The Los Angeles County Bar Blog

SCOTUS Rules School Strip Search Illegal

"The Supreme Court ruled today that a school's strip search of an Arizona teenage girl accused of having prescription-strength ibuprofen was illegal." LA Times and Jonathan Turley

Uighurs to Be Released

Matthew Allee of the Constitution Project writes: "The United States has reached an agreement with Palau, a Pacific archipelagic nation, to accept the 17 Chinese Muslims, known as Uighurs, currently being held at the Guantanamo Bay detention facility. The Uighurs have been held at Guantanamo for nearly seven years now, but have long been recognized by the U.S. government not to be 'enemy combatants,' nor hostile to the U.S., dating back to the Bush administration. The Constitution Project welcomes their long-overdue release from detention."

Facebook and the First Amendment

Heather M. Milligan of the Legal Watercooler has a personal reflection on the issue of whether Facebook should ban Holocaust denial groups.

Will the U.S. Supreme Court Keep Its Doors Open?

—According to the Blog of Legal Times: "The Supreme Court's plan to permanently close its majestic bronze front doors to the public for entering the Court now appears to be 'under review.' That was the implication of a comment made today by Supreme Court Justice Stephen Breyer after a panel discussion at the National Gallery of Art on the role of art and architecture in public buildings."
—Does the federal government have the right, under the commerce clause, to outlaw the sale of body armor to a felon? The Ninth Circuit says yes. The ruling.

Civil Rights Symposium

The California Supreme Court Historical Society, along with cosponsors the LA Times, Public Counsel, Southwestern Law School, the Ninth Circuit Historical Society, and the LA County Bar's Appellate Courts Committee, will present a symposium titled "Civil and Uncivil Constitutional Rights in California: The Early Legal History," on June 1, 2009 from 4:00 to 7:00 p.m. at the Harry Chandler Auditorium in the LA Times Building at First and Broadway.

The program moderator will be Jim Newton, editor of the LA Times editorial page, and the panelists will be the Honorable Joseph R. Grodin, retired Associate Justice of the California Supreme Court, and Professor Jean Pfaelzer of the University of Delaware, author of Driven Out: The Forgotten War Against Chinese Americans. Chief Justice Ronald M. George also will speak, as will Professor Robert Chao Romero of UCLA.

Cost is only $15, which includes 2 hours of MCLE and validated parking in the LA Times garage at 213 South Spring Street.

You can register online at the California Supreme Court Historical Society's website. Direct link.

To guarantee availability, please register on or before Monday, May 25, 2009.

Justice O'Connor at Pepperdine

On Friday afternoon Pepperdine School of Law convened its Third Annual William French Smith Memorial Lecture, featuring a conversation with the Honorable Sandra Day O'Connor. Pepperdine recently has hosted Justices Alito, Thomas, and Scalia, and this program too drew a full house. The 90-minute program was videotaped and should be available for viewing on the law school's Web site at some point soon. In the meantime below are some of my notes.

Justice O'Connor was introduced by the Honorable William H. Webster, who called her a very "human" and "caring" justice, with a "great love for the Court," and a "passion for civility" and judicial independence. He noted her ability as a tennis player, golfer, and fly fisher. He characterized her as a "consequentialist" justice, meaning that she carefully considered the consequences of her decisions. Reference also made throughout the program to Justice O'Connor's book The Majesty of the Law, sales of which go to charity.

Justice O'Connor related the story about how when she graduated from Stanford Law School in 1952, she could not obtain a job interview. Eventually, through a friend whose father worked at Gibson Dunn & Crutcher, she obtained an interview but was told that the firm had never hired a female lawyer, and it didn't seem likely it ever would (supposedly because the firm's clients would not approve of that). She was told, however, that the firm might be able to hire her as a legal secretary! She declined.

Justice O'Connor discussed her confirmation process, complete with an imitation of Strom Thurmond and his Southern accent. She explained how she met with the wives of the senators on the Judiciary Committee at a tea—a method of lobbying those senators from their homes. She also explained how senators love confirmation hearings because they provide television time for them to attempt to look serious and erudite: "Senators love to be on television." Mainstream television programs about the law have not been accurate nor helpful to the rule of law. Possibly at some point in the future there may be cameras in the courtroom, but the Justices do not look forward to that because they do not want to be media stars.

Justice O'Connor abhors the term "swing justice" and emphasized that every justice has an important vote. She explained that many cases raise tough issues and are tough to decide. Cases at the Supreme Court typically have very good arguments on both sides, so naturally these fascinating issues lead to disagreements. She believes it is healthy to publish dissents, in contrast to many foreign courts where dissenting votes are never revealed. Dissents are important because they can point avenues for Congress to pursue to change the law. Overall, the "system works," and unanimity is not necessary; divisions of opinion are "ok."

Asked what she misses the most since retiring from the Court, she replied that she's busier now than before. Naturally she misses the privilege of being able to address the most important legal issues facing the country. She also misses her law clerks. Her clerks were a huge help in sifting through certiorari petitions and identifying cases the Court should take. She had a clerk draft a memo on every case that was argued and also had her clerks search for secondary sources of authority. She enjoyed arguing the merits of the cases with her clerks.

She currently has one law clerk and an office at the court, which she needs because retired justices are required to sit and decide cases on lower federal courts. She still lunches with the justices in the court cafeteria.

Criminal procedure cases are about a sixth of the Court's docket, and, as explained in her book, this may be an area of the law that may never be perfected. Indeed, this field changes, as evidenced by recent changes to the confrontation clause jurisprudence.

Asked why she spends so much time on judicial reforms overseas, she explained how 26 nations eventually broke off from the former Soviet Union—a unique historical occurrence—and that the ABA asked those new governments if they needed help in establishing judiciaries. Positive responses led the ABA to create the Central Eastern European Law Initiative, CELI (pronounced "seely")—she noted that "you're nothing in DC if you don't have an acronym." She found this to be an incredible and irresistible opportunity and signed on. She explained that it is in our own interests for world peace for stable nations to exist. In the past these nations had "telephone justice," meaning that government officials would call judges and tell them how to rule. Government ordered decisions like that are not truly justice, and she relishes the ability to help convert such systems to the rule of law and spread the spirit of the Magna Carta. She remains deeply involved because even after many years the job is unfinished.

When asked if the United States has lost its place a global leader exhibiting the rule of law, she answered "no, but there has been some just criticism," of American policies. She emphasized the importance of taking a "longer view," and noted that there are some legitimate concerns about the U.S. signing many international treaties. As for criticism about Supreme Court Justices citing to international opinion, she called this "much ado about nothing," because she is not aware any instance where foreign law was relied on to make a decision or interpret the Constitution. She compared references to foreign law as no different than reading law review articles.

Growing up, her mentors were her parents and the cowboys on their ranch. Dean Ken Starr quipped that she is "as comfortable with cowboys as with ambassadors and heads of state," and she quipped back that maybe she's more comfortable with cowboys.

In terms of advice to the many law students who packed the auditorium, she said it was very difficult for her to find a good jobs too but that the important thing is to take what opportunities one can and make the best of them. For example, when she first joined the Arizona Attorney General's office, she was the first female in the office, and not knowing what to do with her, the office assigned her to a hospital for the mentally ill on the outskirts of town—not exactly a plum assignment. But she met with the doctors and nurses to investigate the legal issues facing the hospital and the mentally ill in the state, and was able to get a lot done, including setting up a legal aid clinic, and even changing the law through legislation. She was so successful that she was transferred back to the main AG's office in downtown Phoenix. Thus, in today's poor economic climate, law students may have to take a job that is not one's first choice, but there's always the opportunity to "make something out of it."

When she first joined the Supreme Court, the justices were very welcoming. The Court was split 4-4, so all the justices were friendly and offered to help her. It was Justice Powell, however, "a true Southern Gentleman if ever there was one," who did the most for her in setting up her chambers.

Her prior experience in Arizona's legislature reinforced in her mind the differences between the three branches of government. As she put it, judges can't pick their issues the way legislators can. Today, all the justices were former circuit court judges, and that emphatically is not good: "You don't want nine clones up there." Diversity of backgrounds on the bench is better.

She met her husband while they were assigned a project together on the Stanford Law Review. She never really thought she be on the Supreme Court. Despite the background checks, interviews, and vetting process, it simply seemed too unlikely that two people from the same law school class and from the same legal community in Arizona—i.e., O'Connor and Rehnquist—would be on the Court. When asked if she had any favorites among the justices she served with, she said, "yes, but I'm not telling." She said that Rehnquist loved jokes and that Souter is a great story teller because he never forgets a conversation he's had, no matter how long ago it took place. Apparently many people confuse Souter and Breyer, which has created a number of very funny stories. Scalia also is a good storyteller.

Justice Scalia at Pepperdine

On Monday, Pepperdine School of Law hosted a "conversation" between Supreme Court Justice Antonin Scalia and Dean Ken Starr. The two have known each other for a long time, having served as judges together on the D.C. Circuit. Dean Starr praised Justice Scalia's new book, written with Bryan Garner, Making Your Case: The Art of Persuading Judges, as a valuable for lawyers and nonlawyers alike. The program was well attended and conducted in a jovial atmosphere, with many jokes and opportunities for Justice Scalia to exhibit his famous wit.

Justice Scalia discussed his official portrait, which currently is at Harvard (but eventually will hang at the Supreme Court), noting that it is important to have such portraits done sooner rather than later, because he's not getting any prettier with age.

Asked about what makes for a great justice, he noted that different reasons account for greatness in justices. John Marshall was great in terms of establishing the Court's operations; Justice Brennan was great for his influence on the development of the law; Justice Jackson—who was self-educated—was the best writer, and is Justice Scalia's "hero."

Asked why there are deep divisions in the Court, he explained that this is historically new. Originally, following English tradition, each justice wrote his own opinion in every case. This made it difficult to figure out the actual holding, so Justice Marshall came up with the idea of a majority opinion for the whole court. (This drove President Jefferson crazy, because he wanted to know which individual justice was responsible for an opinion, so he would know who to target for impeachment.) As a result, Justice Marshall would sometimes write or concur in opinions he didn't necessary agree with simply to achieve unanimity.

Today, the justices have profoundly different takes on what they're doing: The justices disagree on the fundamental "object of the game." There are two originalists on the Court (Justices Scalia and Thomas), who examine what the people agreed to when the text of the Constitution was written. This view was orthodoxy 50 years ago. But now, in contrast, other Justices believe in a "living Constitution" that changes and morphs. For instance, the Constitution clearly includes a death penalty, but other Justices subscribe to the notion of "evolving standards of decency," which Justice Scalia mocked with the phrase "every day, in every way, we get a little better and better." He said that frankly, he's afraid to ask what today's evolving standards of decency are. If evolving standards are the correct vision for running the country, then that should be done by the legislature, not the Court.

He noted that it's "always better to be in the majority, except when the majority is wrong." And also noted that in the Second Amendment case (Heller), the dissenters chose to fight the battle "on his turf," originalism. He further discussed how the exclusionary doctrine is not in the Constitution, and expressed the view that while such a rule could be imposed on federal courts, it is applied to state courts too by constitutionalizing it under the Fourth Amendment.

When asked which of his opinions he is most proud of, he responded, "Well, I haven't had that many triumphs." More seriously, he answered that if he had to pick an area, then the confrontation clause would be a good example. He wrote an opinion that reversed the "indicia of reliability" doctrine for confrontation clause issues, returning the law to the commonsense notion that the only indicia of reliability for confrontation is confrontation.

He noted that 95% of the laws governing Americans are state laws; that we live in a federal republic at sufferance; and that Congress, "sadly," seems able to do whatever it wants to do.

When asked which Justice, historically, he believes was the worst and should have been removed from office, he said "no one," and "I have no antagonism towards anyone." He then referred to a series of law review articles where some academics argue about which justices was the worst.

When asked about his cordial relationship with Justice Ginsberg and how America can get back to such cordial relations between those with opposing views, he said that the political parties have lamentably become too polarized. These days when you're knifed, they say "it's nothing personal," but of course it is. The wonderful thing about American politics (in contrast to systems abroad), is that "you can throw the rascals out."

When asked about what happens when the justices meet at conference, he explained that former Chief Justice Rehnquist explored this topic in one of his books. In particular, the conferences are a place for the justices to express their votes but rarely a forum for minds to be changed

He further regretted that being a federal judge is no longer as prestigious as it once was. Once upon a time the "knights of the bar" became judges, but now he fears we're drifting toward a more European judiciary, which is more blinkered and bureaucratic, which judges who have "had their snouts in the public trough their whole lives," (i.e., have only ever worked in government). There are many more federal judges now than when he started his career, because there is so much more federal business in the federal court, in part because his court keeps "inventing new rights, keeping the federal courts busy." He noted that of the six of his former clerks who became federal judges, three left the bench for financial reasons. As he put it, "We may have seen the best days of the federal courts."

He enjoyed oral argument, and stated that Clarence Thomas would benefit from talking more at argument. The purpose of argument is to probe weaknesses in the lawyers' briefs. Without questions the lawyers will simply "regurgitate their 'blessed' briefs," which he has already read—and he's not interested in reading the book, and then listening to the book on tape. Answering questions from the bench is the only way for lawyers to know they not wasting everyone's time. Sometimes at oral argument the justices "use counsel as a shuttlecock" to try to persuade each other. Other methods of persuasion at the court include individual meetings and the "law clerk grapevine." He does not engage in these because as an originalist, he has nothing to barter with; but consequentialist justices can "deal" and "trade" votes.

When asked does the ability to amend constitutions make a mess, he joked that "Amending a constitution shouldn't be too easy; nor too hard." European countries amend their constitutions all the time, "like changing undershirts." If he could change an existing constitutional provision, he would change the amendment process, because although it made sense with 13 state, now with 50 states it's too hard to amend the Constitution. Less than 2% of the population could prevent a change. But he fears a constitutional convention, essentially concluding that it's best not to mess with the Constitution.

Regarding presidents, he said that the real threat to America isn't from presidents (or the so-called imperial presidency) but rather from Congress. Bush I was a "real gentleman" (who wrote his wife a note saying that he'd done the right thing in the flag burning case). He is grateful to the Gipper, who appointed him, though he didn't know President Reagan well (and Reagan didn't know him well). He knew Ford because he served in the Office of Legal Counsel during his administration. He had no comment in response to President Obama's assertion that Justice Scalia was the justice he'd most like to replace.

The advice he wished someone would have given him before entering practice would have been: "Before settling down, check out the West Coast." He has not seen any of the Boston Legal episodes in which he "appears," but understands that in one episode he conducts a gay marriage. It's foolish to accede to treaties that use vague language and allow foreign tribunals or outside bodies to interpret that language. If you don't like the Supreme Court's analysis, at least those decisions are being made by your own countrymen, rather than foreigners.

When asked for parenting tips, he gives all credit for his successful children to his wife. He also noted, "I don't think you have to go to soccer games." He used to think he was confirmed 98-0 because of his qualifications, but later learned that the political influence of Italian Americans was a factor. His wife calls him Mr. Clueless.

After the Pepperdine event, Justice Scalia spoke at a Town Hall meeting.

CA Supreme Court Rules on Church Property Division

In Episcopal Church Cases the California Supreme Court has decided "we agree with the Court of Appeal's conclusion...that when defendants disaffiliated from the Episcopal Church, the local church property reverted to the general church." According to the AP (via Huffington): "The state's high court has prohibited three Southern California parishes who left the U.S. Episcopal Church over its ordination of gay ministers from retaining ownership of their church buildings and property."

Unpardoned

Isaac R. Toussie was pardoned and is now unpardoned. The NY Times City Room has the story. Can a president rescind a presidential pardon? On a different topic, the Constitutional Law Prof Blog refers to Mark Strasser's The Limits Of The Clemency Power On Pardons, Retributivists, and The United States Constitution, 41 Brandeis L.J. 85 (2002). What do you think?

Proposition 8

Prop. 8: Volokh on the law. LA Times on the Westwood protest. LAist on the traffic.

Ellen P. Aprill, who is associate dean and professor of Tax Law at Loyola Law School, writes regarding support of Proposition 8:

The tax code distinguishes political campaigns from attempts to influence legislation.

All section 501(c)(3) organizations, including churches, are prohibited, at risk of losing exemption, from participating in political campaigns. In general, political campaigns are defined for this purpose as campaigns by candidates for elective office. (This prohibition was introduced by Lyndon Johnson in 1954, supposedly because he was annoyed about some newspaper ads that charities had run against him in his last campaign.) In a case called Branch Ministries, decided in May 2000, a federal appellate court upheld revocation of a church's exemption for running anti-Clinton newspaper ads. (The church had claimed that the political campaign prohibition violates the First Amendment.)

Tax-exempt charities cannot endorse or oppose any candidate, directly or indirectly, contribute any money or resources to any candidate's campaign or political party or rank candidates, even if the ranking is the result of neutral process. Particular care should be taken to avoid statements that name candidates or that comment on their positions at any official church function because they are likely to be treated as being the position of the organization. Such was the issue with All Saints Church in Pasadena.

While any involvement in a political campaign for elective office is prohibited, churches, like other charities, can participate in lobbying to a limited degree. For tax purposes, lobbying is distinguished from intervening in electoral politics. Lobbying is defined as an attempt to influence legislation, either directly through legislators or indirectly through grass root campaigns which ask citizens to contact their legislators. Taking positions on initiatives or propositions is considered lobbying, not political campaign activity. Under the tax code, lobbying by charitable organizations is permitted to a limited extent; it cannot be a substantial part of the organization's activities. The meaning of not substantial is not clear; it is a facts and circumstances test, but it is clear that it means more than dollars spent. (Organizations other than churches can choose to have their lobbying activities subject to specified dollar limits, but this option is not available to churches.) The Supreme Court has upheld the constitutionality of the lobbying limits, although the case did not involve a religious organization.

Thus, church opposition to or support of Proposition 8 does not involve prohibited campaign activity under the tax code. Churches are permitted to be involved in supporting or opposing propositions to some extent. The question will be whether the IRS decides to investigate any churches and makes a determination that any church's lobbying activities on this issue constituted a substantial part of its overall activities. Before beginning any such inquiry, however, the IRS will need to comply with the requirements of the Church Audit Act as to a high-level Treasury official recording in writing the reasonable basis for the inquiry and the church receiving notice of the inquiry.

Taxpayers do not have the option of supplementing IRS enforcement efforts by suing organizations to challenge their exempt status on this or any other basis. They lack standing to do so. See In re United States Catholic Conference, 885 F.2d 1020 (1989), cert. denied 495 U.S. 918 (1990). Taxpayers can, however, file a complaint with the IRS if they believe that the activities or operations of a tax-exempt organization are inconsistent with its tax-exempt status.

Family law practitioner Dianna Gould-Saltman writes:

I think Prop 8 simply accelerates the ultimate direction this issue has got to go and that is to the U.S. Supremes. Prop 8 just amends the California Constitution to say that a class of people (arguably based on an immutable characteristic) may be prohibited from exercising the right to marry each other. Since the state constitutions may not conflict with the fundamental rights conferred under the U.S. Constitution (including equal protection under the law), and the U.S. Constitution is the supreme law of the land, the amendment to the CA Constitution cannot stand.

The Federal Defense of Marriage Act is federal law that permits one state to discriminate with regard to the rights conferred by other states so that full faith and credit need not be honored. But that is a federal law (arguably also one which violates both equal protection and the 14th Amendment) and still does not supersede the U.S. Constitution as supreme.

While theoretically Prop 8 is a separate issue from the federal DOMA, when it gets to the U.S. Supremes, which I think it must, I suspect both issues will need to be addressed. No legitimate state interest can be served by denying the right to marry (or, just as bad, creating something separate and not quite equal to form a "less marriage" for gays and lesbians). The only interest which seems to be served is a religious one, which the First Amendment prohibits as the basis for the granting or denial of a fundamental right.

How the case gets there and when it gets there will be most interesting. I assume Justice Stevens will have his resignation on the president's desk on January 22nd. Ginsberg's may follow shortly. From there we'll see what President Obama is willing to put on the line for posterity.