Hodel v Irving
Tract 1305 is 40 acres and produces $1080 in income annually. It is valued at $8000. It has 439 owners, one third of whom receive less than $.05 in annual rent and two-thirds of whom receive less than $1. The largest interest holder receives $82.85 annually. The common denominator used to compute fractional interests in the property is 3,394,923,840,000. The smallest heir receives $.01 every 177 years. If he tract were sold (assuming the 439 owners could agree) for it’s estimated $8000 value, he would be entitled to $.000418. The administrative costs of handling this tract are estimated by the Bureau of Indian Affairs at $17,560 annually.
The US government, hosing the Native Americans, yet again. This ridiculous land ownership structure came about because of controls the feds imposed on Indian land inheritance; it persists because the Supreme Court said, when Congress tried to change things, that it couldn’t require that ownership of the $.000418 parcel lapse when the current owner died … that would be confiscation of property for a public purpose without just compensation.
*sigh*
Dozens of blacks, many unarmed, were slaughtered by a rival band of armed white men. Cruikshank himself allegedly marched unarmedAfrican-American prisoners through the streets and then had them summarily executed. Ninety-seven men wereindicted for participating in the massacre, but only ninewent to trial. Six of the nine were acquitted of all charges;the remaining three were acquitted of murder but con-victed under the Enforcement Act of 1870, 16 Stat. 140, for banding and conspiring together to deprive their victims of various constitutional rights, including the right to bear arms.
The Court reversed all of the convictions.
I didn’t know the background to this case, never having read it and not being all that interested in the law of gun control, it’s most salient modern feature. If Justice Alito is right in his description of the backstory, the outcome was a travesty of justice which deserves to be as infamous as Plessy.
The State of Washington has a series of process rules which, when taken together, courts have interpreted to require that the identity of citizens who sign referendum petitions (that is, petitions that have the legal effect of causing a law already passed by the legislature to be suspended and sent to the voters for approval) be published as public information. The proponents of a referendum to overturn the state’s domestic partnership law objected to this, claiming that such a requirement interfered with their right to freedom of speech (by publishing their names, it subjected them to the risk of retaliatory harassment, thereby placing a burden on the exercise of their right to free speech).
They lost at the Supreme Court this morning, but they lost in a way which means they may yet win.
——————–
First amendment challenges, like many constitutional challenges, can be brought using two different kinds of argument: (1) a facial challenge that alleges that the law is always unconstitutional under any circumstances, or that the circumstances under which it is constitutional are so small in comparison with the circumstances in which they aren’t that they it’s equivalent to never, or (2) a challenge which says that, in the particular situation presented by the facts of the case, the way the law is being applied is unconstitutional. Generally speaking, as-applied challenges are more likely to succeed, but sometimes facial challenges do as well (the communications decency act was struck down on a facial challenge, for example).
The opponents of SR71 (that is, the people who wanted to hold a referendum and who then cmapaigned against it) have brought both kinds of challenge. Their facial challenge is what made it to the Supreme Court today; their as-applied challenge remains at the district court, and the fact that they lost the facial challenge does not mean that they will lose their as-applied challenge.
———————
Washington law does not explicitly require referendum petition signatures per se to be public, but it requires that all “public records” be available for inspection and copying, and defines that to include “any writing containing information relating to the conduct of government or he performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency”; that clearly covers referendum signatures (and appears to be intended to be so broad as to cover virtually everything imagineable). The Supreme Court states as a basic premise that such a law is subject to first amendment review when it is applied to petition signatures, because (a) signing the petition is inherently an expressive act (and therefore ‘speech’), but they concede that the act of signing a referendum petition is also an act that has a role in the electoral process which can therefore be regulated as part of the electoral process. The issue therefore contains significant interests on both sides, and the court responsds by balancing those interests against each other, looking at: how serious is the burden on the speech interest, how important is the government interest at issue, and how closely tied is the regulation to the government interest?
The standard used in previous cases to perform such balancing has been “a substantial relation between the disclosure reqauirement and a sufficiently important governmental interest.” The burden lies with the State of Washington to demonstrate that, so it put forward effectively three interests: (a) combatting fraud in the electoral process (eg, invalid signatures); (b) fostering government transparency; (c) providing information to the electorate about who supports the petition. The court looked only at the first interest, decided that Washington’s interest in combatting fraud in the electoral process was important enough (and this disclosure requirement was sufficiently related) that the standard had been met, and then ignored the other two rationales (because good courts don’t rule on questions they don’t have to).
The opponents of SR71 tried to counter this by arguing that no, really, the burden on the exercise of speech rights is really, really high, and the normal standard for disclosure shouldn’t apply. After all, several groups plan to post the list of signatures in searchable form on the internet, where they could be combined with publically available phone numbers and maps, and this information will be used to harass and intimidate signers. Which is, in theory, a legitimate argument … for an as-applied challenge. There’s no evidence that this is a problem for people seeking a referendum on less emotionally charged issues.
———————
Justice Breyer concurred for the purpose of pointing out that the court, which didn’t say it was balancing interests but obviously was, was balancing interests.
———————
Justice Alito concurred for the purpose of observing that, while he agrees with the argument that in the general case disclosure of referendum petition signatures doesn’t violate the first amendment, he thinks an as-applied challenge will easily succeed whenever there is a “reasonable probability” of harassment, and that he really thinks the SR71 opponents should win their as-applied challenge. (He went on at length about that even though it wasn’t necessary to answer that question and judicial restraint generally calls for not answering unnecessary questions).
———————
Justice Sotomayor concurred for the purpose of pointing out that initiatives and referenda are special creatures whose rules are basically up to the people of each State, acting as sovereigns, and that the court should grant states wide leeway to develop their own rules governing the application of direct democracy. (An unusually strong states-rights position for a liberal justice).
———————
Justice Stevens concurred for the purpose of saying that no, really, signing referendum petitions aren’t an exercise of freedom of speech, and then proceeded to explain why he thinks the as-applied challenge should fail. (It’s unclear whether his off-topic rant or Justice Alito’s off-topic rant came first).
———————
Justice Scalia concurred for the purpuse of saying that he doubts that signing a referendum petition is an exercise of free speech, to criticize a 1995 decision invalidating a ban on anonymous campaign literature, and to wholeheartedly support the argument that, in signing referendum petitions, citizens are acting as legislators, whose behavior has traditionally been *required* to be public, even in colonial times – the federal constitution and state constitutions all require actions of the legislature to be kept in public journals, and revolutionary-era petitions for redress of grievances (which a referendum petition clearly is) were always read publically. He then proceeded to argue that in colonial times, *voting* was public; and if voting on a referendum was allowed to be public, it’s nonsense to say that a rule making petition signatures public would have been prohibited.
———————-
Justice Thomas dissented. He believes the problem is not that requiring disclosure interferes with the freedom of citizens to speak, but with their freedom to associate with one another; accordingly, because there’s a particularly high value to privacy in political associations, the standard the state should have used is higher (it must demonstrate a “subordinating interest of the State that is compelling, and … a substantial relation between the information sought and an overriding and compelling state interest”). The state can’t meet that burden.
———————-
I agree with Justice Thoms that the state couldn’t meet hte burden he wants the state to meet, but I’m unconvinced that it’s the right one – he doesn’t really explain *how* signing a petition to revoke a law is an act of *association* rather than an act of speech or an act of legislation, and without a compelling argument there, his reasoning just collapses. My position on this is probably closest to Justice Scalia: signing a referendum petition, or an initiative petition, is an inherently legislative act; it has a binding legal effect and should not be carried out in secret.
This decision appears to be unimportant, in that the opponents of SR71 still have an active case and are still likely to prevail, but that’s misleading: a decision on the other side would have had enormous implications – because if a state can’t require disclosure of signatures on a referendum, it probably also can’t require disclosure of authorship of campaign ads (the burden on speech would be the same, but the state interest would be lower). So: there was a possibility of a major upheaval in campaign law coming out of this, and that possibility has been deflected, rather decisively.
Arbitration law is completely hosed
The law of arbitration, under the Federal Arbiration Act, is something of a scam: once you agree to arbitrate – even if that agreement comes in the form of a form contract which ordinarily people don’t read and therefore are to some degree not responsible for knowing the contents of – the agreement is basically unbreakable.
Consider, for example, the case where you have agreed to arbitrate all “past, present, or future” disputes arising out of your employment, and have granted the arbitrator “exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability or formation of this Agreement,” but you want to claim that the agreement is unconscionable under state law (probably because it was not the result of a negotiated contract but rather presented as a form contract which you had no choice but to sign if you wanted the job).
Who decides whether the contract was unconscionable?
According to the Supreme Court, the arbitrator does. Unless you are arguing that the specific clause making the arbitrator the judge of such things is unconscionable.
The Supreme Court claims that this simply puts arbitration clauses on an equal footing with other contract provisions; but the Supreme COurt is wrong: it gives arbitration clauses a favored position, and allows one side in contract agreements – usually the side with more bargaining power – the ability to take disputes entirely out of the court system and leave their partners with no court-enforceable rights. Since arbitrators have a statistically demonstrable tendency to favor repeat customers, this stacks the dispute resolutiond eck in favor of the party who had more bargaining power to begin with.
——————
The FAA’s actual language is:
“A written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” But unconscionability is grounds at law for revoking a contract. So what is the Supreme Court thinking when it says that unconscionability isn’t grounds for revoking an arbitration clause?
The argument seems to be that the presence of a clause delegating to the arbtirator the power to determine questions of the validity of the agreement means that only legal claims regarding the delegation clause itself can be heard in court. But this is almost certainly wrong – if someone is claiming that the entire contract is void under state law, it’s ridiculous to say that the contract’s provisions regarding who should decide that question are binding. THat is to say: the Supreme Court is saying that the contract’s rules for determining whether the contract violates the law should be used, even if the allegation is the contract is void from the start; the parties are bound by an arguably invalid contract’s provisions.
That’s just wrong, as a matter of law and as a matter of equity.
There’s a story going round the internet about how the unknown Democrat who came from out of nowhere to become the nominee for Senator in South Carolina is facing felony charges:
Court records show Greene was arrested in November and charged with showing obscene Internet photos to a University of South Carolina student. The felony charge carries up to five years in prison.
So, uh … showing a university student obscene internet photos is a felony? What?
I’m glad I don’t live in South Carolina.
[Some people have suggested, well, maybe it was kiddie porn, or maybe the student was really young ... in either case, the AP report should have reported it, and I don't think it's reasonable to assume the AP has failed that badly.]
Civil Commitment for sex criminals
The Supreme Court today held that the Congress has the power under the Constitution to authorize the indefinite civil commitment of mentally ill prisoners who have committed certain sex crimes (either violent ones or molestation) and are considered likely to do so again in the future.
The argument was that:
- The Necessary and Proper Clause grants Congress a broad authority to enact any law which is “convenient or useful”, or “conducive”, to the exercise of some other granted authority.
- All that the NPC requires is that the law in question be rationally related to the implementation of an enumerated power.
- Congress has a broad authority to enact criminal laws in furtherance of its enumerated powers
- Congress has a broad authority to build prisons to hold federal criminals
- Congress has a broad authority to regulate the life of federal prisoners, including providing for their health and well-being
- As the custodian of its prisoners, the government has the Constitutional power to protect nearby communities from the dangers posed by federal prisoners – and, in fact, has a duty to exercise reasonable care to protect the community from prisoners.
- Confining dangerous people beyond the end of their sentence is reasonably related to the power to act as a responsible custodian of prisoners.
One of the arguments against this syllogism is that the link between some enumerated power (and note that the court hasn’t identified the enumerated power at issue here) and civil commitment is too attenuated; the justification is basically a set of inferences which follow each other in such a fashion as to render the result which is almost entirely conjured out of thin air. But apparently there’s precedent for this: in 1955, the Court said that civil commitment of a mentally incompetent defendant who had been accused of robbing a post office was rationally related to the power to “Establish Post Offices and Post Roads”. That case seems to be structurally identical to this one.
This decision seems to place the state’s duty to third parties above its duty to the confined individual, but the decision explicitly wasn’t answering the question of that second duty; it assumed that civil commitment provided “due process of the law” to the confinee and simply addressed the question of the federal government’s authority to authorize such commitment. (It’s apparently already been decided that civil commitment doesn’t interfere with the rights of the confinee, as long as procedural safeguards are met – and the law at issue here (a) places the burden of proof on the state, and (b) provides the confinee with a full hearing, including legal representation and cross examination of the state’s witnesses. I’m not persuaded that civil commitment isn’t in essence criminal punishment for mental illness, but that issue isn’t under discussion, either).
Justices Thomas and Scalia object: the Necessary and Proper Clause only authorizes legislation to carry into execution an enumerated power – and neither the government nor the court have identified a specific enumerated power which justifies civil commitment.
Justice Alito tried to get around this by saying that the commitment is necessary and proper to carry out whichever enumerated power justified the underlying criminal statute – a dodge which assumed that the underlying criminal statute was necessary and proper to carrying out some unnamed enumerated power. As a procedural matter, it seems to me that someone should have provided an underlying enumerated power which justified these specific convictions and commitments, but that didn’t happen. Fundamentally, I think the problem is that the underlying conviction may have been for something entirely unrelated to sex crimes – which is to say, someone arrested for robbing a post office, but who is mentally ill, had previously raped someone, and is judged likely to rape again, can be confined. The court seems to be saying that this confinement is justified because having incarcerated the person for robbing a post office, the federal government has assumed a responsibility to protect people from the person; the dissent is saying that since the grounds used to justify further confinment – propensity to carry out sex crimes – are not legitimate grounds for federal action, the federal government has no power to authorize continued detention.
The dissent also objects to the Court’s characterization of the duty to protect third parties from prisoners: they believe that the duty expires at the end of the legal basis for custody.
****
I tend to agree with the dissent on this. The argument that the duty to third parties compels the government to not release these individuals could logically be extended to impute a duty to never release any criminal who is considered likely to commit another serious crime, regardless of the sentence imposed after trial. Such a system would make a mockery of the sentencing process. Moreover, I’m convinced by the argument that the duty expires when the legal basis for incarceration expires; at that point, the state is no longer responsible for the individual and cannot possibly have a duty to protect other people from him. (It might be different if the time the prisoner spent incarcerated had independently created a risk to third parties by making the prisoner substantially more likely to commit serious crimes).
That said, I’m generally amused by the decision, because I’m reasonably certain that if the question were does the state have the authority to civilly detain terrorists indefinitely, both the dissent and many of the justices in the majority would be singing a different tune … and yet the issue of the federal power to do so ought to be the same in both cases.
Feedback