as technology progresses. We similarly cannot agree that the device’s appearance would suggest to the casual observer that the wearer is a criminal, let alone a sex offender. The monitoring system could easily be viewed as a two-way communication device, a personal organizer, a medical apparatus, or as a monitoring system for employees entrusted with company property, such as delivery drivers or couriers. However, even assuming the public would recognize the device as a criminal monitor, there is no evidence to suggest an observer would understand the wearer to be a sex offender. These devices can be utilized in a variety of contexts, such as pretrial monitoring and work release, and are, in fact, advertised for use in such situations. Indeed, the dissent can only point to a single incident wherein a member of the public recognized the device as a monitor, and, even then, there was no evidence to suggest that the observer knew the device to be one that monitored sex offenders, as opposed to criminals generally.

The panel's complete analysis, and the dissent filed by Circuit Judge Keith, is accessible here.

"Flying Imams" Case Proceeds to Discovery, Perhaps Trial

On Tuesday of this week, U.S. District Court Judge Ann D. Montgomery issued a decision denying in part motions for dismissal and summary judgment in the case of six Muslim Imams who were removed from a U.S. Airways flight in November of 2006. The Imams, who had traveled to Minneapolis for the 2006 North American Conference of Imams, were arrested after fellow passengers complained of "suspicious activities" by the men in the waiting area and aboard the aircraft.

The Court's assessment of the Imam's federal and state law claims is interesting in several respects – not the least of which because when the pleadings are cast in the light most favorable to the Imams, the posture of the case differs markedly from accounts that have earlier appeared in the media.

Also of note, is the Court’s admonition on the familiar practice of “incorporating” earlier pled allegations by reference into other, later claims (or “counts”) of the Complaint. Stating her refusal to "sift through 156 paragraphs of allegations to determine if Plaintiffs are asserting a false arrest claim" against the Metropolitan Airports Commission, Judge Montgomery declared that "[i]f Plaintiffs intend to assert a false arrest claim against MAC, then they should clearly so state."

The Court's complete analysis is accessible here.

Georgia Court Holds That Residency Restrictions Took Offender's Home

In a decion handed down today, the Georgia Supreme Court held in favor of a Clayton County man who challenged that state’s residency restrictions for sex offenders. Georgia law forbids registered sex offenders from residing with 1,000 feet of certain facilities – among them day care facilities.

During 2003 and 2004, Anthony Mann, a registered sex offender, purchased a home and entered into a lease for commercial property that were both more than 1,000 feet from the facilities referenced in the Georgia law. Later, however, when child care facilities were established within 1,000 feet of each property, Mann’s probation officer “demanded that appellant quit the premises of his business and remove himself from his home upon penalty of arrest and revocation of probation.” Mann filed suit, challenging the residency restrictions as affecting an unconstitutional taking of private property without just compensation.

Agreeing in part, the Supreme Court of Georgia held that Mann was entitled to declaratory relief with respect to the prohibitions on him living in the earlier-acquired home. As the Court noted, “[l]ooking to the magnitude and character of the burden OCGA § 42-1-15 imposes on the property rights of registered sex offenders and how that burden is distributed among property owners … we conclude that, under the circumstances present here, justice requires that the burden of safeguarding minors from encounters with registered sexual offenders must be ‘spread among taxpayers through the payment of compensation.' We therefore find that OCGA § 42-1-15 (a) is unconstitutional because it permits the regulatory taking of appellant's property without just and adequate compensation.”

The Court’s complete analysis is accessible here.

Senator Kennedy, RPM v. White and the Confirmation Process

Yesterday, I posted excerpts from a speech in which President Bush detailed his views on separation of powers. Today, I am likewise glad to share with you slices of an essay by Senator Edward M. Kennedy (D-Massachusetts) – slated for publication in a forthcoming issue of The American Prospect magazine.

Pointing to Minnesota's litigation involving Canon 5 of the Judicial Code, Senator Kennedy argues that nominees for federal judgeships should be required to answer forthrightly as to their views about key cases decided by the Court (including Roe v. Wade) and the legal positions that the nominees earlier urged on behalf of clients. Argues Senator Kennedy, in part:

I believe it is a defect in our judicial confirmation system that nominees can be confirmed to the Court without ever telling Americans what they think about the most pressing legal issues of our time. By this standard, the Roberts and Alito confirmation hearings were a failure…. On several critical issues, they refused to answer except in the most general terms, stating that it would be improper for them to discuss issues that might come before them when on the bench.

...

Legal scholars increasingly agree that judicial nominees can be candid about their views on many issues without doing damage to the judicial system or the rights of future litigants....

As former Chief Justice William Rehnquist once wrote, "It would be not merely unusual, but extraordinary, if [Supreme Court nominees] had not at least given opinions as to constitutional issues in their previous legal careers. Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." In fact, a recent decision by Scalia, in Republican Party of Minnesota v. White, affirmed that judges who run for office are free to announce their views on controversial legal and political issues, without prejudicing their role in deciding those issues from the bench. We know from their past decisions how all of the current justices interpret Roe v. Wade, yet they are not precluded from sitting on future cases involving abortion. Why shouldn't we also learn how Supreme Court nominees view that decision and other important cases?...

To protect the independence and autonomy of the courts, questions addressed to specific pending or future cases should be avoided. But there is no good reason for nominees to refuse to state how they would have voted in cases the Supreme Court has already decided. The facts, briefs, and oral arguments from those cases are all a matter of public record. Questions about decided cases should be at the heart of confirmation hearings, because they provide the most concrete information available about what kind of justice the nominee will be. Judges decide real cases. To be able to evaluate nominees in a meaningful way, the Senate and the public need to know how a nominee is likely to decide them.

The complete text of the Senator’s essay is accessible here.

Court of Appeals: Review of Ordinances and Technical Assistance ≠ Promulgating Standards

In an interesting unpublished opinion issued yesterday, a panel of the Minnesota Court of Appeals considered whether certain oversight and consulting duties by the Department of Natural Resources amounted to that agency’s "promulgation" of environmental standards – as those terms are used in the Minnesota Environmental Rights Act. A local advocacy group, Friends of the Riverfront, sought to prevent the construction of an athletic facility by the DeLaSalle High School on Nicollet Island in Minneapolis, arguing that the proposed project violated important state environmental standards for the Mississippi River corridor.

Disagreeing, the panel noted:

In support of their argument, relators submitted information from the DNR’s website which describes the DNR’s roles regarding the [Mississippi River Critical Area Corridor], including: (1) review of existing ordinances for compliance with state critical area standards and guidelines; (2) technical assistance for ordinance development and amending existing ordinances that will be consistent with the voluntary [Minnesota National River and Recreation Area Comprehensive Management Policies]; and (3) review of plans and ordinances to ensure consistency with provisions of Executive Order 79-19. Based on this record, we cannot conclude that the DNR has promulgated standards by undertaking these responsibilities, and hold that the section 116B.04 limitation on the no-feasible-and-prudent-alternative defense does not apply in this case.

The panel’s complete analysis is accessible here.

Memo from the Appointing Authority: “Judicial Lawlessness Needs to Stop.”

Delivering the keynote address at a gala last Thursday commemorating the Federalist Society’s 25th Anniversary, President George W. Bush outlined both “a judicial philosophy that is based upon what our Founders intended” and a sharp critique of those who regard the U.S. Constitution as a “living document.” The President observed in part:

When the Founders drafted the Constitution, they had a clear understanding of tyranny. They also had a clear idea about how to prevent it from ever taking root in America. Their solution was to separate the government's powers into three co-equal branches: the executive, the legislature, and the judiciary. Each of these branches plays a vital role in our free society. Each serves as a check on the others. And to preserve our liberty, each must meet its responsibilities – and resist the temptation to encroach on the powers the Constitution accords to others.

For the judiciary, resisting this temptation is particularly important, because it's the only branch that is unelected and whose officers serve for life. Unfortunately, some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy – and it needs to stop.
….

The President's oath of office commits him to do his best to "preserve, protect, and defend the Constitution of the United States." I take these words seriously. I believe these words mean what they say. And I ask my nominees to the federal bench to take seriously their own oath to uphold the Constitution – and that is because I strongly believe our freedom depends on the willingness of judges to be bound by the Constitution and the law.

Others take a different view. Advocates of a more active role for judges sometimes talk of a "living Constitution." In practice, a living Constitution means whatever these activists want it to mean. They forgot that our Constitution lives because we respect it enough to adhere to its words. Ours is the oldest written Constitution in the world. It is the foundation of America's experiment in self-government. And it will continue to live only so long as we continue to recognize its wisdom and division of authority.

The complete text of the President’s remarks is accessible here.

Now Hiring for the Best Job in State Government

Do you know someone who would make a good Judge?

Yesterday, the Office of Administrative Hearings announced that it is considering applications from learned members of the Bar who would like to be appointed as an Administrative Law Judge – either as a full-time judge in the classified service, or as a part-time contract ALJ.

The details as to the application process for both sets of vacancies are accessible here. The closing date on both sets of vacancies is December 14, 2007.

And, you can take it from me: Being an Administrative Law Judge is the best assignment in state government.

A Podcast to Pass the Time

Please forgive the shortfall of posts recently. The pace has picked up at the office in recent weeks, and tonight Mrs. Within the Scope has asked me to do an in camera review of the RICO case against one Anthony Soprano (see here).

So, until I can post summaries of recently-issued cases, and there have been a few noteworthy items during the past few days, I thought that I would leave you with a link to a really interesting podcast.

Two Fridays ago, Cindy Cohn, Legal Director of the Electronic Frontier Foundation, gave the keynote address at a University of Chicago Legal Forum "Law in the Networked World." Cohn's address covers a dazzling array of interesting topics including: internet privacy; the winnowing protections for anonymous speech on the internet; citizen challenges to federal wiretap surveillance programs; the state secrets privilege; and the pricing of on-line content -- just to name a few.

It is a fast-paced and lively talk; and like all great roller-coaster rides is over much too quickly.

The audio is accessible from the University of Chicago Law School Faculty Blog, here.

Federal Agencies are Urged to Negotiate on Rules, But Not Necessarily Agree

In an interesting rulemaking decision issued yesterday, the U.S. Court of Appeals for the District of Columbia Circuit turned away the joint challenge of the cities of Portland and New York to a set of federal water quality rules issued by the Environmental Protection Agency.

Among the claims made by the cities was that the rules adopted after a negotiated rulemaking with affected stakeholders (under the Negotiated Rulemaking Act), was not a “logical outgrowth” of the topics referenced in the agency’s earlier notice of proposed rulemaking – principally because the promulgated rules departed from the recommendations that were submitted by a group of stakeholders during the negotiation process.

Denying the challenge, the appellate panel held that not only was the potential for such regulatory departures fully and completely noticed to interested parties, if the agencies were bound to strictly follow stakeholder recommendations in a negotiated rulemaking, it would make such this process less desirable than ordinary rulemaking; a result that was “exactly the opposite of what Congress intended.”

The panel’s complete analysis is accessible here.

The Bussman’s Holiday

This weekend I have been reading and re-reading the plurality, concurring and dissenting opinions in State v. Bussman, which the Minnesota Supreme Court handed down on Thursday.

Among the issues in the case was whether Minnesota’s clergy criminal sexual conduct statute – which criminalizes certain types of meretricious conduct between members of the clergy and their parishioners – unnecessarily entangles state government in the affairs of religious sects, and thereby violates the Establishment Clause.

While the Court was equally divided on the question of whether the statute was facially unconstitutional, in splintering the individual Justices reveal how they approach questions of facial invalidity, as-applied challenges, the separation of powers and the review of lower court decisions, very differently. I read the opinion several times over the course of three days, and in each reading, more gradations and divides were revealed.

Court watchers from a wide range of practice areas will find this opinion of interest, and it is accessible here.

Weekend Audio

A tremendous lineup of lectures has been posted to internet this week. Among the most interesting selections for your mp3 player are:

n “A Debate Concerning the Constitutionality and Policy Implications of the NSA Terrorist Surveillance Program and Related War on Terror Topics” between former Congressman, the Honorable Bob Barr, and Professor John Yoo, of the Boalt Hall School of Law. The event audio, sponsored by the Boston Lawyers Chapter of the Federalist Society, is accessible here.

n A debate on the Women's Equality Amendment between Michelle Bernard, President of the Independent Women's Forum, and Eleanor Smeal, President of the Feminist Majority Foundation. An audio file and written transcripts for this segment, which originally aired in May of this year as part of National Public Radio’s Justice Talking series, is accessible here.

n Double Feature: Two Great Podcasts from the University of Chicago Law School! Professor Cass Sunstein’s lecture entitled The Second Amendment: The Constitution's Most Mysterious Right, and an address from Cindy Kohn, Legal Director of the Electronic Frontier Foundation, entitled Law in a Networked World - It's the Intermediaries, Stupid; both which are accessible here.

My 15 Minutes of Fame ... Spent on Judicial Selection and Retention

Well, it is official: I've really arrived, now....

This month's issue of The Hennepin Lawyer includes an article of mine, alongside an all-star lineup from the bench and the local bar, on judicial selection and retention in Minnesota.

My article, urging a greater role by the Minnesota Legislature in judicial selection and retention, is accessible here.

The other articles in the series – including essays from Judge John T. Finley, Wil Fluegel, Thomas D. Jensen and Robin M. Wolpert – are all accessible here.

As always, I would be glad to hear from readers about these articles, and which, if any, of the presentations were persuasive.