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Posts Tagged ‘Diaz’

A recent post by Michael Dorf about Virginia’s cert petition in Moose v. MacDonald reminded me of one thing that I like about the law. It can channel moral and political disagreement in various ways so that people who might disagree as to non-legal matters can agree about legal matters. Dorf concludes, contrary to some of AG Ken Cuccinelli’s most vocal critics, that “Cuccinelli appears to have a pretty good legal argument that the Fourth Circuit decided the case erroneously.” As I have previously argued (here, here, here, and here), Virginia’s argument is “pretty good” and maybe even better than that. This does not mean that the Supreme Court will grant cert, of course, but this is one of those unusual cases where summary reversal might get serious consideration.

Dorf’s conclusion about the strength of Virginia’s petition depends on the deferential standard of review on federal habeas supplied by 28 U.S.C. § 2254(d). That provision prohibits a federal court from granting an application for a writ of habeas corpus to one in custody pursuant to state proceedings unless the State adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” As long as the Virginia state court’s view was not unreasonable, the Fourth Circuit should not have granted relief.

Although disagreeing with most critics on the merits, Dorf apparently agrees that the course of proceedings nevertheless reveals “Cuccinell’s hypocrisy” and his “audacity.” This assessment relies on Cuccinelli’s opposition to a proposed “Lawrence fix” bill that Cuccinelli voted against as a legislator. Here’s the key paragraph of Dorf’s post on this point:

Much of the media coverage of the case has understandably focused on Cuccinelli’s hypocrisy.  The Virginia legislature tried to replace the blanket sodomy prohibition–which applies to everyone regardless of their age–with a narrower law that would focus simply on sex with minors, but Cuccinelli played a role in squashing that effort.  Now he has the audacity to say that he needs to use the broader law as his only available means to target sodomy with minors. Dahlia Lithwick nicely captures what is so outrageous about this move when she writes: “You can’t really stagger around swinging a huge, unwieldy legal mallet and claiming it’s the only tool you have against pedophilia. Not when you opted to turn down the offer of a scalpel.”

This assessment misdescribes the nature of the proposed “Lawrence fix”  in a way that undercuts the analysis. The bill did three things: (1) it separated the bestiality and sodomy prohibitions into separately numbered subsections; (2) it provided that the sodomy prohibition “shall not apply where all persons are consenting adults who are not in a public place and who are not aiding, abetting, procuring, engaging in or performing any act in furtherance of prostitution”; and (3) it changed the classification of the sodomy offense from a felony to a misdemeanor (which may have been the reason that some legislators opposed it). Note that nothing in these changes had to do with age; the bill did not “focus simply on sex with minors,” but instead codified the Virginia legislature’s understanding of Lawrence.

And here is where things get (legally) interesting: If the Virginia legislature’s understanding of Lawrence was correct, then the Fourth Circuit‘s analysis was wrong. Under the Virginia legislature’s understanding of Lawrence, the conduct underlying the petitioner’s solicitation offense (solicitation of oral sex from a minor) was not constitutionally protected. The narrowing that would have been accomplished as a matter of state law under the proposed fix would not have excluded petitioner’s conduct from the sweep of the prohibition. Not only would sodomy involving minors have remained within the prohibition, so too would have sodomy in a public place, and sodomy related to prostitution. The proposed Lawrence fix relied on the very same reading of Lawrence defended by Virginia in Moose v. MacDonald. 

The Fourth Circuit determined that it could not adopt this reading because “a judicial reformation of the anti-sodomy provision to criminalize MacDonald’s conduct in this case, and to do so in harmony with Lawrence, requires a drastic action that runs afoul of the Supreme Court’s decision in Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006).” And yet the Fourth Circuit would have had to do precisely nothing to Virginia’s law in order to deny habeas relief. As a matter of federal law, the prohibition against unconstitutional applications of the sodomy statute already existed because of Lawrence itself. Apart from the change in penalty, there would have been no difference in the state of the law as it existed at the time of petitioner’s September 2004 conduct of conviction if Virginia had enacted the proposed Lawrence fix earlier that year.

And here’s where it gets even more (legally) interesting. The change in penalty would have been significant for petitioner. If the proposed bill had passed, petitioner could not have been convicted of solicitation of a felony because oral sex with a 17-year-old, unrelated minor would have been changed to a misdemeanor instead of a felony. Maybe that would have been a good change in the law; maybe it would have been bad. But by including it in addition to the Lawrence fix, the bill’s sponsors probably lost some votes, perhaps including Cuccinelli’s. If so, then Cuccinelli’s stance is not only not hypocritical, but completely consistent. And it is the critics who are subject to the accusation instead. For the proposed bill would not have enabled Virginia to prosecute the petitioner’s conduct in the way that it did.

Okay, now suppose that Virginia had enacted a Lawrence fix identical to the one proposed but without the change in penalty. Perhaps Cuccinelli could have voted for it. There would have been no reason not to because it would not have worked any real change in the law. If petitioner had then raised a Lawrence-based claim on direct review, he would have had to argue for an extension of Lawrence. And on the supposition that this would have been unsuccessful, his claim for habeas relief would have been unsuccessful because the § 2254(d) standard of review precludes that kind of extension of the law.

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A divided three-judge panel of the Fourth Circuit held today that three of President Obama’s appointments to the NLRB were invalid because they did not take place during an intersession recess of the Senate. Senior Judge Hamilton wrote the opinion for the majority in NLRB v. Enterprise Leasing Co. SE, LLC (the lead case on the caption). Judge Duncan joined in full and wrote a separate concurrence. Judge Diaz dissented from the constitutional holding (but concurred in other matters).

Although Judge Hamilton and Judge Duncan were appointed by Presidents Bush 41 and Bush 43, respectively, while Judge Diaz was appointed by President Obama, the best explanation for the differing outcomes tracks methodological rather than partisan political differences. The majority and dissenting opinions exhibit vastly different approaches to constitutional interpretation. The majority emphasizes text and history while the dissent is avowedly pragmatic and functional (indeed the most explicitly functionalist opinion by Judge Diaz that I can recall).

The Fourth Circuit’s decision bodes poorly for the Administration when the Supreme Court addresses these issues next Term in NLRB v. Noel Canning. This assessment is based not simply on the bottom-line conclusion reached by the Fourth Circuit, but on how the opinions were reasoned. On issues like these, the majority of the Supreme Court is methodologically closer to Judge Hamilton than Judge Diaz. It is difficult to see a majority of the Court hewing to the reasoning and conclusions reached by Judge Diaz in this case.

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The Fourth Circuit last week unanimously affirmed the dismissal of a Free Speech and related civil contempt claim brought by a Confederate veterans’ group who wish to fly the Confederate flag on city-owned flag standards in Lexington, Virginia during the group’s Lee-Jackson Day parade. Judge King wrote the opinion for the court in Sons of Confederate Veterans, Virginia Division v. Lexington, in which Judge Diaz and Judge Floyd joined. (For prior coverage, including links to early news stories, see How Appealing.)

Based on the facts described in the opinion, the Fourth Circuit’s decision seems to reach the right outcome on the First Amendment and civil contempt claims (although it would have been helpful to know a little bit more about the wording of the earlier consent decree). 

The interesting First Amendment issue raised by the case is the extent to which government motive matters when the government converts a designated public forum to a nonpublic forum. The relevance of legislative motivation is one of the most vexing issues in constitutional law, but the panel opinion does not provide too much discussion of this issue. 

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1. In a previous post, I criticized the Fourth Circuit’s habeas grant in MacDonald v. Moose. The Fourth Circuit held in that case that one textual provision of Virginia’s more encompassing “crimes against nature” statute was facially unconstitutional under Lawrence v. Texas. As my post indicated, and as some comments to the post discussed in detail, the Fourth Circuit was not making this determination de novo but rather under AEDPA’s deferential standard of review for claims adjudicated on the merits in state court proceedings.  The relevant state court determinations in MacDonald were that the statute was constitutional as applied to petitioner’s conduct and that he lacked standing to bring his facial challenge. Here is the reasoning with respect to the facial challenge:

MacDonald contends the sodomy statute, Code § 18.2-361(A), is facially unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment. In accord with our previous decisions, we hold that MacDonald lacks standing to assert this claim. See McDonald v. Commonwealth, 48 Va. App. 325, 329, 630 S.E.2d 754, 756 (2006) (“[W]e will only consider the constitutionality of Code § 18.2-361(A) as applied to appellant’s conduct.”); Singson v. Commonwealth, 46 Va. App. 724, 734, 621 S.E.2d 682, 686 (2005) (defendant lacks standing to challenge statute generally); Tjan v. Commonwealth, 46 Va. App. 698, 706, 621 S.E.2d 669, 673 (2005) (same); see also Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941) (“It is well settled that one challenging the constitutionality of a provision in a statute has the burden of showing that he himself has been injured thereby.”); Coleman v. City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241 (1988) (“generally, a litigant may challenge the constitutionality of a law only as it applies to him or her”).

According to the Fourth Circuit panel opinion, however, one discrete textual provision of Virginia’s statute was facially unconstitutional, and “the state court’s standing determination, as endorsed by the district court, was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” (emphasis added).

2. Nine days after the Fourth Circuit issued its opinion in MacDonald v. Moose, the court issued an opinion in Woollard v. GallagherWoollard was a Second Amendment challenge to Maryland’s “good and substantial reason” permitting requirement for gun possession outside one’s home. The district court in Woollard had held that this requirement was facially unconstitutional. In addition to rejecting Woollard’s claim that the permitting requirement was unconstitutional as applied to him, the panel opinion held that Woollard lacked standing to bring his facial challenge:

Because we conclude that the good-and-substantial-reason requirement is constitutional under the Second Amendment as applied to Appellee Woollard, we also must reject the Appellees’ facial challenge. See Masciandaro, 638 F.3d at 474. As the Supreme Court has explained, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); see also Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (“It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.”).

On its face, this reasoning looks just like the reasoning that the Fourth Circuit held was “contrary to and involved and unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” when that reasoning was used by Virginia’s Court of Appeals in MacDonald.

3. The tension between the two cases cannot be explained on the grounds that the Woollard panel was unaware of the recent MacDonald decision. According to the date listed on the opinions, the two appeals were argued on the same day and two out of the three judges were the same in both cases (Judge King and Judge Diaz). And most importantly, Judge King authored both opinions.

4. The doctrine surrounding facial and as-applied challenges is notoriously murky. Some may view it as complex; others may view it as simply confused. In my view, the labels “facial” and “as-applied” hurt more than they help insofar as each lacks a stable meaning across cases. But to the extent that MacDonald’s facial challenge was an overbreadth-type (“bottom-up”) challenge, in which facial unconstitutionality depends on the proportion of unconstitutional applications to constitutional applications, then the reasoning used by the Virginia Court of Appeals in refusing to adjudicate the challenge seems unimpeachable (as the Fourth Circuit’s use of that reasoning in Woollard would seem to indicate). (For a discussion of the distinction between valid-rule  (or “top-down”) facial challenges and overbreadth-type (or “bottom-up”) facial challenges, see Richard H. Fallon, Jr., Fact and Fiction about Facial Challenges, 99 Cal. L. Rev. 915, 931 (2011), a law review article cited by Judge King’s majority opinion in MacDonald.)

5. According to the portion of the appellant’s brief quoted by the panel opinion in MacDonald, the facial challenge in that case was an overbreadth-type challenge:

MacDonald maintains that he possesses standing to pursue his facial challenge under the Due Process Clause because the anti-sodomy provision was rendered unconstitutional by Lawrence. He relies on established Supreme Court authority for the proposition that standing exists: “where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of cases it was originally designed to cover.” Br. of Appellant 14 (quoting United States v. Raines, 362 U.S. 17, 23 (1960)).

6. Virginia’s petition for en banc review is pending at the court. Its principal focus is the application of 2254(d) with respect to the state court’s as-applied understanding of Lawrence v. Texas. If the Fourth Circuit does grant en banc review, perhaps it will also take the opportunity to clarify the law surrounding facial and as-applied challenges more generally.

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[UPDATE: Additional discussion at Woollard, MacDonald, and Standing to Raise a “Facial Challenge” and here.]

A split panel of the Fourth Circuit yesterday granted habeas relief to a forty-seven year-old Virginia man convicted of criminally soliciting oral sex from a seventeen year-old girl. (HT and with link to AP coverage: Howard Bashman at How Appealing) The court held that the conviction was invalid because the predicate felony of sodomy was based on an unconstitutional provision of state law. Judge King wrote the opinion for the court in MacDonald v. Moosein which Judge Motz joined. Judge Diaz dissented.

The panel majority reasons that the Virginia “anti-sodomy provision” is facially unconstitutional under Lawrence v. Texas because of Lawrence’s reasoning about Bowers v. Hardwick, which the Fourth Circuit describes as having involved a facial challenge to a materially indistinguishable Georgia statute. According to the panel opinion, “the invalid Georgia statute in Bowers is materially indistinguishable from the [Virginia] anti-sodomy provision being challenged here.” And although the Supreme Court upheld the materially indistinguishable Georgia statute against a facial constitutional challenge in Bowers, the Supreme Court in Lawrence v. Texas “recognized that the facial due process challenge in Bowers was wrongly decided.”  In other words (as Judge Diaz fairly reconstructs the majority’s argument in his dissent), “the majority reasons that MacDonald’s facial challenge must succeed just as–according to Lawrence–the facial challenge in Bowers should have.”

This decision is obviously mistaken about Bowers and Lawrence, and profoundly mistaken about the nature of constitutional adjudication.

To begin with, Bowers did not involve a “facial due process challenge.” The opinion for the Court in Bowers explicitly states: “The only claim properly before the Court . . . is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.” This mistake alone renders the Fourth Circuit’s reasoning unsustainable on its own terms. The panel opinion reasons that the Virginia statute is facially unconstitutional because the Georgia statute is facially unconstitutional, but Bowers simply did not deal with the alleged facial unconstitutionality of Georgia’s statute.

The Fourth Circuit’s majority opinion is also wrong to describe Lawrence as resolving a claim of facial unconstitutionality. The panel majority’s misapprehension of this decision can be seen in the way the panel describes the three questions presented in Lawrence:

(1) whether the criminalization of strictly homosexual sodomy violated the Equal Protection Clause of the Fourteenth Amendment; (2) more broadly, whether criminalization of sodomy per se between consenting adults contravened the fundamental liberty and privacy interests protected by the Fourteenth Amendment’s Due Process Clause; and (3) whether Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld against facial challenge a Georgia statute criminalizing all sodomy, should be overruled.

The panel opinion’s paraphrase of the first two questions presented materially changes both of those questions (and I have already explained what is wrong with the description of the third question). The Supreme Court actually undertook to address the narrower questions “[w]hether petitioners’ criminal convictions” violated the Fourteenth Amendment’s requirements of equal protection or due process. Under the Supreme Court’s formulation, the alleged violations of the Constitution inhere in petitioners’ convictions, not in the state’s legislation. And the Court’s supporting reasoning throughout the opinion is all about the petitioners’ personal interests in liberty and privacy.

As if to underscore the personal nature of the rights at issue and the importance of this as-applied understanding to its framing of the analysis, the portion of the Lawrence opinion for the Court that describes the questions presented concludes: “The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.” And in concluding the opinion as a whole, Justice Kennedy highlights again that “[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Instead, the case involved “two adults” who engaged in sexual practices “with full and mutual consent from each other.”

Mr. MacDonald’s criminal solicitation did not involve two adults, but did involve a minor in a relationship “where consent might not easily be refused.” Yet the Fourth Circuit’s misreading of Bowers and Lawrence as involving facial invalidation permits what Virginia law has forbidden.

In light of the panel majority’s mistaken characterizations of both Bowers and Lawrence, the panel majority should not have been “confident” that Virginia’s “anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.” And at the very least, the panel majority should not have dismissed Judge Diaz’s conclusion that the Virginia courts had not made a decision that was contrary to or involved an unreasonable application of clearly established federal law. The panel majority’s reasoning would not have been sufficient to reverse a federal district court on direct appeal, much less displace a state appellate ruling under AEDPA’s standard of review.

There is more that could be said in criticism of the panel majority’s opinion (such as with respect to its misapplication of Ayotte v. Planned Parenthood). But I hope such criticisms will be rendered unnecessary by the grant of en banc rehearing.

The odds of such rehearing are never good, of course, and Virginia has an even steeper uphill climb given the panel composition and the composition of the en banc court. Yet it is no small thing for the Fourth Circuit panel to do what it did here, and the defects in analysis are not difficult to see. Moreover, there are both narrower ways (like Judge Diaz’s) and also broader ways of affirming the district court’s denial of habeas relief.

Whether or not the Fourth Circuit grants rehearing, however, it is worth mentioning a more fundamental problem with the panel majority’s conception of constitutional adjudication, a problem that will remain even if this opinion’s particular manifestation of the problem is deprived of legal effect by the grant of en banc rehearing. That problem is the legislative conception of judicial review inherent in its description of the effect of constitutional adjudication.

In the panel majority’s view, the so-called anti-sodomy provision in Virginia law “does not survive the Lawrence decision.” The panel reasons that– because Lawrence killed this provision–the underlying prosecution was not for solicitation of a felony but rather for solicitation of “an act that is not, at the moment, a crime in Virginia.” Indeed, the panel majority states, ” [t]he Commonwealth may as well have charged MacDonald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot.” But this is all wrong. Supreme Court decisions about constitutional matters do not decriminalize acts or change state legal codes. Supreme Court decisions may render certain state actions unconstitutional. But such judicial decisions (whether by the Supreme Court or any other federal court for that matter) cannot and do not change what is and is not criminal under state law. Yet that is precisely the effect attributed by the panel opinion to the Supreme Court’s decision in Lawrence.

The panel opinion is right that “the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal . . .” But the Commonwealth did no such thing. It declared conduct criminal through ordinary legislation, and the Fourth Circuit has now erroneously set aside a conviction for violation of that ordinary state legislation through an extraordinary exercise of the federal judicial power.

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The Supreme Court today unanimously overturned a Fourth Circuit decision that affirmed the denial of attorneys’ fees in a civil rights case. The Court in Lefemine v. Wideman vacated a Fourth Circuit decision that affirmed the denial of “prevailing party” attorney’s fees to a plaintiff who had secured declaratory and injunctive relief but no money damages.

Unanimous summary decisions like this one are a problem for any inferior court. Yet some courts deciding some issues seem more likely to result in such decisions (such as the Sixth Circuit operating under AEDPA or the Ninth Circuit examining qualified immunity). The Fourth Circuit has generally steered clear of this kind of unanimous overturning. What happened here?

It looks like the Fourth Circuit panel simply misapplied Supreme Court precedent, in large part because of an earlier circuit precedent (from 1993) that also (but without correction) misapplied Supreme Court precedent.

(more…)

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Justin Levitt has a post with this title at Election Law Blog, with an overview and links to coverage. The decision happened yesterday, in United States v. Danielczyk. (See here for my oral argument preview and a link to AP coverage of the oral argument itself.)

Judge Gregory wrote the opinion, which was joined in by Chief Judge Traxler and Judge Diaz. This opinion must have brought Judge Gregory some satisfaction. The controlling Supreme Court decision, FEC v. Beaumont, came to the Supreme Court out of the Fourth Circuit. Judge Gregory authored a panel dissent in that case, and the outcome he advocated in dissent was adopted by the Supreme Court.

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