The Indiana Photo ID Case: Would that be 6 to 3 or 3 to 6?

As you have no doubt already heard, the U.S. Supreme Court, by a vote of 6 to 3, upheld an Indiana law that requires presentment of a government-issued photo identification for in-person voting. Six Justices agreed with Indiana that even if there was evidence that the regulation impacted some voters more than others, the photo-ID requirement did not amount “invidious discrimination.”

For me, the most interesting feature of the opinion was not what the Justices said about the Indiana law (although that was interesting), but rather how the Justices broke into clusters along two different standards of review.

In the lead opinion, Chief Justice Roberts, Justice Stevens and Justice Kennedy asserted that “[r]ather than applying any ‘litmus test’ that would neatly separate valid from invalid restrictions, we concluded that a court must identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the ‘hard judgment’ that our adversary system demands.” In the view of these Justices, the balancing of various burdens and benefits associated with the law lay in favor of the photo-ID requirement.

Concurring in the judgment, Justice Scalia, Justice Thomas and Justice Alito, asserted that challenges to laws which regulate the right to vote were to be divided along two tracks, each with a different standard of review. On the first track there was a “deferential ‘important regulatory interests’ standard for nonsevere, nondiscriminatory restrictions;” and a second track for more serious cases, thereby “reserving strict scrutiny for laws that severely restrict the right to vote.” As the concurring Justices argue, this two-track approach is warranted because a “case-by-case approach naturally encourages constant litigation;” and it is “for state legislatures to weigh the costs and benefits of possible changes to their election codes and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class.”

The three dissenters – Justice Souter, Justice Ginsburg and Justice Breyer – embrace the same balancing standard as the lead opinion, but their calibration of the record led them to view the impact of the photo-ID regulation very differently. Wrote Justice Souter: “I will readily stipulate that a State has an interest in responding to the risk (however small) of in-person voter impersonation…. But the ultimate valuation of the particular interest a State asserts has to take account of evidence against it as well as legislative judgments for it (certainly when the law is one of the most restrictive of its kind), and on this record it would be unreasonable to accord this assumed state interest more than very modest significance.”

These fault lines are important because they foretell how the Justices will approach, or at least try to approach, future cases. And there is good reason to believe that more of this type of litigation is in the offing. For example, Michael Waldman, Executive Director of New York University's Brennan Center for Justice, remarked today: "[W]e do expect that there will be a major push in state legislatures and Congress to pass very restrictive voter ID laws, this year or next.... We are working with advocates to make sure they have our research on the impact of ID proposals."

Similarly, in a statement sent to legal bloggers this afternoon, Brenda Wright, Legal Director of the voting rights center Demos, stated: "Although the Court's decision has rejected one constitutional challenge to Indiana's law, the decision does not establish that restrictive photo ID requirements such as Indiana's are good policy. In fact, the plurality decision recognizes that Indiana's law may be subject to future challenges by specific persons who are unable to surmount the obstacles to securing the required ID documentation."

So, be sure to stay tuned to Within the Scope. You would not want to miss a thing.

In the meanwhile, the Court’s very interesting opinion is accessible here.

Further Previews of "Making Your Case"

For those who were intrigued by their appearence on 60 Minutes last evening, the May 2008 issue of the ABA Journal includes excerpts of the just-released book from Associate Justice of the U.S. Supreme Court Antonin Scalia and the Editor-in-Chief of Black's Law Dictionary, Bryan A. Garner.

The book, Making Your Case: The Art of Persuading Judges, is no doubt on its way to being an important resource for advocates of all stripes. As the ABA Journal reveals, the book makes important calls for increasing clarity, focus and discipline among advocates.

The 60 Minutes interview is accessible here and the ABA Journal excerpts are accessible here.

How to Clean Out the Shed

This Thursday, of course, is May 1st.

While in many parts of the country this date is denominated as “Law Day,” in Minnesota it is perhaps better known as the last day of winter….

So, today, I conflated my celebrations for each occasion by withdrawing our picnic table and Adirondack chairs from the garden shed, packing in the snow-blower, sled and hockey sticks in their place, all while listening to some tremendous podcasts. Among the items that had me thinking about the law during my labors were:

n Professor Pam Karlan’s delivery of Duke Law School’s Brainerd Currie Lecture. Professor Karlan’s talk – “What can Brown do for you?” – details how the landmark case of Brown v. Board of Education lies at the heart of the contemporary struggles over the Equal Protection Clause. Professor Karlan traces the history of Brown and how lawyers on each side of present-day affirmative action debates lay claim to its holding and reasoning. This very compelling audio segment is accessible here.

n A set of podcasts from the Federalist Society’s 2008 Annual Student Symposium - “The People and the Courts.” This year’s symposium was held at the University of Michigan Law School, and included an unbelievably interesting set of seminars on originalism, popular responses to unpopular court decisions and direct elections as a method of judicial selection. The complete set of audio segments is accessible here.

The audio was so good, that I hardly minded the heavy-lifting at all....

What Did He Know, When Did He Know It, and Frankly, How Can One Tell?

On Tuesday, a divided panel of the Minnesota Court of Appeals issued a decision that has had me ruminating throughout the week.

At issue in the case are the circumstances under which a Minnesota offender, who later relocates to another state, may be prosecuted for failing to update his Predatory Offender Registration. State and county officials sought to prosecute Damon Moore, a Level III offender, for failing to update his registration information following a move that he made from Illinois to Missouri.

Agents of the Bureau of Criminal Apprehension track Minnesota offenders for the length of their registration periods, regardless of where those offenders later reside. As the appellate panel describes, the tracking of offenders who are now in other states “facilitates other Minnesota purposes, such as notification of essential persons of where predators are, where they are not, and where they are likely to be.”

Following his extradition from Missouri back to Minnesota, Mr. Moore was charged with two failure-to-register crimes. The state sought to punish Moore for failing to renew his registration and failing to alert the BCA that he was moving from Illinois to Missouri. Moore’s defense was both that he did not knowingly fail to update his registration information – because he was not aware that the renewal mailings were sent to his Chicago address – and that Minnesota did not have the power to punish misconduct that happened entirely within the state of Illinois. The District Court disagreed and adjudged him guilty on each count.

A divided panel affirmed the trial court’s judgment in-part and reversed-in-part. The majority of the panel concluded that there was a sufficient nexus with the earlier sexual misconduct (that occurred in Minnesota) for state officials to prosecute Moore for a later failure to register. Perhaps more thought-provoking still, all three judges agreed that the serial mailings to Moore in Chicago (and his acknowledgement upon release from prison of an obligation to update his registration), were not enough to establish knowing violations of the registration law. As Judge Ross summarized: “Because the state did not prove that Moore received the address-verification forms, we reverse the district court‘s determination that Moore is guilty of failing to return them.”

This latter holding had me wondering whether personal service on in-state and out-of-state offenders will be required in order to establish that these offenders failed-to-register?

Likewise, if it becomes more difficult to track offenders who move to other states, do the political and policy incentives change, such that Minnesota officials will be less likely to approve requests for out-of-state transfers from these offenders? Will Minnesota now prefer to “hold on” to these offenders, and supervise them within the state, or see them gone – hoping that they will not return undetected?

The appellate panel’s complete, but unpublished analysis, is accessible here.

Not Just Twirling in the Wind: Turbine Decision is a Useful Tale for Litigators

In an interesting opinion issued yesterday, a panel of the U.S. Court of Appeal for the District of Columbia Circuit sustained the challenge of Clark County, Nevada to a series of Federal Aviation Administration orders.

County officials challenged the agency’s determinations that a plan to place 83 wind turbines atop Table Mountain would not interfere with the county’s parallel development of an airport, in the valley below, some ten miles away. The County argued that the proposed wind turbines would be placed within a federally-established development-free slope that extended from the end of its runway, and that to the extent that operating wind turbines mimicked the appearance of “a fleet of jumbo jets” to airport radar, placement of the turbines presented a genuine hazard.

The appellate panel agreed on both scores, concluding that the FAA’s contrary determinations were not sufficiently grounded in the underlying record.

To my mind, the panel’s decision is worth a review by practitioners of all stripes for it what it instructs about sharp (or thin) litigation positions. For example, regarding the ripeness of the County’s challenge, the panel ribbed agency counsel for what it termed a “now-is-too-early, later-is-too-late argument” as to when a challenge of the agency’s decisions would be timely. Similarly, the panel gave a chilly reception to arguments supporting the FAA’s decision that were first advanced after the County filed suit.

These cautionary tales, and the panel’s complete analysis, is accessible here.

Minnesota Supreme Court Grants Review of “Filed Rate” Case

The Minnesota Supreme Court today granted further review of a January decision of the Minnesota Court of Appeals on the reach of the "filed-rate doctrine." Earlier this year, a panel of the Minnesota Court of Appeals held that the doctrine barred court actions against electric utilities which challenge the adequacy of services provided, at certain approved rates, under tariffs that had been earlier-approved by the Minnesota Public Utilities Commission.

A post that I made about the decision from January is accessible here and a copy of that decision is accessible here.

The Registry Door Swings Both Ways

In a testament to the fact that Minnesota’s Predatory Offender Registration law is a flexible “regulatory” statute, on Tuesday, a panel of the state’s Court of Appeals held that later-enacted amendments which narrowed the reach of the statute could be applied retroactively to relieve an offender of the requirements to register as a predatory offender.

The case arose out of the burglary conviction of one Rodney Jedlicka, who stole money from a purse while inside an occupied home – a home that Jedlicka had originally entered to “get a better view of its occupant sunbathing on the porch.”

Concluding that this crime was “part of a predatory pattern of behavior that had criminal sexual conduct as its goal,” the District Court required Jedlicka to register as a predatory offender following his release from prison. Later, in 2005, the Legislature amended the registration statute so as to link the registration requirement to certain specified crimes – not including burglary – arguably making the statute more permissive in cases like that of Mr. Jedlicka.

Summarized Judge Klaphake for the panel:

Because case law has approved retroactive application of amendments to this statute in other contexts, we are persuaded that the determination of those who are required to register should be defined by the 2005 amendment rather than by the earlier statutory language. This application of section 243.166 allows the legislature to enlarge or reduce the group of offender registrants as necessary to effectuate the purpose of the statute, 'to create an offender registry to assist in law enforcement investigations.' We therefore conclude that Minn. Stat. § 243.166 (2006) applies retroactively to relieve appellant from the obligation to register as a predatory offender.

The panel’s complete analysis – including a noteworthy discussion on the timeliness of post-conviction petitions for relief – is accessible here.

Federalism and the Canada Lynx: Traps for the Unwary?

In an interesting opinion issued late last month, the U.S. District Court for the District of Minnesota entered an injunction against the Minnesota Department of Natural Resources. The injunction directed the Department to apply for certain permits under the Endangered Species Act and to provide a “proposal, to be submitted to the Court on or before April 30, 2008, to restrict, modify or eliminate the use the incidental taking of Canada Lynx through trapping activities in the core Canada Lynx ranges.”

The case arises out of a request for injunctive relief filed by the Animal Protection Institute and the Center for Biological Diversity, on claims that the Department of Natural Resources was violating the Endangered Species Act. The groups asserted that by authorizing trapping activities which, in some cases, later resulted in the capture – or “taking” – of Canada Lynx, the DNR violated federal law. The Canada Lynx is designated as a threatened species under the Act.

In order for state officials to avoid liability for incidental takings of the Lynx, in the course of trapping activities that it licenses Minnesota trappers to take, state officials must hold a federally-issued Incidental Take Permit. The Department did not hold such a permit.

What makes Judge Davis’ order especially noteworthy is that beyond the directive for Minnesota officials to obtain the required permit, the Court directs the agency to prepare and submit a plan of regulatory improvements for the Court’s review. Noting that additional state regulations are needed, Judge Davis wrote:

[D]espite the DNR’s regulations and the setting of trapping seasons, a risk exists that a taking of lynx will occur even when traps are set pursuant to existing regulations. The DNR also argues that Plaintiffs have put forth no evidence demonstrating that a lynx taking occurred when the trapper was following the relevant state and federal laws and regulations. This argument is misleading, however, as the DNR has not issued regulations to assist in the avoidance of lynx takings. Rather, the DNR has simply issued recommendations. As Plaintiffs point out, the fact that a trapper may not have followed the discretionary, unenforceable recommendations that are included in the DNR handbook should not exempt the DNR from liability. Trappers are not even required to read the DNR handbook on hunting and trapping.
….

Given the fact that 13 takings have been reported since 2002, and that the DNR has not taken substantial steps to further protect lynx from takings, the Court finds it likely that additional takings may occur unless further regulations are implemented.

The Court’s complete analysis is accessible here.

Way Cool Audio - Part One: Be Not Afraid

I had the occasion to do a little state travel earlier this week. I took with me some podcasts from the American Radioworks series on Great Speeches by African-Americans. Included in the collection are speeches by Reverend Dr. Martin Luther King, Jr. and Associate Justice Clarence Thomas.

Interestingly, the two items were linked in a way that the producers could not have imagined. The feature on Dr. King’s last year of life closes with Reverend Ralph Abernathy's description of how he held King, as the slain civil rights leader lay dying, repeating to him: "Be not afraid, Martin. Be not afraid…."

Remarkably, the title and theme of Justice Thomas' 2001 address to the American Enterprise Institute, a program that is likewise featured in the series, is "Be not afraid." In his remarks, Justice Thomas touches upon how personal and professional courage relates to judging and maintenance of the rule of law.

The feature on Dr. King is accessible from iTunes here, whereas Justice Thomas' remarks are accessible here.

Way Cool Audio - Part Two: The Law and Health, Work, Secrets and Death

As noted in the post above, I have been listening to some thought-provoking podcasts this past week. Below, are some selections that I thought might be of interest to the readers of these pages:

n Denis Cortese, M.D., President and Chief Executive Officer of the Mayo Clinic, made remarks to the National Press Club earlier this month. In his address, Dr. Cortese discusses the policy changes that are needed to create a patient-centered health care system in the United States. His address is accessible through iTunes at this link here.

n On April 4, 2008, the Labor and Employment Law Practice Group of the Federalist Society hosted a panel discussion on the leading labor and employment cases before the U.S. Supreme Court this Term and what they could mean for the direction of the law. The panel discussion is accessible here.

n On the same day, the American Constitution Society hosted a panel discussion on the proper scope of the “state secrets privilege” and recent proposals in Congress to statutorily define this privilege. The panel’s very interesting and vibrant exchange is accessible here.

n On April 7, 2008, the Honorable Danny J. Boggs, Chief Judge of the U.S. Court of Appeals for the Sixth Circuit, delivered remarks in the “Bradley Lecture Series” of the American Enterprise Institute. In an address entitled “Is Death Really Different,” the Chief Judge delivered a very compelling address on the application of the death penalty by American courts. Judge Boggs’ remarks are accessible here.

He’s a Real Nowhere Man

In an interesting unpublished opinion issued on Tuesday of this week, a unanimous panel of the Minnesota Court of Appeals reversed a lower court’s dismissal of the habeas petition of one Jeffrey Alan Truelson and remanded his case for further proceedings.

Truelson, a Level III sex offender, had been detained in state prison during his supervised release period because serial attempts to find appropriate housing for him in the community had failed.

While current regulations provide for the detention of offenders who fail to “cooperate” with official efforts to develop a housing plan (see here), the cases of offenders who are cooperative, but high-risk and without other apparent supports in the community, are more problematic.

Of particular concern to the appellate panel was the absence of a record “that the department of corrections has considered whether Truelson should be placed in a residential treatment facility rather than continue with the so-far futile efforts to find housing for a level III sex offender in the Meeker County area.”

The panel’s analysis of these difficult problems is accessible here.

The Changes in Contract Rights that Trigger a Hearing

Likewise among the unpublished opinions issued on Tuesday, a panel of the Minnesota Court of Appeals held that a local housing authority was not required to hold a hearing if the agency decided not to use the services of a particular housing vendor in the future.

Alleging that the vendor was in fact in living in an apartment being subsidized in favor of his paramour, in violation of the program rules, the agency cancelled the vendor’s Section 8 contracts and sought to set-off the amount of the improperly granted subsidies against payments that were due under four other housing program contracts.

As the panel reasoned, the contract termination did not oblige a separate pre-termination hearing because the vendor’s rights “are no different than those arising when a buyer terminates a practice of purchasing goods or services from a particular vendor.” (The vendor did, however, have a hearing on the agency’s set-off claims.)

The panel’s complete analysis is accessible here.

Blowing Through the Backlog

Showing the strength of the Minnesota Court of Appeals' compliment of new Judges, as well the vigor of some very able retired judges sitting now by designation, the Court today issued six published opinions, thirty-seven unpublished opinions and three order opinions.

Among the cache of today's unpublished opinions, are a few items that will be of interest to readers of these pages – and will be summarized in due course. Please stay tuned.

Eighth Circuit: Ordinarily, State Highway Means State Regulatory Controls

In an interesting opinion issued on Friday, a panel of the U.S. Court of Appeals for the Eighth Circuit held that the Tribal Court of the Red Lake Band of Chippewa Indians "lacked jurisdiction over a suit against a non-Indian, nonmember of the Tribe arising from an automobile accident on a state highway within the reservation."

The case arose out of a December 2000 automobile accident between Chad Nord, a non-Indian, and Donald Kelly, a member of the Red Lake Band. The accident occurred on a stretch of Minnesota Highways 1 and 89, located within the boundaries of the Red Lake Indian Reservation.

Filing a suit in Tribal Court, Kelly sought damages from Nord, Nord's father and the family business that owned the truck. The Nords, sought to dismiss the suit for lack of jurisdiction, and filed a parallel declaratory judgment action in federal court requesting a declaration to the same effect.

Both the Tribal Court and the Red Lake Court of Appeals determined that there was jurisdiction over the Nords and the personal injury suit; while the U.S. District Court for the District of Minnesota expressed a contrary view. Affirming the District Court's grant of summary judgment in favor of the Nords, the appellate panel observed:

[W]e cannot agree with the assertion that … the Band's ability to regulate and to exercise adjudicatory authority over nonmembers on the highway is important to its tribal sovereignty. The Band exercised its sovereignty by consenting to a right-of-way that permitted the State to construct and maintain a public highway on its reservation, without specifically reserving any regulatory or adjudicatory authority over nonmembers using the highway. Again, as long as the highway remains part of the State's highway system, the Red Lake Band has lost its "right of absolute and exclusive use and occupation, [which] implies the loss of regulatory jurisdiction over the use of the land by others."

The panel's complete analysis is accessible here.

We Were On a Break….

Mindful that I have not posted case summaries here in nearly two weeks, I was reminded of one of the most divisive controversies of our age – specifically, whether Ross and Rachel were completely broken up during Season 3 of Friends or merely “on a break….”

I have always maintained that the couple was on a break … And that is what I have to say about my lack of recent reporting here. My blog and I were taking some time apart.

But, WTS readers, I won’t lie to you: You should know that I have been spending some time with other periodicals. I wrote a 900-word piece on rulemaking deadlines that will appear in the MSBA’s Public Law Section Newsletter next month; and a 700-word essay on President Lincoln that will be published in a forthcoming issue of the American Experiment Quarterly.

When it comes to writing, I am just not sure that I am ready to be exclusive.

I hope you understand.