Eugene Volokh's Blog, page 2734
August 9, 2011
New York Trial Court Throws Out Libel Lawsuit Filed by Village Police Chief and Three Officers Against Anonymous Internet Commenters
The case is Varrenti v. Gannett Co. (Aug. 3). The court held that the comments, in context, would be seen as expressions of opinion rather than statements of verifiable fact — largely because readers would seem them as "sarcastic, hyperbolic, and based on rumors" — and that the comments are therefore protected against a libel lawsuit. Because of this, the court held, the plaintiffs wouldn't even be able to get discovery of the anonymous commenters' identifying information.
Thanks to MLRC: Actions Against Online Speech for the pointer.
FNU LNU (No Relation to GNU)
I just ran across these terms in United States v. FNU LNU (2d Cir., decided today), though a search reveals that one or both have been used in Westlaw-searchable case captions over 950 times since 1992 (but only 12 times before). All but 13 references have been in federal cases. (For a related item, see the PPA post.)
39-Year-Old Man with Alleged PTSD Seeks Court Order Against Harassment by 86-Year-Old Woman Neighbor, but Asks that He Not Have to Appear in Court
That's the scenario in a 6–1 decision of the Maine Supreme Judicial Court (which comes out in plaintiff's favor, on the question of whether his case can proceed) in Blackhouse v. Doe (decided last Thursday), which deals with two legal issues: (1) When may a complaint be dismissed at the outset on the grounds that it appears "bizarre, vexatious and frivolous"? (For more details on the circumstances of the complaint, see the dissent, which certainly doesn't rely just on the ages of the plaintiff and the defendant.) (2) May a defendant be entitled to an accommodation of his alleged disability — here, post-tramautic stress disorder — when the accommodation he seeks is to have the case decided without his having to even appear in court? The opinions are hard to summarize, but here are some excerpts from the majority, followed by some excerpts from the dissent:
[UPDATE: Commenter Hans Bader notes that plaintiff was represented on appeal by a University of Maine School of Law legal aid clinic, but the defendant did not file a brief on appeal, likely because she didn't have the money to hire a lawyer, and couldn't find one who would take the case for free. My guess, incidentally, is that if a state supreme court wanted to appoint a lawyer to brief and argue this sort of case pro bono (see, e.g., this example from New Jersey) — especially when the case is on an interesting issue and has a relatively compact record — it should have no difficulty finding someone willing to take on such a task, given that a state supreme court argument is usually seen as interesting and prestigious. And such an appointment would likely help the court and not just the otherwise-unrepresented party.]
Blackhouse and Jane Doe are both residents of an apartment building in Gardiner. On May 6, 2010, Blackhouse filed a complaint for protection from abuse against Doe, alleging that he is a victim of Doe's stalking, and describing her "stalking-like behaviors," inter alia, as "repeated appearances on property she has no right to occupy," "directly [harassing him] on a number of occasions," "repeatedly assailing him with abusive dialog, including language and taunts acknowledging that she actively participates in [his] confinement," "blocking the entrance of the front doorway so that he cannot exit the building without confronting her," "intimidating him," and threatening to send someone to "enact an undisclosed form of retaliation against [him]." Blackhouse also asserted that Doe's actions have contributed to the deterioration of his health.
In terms of relief, Blackhouse sought an order prohibiting Doe from having any contact with him or "any minor children in [his] charge," and from repeatedly, and without reasonable cause, being at or in the vicinity of his residence, school, business, or place of employment. He also asked for relief that is not available in this type of action. [Footnote: For example, Blackhouse requested that he be granted "the right to initiate eviction proceedings" against occupants of the apartment building.]
With his complaint, Blackhouse submitted a request for reasonable accommodation, stating that he was disabled and unable to be physically present in court. In his request, Blackhouse recited that he suffers from "an advanced form of combat-level post-traumatic stress disorder ('PTSD') specific to having survived an abduction and medical torture." He also described a condition involving "an easily-triggered startle response," and requested "absolutely no contact whatsoever with uniformed police officers." Blackhouse asked the court to accommodate his condition by allowing him to proceed on his complaint without having to enter the physical premises of the court.
After review of Blackhouse's complaint, the court (Mullen, J.) denied his request for an ex parte temporary order of protection from abuse. It is not clear from the record whether the court was aware of Blackhouse's request for reasonable accommodation at the time of that review.
A final hearing on Blackhouse's complaint for protection from abuse was scheduled for May 24, 2010. The clerk's office mailed notice of the final hearing to Blackhouse. Blackhouse failed to appear for the hearing, and the court ( Soucy, J.) dismissed his complaint. There is no indication that Blackhouse's request for reasonable accommodation was called to the court's attention or that the court otherwise reviewed it before dismissing the complaint.
Blackhouse subsequently brought this appeal, arguing that the court should have considered his request for reasonable accommodation, and that, by failing to do so, the court violated article I, section 6–A of the Maine Constitution; the Maine Human Rights Act, 5 M.R.S. §§ 4551–4634 (2010); and the Americans with Disabilities Act, 42 U.S.C.S. §§ 12101–12213 (LexisNexis 2009)....
In this case, the record contains no indication that any judicial officer even considered Blackhouse's request for accommodation. Despite this gap in the appropriate process, the dissent suggests that we should nonetheless affirm the dismissal of Blackhouse's complaint because it is not plausible on its face, as his allegations against Doe are bizarre, vexatious, and frivolous.
Blackhouse filed a complaint for protection from abuse in accordance with 19–A M.R.S. § 4005(1) (2010), alleging a course of conduct by Doe that, if proved, could allow a court to grant Blackhouse a protection from abuse order. Although, as the dissent notes, Doe is eighty-six years old, neither her age nor Blackhouse's disability allows us to prejudge the veracity of Blackhouse's allegations.....
In this case, Blackhouse's request that he be permitted to litigate his complaint in a way that would accommodate his claimed disabilities was never considered by the court. Therefore, we vacate the dismissal of his complaint. Whether Blackhouse is entitled to a protection from abuse order against Doe is an issue that should be decided only after a judge has considered Blackhouse's request for reasonable accommodation, the court has notified Blackhouse and Doe of its decision on Blackhouse's request, and both parties have been notified of the date of the hearing on Blackhouse's complaint....
ALEXANDER, J., dissenting.
I respectfully dissent. In his protection from abuse filing, Eli Blackhouse makes bizarre, vexatious, and facially incredible claims against many individuals in his community. A particular focus of his allegations is a vulnerable and likely destitute eighty-six-year-old woman against whom Blackhouse seeks to invoke our judicial processes to evict her from her home and seize some or all of her money. As a reasonable accommodation for his unsupported claim of a disability, Blackhouse asks that the Court deprive the targets of his allegations of due process of law by accrediting his claims, vacating the trial court's dismissal of his complaint, and ordering that the action proceed without his being present to be confronted by those against whom he seeks relief.
This Court holds that Blackhouse's request for reasonable accommodation of his alleged disability requires that we accept as true all allegations, no matter how bizarre, and gives a plaintiff license to maintain a bizarre, vexatious, or incredible claim that a trial court would — as it did here — dismiss were it not brought by one claiming a disability. I do not agree that our laws providing protections for individuals with disabilities go so far as to require courts to accredit claims brought by persons claiming a disability, when those same claims would be dismissed, and perhaps sanctions imposed, if asserted by an individual not claiming a disability. That is not equal treatment; it is preferential treatment. And such preferential treatment poses significant risk that, in the name of reasonable accommodation, court processes may be abused to the detriment of vulnerable individuals who are the targets of bizarre, vexatious, or incredible claims that a court accredits and allows to proceed.
The dilemma presented by this Court's holding is well illustrated by the facts of this appeal. The District Court, perhaps with knowledge of Blackhouse's history, saw this complaint for what it is — a frivolous, vexatious, and implausible action by a thirty-nine-year-old man seeking to exclude an eighty-six-year-old woman from her home and force her to pay him money. To support his efforts, Blackhouse asserted many bizarre allegations against his neighbor, his landlord, other tenants, and people in the community. With no documentation except for his own words, he then claimed a disability and demanded, as an accommodation, that he be permitted to avoid being confronted in court by the targets of his accusations. The District Court, seeing the bizarre and incredible allegations in Blackhouse's complaint at the temporary order stage, could have properly dismissed it without reaching Blackhouse's request for accommodation.
Let us take a closer look at the facts and history behind this case. Blackhouse is a resident of a twelve-unit apartment building in Gardiner. The defendant, Jane Doe, is a resident of another apartment in the same building. Blackhouse's pleadings indicate that he has grievances against many individuals arising from his residence at that apartment building.
In a previous action, Blackhouse had filed a protection from harassment claim, see 5 M.R.S. §§ 4651–4660–A (2010), against the landlord of that building, see Blackhouse v. Connelly, Mem–10–102 (Aug. 12, 2010). In that action, Blackhouse asserted:
Plaintiff Eli Blackhouse is a housing fraud victim who can neither remain safely within nor relocate outside of the premises of 235 Water Street — where he currently dwells — because Ms. Connelly and her property management company, d/b/a "TLC Properties," require him to pay an amount of rent that is illegal according to Federal Law. Fully disabled with post-traumatic stress disorder requiring careful management in most public settings, Mr. Blackhouse is presently imperiled by: a) conditions created by the extortion of excessive rent, which violate the apartment's warranty of habitability (14 MRSA § 6021); and, b) his inability to relocate outside of the thrall of Ms. Connelly, who acquired the building from a previous owner after said owner had extorted over $8000 from his monthly SSDI disbursement check (in a manner both identical to and enabling the continuation of the extortion that would—subsequent to the illegal sale—then go on to be conducted by the Defendant).
In documents filed in support of his prior request for an order of protection from harassment, Blackhouse had contended that he was the victim of a widespread criminal conspiracy that included, among others, the Augusta Housing Authority, who had caused his relocation from Augusta to Gardiner, and the Maine Medical Center in Portland. Blackhouse also asserted that he was a witness for the "FBI" investigating various criminal conspiracies within the State.
The District Court ( Westcott, J.) dismissed Blackhouse's prior action, and, on appeal, we affirmed the dismissal. Blackhouse, Mem–10–102.
On May 6, 2010, the Augusta District Court received from Blackhouse an envelope marked "Urgent/Confidential" containing his protection from abuse complaint against Doe that initiated this action. The complaint indicated that Doe was a resident of a different unit in the same building. It also asserted that Doe "is likely tied in to the racketeering/abetment activity being conducted by" a Gardiner police officer and another individual whose name was indicated....
Regarding Doe, the attached document indicated that she was among a group of other individuals whom the landlord illegally permitted to inhabit the other eleven units in the apartment building. Blackhouse also asserted that Doe had "repeatedly" assailed him with abusive dialogue, that she "loiters in common areas" that he could not avoid without confronting her, and that these actions had occurred during a period of his "indoor confinement" which he attributed, not to Doe, but to an "illegal requirement" that he pay rent to his landlord.
Blackhouse further asserted that Doe appears in common areas of the apartment building, such as the laundry area, which, he contended, should not be occupied by any other tenants in the building. He also objected to her being near the entranceway to the building, which he found offensive. Blackhouse complained of some statements that he asserts Doe made to him, including, for example, "Don't you run up those stairs," and asserted that she has at times snickered at him because of some of his actions, such as his closing the fire door on an upper floor of the building.
For relief, Blackhouse asked that Doe be prevented from contacting him and "any minor children in my charge," that she be excluded from his residence, and that she be excluded from being, repeatedly and without reasonable cause, at or in the vicinity of his home, school, business, or place of employment. He also asked that he be given possession of, and that Doe be ordered to leave immediately, the entire twelve-unit apartment building.
Blackhouse further requested that he be given possession of "any money being delivered to [the landlord] as alleged 'rent' given the building's illegal financing via SSDI extortion." He also requested that Doe be ordered to pay him support, damages, and attorney fees, and that he be given "the right to initiate eviction proceedings against occupants of [the apartment building]." He also suggested that the owner of the building should not be attempting to sell the building during the pendency of the litigation and requested that he be exempted from paying rent....
Upon review of the merits of Blackhouse's complaint, the court (Mullen, J.) denied the request for a temporary order, correctly concluding that "the allegations in the sworn complaint are insufficient to support a finding that the plaintiff and/or minor child(ren) is/are in immediate and present danger of abuse from the defendant." Because the court acted based on its proper finding that the totality of the facts as alleged were insufficient to support granting an ex parte temporary order of protection, the court would have had no need to review Blackhouse's request for reasonable accommodation. However, it must be noted that in accordance with the accommodation that Blackhouse had requested, the court acted on his pleadings without requiring that he be present at the courthouse. Thus, although the court may not have reviewed his request for accommodation, Blackhouse received the accommodation he requested at the temporary order stage. The court scheduled the matter for a final hearing on the complaint for protection from abuse on May 24, 2010....
A person's right to quiet enjoyment of her residence is a fundamental right to which Doe was entitled, absent some strong proof of impropriety relating to her actions regarding the residence. Further, in any action to exclude Doe from her residence, and in any protection from abuse action, Doe had a right to confront and counter the evidence against her, as we recently held in Jusseaume v. Ducatt, 2011 ME 43, ¶¶ 11–15, 15 A.3d 714, 717–18.
Considering the allegations in this case, the court could not have, and should not have, granted Blackhouse's request to exclude his elderly neighbor from her residence without first hearing from Doe and affording her far more process than Blackhouse wanted the court to give her by considering his request for relief without his needing to be present.
Before consideration of what accommodation, if any, to allow Blackhouse for his alleged disability, the court had a responsibility to evaluate the merits of his protection from abuse claim. There is no right to maintain, and force a named defendant to defend, an incredible, frivolous, or bizarre claim. A person claiming a disability has no greater right than any other person to circumvent the court's essential gatekeeping function on these issues.
Addressing a court's gatekeeping function, the United States Supreme Court, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), has held that a complaint, to avoid dismissal, must be "plausible on its face":
[W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.
The complaint here, not being plausible on its face, was appropriately dismissed....
On the face of the pleadings filed by Blackhouse, and considering the history of his prior action, the wide ranging and severe relief Blackhouse was seeking against Doe and many others, the deprivation of due process for Doe that Blackhouse was requesting as an accommodation, and the apparent incredibility of many of Blackhouse's claims, the trial court properly dismissed Blackhouse's action. The finding of insufficiency of the evidence on the merits, made at the temporary order stage, can be affirmed when there is no suggestion that at the final hearing stage any evidence would have been presented that was not before the court when it denied the request for a temporary order.
Reasonable accommodation of anyone with a disability who must be before the court, or who seeks to bring a proper action before the court, is appropriate and is part of our obligation to provide access to justice. But that obligation to provide reasonable accommodation does not extend to lending a hand to promote a facially frivolous, vexatious, or incredible claim, and doing so, as Blackhouse requests, by depriving the targets of his accusations of the right to confront their accuser who seeks to take their money and jeopardize their fundamental right to quiet enjoyment of their homes.
Recent Widener University Law Professor Speaks Out About Connell Situation
Like my co-blogger David Bernstein, I've been closely following the situation at Widener University concerning the charges brought against Professor Lawrence Connell. (As some readers may recall, I filed an affidavit in the case in Connell's support.) And like David, I was rather astonished by the latest news that the University has ordered that Connell will be suspended for a year without pay, must be subject to a psychiatric exam, and must apologize to students who accused him.
Trying to figure out what is happening at Widener is tricky because most of us don't know the key players. Along those lines, I thought readers might appreciate reading a perspective about the situation from a recently-departed Widener faculty member, Professor Stephen Henderson, who recently left Widener to accept a position at the University of Oklahoma Law School. It was posted earlier today to a law-professor listserv, CRIMPROF, and I am reprinting it with his permission:
I just left Widener after spending the initial eight years of my career there. I was looking at OU before the Connell situation broke, but it made what would have been a difficult choice (there are some very good people at Widener, and my family loved living in the Delaware Valley) a very easy one. Larry is a good man and a good colleague, and is being pursued with a doggedness that nothing logical can explain. I don't think, ultimately, the case speaks to the use of hypos as much as the dangerous abuse of power by a vindictive administration. And, perhaps, a rather sickening case of the inability (or refusal) to recognize error once it has been made.
I won't speak to specific allegations lest I unwittingly reveal information I received in confidence, though I think much of the pertinent information is now well known. That disclosure upsets the Widener administration, and apparently some Widener profs, who seem to believe that someone removed from and banned from campus on grounds of being an imminent physical danger to the campus community, a sexist, and a racist has no right to explain or defend him– or herself from such horrible allegations. [I am not speaking to the original student allegations here, but to the administration response, which was to immediately leap to DEFCON 1.] When, after dedicating over twenty years of your life to a school, you are removed from campus upon threat of campus security and not allowed to first pick up the exams you have just proctored for the stated fear that you might destroy them, one naturally and very rightly defends his or her reputation. And the administration mistakes just kept coming from that point on.
I can only hope those responsible for this travesty resign, but it appears they are instead digging themselves ever deeper into their imaginary fantasy land. This is most unfortunate because, again, there are some really good people at Widener, and they are getting dragged through this mud that is not of their making. Not to mention what it must be like for students. It is getting to the point, however, if it hasn't already long been there, where everyone at the school should take a firm stand. There are some situations so egregious that nobody should stand idly by and just wait it out. Now I suppose that appears an easy thing for me to say, having left, and that's undoubtedly true. But since anyone who knows me knows that I am, for better or worse, outspoken in most everything wherever I am, I feel justified in saying it all the same. The faculty should reclaim their school, in the name of all of us who have ever had some beneficial connection to it, be it student, faculty, or otherwise.
If Dean Linda Ammons or any current or former Widener faculty member wants to respond, I'd be delighted to publish a response here as a separate blog post.
What Collective Action Federalism Is and Is Not
I congratulate Ilya Somin on the arrival of Willow. My daughters stand ready to babysit your beautiful pooch.
In this post, I will clarify the theory of collective action federalism by offering four points about what the theory is and is not.
First, collective action federalism is not a comprehensive structural account of American constitutional federalism. For example, whatever the implications of the theory for the proper interpretation of other constitutional provisions, a collective action approach does not explain the proper scope of federal powers authorized by the enforcement clauses of the Civil War Amendments.
The 13th, 14th, and 15th Amendments dramatically changed the balance of power between the federal government and the states by authorizing congressional regulation of the internal policy choices of the states on certain subjects regardless of collective action problems among the states. These amendments especially aimed to grant basic constitutional rights previously denied to minority groups. Minorities had been excluded because collective action had succeeded for the majority, not because it had failed.
Second, collective action federalism offers a structural account of Article I, Section 8, not the institutional roles of Congress and the Court in constitutional interpretation. Those who endorse vigorous judicial review of federalism questions will interpret collective action federalism in terms of how courts should restrain Congress. Those who do not will interpret the framework in terms of guidance for conscientious legislators and the political safeguards of federalism.
Third, to the extent courts engage in judicial review of federalism questions, people will disagree about how judges should evaluate congressional judgments about the existence and seriousness of collective action problems, and about the adequacy of Congress's response. Congress can always seek to justify legislation by asserting that a collective action problem exists; that its effects are significant; and that the law it has enacted addresses the problem effectively. The evaluative question, therefore, is what degree of proof courts should require of Congress before they will defer to its judgment.
Collective action federalism does not resolve disagreements over this question. The theory is compatible with multiple approaches, which reflect different views about (1) the proper extent of judicial deference to Congress in federalism cases, and (2) the actual scope of interstate externalities and impediments to interstate markets.
The most likely approach in practice, and one I endorse, reflects the prevailing view that Congress possesses very broad but not limitless authority to legislate under the various clauses of Section 8. This belief is reflected in the interpretive principle of loose construction first articulated by Chief Justice Marshall in McCulloch v. Maryland and recently reaffirmed by a majority of Justices in United States v. Comstock, which I discuss below.
This standard of review would charge courts with inquiring whether Congress, in passing the law under review, had a reasonable basis to believe that it was ameliorating a significant problem of collective action involving two or more states. If reasonable people could disagree (1) about the existence of a collective action problem, (2) about the seriousness of the problem, and (3) about the efficacy of the congressional response, then courts should uphold the law.
Congress would have to offer a plausible basis for its judgments that there is a serious multistate problem of collective action and that the law addresses the problem to a non-trivial extent. Courts would defer to plausible findings by Congress. Such an approach to judicial review would "cue" the political branches to take seriously those federalism questions that are worth taking seriously, but it would not license federal courts to engage in Lochner–style invalidations of many federal laws and overrulings of precedent.
Fourth, the theory of collective action federalism is neither originalist nor wholly consequentialist. It is, rather, an account of an important part of the American constitutional structure. The theory seeks to interpret Section 8 by drawing inferences from the relevant structures and relationships that the Constitution establishes — namely, the maintenance of a federal system that presupposes the continued existence of the states and that endows the federal government with authority to solve problems that the states cannot address effectively on their own. Using modern economics, collective action federalism pursues a consequentialist inquiry to identify the logic of such problems and to explain how federalism can ameliorate them.
Resolution VI and the recorded statements of influential Framers matter to the theory because such materials provide important evidence of the federalist structure that was planned; they offer illuminating evidence of how an important component of the constitutional machine was supposed to function in practice. The Federalist Papers, for example, are relevant to my structural account even though they had little impact on the ratification debate.
It might have turned out that this original plan for the proper interpretation of Section 8 ceased to make sense over time. But that is not what happened regarding the distinction between individual and collective action by states; it continues to make good sense of this part of the American constitutional structure today, as modern economics helps to confirm. Consequences matter to collective action federalism not because its structural account is instrumentalist all the way down, but because structural accounts are always in part consequentialist, regardless of how they are presented.
Collective action federalism leverages a particular view about the constitutional structure to support and critique contemporary judicial doctrine. In my previous post, I read the Court's modern Commerce Clause jurisprudence as sensibly reflecting the distinction between individual and collective action by states.
Another recent example is the collective action reasoning present in United States v. Comstock. The Court there held that the Necessary and Proper Clause authorizes the federal government to civilly commit sexually dangerous federal prisoners after the completion of their sentences if no state will accept custody.
A state that agrees to assume custody must pay all the costs associated with commitment while other states potentially enjoy the benefits from committing the individual, who might otherwise move out of state upon release. The Comstock Court underscored evidence that states often refuse to assume custody, potentially free riding on another state's decision to do so. Both the Court and Justices Kennedy and Alito stressed the relationship between the federal statute and an interstate collective action problem, which the federal government helped to create (by housing inmates in remote federal prisons for many years) and is better situated to address than the states.
Collective action federalism is also relevant to part of the doctrinal debate over the constitutionality of the individual mandate in the Affordable Care Act. In a new paper, I argue that the distinction between individual and collective action by states is a much better place to look for appropriate limits on the commerce power than is the distinction between inactivity and activity. This is because the Commerce Clause is best understood in light of the collective action problems — including free rider problems — that the nation faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce.
One way a collective action problem arises is when people benefit from collective action regardless of whether they contribute to it. To overcome failures to participate in collective action whose effects spill across state borders, the clauses of Section 8 authorize Congress to require many kinds of private action.
This authorization includes requiring (or, more precisely, incentivizing) financially able individuals to obtain health insurance coverage instead of attempting to self-insure or free riding on benevolence by shifting costs to others. To the extent that such free riders are deemed inactive, their inactivity is a problem, not a reason why Congress is powerless to offer a solution. Congress can offer a solution under the commerce power when the states are separately incompetent to solve the problem on their own because of spillover effects.
Economic theory and empirical evidence suggest that the states are separately incompetent to solve the free rider problem that the individual mandate aims to address. The free rider problem also illuminates the difficulty of arguing directly that the mandate infringes individual liberty.
The Framers' Intent in Cases Involving the National Interest Where the States are "Separately Incompetent"
This is the second in a series of guest-posts on my new article, "Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8 and recent efforts to use Resolution VI as a foundational principle for construing federal power under Article I, Section 8. As amended and originally adopted in the Philadelphia Convention, Resolution VI called for the federal government to be granted power to "legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the Exercise of individual Legislation." Although the framers ultimately chose the language of enumerated powers in Article I, Section 8, a number of scholars have recently argued that Article I, Section 8 should be interpreted in a manner that effectuates the broad principles of Resolution VI. In my article, I argue that these claims are based on both historical omissions and historical error.
Proponents of the Resolution VI-reading of federal power make two key claims: (1) the framers intended Article I, Section 8 to be construed in a manner that effectuates the principle of Resolution VI, and (2) framer James Wilson delivered a speech during the Pennsylvania Ratifying Convention in which he expressly linked Resolution VI to the framers' understanding of Article I, Section 8. Although my article goes into far greater detail, in this and my next post I will try to give some idea of why I believe both claims are demonstrably incorrect.
On August 6, the Committee of Detail presented the list of enumerated powers that became Article I, Section 8 of the federal Constitution. Just over one month later, on September 14, the Convention discussed whether to give Congress the power to grant charters of incorporation. The impetus for the discussion was Madison's belief that Congress would need to create corporations for the building of an interstate system of canals.
If the members already believed Congress had the power to legislate in "all cases involving the general interests of the Union," or in all cases where "states are separately incompetent," or in cases where state legislation interrupted "national harmony," then the members would have thought they already had such power. From the following conversation, it appears that they did not share such a belief, nor did they believe the principle of Resolution VI informed the scope of power that they had just conferred on Congress through the adoption of Article I, Section 8.
Here is the discussion as noted by James Madison:
"Mr. Madison suggested an enlargement of the motion into a power "to grant charters of incorporation where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent". His primary object was however to secure an easy communication between the States which the free intercourse now to be opened, seemed to call for–The political obstacles being removed, a removal of the natural ones as far as possible ought to follow. Mr. Randolph 2ded. the proposition.
Mr King thought the power unnecessary.
Mr Wilson. It is necessary to prevent a State from obstructing the general welfare.
Mr King–The States will be prejudiced and divided into parties by it–In Philada. & New York, It will be referred to the establishment of a Bank, which has been a subject of contention in those Cities. In other places it will be referred to mercantile monopolies.
Mr. Wilson mentioned the importance of facilitating by canals, the communication with the Western Settlements–As to Banks he did not think with Mr. King that the power in that point of view would excite the prejudices & parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.
Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.
The motion being so modified as to admit a distinct question specifying & limited to the case of canals.
N– H– no– Mas. no. Ct. no– N– J– no– Pa ay. Del. no– Md. no. Va. ay. N– C– no– S– C. no– Geo. ay. [Ayes–3; noes–8.]"
In this short but important conversation, we learn a number of things. First and most importantly, no one in this discussion believed that, by adopting Article I, Section 8, the Convention had granted Congress power to regulate matters in the national interest to which the states were "separately incompetent." If they had, they would have either supported Madison's proposal as being consistent with Resolution VI or they would have pointed out that Congress already had the power to act in cases "where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent." Instead, not only did Madison and Wilson deny Congress had any such power (though they believed it should), the convention voted down the proposition to grant Congress such power.
Second, not only did the framers expressly deny that Congress power to act in cases involving the national interests where states separately were incompetent, no framer believed the prior adoption of Resolution VI was even relevant either to understanding the scope of those powers that had been granted or the kinds of additional powers that ought to be granted. Finally, a majority rejected granting power in a situation that would have literally met the criteria of Resolution VI—a matter of general interest to the United States to which the efforts of the states separately were incompetent.
Some Resolution VI advocates might object that we ought not be bound by the expected application of a principle originally adopted at the time of the Founding. Even if one can cleanly divide an intended principle from the intended application of that principle, this objection misses the thrust of the above-quoted dialogue. The rejection of the power of incorporation even in cases "where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent" shows that the convention had not intended to adopt the general principle of Resolution VI when they adopted the enumerated powers language of Article I, Section 8.
In my third and final substantive post, I will address claims by Resolution VI scholars that James Wilson expressly linked Article I, Section 8 to Resolution VI during the debates in the Pennsylvania Ratifying Convention.
The Framer's Intent in Cases Involving the National Interest Where the States are "Separately Incompetent"
This is the second in a series of guest-posts on my new article, "Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8 and recent efforts to use Resolution VI as a foundational principle for construing federal power under Article I, Section 8. As amended and originally adopted in the Philadelphia Convention, Resolution VI called for the federal government to be granted power to "legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the Exercise of individual Legislation." Although the framers ultimately chose the language of enumerated powers in Article I, Section 8, a number of scholars have recently argued that Article I, Section 8 should be interpreted in a manner that effectuates the broad principles of Resolution VI. In my article, I argue that these claims are based on both historical omissions and historical error.
Proponents of the Resolution VI-reading of federal power make two key claims: (1) the framers intended Article I, Section 8 to be construed in a manner that effectuates the principle of Resolution VI, and (2) framer James Wilson delivered a speech during the Pennsylvania Ratifying Convention in which he expressly linked Resolution VI to the framers' understanding of Article I, Section 8. Although my article goes into far greater detail, in this and my next post I will try to give some idea of why I believe both claims are demonstrably incorrect.
On August 6, the Committee of Detail presented the list of enumerated powers that became Article I, Section 8 of the federal Constitution. Just over one month later, on September 14, the Convention discussed whether to give Congress the power to grant charters of incorporation. The impetus for the discussion was Madison's belief that Congress would need to create corporations for the building of an interstate system of canals.
If the members already believed Congress had the power to legislate in "all cases involving the general interests of the Union," or in all cases where "states are separately incompetent," or in cases where state legislation interrupted "national harmony," then the members would have thought they already had such power. From the following conversation, it appears that they did not share such a belief, nor did they believe the principle of Resolution VI informed the scope of power that they had just conferred on Congress through the adoption of Article I, Section 8.
Here is the discussion as noted by James Madison:
"Mr. Madison suggested an enlargement of the motion into a power "to grant charters of incorporation where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent". His primary object was however to secure an easy communication between the States which the free intercourse now to be opened, seemed to call for–The political obstacles being removed, a removal of the natural ones as far as possible ought to follow. Mr. Randolph 2ded. the proposition.
Mr King thought the power unnecessary.
Mr Wilson. It is necessary to prevent a State from obstructing the general welfare.
Mr King–The States will be prejudiced and divided into parties by it–In Philada. & New York, It will be referred to the establishment of a Bank, which has been a subject of contention in those Cities. In other places it will be referred to mercantile monopolies.
Mr. Wilson mentioned the importance of facilitating by canals, the communication with the Western Settlements–As to Banks he did not think with Mr. King that the power in that point of view would excite the prejudices & parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.
Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.
The motion being so modified as to admit a distinct question specifying & limited to the case of canals.
N– H– no– Mas. no. Ct. no– N– J– no– Pa ay. Del. no– Md. no. Va. ay. N– C– no– S– C. no– Geo. ay. [Ayes–3; noes–8.]"
In this short but important conversation, we learn a number of things. First and most importantly, no one in this discussion believed that, by adopting Article I, Section 8, the Convention had granted Congress power to regulate matters in the national interest to which the states were "separately incompetent." If they had, they would have either supported Madison's proposal as being consistent with Resolution VI or they would have pointed out that Congress already had the power to act in cases "where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent." Instead, not only did Madison and Wilson deny Congress had any such power (though they believed it should), the convention voted down the proposition to grant Congress such power.
Second, not only did the framers expressly deny that Congress power to act in cases involving the national interests where states separately were incompetent, no framer believed the prior adoption of Resolution VI was even relevant either to understanding the scope of those powers that had been granted or the kinds of additional powers that ought to be granted. Finally, a majority rejected granting power in a situation that would have literally met the criteria of Resolution VI—a matter of general interest to the United States to which the efforts of the states separately were incompetent.
Some Resolution VI advocates might object that we ought not be bound by the expected application of a principle originally adopted at the time of the Founding. Even if one can cleanly divide an intended principle from the intended application of that principle, this objection misses the thrust of the above-quoted dialogue. The rejection of the power of incorporation even in cases "where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent" shows that the convention had not intended to adopt the general principle of Resolution VI when they adopted the enumerated powers language of Article I, Section 8.
In my third and final substantive post, I will address claims by Resolution VI scholars that James Wilson expressly linked Article I, Section 8 to Resolution VI during the debates in the Pennsylvania Ratifying Convention.
August 8, 2011
More Blogging Coming Soon
Blogging has been light over the past ten days because I have I have been busy with various other responsibilities, including the arrival of our new golden retriever puppy, Willow. Now that Willow has learned to sleep through the night in her crate and is (mostly) house-broken, I'm going to try to pick up the pace. In the meantime, here are a couple of Willow photos:
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Willow with her favorite toy, Oz.
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Willow catches her own tail.
Given my interest in science fiction and fantasy, I suspect that enterprising readers will be able to guess where the names Willow and Oz came from, though it was actually my wife who picked them out.
Golden Retriever Takes the Stand in New York Criminal Trial
A golden retriever named Rosie recently became the first judicially approved dog allowed in the witness box for the purpose of comforting a witness while she testifies:
Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager's feet. At particularly bad moments, she leaned in....
Now an appeal planned by the defense lawyers is placing Rosie at the heart of a legal debate that will test whether there will be more Rosies in courtrooms in New York and, possibly, other states.
Rosie is a golden retriever therapy dog who specializes in comforting people when they are under stress....
[Defense] lawyers, David S. Martin and Steven W. Levine of the public defender's office, have raised a series of objections that they say seems likely to land the case in New York's highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.
But they say jurors are likely to conclude that the dog is helping victims expose the truth. "Every time she stroked the dog," Mr. Martin said in an interview, "it sent an unconscious message to the jury that she was under stress because she was telling the truth."
"There was no way for me to cross-examine the dog," Mr. Martin added.
My wife and I recently acquired a golden retriever puppy, and we love the breed as much as anyone. Nonetheless, I think there is some merit to the defense lawyers' concerns. A witness with a cute golden retriever sitting next to her almost always makes a better impression on people than the same witness sans retriever — whether or not she is telling the truth. Every time I walk around the neighborhood with our little Willow, I certainly notice people reacting a lot more favorably than they do when I walk there by myself. You don't have to be a criminal law expert to recognize that people respond favorably to cute dogs. That's why they're such popular pets in the first place.
Does that prove that dogs should be categorically banned from the witness stand? Perhaps not. But it certainly suggests that their presence should be restricted as much as possible and at most limited to cases where there services are absolutely essential, as in the case of seeing-eye dogs, for example.
Court Rules That Police Cannot Use Warrants to Obtain Cell Phone Location of Person Who is Subject of Arrest Warrant
Imagine the police have an arrest warrant for a crime suspect, and they want to find the suspect to arrest him. They happen to know the suspect's cell phone number, so they want to go to the phone company and have the phone company tell the police the location of the suspect's phone. The phone company refuses to let the police get that information without a warrant, so the police police go to a judge and apply for a search warrant based on the probable cause to believe that the location of the phone will help them execute the arrest warrant. Here's the interesting question: Should the judge sign the warrant application and issue the warrant? Or should the judge deny the warrant application?
On August 3, Magistrate Judge Susan K. Gauvey issued a fascinating opinion on this novel question: IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING DISCLOSURE OF LOCATION INFORMATION OF A SPECIFIED WIRELESS TELEPHONE, 2011 U.S. Dist. LEXIS 85638 (D.Md. 2011). Her answer: The Judge must deny the warrant application, as location information is broadly protected by the Fourth Amendment and government cannot use warrants to find out the location of people who have warrants out for their arrest. The timing of the case is extremely unusual, as it seems the case is moot and this is only an advisory opinion. If I understand the timing, Magistrate Judge Gauvey denied the application over a year ago, and the government was able to arrest the suspect some other way in the meantime. Judge Gauvey decided to hand down an opinion on the legal issue anyway, appointed defense counsel to argue for defense interests, and now, a year later, has handed down the opinion on why she denied that application back in 2010.
Still, the opinion is obviously intended to be important: It goes on for 172 pages in the slip opinion, or 60 pages single-spaced, and it reaches out to weigh in on a lot of big issues. I also note that her opinion includes excerpts from my recent House Judiciary Committee testimony (see pages 94–96 and 106 of the slip op). So I thought I would blog some thoughts on the opinion. I'll start with Judge Gauvey's opinion, then explain why I think it's wrong, and then turn to a few broader thoughts on the role of magistrate judges in surveillance law.
I. Judge Gauvey's Analysis
Here's the basic reasoning of the opinion. First Judge Gauvey creates what a appears to be a new distinction in Fourth Amendment law: a distinction between (a) Fourth Amendment rights in location at a given time, and (b) Fourth Amendment rights in movement over time. According to Judge Gauvey, individuals have a reasonable expectation of privacy in both. There is a reasonable expectation of privacy as to a person's location if a person cannot be visually observed in that same way. And there is a reasonable expectation of privacy in movements, which Judge Gauvey seems to be taking from the DC Circuit's Maynard/Jones "mosaic theory" case (which the Supreme Court recently agreed to hear). Judge Gauvey then reasons that if everyone has this Fourth Amendment right, people who have warrants out for their arrest have this right to privacy, too. For that reason, the information held by the phone company as to the location of the phone user is protected by the Fourth Amendment.
Judge Gauvey then considers whether the Fourth Amendment allows a warrant to be issued based on probable cause that the information will help execute an arrest warrant. She concludes the answer is no: A Fourth Amendment warrant requires probable cause that evidence or contraband is located in the place to be searched or that a person who committed a crime is in the place to be searched. Mere probable cause to believe that location information would help the police execute a warrant is not enough under the Fourth Amendment. Judge Gauvey speculates that the Supreme Court would probably allow such warrants if the issue reached the Supreme Court, but she concludes that she "will not take that leap in the absence of any direct precedent or sufficient doctrinal foundation, especially in the face of considerable legislative and public concern and discussion about the invasion of privacy that this new and evolving location technology permits." Judge Gauvey seems particularly unwilling to issue the warrant in light of all the hearings Congress has had over the past year on how the statutory surveillance law applies to cell-site location: "Against this backdrop of intense congressional inquiry and public concern," she writes, it is especially inappropriate to sanction an expansion of law enforcement acquisition of location data . . . "
II. Why I Think Judge Gauvey's Decision is Wrong
My own view is that Judge Gauvey is pretty clearly wrong. Most fundamentally, I don't think location information of phones is protected by the Fourth Amendment under Smith v. Maryland, for all the reasons I have explained at length. Part of the problem is that the Fourth Amendment does not deal in abstractions, with categories such as the right to privacy in "location" or right to privacy in "movement." The Fourth Amendment is much more granular: The relevant question is whether the particular data stored in a particular place on a particular server is protected by the Fourth Amendment, and if so, who is it who has those rights and under what circumstances can that particular information be accessed and disclosed. Given that, Judge Gauvey's abstract categories produce more heat than light. It doesn't help that Judge Gauvey relies significantly on the "mosaic theory" opinion that the Supreme Court recently agreed to review.
Assuming Judge Gauvey is right that location information is in fact protected by the Fourth Amendment, then the next question is when the government can obtain a warrant to order the release of that information. This is actually a very interesting question of Fourth Amendment law. Notably, Payton v. New York concluded that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within," and it seems a it strange that the arrest warrant allows the police to break into a suspect's home but yet there is no ability to even get a warrant to find out the location of the suspect's phone. Judge Gauvey seems to think that it would require a novel extension of Payton to say that Payton allows a warrant for location information to find the suspect, but I think she has the novelty question a bit backwards: It's a novel application of the Fourth Amendment to say that it extends to location information, and that novelty sets up the new question of how Payton applies.
What's the answer? I think this part of the opinion is actually quite difficult, but I would tentatively think that Steagald v. United States is fairly read to allow a Fourth Amendment warrant in this situation. Steagald considered what the police must do when the police think a suspect is in someone else's home, and they want to execute an arrest warrant of the suspect there. Steagald ruled that the police must obtain a search warrant to do that: They must obtain a warrant to search the home for the person inside to safeguard the Fourth Amendment interests of the people who live there. The basic idea is that the search warrant based on probable cause to think that the object of the arrest warrant will be there makes the search of the place reasonable. The Steagald court was not focused on whether the person in the house was "evidence of crime," but rather focused on the government's need to justify the intrusion. Although it's not an easy question, I think the same reasoning would justify a search of the phone company's computer for location information of the suspect's whereabouts to execute the warrant. But as I said, it's a tricky question — one set up by the novelty of concluding that location information is protected by the Fourth Amendment.
III. A Few Concluding Thoughts
I think this opinion is interesting in two main ways. First, it's yet another example of the recent practice of magistrate judges using their authority to grant or deny court order applications to hand down very broad opinions on novel issues of how the Fourth Amendment applies to computers and new technologies. I'm generally critical of this development, but it bodes well for those who strongly want the courts to be more civil libertarian in the surveillance law area. Because most judges will grant the applications without an opinion, but will be more interested in explaining why they denied an application, and because any judge can write an opinion at any time on why they are granting or denying the application, this procedure lets a few magistrate judges with very strong views (think Orenstein in New York or Smith in Texas) write opinions on novel questions when they rule on the application.
Although magistrate judges aren't Article III judges, the magistrates can still submit their opinions to the F.Supp.2d and get them published. As as we see in this case, they can order briefing and submit the opinion over a year after the case is moot. Over time, these magistrate judge opinions are having an impact on the law even though they arise from only a small handful of non-Article III judges in quite unusual procedural contexts. (On that note, I see that over at the Robing Room there is this lawyer's evaluation of Judge Gauvey form 2006: "She is extremely ambitious and fearless in using the publication of her rulings as a means to raise her profile.")
Second, this issue is worth keeping in mind for the pending Supreme Court litigation in United States v. Jones, the GPS/mosaic theory case. When the Fourth Amendment mostly protects only invading private spaces, the scope of the warrant authority is reasonably clear: The Fourth Amendment warrant can be obtained to invade the private space for evidence or the suspect. On the other hand, if the Fourth Amendment is read to extend to location information even in public places, then that extension begins to raise new questions of when a warrant can be obtained to access that location information where it has been generated. This is also worth noting for the statutory debate over location information in Congress: As I noted in the passage Judge Gauvey excerpts from my House testimony, probable cause of what is an essential question in applying the probable cause standard.
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