Eugene Volokh's Blog, page 69

[Eugene Volokh] Court Dismisses Vexatious Litigant's Sexual Assault Lawsuit, Noting Inconsistencies with Evidence, Claims in Other Cases

When plaintiffs file enough cases that courts view as frivolous, the courts can generally declare the plaintiffs to be "vexatious litigants," and thus limit their ability to litigate future cases unless there's a preliminary showing that the cases are likely to be meritorious. The rules vary from state to state, but California has a pretty well worked out system for dealing with such matters, and a list of thousands of vexatious litigants.

The March 6, 2025 decision by Judge Sarah Heidel in Doe v. Suarez (appeal pending) illustrates how this system can work in getting vexatious litigants' cases dismissed. And the case also shows the value to opposing parties of being able to find a vexatious litigant's past cases—and therefore one reason to forbid pseudonymous litigation by litigants who appear likely to be potentially vexatious. (Disclosure: The Jane Doe in this case had unsuccessfully sued me for having identified some of her past pseudonymous lawsuits.) Here's an excerpt from the case:

This case arises from an allegation of sexual assault. According to the complaint, plaintiff Jane Doe met defendant online and the two arranged to meet for dinner. Following dinner, and after an evening of heavy drinking, plaintiff alleges defendant raped her. After that encounter the two exchanged texts for another month and a half. Plaintiff alleges that during this time she came to believe that defendant had supplied her with alcohol at their first date "with the intention of raping her.["] …

[Plaintiff] had been placed on the list of vexatious litiga[nts] by the Judicial Coun[cil] …. A vexatious litigant is "a person who has, while acting in propria persona, initiated or prosecuted numerous meritless litigations, relitigated or attempted to relitigate matters previously determined against him or her, repeatedly pursued unmeritorious or frivolous tactics in litigation, or who has previously been declared a vexatious litigant in a related action." …

{"In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation …. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant."}

Defendant seeks an order requiring plaintiff to furnish security of at least $100,000.00 in the instant action or in such other amount as the court finds reasonable …. To determine whether plaintiff is required to furnish security, "the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion.'' To that end, the court may weigh the evidence presented on the motion in determining whether the vexatious litigant has a reasonable probability of success on her claim….

"When considering a motion to declare a litigant vexatious under section 391.1, the trial court performs an evaluative function. The court must weigh the evidence to decide both whether the party is vexatious based on the statutory criteria and whether he or she has a reasonable probability of prevailing.["] Accordingly, the court does not assume the truth of a litigant's factual allegations and it may receive and weigh evidence before deciding whether the litigant has a reasonable chance of prevailing. The burden is on the motion is on the moving party.

Defendant argues that plaintiff does not have a reasonable probability of prevailing on based on the written statements she made contemporaneous to the alleged incident, plaintiff's statements to law enforcement officers, and her plaintiff's conduct in other litigation. Defendant also offers his own sworn statement….

In his declaration, defendant denies that he sexually assaulted plaintiff. He states that he and plaintiff had consensual sex on or about April 6, 2019 and that after their initial encounter, he and plaintiff exchanged WeChat messages in which plaintiff "enthusiastically endorsed more sexual conduct." According to Suarez, plaintiff did not report the alleged rape until after he refused to have sex with her again on May 21, 2019 and accused him of cheating….

The parties exchanged messages via WeChat between April 6 and May 3, 2019. Defendant argues that the messages support his position that their April 6 sexual encounter was consensual. On April 6, defendant wrote to plaintiff expressing interest in meeting up again.

The two exchanged the following messages:

WC 34 Suarez "we can always meet during the week or when I return from a work trip. You can come to Arcadia to have dinner with me"

WC 35 DOE "K"

WC 36 Suarez "Which works for you"

WC 37 DOE "Let me know ahead of time and I will make arrangement"

WC 38 Suarez "Okay"

WC 39 Suarez "Goodnight. Kiss me in your dreams again."

WC 40 DOE 3 kisses emoj

On April 30, 2019, plaintiff suggested that she join defendant on a work trip.

Suarez "Yes it was a work trip"

WC 65 Suarez "I usually go alone"

WC 66 DOE" Then no one would know ifu took someone with u"

WC 67 Suarez "And?"

WC 68 DOE "A lot of possibilities…"

WC 69 Suarez "For what?"

WC 70 DOE "Anything u can think of."

WC 71 Suarez "Like you wanting to come with me?"

WC 72 DOE "I could, depending on my schedule"

May 1, 2019, Jane Doe sent defendant a message indicating that she was interested in a sexual encounter with defendant.

WC 83 DOE "I miss u. I want u. I'm wet all night." (7:54 am)

WC 84 Suarez "Morning. You wake up so early?" (11:06)

WC 85 DOE "I went back to sleep"

WC 86 Suarez "Oh Haha I was like what the"

WC 87 Suarez "I want you too"

WC 88 Suarez "I want to feel your… "

WC 89 DOE "When?"

WC 90 Suarez "Tomorrow?"

May 2, 2019, the parties discussed the arrangements for their meet up. WC 167 [misnumbered] Suarez "I wanted to f--- you tonight"

WC 167 DOE ''No, u didn't. You made other plans"

WC 168 Suarez "After"

WC·169 Suarez "I was done"

WC 170 Suarez "It seems like all you care about is yourself because all you send me is things to make you orgasm better"

WC 172 DOE "I can do whatever u want me to"

WC 173 Suarez "Is there anything you won't try?"

WC 174 DOE "What do you want me to try"

WC 175 Suarez "I'm just curious"

WC 176 Suarez "If there is anything you won't try"

WC 177 DOE ''Nope" …

Plaintiff offers her own declaration. She states that "[p]rior to April 2019, [her] understanding of sexual assault was based solely on media portrayals, which depicted rapes as being committed by strangers and resulting in visible injuries." According to plaintiff, defendant contacted her after dinner on April 5/6, 2019 and the two agreed to a drink. She says that she suggested meeting at a location that was not her home. They shared a bottle of wine and Japanese whiskey. According to plaintiff, she was losing consciousness when defendant took her to a motel. She states that she did not consent to sex and was not conscious during sex. She explains that defendant made a comment about the tightness of her vagina and how "he had to stretch it out." She states that her vagina was tight because she was not aroused during intercourse. Plaintiff states that when she woke up on April 6, she did not realize that she had been raped. She states that she "continued communication with [defendant] in the hope of seeking clarity of the events." She says that her "post-rape communication was a strategic effort to elicit information from [defendant] … to try to get [defendant] to discuss [her] vagina." She also states that "As the days dragged on, Suarez's continuing on the hunt of other women assisted me in beginning to piece together the events before and after the night I was taken to the motel. When it finally clicked, I then struggled and made the realization that the incident was premeditated date rape." …

The court took judicial notice of various pleadings in other cases initiated by plaintiff. The pertinent allegations are below.

[a.] O.L. v. City of El Monte et al, 2:20-CV-00797-RGK-JDE

On February 20, 2020, plaintiff filed a complaint against various public entities for failing to investigate her allegations of rape against defendant. In the complaint she describes the alleged rape on April 6, 2019 stating that she woke up next to defendant "still drunk and confused about what had happened. Defendant inserted his penis into Plaintiff's vagina but she didn't know what to say or what to do… She didn't resist because she's afraid of any confrontation and escalated situation. She remained silent and went along with what the offender wanted because she reasonably believed that [defendant] would comm.it violence against her if the situation was escalated."

[b.] Jane Doe v. Newsom et al, 2:20-cv-04525-JAK

On May 20, 2020, plaintiff filed a case titled Jane Doe v. Newsom et al, 2:20-cv-04525- JAK. In the Newsom case, plaintiff alleged that in 2013 she met a police officer named Edward Weamer. The two exchanged texts prior to meeting and plaintiff alleges that she told Weamer that she did not want to rush into sex. Plaintiff alleges that once she "met Weamer in person, he didn't keep his words and forced himself on top of Plaintiff around ten times between 2013 and 2014."

[c.] Jane Doe v. Paul Wang, l:20-cv-02765-RMR-MEH

On July 28, 2021, defendant filed a third amended complaint in 'a case called Jane Doe v. Paul Wang, 1:20-cv-02765-RMR-MEH. In the complaint, plaintiff alleged that she and defendant were in a romantic relationship in 2012-2013 when a mutual acquaintance, Mr. Chen, sexually assaulted her.

[d.] Doe v. Weamer, Case No. C20-00827

On May 7, 2020, plaintiff filed a complaint in the case of Doe v. Weamer, Case No. C20- 00827. In Weamer, plaintiff alleged that in 2013 plaintiff met defendant via an online app. ''Before Plaintiff met Defendant in person, she made a clear statement via text messages that she didn't want to rush sex and insisted to stick to her traditional culture." Plaintiff alleged that defendant took her back to his house and raped her. She alleged that she "was unclear if forcible sex by a date (non a stranger) was a normal thing. She was uncomfortable, but not alarmed. She neither reported to authority nor stopped contact with Defendant." …

Defendant has established that plaintiff does not have a reasonable probability of prevailing[.] At the heart of this matter is whether defendant raped plaintiff on April 6, 2019. To prevail, plaintiff would have to prove by a preponderance of the evidence that the sexual encounter was not consensual. Plaintiff offered a declaration that she was unconscious and did not consent to sex with defendant. Defendant offered a declaration that she was awake and willingly participated. All of the other evidence offered by the parties casts significant doubt on plaintiff's credibility.

First, defendant offered the WeChat messages in which the parties exchange sexually explicit messages. Plaintiff argues that the April 6-May 21 messages do not establish that the April 6, 2019 encounter was consensual. While this is technically true, the messages do tend to support an inference that plaintiff was interested in pursuing additional sexual encounter with defendant and tend to undermine her claim that defendant raped her. Plaintiff states that she only communicated with defendant in order to draw him out and get him to reveal more details about the April 6 incident. The court has reviewed the extensive and explicit WeChat messages and does not find support for plaintiff's explanation.

Additionally, plaintiff argues that the fact that she did not immediately report the assault does not mean it was consensual. This is also true. However, in her declaration, plaintiff states she did not immediately realize that she had been raped and that "[p]rior to April 2019, [her] understanding of sexual assault was based solely on media portrayals, which depicted rapes as being committed by strangers and resulting in visible injuries." These statements are flatly contradicted by allegations that plaintiff made in Doe v. Weamer and Jane Doe v. Newsom, in which plaintiff alleges she was the victim of two different date rapes in 2013. In Weamer, plaintiff alleged that she was "unclear if forcible sex by a date (non a stranger) was a normal thing," an allegation similar to the one plaintiff made in this case. In Jane Doe v. Paul Wang plaintiff alleged she was raped by another acquaintance.

Plaintiff's allegations in these cases directly contradict the statement in her declaration that in 2019 she was unfamiliar with the concept of date rape and believed rape could only be committed by strangers.

Plaintiff's allegations in the O.L. v. City of El Monte case also contradict the allegations and statements she made in this case. Plaintiff brought that action against law enforcement after they failed to investigate the alleged assault by the defendant in this case. Plaintiff alleged that morning after her encounter with defendant she woke up and defendant penetrated her against her will but she did not protest "because she's afraid of any confrontation and escalated situation. She remained silent and went along with what the offender wanted because she reasonably believed that [defendant] would commit violence against her if the situation was escalated." In the declaration plaintiff filed in this case, plaintiff did not state that she was afraid or concerned about violence. She stated that she did not even realize that an assault had occurred.

In sum, having evaluated the evidence, the court finds that plaintiff has made numerous inconsistent and implausible statements that pertain to matters which are at the heart of this action. Based on those conflicting statements and allegations the court finds that plaintiff is not credible and, on that basis, does not have a reasonable probability of prevailing in this action.

Counsel for defendant requested a security of $100,000, which he estimates constitute the amount of reasonable expenses based on plaintiffs litigation tactics and conduct. Accordingly, pursuant to Code of Civil Procedure 391.3, plaintiff is ordered to furnish a security in the amount of $100,000 to be posted by April 6, 2025….

Jamie R. Schloss and Jeff W. LeBlanc (Anderson & Leblanc, P.L.C.) represent defendant.

The post Court Dismisses Vexatious Litigant's Sexual Assault Lawsuit, Noting Inconsistencies with Evidence, Claims in Other Cases appeared first on Reason.com.

[Eugene Volokh] No Preliminary Injunctions Against Penn's Sanctions on Prof. Amy Wax

["[W]hatever harm she claims, it is not imminent, irreparable harm. Her damages, if any, are monetary damages."]

From today's decision by Judge Timothy Savage (E.D. Pa.) in Wax v. Univ. of Pa.:

After a lengthy disciplinary process, the University of Pennsylvania ("Penn") found that longtime law professor Amy Wax had engaged in "flagrant unprofessional conduct." It imposed sanctions of a one-year suspension at half pay, loss of summer pay in perpetuity, loss of her named chair, and a public reprimand.

Wax brought this action asserting breach of contract (failure to adhere to the disciplinary process prescribed in the Faculty Handbook); racial discrimination under Title VI, Title VII, and 42 U.S.C. § 1981; and false light invasion of privacy. She seeks a preliminary injunction enjoining Penn from implementing the sanctions….

Wax joined the faculty of Penn Carey Law School as a tenured professor on July 1, 2001. Five years later, she was named the Robert Mundheim Professor of Law. On March 2, 2022, Dean Theodore W. Ruger sent Wax a letter charging that she had "shown a callous and flagrant disregard for [the] University community" and inviting an informal resolution. The letter cited the following instances of Wax's conduct:

When asked by a Black student if she agreed with the claim that Black people are inherently inferior to white people, Wax responded: "You can have two plants that grow under the same conditions, and one will just grow higher than the other."Wax asserted on a panel that "our country will be better off with more whites and fewer nonwhites."Wax told the New Yorker that "women, on average, are less knowledgeable than men" and "less intellectual than men."Wax publicly described Black people as having "different average IQs" than people of other races, such that "Blacks are not going to be evenly distributed throughout all occupations" and that this phenomenon is "not due to racism."Wax asserted that "the United States is better off with fewer Asians" and that Asian people lack "thoughtful and audacious individualism."Wax told a Black colleague that it is "rational to be afraid of Black men in elevators."Wax, speaking on a panel with a gay colleague, asserted that "no one should have to live in a dorm room with a gay roommate," and separately stated that same-sex relationships are selfish and not focused on family or community.Wax stated on a podcast that she "often chuckle[s]" at advertisements that show interracial marriages because "[t]hey never show blacks the way they really are: a bunch of single moms with a bunch of guys who float in and out. Kids by different men."In an appearance on Tucker Carlson Today, Wax asserted that "Blacks" and other "non-Western groups" harbor "resentment, shame and envy" against Western people for their "outsized achievements and contributions even though, on some level, their country is a shithole."

[The administration imposed various sanctions, including "a one-year suspension at half pay, the loss of the named chair, the loss of summer pay in perpetuity, and a public reprimand." -EV] …

We may only grant preliminary injunctive relief upon a clear showing that irreparable harm is likely. There must be more than a mere risk of irreparable harm. Wax must show that harm, which cannot be remedied after trial, is likely…. Wax argues we should presume irreparable harm because the Third Circuit has recently "presum[ed] that First Amendment harms are irreparable." This is not a First Amendment case. It is a breach of contract case.

Wax contends that two of the sanctions will result in irreparable harm—the one- year teaching suspension and the directive in Provost Jackson's public reprimand that she "refrain[] from flagrantly unprofessional and targeted disparagement of any individual or group in the university community."

Wax claims the sanctions damage her reputation. As evidence of irreparable harm, she points to the cancellation of a scheduled radio appearance and an attempted cancellation of a speech at Yale. However, she has not shown any connection between those incidents and the sanctions. She also has not shown that the cancellation and attempted cancellation were not simply a result of her more widely publicized views. {The radio station appearance was canceled because of "the harmful nature of Amy Wax's statements" which led to discipline, not the discipline itself. Yale did not attempt to cancel her appearance. A student group at Yale called for her speech to be canceled and cited the sanctions in this request. Yale did not cancel the appearance or speech.} …

Wax has failed to show that harm to her reputation is imminent. What effect the sanctions may have on her reputation has already occurred. She has been publicly disciplined and reprimanded. The sanctions have been publicized. Her suspension was announced. An injunction will not erase that record.

Wax's claimed harm to her career is speculative. She contends she will be prevented from engaging on issues that are in the public square. She claims that the sanctions negatively impact her ability to engage in national conversations around immigration, DEI, and affirmative action. She has not shown that a suspension would impact her speaking opportunities. Nor has she shown how a suspension would change an outside group's decision to host her as a speaker. She has made public statements about her discipline in numerous public appearances that shape the public's perception of her.

{Wax refers to the "stripping of her title." We assume she is requesting that we order Penn to restore her named chair while the case is pending. She has not shown how she will be harmed in the coming months by not having the title. She has not argued that the loss of the named chair specifically harms her reputation or opportunities. Further, she has been without the named chair for almost a year now.}

Wax also argues she is harmed by the suspension because it will prevent her from teaching for a year. That is not irreparable harm. She will lose half her salary. Her harm is monetary.

Wax also complains of Provost Jackson's directive that she "refrain[] from flagrantly unprofessional and targeted disparagement of any individual or group in the university community." She claims that this directive limits her speech on national issues. The reprimand is limited to comments directed at individuals and groups "in the university community." It does not address speech directed at those outside the university.

Wax seems to be asking us to prohibit Penn from disciplining her in the future. She claims that Penn has threatened her with termination if "she engages in disfavored political speech." She says this "threat" has chilled her speech. Future discipline is not imminent and it is speculative. She has not pointed to any statements by Penn that support her assumption that Penn will discipline her again. Even if she did, we cannot enjoin Penn from disciplining her for possible future infractions.

The publicity already generated in this case may contribute to the public's perception of Wax. However, she has not proven that Penn's sanctions are responsible for that perception or that pausing the suspension would have any impact on it. As we know, she has publicly discussed the sanctions. In short, whatever harm she claims, it is not imminent, irreparable harm. Her damages, if any, are monetary damages….

Michael Banks, Klair Fitzpatrick, and Arielle Steinhart (Morgan, Lewis & Bockius LLP) and Joe Tucker (Tucker Law Group) represent defendants.

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[Ilya Somin] Senate Parliamentarian Rejects Dangerous Provision of "Big Beautiful Bill" that Undermines Judicial Protection for Constitutional Rights

[The parliamentarian ruled it cannot be enacted as part of a reconciliation bill not subject to the filibuster.]

Photo 27165352 © Valentin M Armianu | Dreamstime.com

In two previous posts, I critiqued a dangerous provision of the Senate version of Trump's "Big Beautiful Bill," which - if enacted - would severely undermine judicial protection against unconstitutional federal government actions (see here and here). In the process, I highlighted critiques by Arizona Supreme Court Justice Clint Bolick, and a coalition of conservative and libertarian public interest groups, led by the Firearms Policy Coalition. The provision would require litigants seeking preliminary injunctions against illegal federal government actions to post potentially enormous bonds.

Fortunately, the Senate parliamentarian has now ruled that this provision cannot be enacted as part of a reconciliation bill exempt from Senate filibuster rules:

A U.S. Senate official has concluded that a Republican-drafted provision in President Donald Trump's massive tax and spending bill that would restrict the ability of judges to block government policies violates budgetary rules.

The Senate's parliamentarian, Elizabeth MacDonough, advised over the weekend that the provision ran afoul of a Senate rule governing what can be included in budget reconciliation legislation that can be passed with a simple-majority vote and would instead need to be subject to a 60-vote threshold if it remained in the bill.

Republicans, who control the Senate 53-47, intend to use complex budget rules to pass the so-called "One Big Beautiful Bill Act" with a simple majority vote.

The parliamentarian is a nonpartisan referee. Her decision could spell doom for the provision's inclusion in the ultimate legislation Congress passes because it would allow Democrats to challenge the vote on the floor and require Republicans to muster 60 votes to pass it. Congressional leaders hope to enact the overall bill in the coming days so Trump can sign it into law before July 4.

The GOP-controlled Senate could potentially override the parliamentarian on a majority vote. But, at least at this point, they do not seem to have any plans to do so. If they don't, that spells the end of this dangerous proposal - at least for now. There is virtually no chance it could secure the 60 votes needed to enact it as stand-alone ordinary legislation.

 

The post Senate Parliamentarian Rejects Dangerous Provision of "Big Beautiful Bill" that Undermines Judicial Protection for Constitutional Rights appeared first on Reason.com.

[Eugene Volokh] Prof. Jack Goldsmith (Harvard) on "Was the Iran Strike Constitutional?"

A characteristically excellent analysis, from a leading scholar of the subject, at his Executive Functions substack. An excerpt:

A lot of people over the next few days are going to argue with confidence that President Trump violated, or didn't violate, the Constitution when he bombed Iran over the weekend without congressional authorization.

You might think that the Constitution would provide a clear answer to such a momentous question. But it doesn't.

Or you might think I would know the answer, since I (with Curt Bradley and Ashley Deeks) have a casebook that covers the issue; I have written about it for decades; and I served in the Office of Legal Counsel that is the storehouse of executive branch legal opinions on the topic, one of which has my name on it. But I don't know the answer.

I don't know the answer because I do not think there is anything approaching a settled or clear normative framework for analysis.

Very often Supreme Court decisions guide constitutional analysis. But here we have only the Prize Cases, which in the Civil War context held that "[i]f a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force." This is basically all the Court has ever said in a holding about the president's unilateral war powers; and because of justiciability constraints it is all the Court is ever likely to say.

So when looking for normative sources against which to assess the constitutionality of the Iran strikes, that basically leaves the constitutional text (subject to one's favorite but contestable interpretive theory) and historical practice.

The Constitution gives Congress many war-related authorities, most notably the power "[t]o declare War," "raise and support Armies," and "provide and maintain a Navy." And Article II says the president "shall be Commander in Chief of the Army and Navy of the United States." There has been a massive debate since the founding about what these provisions mean and how they are supposed to operate….

The framers worried about the president using force unilaterally (and self-servingly) to bring the nation into war in ways that did not serve the national interest. But it is not at all clear how they grounded that concern in constitutional text. One plausible interpretation of the constitutional provisions is that the primary constraint came in Congress's control over appropriations and the standing military, not the declare war clause. On that theory the Iran strike would be lawful since the president deployed the tools that Congress gave him without constraint.

The counterfactual about what the framers would have thought about the president's contemporary use of military force without congressional authorization nonetheless underscores something important: We have had almost 240 years of constitutional practice with war powers, and much has changed. The basic story of change is as follows.

Congress over the centuries authorized standing military forces on a larger and larger scale, equipped those forces with more and more powerful weapons, and rarely put affirmative constraints on the president's use of military force. As Congress did these things, presidents used these military forces abroad without congressional authorization more and more aggressively, both offensively and defensively, scores and scores of times….

If you're at all interested in the subject, read the whole thing.

The post Prof. Jack Goldsmith (Harvard) on "Was the Iran Strike Constitutional?" appeared first on Reason.com.

[David Kopel] Negating Democratic Consent

[How the Colorado Supreme Court has nullified Colorado constitutional limits on taxes, debt, and corporate privilege.]

Colorado's 1876 Constitution is replete with provisions to prohibit corporate welfare, special privileges for government-favored big business, and government debt without voter consent. The protections have been fortified and extended by constitutional amendment, most notably in the 1992 Taxpayer's Bill of Rights. Yet for the past century, the Colorado Supreme Court, usually in cooperation with the other two branches, has nullified the taxpayer protections of the Colorado Constitution. This sad story is told in my new article for the Denver University Law Review's annual Tenth Circuit Symposium, Negating Democratic Consent: How the Colorado Supreme Court has Nullified Colorado Constitutional Limits on Taxes, Debt, and Corporate Privilege, 102 Denver Univ. Law Review 449 (2025). (The symposium includes states law articles on 10th Circuit states.)

For example, Colorado Constitution article XI, section 1, forbids government debt on behalf of corporations in the most comprehensive language possible:

Neither the state, nor any county, city, town, township or school district shall lend or pledge the credit or faith thereof, directly or indirectly, in any manner to, or in aid of, any person, company or corporation, public or private, for any amount, or for any purpose whatever; or become responsible for any debt, contract or liability of any person, company or corporation, public or private, in or out of the state.

The next section of the Constitution, article XI, section 2, also uses the broadest language possible to outlaw government aid to corporations:

Neither the state, nor any county, city, town, township, or school district shall make any donation or grant to, or in aid of, or become a subscriber to, or shareholder in any corporation or company or a joint owner with any person, company, or corporation, public or private, in or out of the state . . .

The statutory text contains certain narrow exceptions. For example, a government might acquire ownership of a corporation by forfeiture or escheat. By constitutional amendment, the people have created other exceptions, allowing for a government student loan programs and for government investment in energy industries.

The Colorado Supreme Court, however, has usurped for itself the power of constitutional amendment. Today, the Court does not enforce the text of the anti-corporate welfare sections of the Colorado Constitution, with their blanket language such as "directly or indirectly, in any manner to, or in aid of." Instead, according to the court, all corporate welfare is permissible whenever the legislature rationally believes that the welfare might have some beneficial effects. The plain text of the Colorado Constitution has in effect been replaced by the court's lawless imposition of a rational basis test that legalizes precisely what the Colorado Constitution was enacted to forbid.

A similar tale of judicial nullification can be told about the other Colorado Constitution prohibitions against special privileges:

article V, section 25 (no special legislation),article II, section 11 (no laws granting special irrevocable privileges)article II, section 28 (no extra compensation to officers, employees, or contractors),article II, section 34 (no appropriations to private institutions).

The same is true for all of article XI's limitations on government debt:

sections 3 (public debt of the state),section 4 (debt may be no longer than 15 years),section 5 (vote on debt for public buildings), andsection 6 (local government debt limits).

Likewise, the Colorado Supreme Court has ranged far and wide in nullifying the 1992 Taxpayer's Bill of Rights (TABOR), article X, section 20:

TABOR's text provides its own standard of review: the "preferred interpretation shall reasonably restrain most the growth of government."But the Colorado Supreme Court has replaced the constitutional text with its own test, requiring that a violation of TABOR be proven beyond a reasonable doubt -- a standard that means the government always wins.While TABOR applies to taxes (such as sales taxes) but not to "fees" (such as towel rental at a recreation center), the Colorado Supreme Court has ruled that the government can call a sales tax or any other tax a "fee" and thereby dispense with the need for voter approval.TABOR applies to all government units, except for "enterprises"; enterprises support themselves by selling services, rather than being dependent on tax revenue. For example, if a municipal recreation center does not need taxpayer support because it earns enough to support itself by charging fees to persons who exercise at the recreation center, the center can set its own prices. The Colorado Supreme Court, however, has allowed the "enterprise" exemption to be applied to fictitious entities that receive all of their income from Colorado tax revenue, with no connection between the persons who are taxed to support the "enterprise" and the benefits provided by the enterprise.According to TABOR, tax policy changes that increase net government revenue require voter approval. So does repeal of any of the pre-TABOR prior limits on taxes and spending. Yet the courts have nullified both of these protections by inventing a rule that they do not apply as long as the tax and spending increases do not cause the government to exceed TABOR's revenue caps.TABOR's main means of enforcement is citizen lawsuits, but these are hampered by the supreme court's interpretation that attorney fees for victorious plaintiffs are optional, not mandatory.While TABOR provides that local governments have the authority to opt out of some state government mandates, the supreme court has held that counties may never opt out.Finally, TABOR authorizes voters to allow four-year waivers on tax and spending limits. The courts, though have held that waivers are permanent, even when they were expressly presented to the voters as temporary.In fact, ballot measures that expressly promised no increase in mill levies for property taxes have been implausibly construed as voter permission for increases in mill levies, resulting in the largest property tax increase in state history being imposed without a vote of the people.

Here is the abstract of the article:

The Constitution of the State of Colorado strictly limits the Colorado government's power to impose taxes and incur debt, including by requiring voter approval of higher taxes and new debt. Government debt must be approved by taxpayers and is subject to a debt cap, with a time limit of fifteen years for construction debt. The Colorado constitution also forbids governments to grant special privileges to businesses. For example, governments may not pledge their credit to benefit corporations, may not otherwise go into business with corporations, may not enact special laws forthe benefit of a particular business, may not give extra uncontracted benefits to state employees or contractors, may not appropriate taxpayer funds to private businesses, and may not grant businesses irrevocable privileges. The Colorado constitution also includes the Taxpayer's Bill of Rights, which requires voter approval tax increases and for spending increases that  exceed the rate of inflation plus population growth. However, every one of these restrictions has been effectively nullified, usually with the blessing of the Colorado Supreme Court. Rather than the fair, equal, and democratic state created by the Colorado constitution, Colorado has been turned into a welfare state for the politically powerful, intentionally operating to ignore the constitutional mechanisms for the consent of the governed.

As enacted by the people, the Colorado Constitution"protected the inarticulate against machinators," in the words of dissenting Justice Hilliard in a 1934 case on government debt. Johnson v. McDonald, 49 P.2d 1017, 1034 (Colo. 1935) (Hilliard, J., dissenting). However, the Colorado Supreme Court in fiscal matters protects the machinators against the people.

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[Josh Blackman] Arkes: Is Skrmetti "The Best That Conservative Jurisprudence Can Really Serve Up Now, A Concurring Opinion in Buck v Bell?"

[The conservatives "thought they were constrained from speaking by a jurisprudence that bars them from invoking truths beyond the text of the Constitution."]

In Civitas Outlook, I discussed how the Skrmetti majority refused to even acknowledge the right of the people to govern based on morality. Instead, the Court hid behind technical and legal formalisms. Hadley Arkes states the issue far better than I ever could. Here is a snippet:

The truth that dares not speak its name here is that this wide array of gender-affirming therapies and surgeries is simply predicated on a falsehood. And yet those are the words that the conservative justices apparently see themselves as barred from speaking. Something in conservative jurisprudence holds them back from appealing to the inescapable and objective truth that lies at the heart of these cases. But without it, what were these accomplished jurists able to explain here? What was their ground of justification in overriding the judgments of those parents who were absorbed in the grief and confusion that seized their children? . . . .

The only "instruction" that would be relevant, Justice Thomas, is the unyielding fact that the child is in a state of confusion: he is not occupying some body apart from his own; his sex was not "assigned" at birth but marked inescapably in the organs of reproduction, in the arrangement of his body. His sex is immutable and printed plainly upon him.

Those were the words that Chief Justice Roberts and five colleagues could not move themselves to speak. Or they thought they were constrained from speaking by a jurisprudence that bars them from invoking truths beyond the text of the Constitution—even on the question of what is a human being, the bearer of rights, and when does that "human person" begin? . . .

Without those points in place, the judgment of the Court simply dissolves into a chain of ipse dixits. Why was it not legitimate for the parents of stricken youngsters to order the procedures that might relieve their "gender dysphoria?" Answer: The legislature of Tennessee did not think it a legitimate medical remedy to choose—even though the children and the parents did not share that judgment and were willing to take their risks. One judgment had to prevail, and it was the judgment backed by the power of the State. To put a high finish on it, that "power" represented the authority of a people to govern itself through elected representatives. But when the people speak through their representatives, and override the judgments of parents about their children, they are still obliged to say something more than "we have brute the power to impose this judgment through brute enactment of the law."

Hadley closes by comparing Chief Justice Roberts's decision to Justice Holmes's majority decision in Buck v. Bell.

Unless the Court can explain the grounds that truly compelled its judgment in this case, conservative jurisprudence falls back, as it ever has, on nothing more, as Justice Holmes had it, than the power of the majority to rule and get its way.

Roberts is fond of citing Holmes's Lochner dissent. I don't think the Chief will appreciate the apt comparison to one of Holmes's other decisions that did not age so well.

We should recall that Holmes's grand opinion quickly drew the accolades of the academy and the educated class, quite as enthralled with the romance of euthanasia, as their latter-day counterparts have been about climate change. And all of the ingredients are now again in place: a "controversial medical" procedure, along with people with medical degrees more than eager to show just how they do it; and the case for it seems compelling enough to be enacted into law by those educated people, often with law degrees, who fill out the legislature. But might we not be forgiven for asking: Is this the best that conservative jurisprudence can really serve up now, a concurring opinion in Buck v Bell?

I think my piece, Arkes's piece, and some other emails I've received, reflect a growing awareness of the current Court's deficiency. Since Justice Scalia's passing, I think the Court has lost its way. The fixation on installing Justices who will overrule Chevron has neglected moral foundation that Justice Scalia brought to the Court. Well, Chevron is gone and Roe is overruled. What's next? I think the answer is letting the people govern themselves once again. I do not think it is necessary for the Justices to themselves judge based on any sense of natural law. Unlike Arkes, I do not consider myself a natural law theorist--though I am JWI-curious. Rather, it is enough for judges to be comfortable letting the people govern based on these principles--even when laws might offend modern sensibilities of individual autonomy. I'll admit my views on this topic have changed over the years. I was always persuaded by Scalia over Kennedy as a legal matter, but I didn't quite fully understand why till I read Skrmetti. Now, with the emptiness of Chief Justice Robert's decision, things seem far clearer.

The Court seems open to that end in the Establishment Clause context, such as in Kennedy v. Bremerton and Carson v. Maikin. But the Court is still living in Justice Kennedy's shadow with regard to the Due Process and Equal Protection Clauses. Current discussions about overruling Obergefell miss the point. If the people wish to maintain same-sex marriage, they can make that choice. But, the Court should allow the people to make that choice. As Scalia wrote in Obergefell, the Court disregarded "the freedom [of the people] to govern themselves."

I'll keep writing on this subject.

The post Arkes: Is Skrmetti "The Best That Conservative Jurisprudence Can Really Serve Up Now, A Concurring Opinion in Buck v Bell?" appeared first on Reason.com.

[Ilya Somin] The 20th Anniversary of Kelo v. City of New London

[On this anniversary, I have posted two new articles related to one of the Supreme Court's most controversial decisions.]

Susette Kelo's famous "little pink house," which became a nationally known symbol of the case that bears her name (Institute for Justice). (Institute for Justice.)

 

Today is the 20th anniversary of Kelo v. City of New London, perhaps the most controversial property rights decisions in the history of the Supreme Court. Although the Fifth Amendment only permits the taking of private property for "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution. Building on earlier decisions such as Berman v. Parker (1954), a closely divided 5-4 majority ruled that virtually any potential benefit to the public qualifies as a "public use." The development project for which the property was taken failed so miserably that, for many years, the condemned land was used only by feral cats.

Feral cat on the site of one of the properties condemned in the Kelo case, 2011 (photo by Jackson Kuhl).

 

In my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, and in other writings, I have argued that Kelo was wrongly decided from the standpoint of prominent versions of both originalism and living constitution theory. On the occasion of the twentieth anniversary, I would like to highlight two new articles I have written about this subject.

The first is an article at the Brennan Center State Court Report website, assessing the massive state reaction against Kelo. Many states enacted stronger protection for property rights, but it is not an fully adequate substitute for systematic nationwide enforcement of the Fifth Amendment Public Use Clause:

Twenty years ago today, the Supreme Court decided the controversial case Kelo v. City of New London, which held that private "economic development" is enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a "public use." Kelo generated a massive political and judicial backlash, with 45 states enacting eminent domain reform laws in response and several state supreme courts repudiating Kelo as a guide to interpreting their state constitutions.

This reaction highlights potential synergies between litigation and political action, and the valuable role of state constitutions in protecting important individual rights when federal courts fail. But it also shows how uneven state protection of rights is not a fully adequate substitute for rigorous nationwide enforcement of the federal Constitution….

Kelo provoked a broader backlash than virtually any other modern Supreme Court ruling. The public overwhelmingly sympathized with property owners who had their homes taken for a dubious project, rather than with the city government and the private organization that took over the land. Polls showed that over 80 percent of the public disapproved of the ruling. It was widely condemned on both right and left, including by figures as varied as then-Rep. Bernie Sanders (D-VT) on the far left and radio talk show host Rush Limbaugh on the far right. Over the next few years, 45 states enacted eminent domain reform laws in reaction to the decision — the most widespread state legislative response to a Supreme Court decision in American history….

In a famous 1977 article, Supreme Court Justice William Brennan emphasized that state constitutions can often provide stronger protections for individual rights than they get under the Supreme Court's interpretation of the federal Constitution. The backlash against Kelo is in many ways a vindication of his thesis.

The state reaction to Kelo is also a dramatic example of how litigation and political action can be mutually reinforcing. Before Kelo, most Americans had little idea that eminent domain abuse was a significant problem or that it could be used to displace people from their homes in order to transfer the land to private interests….

It took the publicity surrounding Kelo to focus public attention on this dismaying reality. The resulting backlash — combined with forceful dissenting opinions by Justices Sandra Day O'Connor and Clarence Thomas — also helped lead many legal elites to rethink "public use," breaking the seeming consensus established by Berman. State court decisions rejecting Kelo as a guide to their state constitutions are an example of that trend…

But for all its successes, the political and judicial reaction against Kelo fell far short of ending the problem of abusive condemnations for transfer to private interests. As described in my book, about half of the new state laws provide little or no meaningful new protection for property owners against private "economic development" takings. They give the appearance of reform, but not the reality. In most cases, this sleight-of-hand was achieved by banning takings for "economic development" while at the same time still allowing condemnation of "blighted" property under a definition of "blight" so broad that virtually any property could be declared blighted…..

As a result, abusive takings continue in many states, ranging from a condemnation for purposes of building a pipeline that may never get built, to efforts to suppress construction of affordable housing, and even a plan to condemn a church to build pickleball courts. In much of the country, protection for property rights is much stronger than it was before Kelo. But state-by-state protections for constitutional rights are not a fully adequate substitute for systematic enforcement of the federal floor established by the Bill of Rights….

Some argue that leaving the issue to state and local governments promotes local diversity. But we can achieve even greater localism and diversity by letting each property owner determine for themselves how their land should be used. Protecting constitutional property rights is the ultimate localism.

As noted in the Brennan Center article, there is a real chance the Supreme Court might overturn Kelo, but earlier this year the justices passed up a case that would have been excellent opportunity to do just that:

Four current Supreme Court justices have expressed interest in revisiting or overruling Kelo. But the Court has so far refused to take a case raising that issue. Earlier this year, the justices chose not to review Bowers v. Oneida County Industrial Development Agency, a case brought by the Institute for Justice, the same public interest group that had represented the property owners in Kelo. I and many other property rights advocates believed Bowers to be an ideal vehicle for this issue.

The second article is part of a forthcoming Yale Journal on Regulation symposium on the 20th anniversary of the case. My contribution, entitled "Public Use, Exclusionary Zoning, and Democracy," is  available for free download on SSRN. Here is the abstract:

The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the "public use" issue at stake in that case, and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. In the twenty years since Kelo, exclusionary zoning and the housing crisis it has caused have emerged as major issues in public policy and legal debate. Kelo famously ruled that the Fifth Amendment requirement that takings must be for a "public use" does not bar the employment of eminent domain to take homes for privately owned "economic development." The Court endorsed a broad definition of "public use" that included almost any disposition of condemned property that might benefit the public in some way. Exclusionary zoning – defined here as regulatory restrictions on the types of housing that can be built in a given area - is a major factor in the national housing crisis, that has increased housing costs, prevented millions of people from "moving to opportunity," and impaired economic growth and innovation. opportunities. There are striking and largely unnoticed parallels between the "public use" question decided in Kelo and the constitutional issues raised by exclusionary zoning.

Part I highlights the strikingly similar history of the two issues. In both cases, there is a strong originalist argument that the policy in question – private-to-private condemnations in one case, exclusionary zoning in the other – violate the property rights provisions of the Fifth Amendment. The former violates the requirement that the use of eminent domain be for a "public use;" the latter that severe restrictions on owners' rights to use their land require "just compensation" under the Takings Clause. But, in both cases, the Supreme Court and federal courts generally have taken a highly deferential approach since the rise of Progressive and New Deal-era skepticism of property rights. That skepticism was in large part driven by concerns that judicial protection for property rights is undemocratic, inhibits government planning, and tends to benefit the rich at the expense of the poor and disadvantaged.

Part II outlines ways in which the traditional conventional wisdom on these two issues is wrong. Judicial deference on both public use and exclusionary zoning has greatly harmed the poor and disadvantaged, particularly racial minorities. Moreover, stronger judicial review can actually further "representation-reinforcement" in two ways: by giving voice to groups excluded from the political process, and by empowering them to "vote with their feet."

Part III briefly highlights some synergies between judicial enforcement of public use limitations on eminent domain, and enforcement of restrictions on exclusionary zoning. Both help empower people to live where they wish. Striking down exclusionary zoning would make it harder for local governments to keep people out; Reversing Kelo would make it harder for them to expel those already living in the area. Opponents of exclusionary zoning could also potentially learn useful lessons from the Kelo experience on how litigation can be effectively combined with political action.

The article builds in part on my book The Grasping Hand, and also on my recent article "The Constitutional Case Against Exclusionary Zoning," 103 Texas Law Review 1 (2024) (with Joshua Braver). It has already secured the much-coveted "highly recommended" rating on Prof. Larry Solum's Legal Theory Blog.

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[Eugene Volokh] Did Elected Officials Violate First Amendment by Orchestrating Public Criticism of (and Racism Allegations Against) Their Critic?

["[P]ublic condemnations, op-eds, and official complaints ... through proxies are independent constitutional violations" if the officials "engaged in conduct that was motivated by the plaintiff's protected speech and had the requisite chilling effect on First Amendment activity."]

Jack Lipton was a prominent professor and administrator at Michigan State University, and in 2023-24 "he served as the Faculty Senate Chair," "the liaison between the MSU faculty" and the MSU Board of Trustees, which is elected statewide. He got into a dispute with two members of the BOT, Chair Rema Vassar and member Dennis Denno. Here's the backstory, from the May 28 decision by Chief Judge Hala Jarbou (W.D. Mich.) in Lipton v. Mich. State Univ. Bd. of Trustees (appeal pending):

[According to the Complaint, on] October 20, 2023 (the early days of Lipton's tenure as the Faculty Senate Chair), [BOT member Brianna] Scott sent an open letter to her fellow BOT members. The letter accused BOT Chair Vassar of ethical violations and called for Vassar's resignation. A week later, on October 27, 2023, the BOT held a highly attended meeting to discuss Vassar's alleged misconduct and whether she should resign. Lipton spoke at this meeting in his capacity as Faculty Senate Chair, reading a resolution the Faculty Senate passed that called for Vassar's resignation.

According to the amended complaint, the meeting was contentious and chaotic, and whenever "any meeting attendee spoke in support of holding Vassar accountable for her actions as outlined in Scott's letter, Vassar supporters interrupted and jeered them and attempted to prevent them from completing their statements." The typical rules regarding permission to speak were ignored, and the BOT Secretary was pressured to allow nonregistered speakers to voice their support for Vassar. There was a lack of order, culminating in police officers escorting at least one attendee from the meeting.

After the meeting, a reporter asked Lipton whether he thought the faculty's concerns, and the general allegations against Vassar, had been sufficiently addressed. Lipton, clarifying that "he would speak [to the reporter] as a private individual and not on behalf of the Faculty Senate," said: "The board meeting yesterday, filled with Chair Vassar supporters, demonstrated Trustee Scott's charges of intimidation and bullying in action. The chaos brought and disrespect shown by her supporters could have been stopped by a single statement from Chair Vassar, yet she elected to let the mob rule the room."

In the wake of Lipton's comment, Vassar and her BOT colleague Denno allegedly began a retaliation campaign against Lipton. Vassar and Denno met with MSU students, encouraging them to publicly condemn Lipton and file complaints of racial discrimination against him. Vassar's supporters and associates published statements and op-eds calling Lipton racist, anti-Palestinian, and anti-Muslim, citing his use of the term "mob" to describe the crowd. According to a third-party investigator that MSU hired, Vassar and Denno advised students and supporters on how to attack Lipton for his statement, coordinating with them on the phrasing of these public condemnations and complaints.

The BOT met for its next scheduled meeting on December 15, 2023, however it was held virtually due to security concerns from the October meeting. Vassar and Denno attended this meeting in their official capacities while in a room filled with MSU students, and during the meeting's public comment period, these students spoke out against Lipton. Vassar and Denno invited these students to participate in the meeting with them. Lipton spoke at the meeting—per his responsibilities as Faculty Senate Chair—apologizing for his comment, explaining his intent behind it, and continuing to criticize Vassar and Denno for their actions as BOT members.

After the third-party investigation detailed Vassar and Denno's coordination with students to publicly condemn Lipton for his comment, the BOT voted to censure Vassar and Denno.

Lipton sued, claiming (among other things) that Vassar's and Denno's actions constituted unconstitutional retaliation against his speech to the reporter. The court concluded that Lipton had adequately alleged that the speech was presumptively protected by the First Amendment, because he adequately alleged that he engaged in it as a private citizen, that it was on a matter of public concern, and that it didn't unduly "interfere with the efficient performance of MSU's public services nor the BOT's functions."

But then the court went on to what strikes me as the more unusual holding—that Lipton had adequately alleged that Vassar's and Denno's actions, which basically involved organizing public criticism of Linton, were unconstitutional retaliation.:

{"Any adverse actions, other than 'those that create only de minimis negative consequences,' can 'offend the Constitution.'"} "An adverse action in the First Amendment retaliation context is an action that 'would chill or silence a person of ordinary firmness from future First Amendment activities.'" …

Lipton adequately alleges that … Vassar and Denno used their positions as BOT members to attack Lipton for the comment he made as a private citizen. They made these attacks as BOT members and at BOT meetings. Additionally, Vassar and Denno used their BOT pulpit to funnel adverse action towards Lipton via proxies, leveraging their BOT membership to speak through students, supporters, and members of the public.

These attacks (i.e., public condemnations, op-eds, and official complaints) through proxies are independent constitutional violations so long as it is clear that the defendants engaged in conduct that was motivated by the plaintiff's protected speech and had the requisite chilling effect on First Amendment activity. Lipton alleges facts that illustrate the affirmative actions Vassar and Denno took—while acting as BOT members—that were motivated by Lipton's speech and would chill First Amendment activity of a person of ordinary firmness.

Vassar and Denno crafted the language that others would use to attack Lipton. They pushed students to file complaints. And while engaging in their official responsibilities at the December 15, 2023 BOT meeting, they coordinated with students to raise attacks against Lipton due to his protected speech. Public officials cannot insulate themselves from violating the First Amendment's protections by simply manipulating others to engage in retaliatory conduct—particularly when they leverage their public positions to do so….

Defendants argue that Lipton faced no real adverse action. They note that he was promoted to Associate Dean for Research Analytics after these coordinated attacks on his character. However, according to "an executive search firm associate," Vassar and Denno's alleged coordinated attack against Lipton hindered his employment opportunities outside MSU. "The 'power to substantially affect' a public employee's livelihood could be enough to establish an adverse action.'" And "actions 'designed to threaten' a person's 'economic livelihood' are likely to deter a person of ordinary firmness from engaging in protected speech."

From the allegations, it is reasonable to infer that Vassar and Denno sought to jeopardize Lipton's career and economic opportunities in an effort to change his behavior and prevent continued statements against Vassar's conduct on the BOT. The public condemnations and official complaints by students would chill the speech of a person of ordinary firmness.

Additionally, "campaigns of harassment, when considered as a whole, may amount to adverse action." Looking to the totality of Vassar and Denno's campaign of harassment, both in its scope (public comments at BOT meeting, statements, complaints, etc.) and content (condemnation as a racist), Vassar and Denno's conduct constituted adverse action against Lipton, and it was motivated by his protected speech….

What about Vassar's and Denno's own ability to speak, as elected political officials? Here's what the court had to say:

Vassar and Denno, along with others who spoke out against Lipton, are entitled to take issue with Lipton's phrasing. But the allegations suggest that Vassar and Denno sought to attack Lipton to protect their positions on the BOT; they told students "to help us," a call to action seeking to silence Lipton for his statement that questioned Vassar's conduct on the BOT, not to discuss the implications of a faculty member using what some may have perceived as racially charged language.

"An act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken for a different reason, would have been proper." Lipton has plausibly alleged that Vassar and Denno were motivated by retaliation, not a desire to raise concerns in the marketplace of ideas. As Lipton's supervisors, Vassar and Denno crossed the line into conduct the First Amendment forbids, using their positions of public authority to take adverse action against Lipton due to his protected speech.

I appreciate the court's reasoning: People, especially government employees (even tenured ones), may well feel chilled from speaking by these sorts of campaigns of public vituperation. At the same time, elected officials have their own rights to speak (see, e.g., Bond v. Floyd(1966) and the currently pending Libby v. Fecteau). Those rights include the right to associate with others to speak, which would include the right to privately encourage others to speak.

Nor do I see how the law can distinguish "a desire to raise concerns in the marketplace of ideas" from being "motivated by retaliation."

To use an up-to-date example, say, for instance, that an elected trustee is criticized by a pro-Palestinian activist, and she thinks that the activist is actually motivated by anti-Semitism. She therefore publicly condemns him, gets her allies to accuse him of anti-Semitism, and gets students to file complaints based on his speech.

The trustee may well both desire to raise concerns about the activist (and others like him) in the marketplace of ideas and be motivated by "retaliation" in the sense of thinking that the activist's speech merits public blowback. Indeed, the motivations two may be practically impossible to tease apart. And of course, the same would apply if an elected trustee is criticized by a pro-Israel activist, and she thinks that the activist is actually motivated by anti-Palestinian prejudice.

In any event, I thought I'd blog about the opinion, and ask readers what they thought about it. Elizabeth K. Abdnour and Coriann Gastol (Abdnour Weiker LLP) represent plaintiff.

The post Did Elected Officials Violate First Amendment by Orchestrating Public Criticism of (and Racism Allegations Against) Their Critic? appeared first on Reason.com.

[Josh Blackman] "What Skrmetti Should Have Said"

["Yet, Dobbs did not repudiate the basis of Roe and Casey, the notion that legislatures are not empowered to enact laws based on public notions of morality. And Skrmetti refused to acknowledge that foundational basis of our republic."]

Civitas Outlook has published my new essay, titled What Skrmetti Should Have Said. It begins:

I often ask students two questions inspired by Justice Antonin Scalia: identify a decision where you disagree with the outcome, but agree with the reasoning, and identify a decision where you agree with the outcome, but disagree with the reasoning. These questions serve as a gut-check to ensure that their reasoning does not simply follow their policy preferences. Students generally answer the first question with ease. Justice Scalia, for example, often cited his vote to protect a protester's First Amendment right to burn an American flag. But students have a much tougher time with the second question. Usually, if they agree with the bottom line of an opinion, they find a way to accept the reasoning, even if not perfectly.

For me, United States v. Skrmetti falls into the second category. The Court, by a 6-3 vote, held that Tennessee can ban doctors from "transitioning" minors to the opposite sex. This holding would have seemed so obvious only a generation ago. Yet, in a short span, elite opinion shifted such that lower court judges and members of the Supreme Court came to believe this law was clearly unconstitutional. The majority opinion by Chief Justice John Roberts, as well as concurrences by Justices Clarence Thomas, Amy Coney Barrett, and Samuel Alito, got the bottom line correct. But upon reflection, I have doubts they had the best legal argument. Justice Sonia Sotomayor's dissent proved more persuasive than I expected–not a sentence I write very often. In short, Tennessee denied certain medical treatment to minors in large part based on their biological sex, and under longstanding precedent, sex-based classifications are reviewed more stringently.

That doesn't mean the Tennessee law was unconstitutional. Indeed, I think the state has such a strong interest in protecting children — especially from harm by their parents and doctors — that the law would still pass constitutional muster. But the majority opinion, and to a lesser extent the concurrences, engaged in hyper-technical readings of the statute that distracted from the real legal issues. To hear Chief Justice Roberts tell it, Tennessee simply issued a mundane regulation about which medical treatments are available for minors. But this approach ignored the real reason why Tennessee and so many other states have enacted such laws: the legislatures morally disapprove of transgenderism for minors, and sought to prevent children from medically transitioning to another sex. Full stop.

Here, I think, is the key paragraph:

Dobbs v. Jackson Women's Health Organization (2022) rightly overruled Roe and Casey. This decision returned the question of abortion to the elected branches. Yet, Dobbs did not repudiate the basis of Roe and Casey, the notion that legislatures are not empowered to enact laws based on public notions of morality. And Skrmetti refused to acknowledge that foundational basis of our republic. Indeed, Justice Barrett paid homage to Justice Kennedy. She wrote, "an individual law 'inexplicable by anything but animus' is unconstitutional." This was the essence of the line of cases stretching from Romer to Obergefell. It is dispiriting that a former Scalia clerk has abandoned her old boss's mantle and taken up with his jurisprudential nemesis. And I cannot fathom why Justice Thomas signed onto Barrett's concurrence. (There is still time for him to change his vote before the opinion is officially reported.) The right answer, as Thomas and Scalia argued for decades, is that unless the Constitution expressly protects a constitutional right or class, a law motivated by moral disapproval is valid.

I hope this essay will stimulate discussion about how the Court--an even apparently Justice Thomas--has lost its way since Justice Scalia's passing.

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[Eugene Volokh] Names You Might Not Want to Call a Judge in Court

[Django Unchained: An enjoyable movie, but not always the best source of references in the courtroom.]

Sunday's Judicial Notice (David Lat) reminds us that lawyers shouldn't call the judge "honey." But there are other names you might also want to avoid—perhaps even more so—as we learn from Tuesday's opinion by Connecticut Supreme Court Chief Justice Raheem Mullins in Johnson v. Superior Court:

As a self-represented party, the plaintiff filed a petition for a writ of habeas corpus, alleging issues with his medical treatment while in the custody of the respondent, the Commissioner of Correction. After it addressed various pretrial motions, the trial court conducted the first day of the habeas trial on April 4, 2023.

On May 4, 2023, the trial court resumed the plaintiff's habeas trial. The hearing was held virtually, with the plaintiff, counsel and the witnesses all appearing onscreen. Several witnesses were present virtually and were prepared to testify. After the court asked the parties to identify themselves, the plaintiff identified himself as "Gregory Johnson, man. Everybody know[s] who I am. I don't got time for that." Thereafter, the following colloquy occurred:

"The Court: Mr. Johnson, I'm going to tell you right now. You've been here. You know you need to identify yourself.
"The [Plaintiff]: I identified myself (indiscernible).
"The Court: Just do what you need to do, Mr. Johnson.
"The [Plaintiff]: I identified myself already, man. I ain't got time for that….
"The Court: All right. Mr. Johnson, one more, and the hearing is over for the day. You understand? You're not at—
"The [Plaintiff]: I don't care.
"The Court: You're not out in the yard, Mr. Johnson—
"The [Plaintiff]: I don't care.
"The Court: —with your buddies….
"The Court: [The plaintiff], clearly, has forgotten the decorum of the courtroom. It's a regular context with [the plaintiff's] believing he is talking to one of his friends in the yard as opposed to the court.

"The [Plaintiff]: I'm talking to Stephen—
"The Court: The matter is canceled.
"The [Plaintiff]: —a house nigger.
"The Court: The matter is canceled for today. I will ask the caseflow coordinator to reschedule the next day of this matter in ninety days.
"The [Plaintiff]: Care about you. You're a house nigger.
"The Court: Maybe [the plaintiff] will remember his decorum in the court. I'm sorry.
"The [Plaintiff]: You're a house nigger.
"The Court: What was that, Mr. Johnson? You got something to say?
"The [Plaintiff]: You are Stephen from—
"[The Respondent's Attorney]: Oh my God.
"The [Plaintiff]: You are Stephen from the movie Django. I am [going to] go [to] the Department of Justice [to] investigate. You are corrupt. You can kiss my ass.
"The Court: Okay. Mr. Johnson—
"The [Plaintiff]: Fuck out of here.
"The Court: —just got yourself held in criminal contempt of court.
"The [Plaintiff]: I don't care.
"The Court: Would you like counsel?
"The [Plaintiff]: I'm doing life….
"The Court: Sir, would you like counsel?
"The [Plaintiff]: Fuck out of here.
"The Correctional Officer: Johnson.
"The [Plaintiff]: Let's go. Kiss my ass.
"The Court: [The plaintiff], would you—don't—do not … remove him from the room.
"The Correctional Officer: Copy that, Your Honor.
"The Court: Would you like counsel appointed to represent you, Mr. Johnson? You face six months [of] incarceration … and [a] $100 fine. Would you like counsel?
"The [Plaintiff]: Yeah.
"The Court: I'm sorry?
"The [Plaintiff]: Have the state pay. Yeah."

The judge found defendant guilty of contempt of court (though query just what practical effect that would have on a defendant serving a life term), and the Connecticut Supreme Court unsurprisingly agreed; among other things, it rejected plaintiff's argument that recusal was constitutionally required:

We also reject the plaintiff's claim that the trial court should have deferred the contempt proceeding because the court had become personally embroiled. "[In] Mayberry v. Pennsylvania [(1971)], [the United States Supreme Court] held … that the fair administration of justice disqualifies a judge from sitting in judgment on a contempt charge if he [or she] has become so personally embroiled with a contemnor that it is unlikely for [the judge] to maintain that calm detachment necessary for fair adjudication….

In general, in order to determine whether a judge was required to recuse him or herself due to personal embroilment, we must appraise both the conduct of the contemnor and the reaction of the judge. [Although] personal embroilment is a more likely reaction when the contemnor has mounted a personal attack on the judge, it may also be found in the character of the judge's response, if the judge has become visibly involved in a running controversy with the contemnor.

[T]he inquiry must be … whether there was such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused…. Consequently, judicial recusal is necessary only in the unusual case [in which] the apparent effect of the contemnor's conduct on the judge against whom the contemptuous conduct was levied is such as to indicate that the judge's impartiality or objectivity reasonably may be called into question."

We have explained "that significant evidence of personal embroilment would constitute an appropriate situation for deferred adjudication or deferred sentencing before a different judge." See, e.g., Sandstrom v. Butterworth (11th Cir. 1984) (Concluding that the trial judge was personally embroiled, such that imposition of contempt should have been deferred, when the evidence showed that, "[a]t different points during the trial, the judge referred to the petitioner as 'rude and nasty,' and as 'acting like an animal;' the judge repeatedly said he was 'sick of' the petitioner. He referred to [the] petitioner's law partner as a 'little creep,' and said that he was 'sick of' him. Shortly before finding [the] petitioner guilty of contempt and sentencing him, the trial judge said that for ten years the petitioner had had a 'nauseating effect' [on] him and every other [judge] in the courthouse."); see also, e.g.,  A.B.A., Standards for Criminal Justice ("[t]he judge before whom courtroom misconduct occurs may impose appropriate sanctions, including punishment for contempt, but should refer the matter to another judge if the original judge's conduct was so integrated with the contempt so as to have contributed to it or was otherwise involved, or if the original judge's objectivity can reasonably be questioned").

Our review of the record persuades us that the plaintiff has failed to present significant evidence that the trial court was so personally embroiled in a running controversy with the plaintiff that disqualification was required. A review of the transcript and the audio recording of the hearing reveals that, although the plaintiff repeatedly directed racial slurs and other profanity at the trial court, the court responded to the plaintiff with a calm demeanor, gave repeated warnings to the plaintiff, which he ignored, and offered the plaintiff the opportunity to speak to his counsel privately.

Furthermore, the trial court's initial response to the plaintiff's wilful resistance to identify himself for the record was appropriate. When the plaintiff continued to engage in disrespectful behavior, the court repeatedly instructed the plaintiff to stop talking. Despite the plaintiff's repeated refusal to heed the court's warnings and instructions, the court afforded him an opportunity to speak to counsel and to make a statement before sentencing him. Nonetheless, the plaintiff persisted in defying the court's orders and insisted on referring to the court using racial slurs and other profanity. The record demonstrates that, despite the plaintiff's extreme behavior, the court's response was calm and professional throughout the proceeding.

The plaintiff suggests that the fact that he used racial slurs and other profanities directed at the trial court demonstrates that the court was personally embroiled in the conduct. Not so.

Evidence of personal attacks against the court is not, standing alone, sufficient to demonstrate embroilment. Instead, this court has explained that, "[although] personal embroilment is a more likely reaction when the contemnor has mounted a personal attack on the judge, it may also be found in the character of the judge's response …."

We cannot agree that a plaintiff can demonstrate embroilment merely by providing evidence that he or she had made personal attacks against a trial judge. Indeed, adopting such a position would enable the plaintiff to benefit from his own wilful and extreme misbehavior, which we do not countenance.

As the United States Supreme Court has explained, "we do not say that the more vicious the attack on the judge the less qualified he is to act. A judge cannot be driven out of a case." In the present case, our review reveals that, despite the plaintiff's repeated personal attacks on the trial court, the court did not become so personally embroiled in an ongoing controversy with the plaintiff that recusal was necessary to safeguard the plaintiff's due process rights….

From the details offered in the opinion, Johnson's initial 1998 conviction appears to be the one described here.

Raynald A. Carre and Deann Varunes represent the state.

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