Thursday, June 26, 2014

John Roberts: Conciliator in Chief?

      Supreme Court justices appeared to be divided and in search of a compromise when they heard arguments two months ago on police authority to search a suspect’s cell phone after an arrest. But there was no division and barely a hint of compromise when Chief Justice John G. Roberts Jr. announced the unanimous decision this week [June 25] instructing police to “get a warrant” before searching a cell phone except in very limited emergency circumstances.
       Roberts is only first among equals, of course: he has facetiously rued the Framers’ decision to give the chief justice only one vote. But surely he must have played an important role in conference in getting eight often fractious colleagues to join in a forceful affirmation of privacy rights for the digital era. As NBC’s Pete Williams aptly remarked, the decision was “surprising” precisely because it was both “unanimous and so bold.”
       A chief justice also can be bold, however, by exercising restraint. And Roberts showed this kind of bold restraint in two other of the week’s decisions as well as earlier in the term. Roberts shares the generally conservative views of the court’s four other Republican-appointed justices, but twice this week he refused to join conservative colleagues who were voting to undermine or overrule Supreme Court precedents defended by liberals on and off the court.
       In both of those cases, the court’s decisions were unanimous and favored conservative constituencies: businesses in one, anti-abortion groups in the other. But Roberts formed majorities with the court’s liberal justices to avoid the kind of “shock” to the legal system that he had warned against in his confirmation hearings back in 2005.
      In Halliburton Co. v. Erica P. John Fund, Inc., Roberts unapologetically reaffirmed the quarter-century-old “fraud on the market” doctrine that forms the basis for the modern securities fraud class action. Roberts acknowledged the continuing criticism of the doctrine and of its effects in facilitating costly litigation for businesses that they say brings few real benefits for investors. But he insisted that the court considered all those views in its seminal case Basic, Inc. v. Levinson (1988); any policy concerns, he said, were properly addressed to Congress, not the court.
      The ruling does help securities fraud defendants by giving them an early opportunity to prevent suits from being certified as class actions. But three conservatives — Scalia, Thomas, and Alito — wanted to go further and voted to overrule Basic outright.
      In somewhat like vein, Roberts wrote for the court in its decision McCullen v. Coakley striking down a Massachusetts law establishing a 35-foot buffer zone around abortion clinics. Roberts said the law violated the First Amendment by burdening more speech than necessary, but only after accepting the state’s interest in protecting access to clinics and reaffirming precedents subjecting similar laws only to “intermediate” instead of “strict” constitutional scrutiny.
      Four justices — Scalia, Kennedy, and Thomas in one opinion and Alito separately — insisted that the law improperly singled opponents of abortion and called for applying the often fatal strict scrutiny. In his opinion, Roberts all but laid out road maps for legislators to follow in enacting abortion clinic protections that can pass constitutional muster.
      Those three decisions contribute to the term’s remarkable statistic. Out of 65 signed decisions so far, 41 have come on unanimous votes — more than 60 percent. With only two decisions remaining, the unanimity score is guaranteed to be significantly higher than the Roberts Court’s previous high of 49 percent in Roberts’s first term. True, the unanimous results have papered over doctrinal disagreements, as in this week’s cases, but the record recalls to mind Roberts’s confirmation hearing hope for more unified decisionmaking.
      Roberts still knows how to be an activist. He led the term’s early 5-4 decision in McCutcheon v. Federal Election Commission to strike down the federal law establishing “aggregate” contribution limits for individuals in federal campaigns. And this week, he voted with conservatives Scalia, Thomas, and Alito in the recess appointments case, National Labor Relations Board v. Noel Canning, to impose a more drastic limit on the practice than established by the five-vote majority formed by liberals plus Kennedy.
      Setting those cases to the side, Roberts’s stances during the term recall the aversion to 5-4 rulings that he voiced to CNN’s Jeffrey Rosen, in an interview for The New Yorker. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” Roberts said. “I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.”
       The term’s two remaining cases, to be decided on Monday [June 30], might seem likely candidates for 5-4 decisions. In Sebelius v. Hobby Lobby Stores, Inc., private companies are claiming a religious exemption from the Obamacare requirement to include coverage for contraceptives in employee health plans. In Harris v. Quinn, home health workers classified as state employees are challenging a requirement to pay dues to the union that represents them in collective bargaining.
       Statistics are hardly the full measure of a court, and one term is only that. As the court wraps up this term, however, Roberts appears to be playing a more conciliatory role than in some in the past.

Sunday, June 22, 2014

A Whistleblower's Empty-Handed Victory

      Edward Lane won an important First Amendment victory for whistle-blowing public employees from the Supreme Court last week, but he is unlikely to get anything for his troubles besides a copy of the decision to frame and hang on his wall. The Supreme Court itself bears part of the blame for Lane’s empty-handed win because of an ambiguous decision eight years ago that seemed to leave public employees with no protection for blowing the whistle when they learn of corruption on their jobs.
       After being named the director of a government-funded program for disadvantaged youths in Alabama in 2006, Lane discovered that an Alabama state legislator had bilked the program out of $177,251.52 as a “no-show” employee. Lane fired the legislator, Suzanne Schmitz, despite advice from his superiors to avoid antagonizing Schmitz or the state legislature.
      Lane later testified against Schmitz, under subpoena, before a federal grand jury and in two criminal trials. Schmitz was convicted in 2009 for mail fraud and theft, sentenced to prison, and ordered to repay the money. But Lane, instead of receiving commendation, was himself fired that year by Steve Franks, president of the state community college that housed Lane’s program. 
       Franks, who has since retired, depicted Lane’s dismissal as budget-related. But Lane was convinced that Franks fired him in retaliation for his whistle-blowing. Lane sued Franks in federal court in 2011, claiming that the alleged retaliation violated his First Amendment right to freedom of speech.
       The Supreme Court first explicitly recognized free-speech rights for government employees in a 1968 decision, Pickering v. Board of Education. The unanimous decision effectively reinstated an Illinois school teacher who had been dismissed after having written a letter to the editor of the local newspaper criticizing the local school board’s handling of a proposed bond issue.
      The teacher, Marvin Pickering, claimed that the school board had sought to silence teachers critical of the proposal. Writing for the Court, Justice Thurgood Marshall concluded that Pickering was speaking “as a member of the general public” and that the school board could not use his remarks as the basis for dismissal.
      Four decades later, the Court muddied the waters with a decision in the first term under Chief Justice John G. Roberts Jr. The conservative bloc provided the votes for a 5-4 decision in Garcetti v. Ceballos (2006) that rejected a retaliation suit by a deputy Los Angeles district attorney, Richard Ceballos. Ceballos was demoted because of an internal memo that concluded police had lied in obtaining a search warrant in a criminal case. Ceballos’s supervisors disagreed with his conclusions and — after the judge upheld the search warrant anyway — removed him from a supervisory position.
      Writing for the majority, Justice Anthony M. Kennedy said Ceballos was acting within his official duties, not as a citizen, and that the First Amendment does not prohibit disciplining a public employee in that capacity. The lower courts in Lane’s case read that decision to apply to his testimony in Schmitz’s case because he learned of Schmitz’s no-show job pursuant to his official duties. The Eleventh U.S. Circuit Court of Appeals rejected Lane’s suit on that basis and, as an alternate holding, ruled Franks entitled to qualified immunity anyway because any constitutional protection Lane might have had was not clearly established.
      In its decision last week [June 19], the Supreme Court unanimously concluded that the Eleventh Circuit got it wrong — at least on the substantive point. Lane was testifying in court as a citizen, not as a public employee, Justice Sonia Sotomayor wrote. The appeals court read the earlier decision, Garcetti, “far too broadly,” she wrote. A public employee called to testify about official corruption, she explained, should not be placed in “an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”
      Sotomayor said there was “no doubt” that the Eleventh Circuit misread Garcetti, but she acknowledged that the Supreme Court’s own ruling was not “sufficiently clear.” So, for that reason, the justices agreed that Franks was off the hook under the qualified immunity doctrine — that odd court-created rule that effectively gives a public official one free pass for violating an individual’s constitutional rights.
      Lane is now working as a security guard at the Army base in Anniston, Ala., at about one-third of his old salary. Theoretically, he can still proceed with the part of his suit seeking reinstatement to his job, but the position apparently no longer exists and the state may have a sovereign-immunity defense anyway. But local columnist John Archibald, writing for Alabama Media Group, rightly suggests that the community college system ought to be able to find a place for Lane, who has a master’s degree besides a finely honed sense of ethics.
      In any event, Supreme Court watchers say the ruling gives future whistle-blowers in government corruption or national security cases protections that had been uncertain after the 2006 decision. Quoting from the Court’s earlier decision, Pickering, Sotomayor stressed that public employees are well positioned to have informed opinions about the workings of government. “It is essential,” the Court said back then, “that they be able to speak out freely on such questions without fear of retaliatory dismissal.”

Sunday, June 15, 2014

A Drive-By Ruling on Teacher Tenure Laws

      Federal judge Vaughn Walker presided over a two-month trial in California’s Proposition 8 case and five months later issued a 138-page opinion that struck from the state’s constitution the 14-word definition of marriage as one man and one woman.
       Years later, some of the lawyers from the plaintiffs’ side in the Prop 8 case put on a two-month trial of California’s teacher tenure laws before a Los Angeles Superior Court judge, Rolf Treu. Just two-and-a-half months later, Treu issued a 16-page decision to strike down major provisions of the teacher tenure laws.
       Treu’s ruling made front-page news from coast to coast, cheering those education reformers — including U.S. Education Secretary Arne Duncan — who view teachers unions as obstacles to improving K-12 schools. At 16 pages, however, the decision is conspicuously short on facts and on law — a drive-by assault on teachers unions too thinly documented or substantiated to hold up well on appeal.
       Tellingly, Treu’s decision drew criticism not only from liberal, teacher-friendly education policy advocates and experts but also from conservative legal commentators receptive to the anti-union pitch of Treu’s ruling. “Count me very skeptical,” Ed Whelan wrote the next day in his column on National Review Online. “At first read, I don’t see how the court is doing anything other than second-guessing the legislature’s judgment.”
       Treu, a Republican appointed by the state’s GOP governor Pete Wilson in 1995, draws mixed ratings from unidentified lawyers who have provided comments on judge rating web sites. His overall rating on is “very bad,” with especially poor marks from five of the six commenters for “robe-rage control.” The same day as the teacher-tenure ruling, one lawyer remarked that Treu “lets his personal political agenda control his behavior.”
      In his opinion, Treu insisted he was focused only on the legal, not the political, aspects of the case. But Treu’s repeated denunciations in the opinion of “grossly ineffective” teachers brought to mind the lawyers’ descriptions of him as “sanction-happy,” “vindictive,” and “disrespectful.”
      The judge relied heavily on a statistical extrapolation of 2,750 to 8,250 of “grossly ineffective” teachers in the state. Those numbers turn out, however, to be merely a guess now disavowed by the expert who made it, according to a story by Slate education writer Jerome Weissman. David Berliner, an education professor emeritus at Arizona State University, told Weissman that he pulled the number “out of thin air” and in fact never used the phrase “grossly ineffective” that Treu attributes to him.
       Treu also made up the legal reasoning in his decision. He began by drawing from the California Supreme Court’s school-financing precedents a general rule that the courts must guarantee not only “equality” of educational opportunity but also “quality” of education. None of those precedents involved public employee statutes, but he nonetheless imposed the highest level of constitutional review — “strict scrutiny” — on the detailed teacher tenure provisions of California’s Education Code.
       Treu started with the “permanent employment” provision (§44929.21(b)) that grants tenure after a teacher’s second year of employment. To prove that two years is constitutionally too short, Treu does nothing more than survey other states. California is an outlier: one of only five states that grant teachers tenure after two years or less of employment. Three years is the most common period (32 states), while nine keep teachers on probation for five years. Treu cites no decision from any jurisdiction to suggest that the difference between two years or three is a constitutionally significant marker.
       In like vein, Treu strikes down the “last in, first out” seniority rule for teacher layoffs (§44955) by saying that California is one of 10 states that base layoffs on seniority alone. Among the others, 20 explicitly allow seniority to be a consideration, 18 allow school districts discretion in fashioning criteria, and only two prohibit any consideration of seniority. Again, Treu cites no precedent for subjecting this sensitive collective bargaining issue to strict constitutional scrutiny.
       Treu is most disturbed by the supposed high cost (hundreds of thousands of dollars) and long time (up to 10 years) needed to dismiss the supposedly grossly ineffective teachers. He first presents those figures with no statistical proof and then rules the dismissal procedures (§§44934, 44938(b)(1) & 2, and 44944) unconstitutional without identifying which particular parts of the complex code sections amount in his words to “uber due process.”
       The ruling ends with a scant two paragraphs that appear to blame these tenure provisions for the supposed concentration of underqualified teachers in high-poverty, low-performing schools. Yet the same state government document that Treu quotes warns only a few paragraphs later against “simplistic solutions” to deal with “the complex nature of equitably distributing [high-quality] experienced teachers.”
       California voters voted on a ballot measure in 2005 to raise the probationary period for teachers to five years and ease the dismissal procedures, but it failed with 45 percent of the vote. The state’s teachers unions argued then that the changes would make hiring new teachers harder and encourage some districts to fire older, higher-salary teachers without improving classroom performance.
      As intervenors in the current case, the unions will join the state in appealing the decision even as opposing candidates in the November election for state superintendent of instruction debate the issues in the political arena. Taking these issues out of the political realm requires heavy legal justification that is hard to see in Treu’s ruling.

Sunday, June 8, 2014

Arizona's Other Health Care Scandal: Prisons

       Military veterans in Arizona got the nation’s undivided attention over the past few weeks after it was learned that hundreds of them had to wait for weeks or even months for appointments with doctors in the Veterans Administration’s health care system. Now, let’s see whether the 33,000 inmates in Arizona state prisons can get the same amount of attention over evidence that some of them have had to wait for months or even years for medical attention to severe, even life-threatening health conditions.
       The allegations of inadequate health care come in a class action lawsuit that a federal appeals court cleared for trial last week [June 5]. The worst of the examples cited in the 63-page opinion from the Ninth U.S. Circuit Court of Appeals make the vets’ complaints seem almost trivial by comparison. Consider these alleged incidents:
       * A male inmate waited two years for a biopsy of a mass in his prostate because contracts with outside providers had been canceled. By the time of the biopsy, the cancer had advanced, resulting in more invasive surgery than would have been necessary with earlier care and after the surgery permanent catheterization.
       * A female prisoner, four months pregnant, was referred to a medical unit after suffering bleeding and severe contractions, but was told the problems were all in her head. She was sent back to her cell, where she suffered a miscarriage less than two hours later.
      * A mentally ill inmate bled to death in July 2010 after his second suicide attempt as correctional officers stood by and watched. In the ensuing investigation, one of the officers said he had called the inmate’s name but elicited no reaction.
      Along with specific examples such as those, the inmates’ 74-page complaint filed in March 2012 included broad allegations that the prison system provided inadequate medical, mental health, and dental care and failed to provide timely emergency medical treatment or sufficient medications or medical supplies. Incontinent inmates, for example, were limited to one diaper per day.
      Those are only allegations, but the complaint was sufficiently detailed and the allegations sufficiently serious to persuade U.S. District Court Judge Neil Wake to allow the 13 named plaintiffs to broaden the case to a class action on behalf of all Arizona prisoners. The allegations “are not merely isolated instances but, rather, examples of systemic deficiencies that expose all inmates to a substantial risk of serious harm,” Wake wrote in his March 2013 ruling.
      Wake, a Republican appointed to the bench in 2004 by President George W. Bush, said a broad ruling would be needed to raise the level of care and medical resources for all inmates, not just the individual plaintiffs who brought the suit. Wake also approved a class action on behalf of some 2,200 inmates contesting the state prison system’s use of solitary confinement: isolating some prisoners for 22 hours a day over extended periods.
      The allegations of inadequate medical care for inmates come as no surprise to state officials. The prison system’s director of medical services was quoted in 2009 as telling a prison physician that the system was “probably” violating inmates’ rights. “I do think that there would be numerous experts in the field that would opine that deliberate indifference has occurred,” the director reportedly stated.
      On appeal, the state did not contest the allegations, but attacked Wake’s decision to certify the case as a class action on grounds the inmates’ various allegations were not sufficiently similar to be tried together. In its decision, the Ninth Circuit panel found that Wake had properly identified 10 alleged practices or policies of the prison system that affected inmates generally, not just individual prisoners. Those policies, Judge Stephen Reinhardt wrote for the panel, are enough “glue” to hold a class action together. Reinhardt, a veteran liberal jurist, was joined in the opinion by Judges John Noonan, a conservative appointed by President Ronald Reagan, and Paul Watford, named by President Obama in 2012.
      Arizona has the distinction of having the highest share of its population behind bars of any state in the West and one of the highest in the country, according to The Arizona Republic. The newspaper’s ongoing coverage has documented a host of controversies over prison conditions, including the controversial use of private prisons. Murder and assault rates in the system are higher than the national average, the newspaper reported in July 2012. Officials responded to the newspaper by minimizing the statistics and in any event blaming the incidents on staffing cuts.
      Trial of the case is now set for October, according to the American Civil Liberties Union’s Prison Rights Project, which is coordinating the litigation. But the state could delay the trial by asking the U.S. Supreme Court to overturn the class certification order.
      In a similar case, however, the court in 2011 allowed California inmates to proceed with companion class actions contesting overcrowding and inadequate health care in that state’s prison system (Brown v. Plata). A three-judge court continues to supervise the state’s compliance with orders to reduce the prison population and improve medical care.
      Arizona faces the prospect of a similar court order, but the wheels of justice grind slowly: a final decision could still be years away. In an ideal world, perhaps public indignation would force changes in the meantime, but prisoners — unlike veterans — are easy for the public to put out of mind.

Sunday, June 1, 2014

New Tools to Prevent Another Gun Rampage

       Elliot Rodger’s parents did everything they thought they could to get their troubled son the mental health care he needed. And when they learned via an email from Elliot on the evening of May 25 of his planned rampage, they immediately called 911 to notify authorities and began driving from their respective homes to the college town of Isla Vista, California, to try to stop him.
       As the world knows, Peter and Chin Rodger were too late that night to stop their 22-year-old son from killing six people, wounding 13 others, and then killing himself with one of the three handguns he had purchased over the previous few months. Now, the divorced parents are “crying out in pain” for their son’s victims and living in what they said in a statement “can only be described as hell on earth.”
       Four weeks earlier, deputies from the Santa Barbara County Sheriff’s Office had had a better opportunity to prevent the massacre when they visited Elliot at his apartment, but failed to use tools available to them to look behind Elliot’s assurances that nothing was amiss. Now, the sheriff’s officer is facing calls for a comprehensive review of what a Santa Barbara legislator calls the agency’s “half-baked approach” to the case.
       Encouragingly, the post-mortems are producing something more than anguished hand-wringing and regretful second-guessing. Legislators in California and in Washington have produced carefully conceived proposals that might give families, mental health professionals, and law enforcement better tools for preventing the next troubled youth from taking out his troubles on innocent victims.
       Two Santa Barbara legislators — State Sen. Hannah-Beth Jackson and Assemblyman Das Williams — are sponsoring a bill that might have allowed the Rodger parents to stop their son from arming himself for the planned rampage. The bill would allow family members or close associates of an individual feared to pose a public danger because of mental instability to seek a judge’s order preventing the individual from possessing or purchasing a firearm for one year.
       Williams, an alumnus of the University of California at Santa Barbara, told the Ventura County Star that he came to support the idea after an initial reluctance to thin there was a legislative solution to the problem. “But these parents tried to do something,” Williams, a first-term Democrat, told the newspaper. “This would give tools to parents or loved ones to take action”
       Along with the proposed “gun restraining order,” fellow Democrat Jackson says she plans to introduce legislation to improve law enforcement procedures for investigating mentally disordered individuals for potential violence. Her proposal, as explained to The New York Times, would call for mental health professionals to accompany law enforcement officers in such investigations. Her proposal would also require law enforcement to check gun registries to determine whether the individual owned or had recently purchased firearms. The Santa Barbara deputies failed to take that step after visiting Elliot.
       U.S. Sen. Barbara Boxer, a California Democrat, says she plans to introduce similar legislation in Congress. Her proposal includes an additional provision that would allow law enforcement to seize weapons from a mentally disturbed individual if a court determines the individual poses a threat to himself or to others.
       The proposals are still too new, and the memory of the Isla Vista rampage too fresh, for the National Rifle Association or other gun rights groups to have weighed in with their predictable opposition. Certainly, the prospects for any legislation in Congress are unfavorable, and far from assured in Sacramento despite Democrats’ control of the legislature there.
      But even the NRA accepts existing laws that prohibit purchase of firearms by individuals with diagnosed mental illness. The idea of a limited duration, judicially issued restraining order against individuals who could be very dangerous if armed ought to seem nonthreatening to any moderates in the gun rights camp.
      Potential opponents will argue predictably that none of the proposals can guarantee that there will be “not one more,” as Richard Martinez, father of one of the UCSB student victims, has urged. They may be right. Even if gun restraining orders are authorized, families or others may be slow to seek and judges reluctant to issue them. And mental health professional note that most gun violence is perpetrated by individuals with no evident mental illness and that most individuals with mental illness do not engage in gun violence.
      Mental health professionals are engaging in their own debate about the existing rules for reporting individuals who might pose a public safety threat. Current law traces back to a California Supreme Court decision in 1976, Tarasoff v. Regents of University of California, that requires mental health professionals to report an individual who poses a direct threat to a specific victim. Post-Isla Vista, some say the rule should be eased either to broaden the requirement or at least give mental health professionals more discretion in reporting potential, generalized threats of the sort that Elliot Rodger posed.
       Gun control advocates might want more than any of these proposals. Certainly, they would want others states to join California and the handful of others that maintain state registries of gun purchases. But talk of broader gun restrictions will only reignite the ideological warfare that typically thwarts even sensible proposals. With restraint and common sense on both sides, perhaps the outcome this time could be different.