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Posts Tagged ‘standing’

A recent post by Gerard Magliocca at Concurring Opinions brought to mind an interesting aspect of the arguments of counsel leading up to the Supreme Court’s landmark decision in Cohens v. Virginia (1821). Magliocca’s post,”Titles of Nobility Awarded by States,” considers whether Nebraska’s designation of him as an Admiral in Nebraska’s Navy violates the constitutional prohibition in Article I, Section 10, cl. 1 that “No State shall . . . grant any title of nobility.” Interesting question!

Magliocca did link his analysis to any case law deciding challenges to various titles of nobility. Maybe there are none. I have not run a comprehensive search for them, but I’m not aware of any such cases. If there are any, I wonder how they deal with the justiciability problem mentioned in Philip Barbour’s argument for Virginia in Cohens v. Virginia.

Barbour invoked the prohibition on state grants of titles of nobility (which corresponds to a similar prohibition placed on the federal government) in a portion of his argument explaining that there are some questions that may arise under the Constitution but never give rise to a justiciable case:

[T]here are questions arising, or which might arise under the Constitution, which the forms of the Constitution do not submit to judicial cognizance. Suppose, for example, a State were to grant a title of nobility, how could that be brought before a judicial tribunal, so as to render any effectual judgment? If it were an office of profit, it might, perhaps, be said, an information in the nature of a quo warranto would lie; but I ask whether that would lie, in the case which I have stated, or whether an effectual judgment could be rendered? It is a title, a name which would still remain, after your judgment had denounced it as unconstitutional. Where a quo warranto lies, in relation to an office, the judgment of ouster is followed by practical and effectual consequences.

It may be anachronistic to use the label of “non-justiciable” to describe Barbour’s argument, but that is probably the best translation into our way of framing these issues now. Barbour seems to be saying that the closest writ–quo warranto–would not lie. No writ, no remedy; therefore no case. We might put it in different terms, if only because standing doctrine so dominates our way of thinking about justiciability. We might say that the challenger (whoever that might be) would lack standing because the injury could not be remedied.  No “effectual judgment” could be rendered, in Barbour’s words, because “[i]t is a title, a name which would still remain, after [the court’s] judgment had denounced it as unconstitutional.”

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For a comparison case that more closely tracks the analysis I suggested would have been proper in my prior post on Judge Sutton’s opinion for the Sixth Circuit in Platinum Sports Ltd v. Snyder, see Judge Kanne’s opinion for the Seventh Circuit in Wisconsin Right to Life, Inc. v. Schober. The key reasoning is contained in the following four paragraphs:

Right to Life submits that the threat of enforcement inherent in the statute chilled its participation in the July 2003 special election and will continue to chill its speech unless the federal courts provide injunctive relief. “A plaintiff who mounts a pre-enforcement challenge to a statute that he claims violates his freedom of speech need not show that the authorities have threatened to prosecute him; the threat is latent in the existence of the statute.” Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (internal citations omitted); see Virginia v. Am. Booksellers Ass’n Inc., 484 U.S. 383, 393 (1988). The instant case, however, presents a unique circumstance because the statute at issue has been declared unconstitutional by a district court and that ruling was not appealed.

Although it is highly unusual to seek injunctive relief when a judgment that was not appealed has already rendered a challenged statute unconstitutional, Right to Life’s argument in favor of Article III standing is not “frivolous,” as the Board contends. Right to Life presents a two-step argument. First, Right to Life points out that the injunction entered against the Board to prevent enforcement of the statute against theWisconsin Realtors Ass’n plaintiffs did not extend to Right to Life. Indeed, district courts lack the authority to enjoin the “enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs.” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997) (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)); see also Fed. R. Civ. P. 65(d) (“Every order granting an injunction . . . is binding only upon the parties to the action . . . .”). Right to Life is correct in asserting that the injunction against enforcement granted in the Wisconsin Realtors Ass’n case does not protect it, a non-party to the Wisconsin Realtors Ass’ncase.

The second step of Right to Life’s argument is that the declaratory judgment granted in the Wisconsin Realtors Ass’n case does not limit the power of the Board to bring prosecutions under the statute. Certainly, the statute cannot be repealed by a district-court opinion; only the Wisconsin legislature can repeal the statute. Furthermore, a district court’s declaration that the statute is unconstitutional does not automatically stop state officials from trying to enforce the statute. Coupled with the Board’s refusal to issue an advisory opinion, Right to Life reasons that this is enough to present a live controversy to the federal courts.

Right to Life’s argument, however, fails to tie this theoretical harm to an actual and imminent threat of enforcement. The Board did not appeal the Wisconsin Realtors Ass’n case. Implicitly, the Board has conceded that the statute is unconstitutional. The State’s Attorney General conceded before the Wisconsin Realtors Ass’n litigation that the statute was unconstitutional in its petition to the Wisconsin Supreme Court to determine the constitutionality of Act 109. Right to Life makes no effort to satisfy its burden of persuasion by showing that any Wisconsin official, let alone the Board, has ever tried to enforce a statute in these circumstances.

The only seemingly relevant difference between this case and Platinum Sports is that the plaintiffs in the later cases in Platinum Sports were represented by the same lawyer. But this difference makes no difference. For a while, some circuit courts had applied a “virtual representation” doctrine under which representation by the same lawyer might have made a difference in the preclusion analysis. But the Supreme Court rejected the doctrine of virtual representation in Taylor v. Sturgell, 553 U.S. 880 (2008).

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Thanks to a recent post by Jonathan Adler at Volokh Conspiracy, I read with great interest last week Judge Sutton’s opinion for the Sixth Circuit in Platinum Sports Ltd. v. Snyder. The underlying claim was a First Amendment challenge to a Michigan ordinance restricting signs for sexually oriented businesses, but the opinion affirms dismissal on the non-merits ground of lack of standing. The decision addresses difficult issues surrounding “facial challenge” doctrine and standing to challenge a law that the relevant enforcement officials agree is unconstitutional and have agreed not to enforce. If this were a casenote outline, I would probably classify this decision as “right outcome; wrong reasoning.” But I’m not sure and it raises important questions worth considering, so here’s an analysis.

The basic situation consists of three cases: (1) Attorney A, representing Client X, files a complaint seeking declaratory and injunctive relief against Governor, alleging that a state law is unconstitutional–on its face and as applied–under the First Amendment; (2)  Attorney A, representing Client Y, files a second complaint seeking declaratory and injunctive relief against Governor and Attorney General, making the same constitutional challenge; and (3) Attorney A, now representing Client Z and seeking to represent a class of approximately 400 similarly situated businesses covered by the claim, files a complaint seeking declaratory and injunctive relief against Governor and Attorney General, making the same constitutional challenge as in the first two cases.

The timeline of relevant events in these cases is as follows:

  • April 25, 2011: Complaint in case (1) is filed.
  • July 14, 2011: Hearing in case (1) on motion for preliminary injunction and motion to dismiss.
  • July 20, 2011: Complaint in case (2) is filed.
  • July 26, 2011: District court is case (1) grants preliminary injunction and denies motion to dismiss.
  • August 25, 2011, Case (1) and case (2) are terminated by a final judgment in Plaintiffs’ favor, together with injunctions against enforcement of the statute.
  • October 21, 2011: Complaint in case (3) is filed.

The Sixth Circuit held in Platinum Sports, Inc. v. Snyder that the plaintiff business in case (3) lacked standing because it suffered no cognizable injury. I think that bottom-line conclusion is correct, but for a different reason than provided in Judge Sutton’s opinion for the court.

Let’s begin with common ground. The mere “on-the-books existence” of a statute is not enough to create legally cognizable injury. The statute must have some kind of injurious effect that a federal court is capable of redressing. Federal courts do not take statutes off the books. They enter judgments and remedies that prevent enforcement of laws. Judge Sutton’s statement of these relevant principles seems just right: “[T]he question is whether the claimant has an ‘actual and well-founded fear that the law will be enforced against them.’ Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). Absent some ‘credible threat’ of enforcement, no injury exists. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).”

The Platinum Sports opinion reasons that there was no credible threat of enforcement against the plaintiff in case (3) at the time the complaint was filed because the statute had already been declared facially unconstitutional and its enforcement had been enjoined in an order agreed to by the Governor and the Attorney General. The assessment that there was no credible threat of enforcement is probably right, but not for the reason given in the opinion.

The opinion’s analysis turns on an explication of facial challenge doctrine:

A party who brings a facial challenge to a law “seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question.” City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999). A successful facial challenge invalidates a law in all of its applications, “forbidd[ing]” any enforcement of it. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). The upshot is that a State may not enforce such a law against anyone.

But what constitutes a “successful facial challenge”?

Consider the order in case (2) (which is the same in all material respects as the order in case (1)): “IT IS HEREBY ORDERED that judgment declaring that M.C.L. 252.318a violates U.S. Const., Amend. I (the First Amendment to the United States Constitution) is entered for Plaintiff and Defendants are permanently ENJOINED from enforcing M.C.L. 252.318a.”

Suppose that the defendants believe that the district court’s understanding of the First Amendment in cases (1) and (2) is wrong. Do the judgments and injunctions in those cases protect all other SOBs in the state against enforcement of the law?

The Sixth Circuit found the answer to this question in facial challenge doctrine, stating: “[T]he district court’s orders [in cases (1) and (2)] declared the laws facially unconstitutional, necessarily prohibiting their enforcement against anyone, including the plaintiff [in case 3].” Judge Sutton’s opinion for the court appears to assume that the injunctions in these cases authoritatively prohibit enforcement against anybody else, but the reason for this assumption is unclear:

In this instance, the district court entered a stipulated final judgment declaring the two laws facially unconstitutional and enjoining the Governor and Attorney General from enforcing either law. Nor is there any reason to fear the Governor or Attorney General will sidestep these orders. They agreed to their entry. If any doubt remained about the point, the Governor and Attorney General eliminated it in this case. In their appellate brief, they have recognized the “provisions to be unconstitutional,” Br. at 22, and have promised that they “will not be enforced,” id. at 16. Anything in this world is possible, we suppose. But the legal possibility that this Governor or this Attorney General will enforce these laws in the face of these injunctions is: zero.

While the opinion states that the “legal possibility” of enforcement is “zero,” that is distinct from a claim about “legal permissibility.” The opinion appears to assume that facial challenge doctrine can somehow expand the binding legal effect of a judgment or remedy. But  facial challenge doctrine cannot expand the binding legal effect of a judgment or remedy because the theory of constitutional infirmity underlying a particular judgment does not itself bind except through embodiment in a remedy or through preclusion or precedent.  In order to know the binding legal effect of the district court’s ruling in cases (1) and (2), it is therefore necessary to know the preclusive effect of the underlying judgment and the terms and permissible reach of the injunction issued. The declaration of facial unconstitutionality can only reach as far as these other doctrines permit it to reach. (Another means by which judicial declarations of law can bind in courts is through stare decisis, but that doctrine has no application here because a district court ruling has no precedential effect for other cases.)

To see why this distinction is important, suppose that the AG (enjoined in cases (1) and (2) beginning in August 2011) had sent a letter in September 2011 threatening enforcement of the ordinance against Z (the plaintiff in case (3)). Would Z have had standing to file a federal lawsuit seeking declaratory and injunctive relief on October 21, 2011? Yes, Z would have had standing. The injunctions in cases (1) and (2) protect X and Y (the plaintiffs in those cases), but these injunctions do not themselves eliminate the threat of enforcement against Z. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (“[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute.”). (It may also be worth adding that, not only would Z have had standing, but that if Z had wanted a federal forum for its lawsuit, Z should have filed suit quickly after receiving the threat letter because the initiation of an enforcement action in state court can result in Younger abstention.)

There was no threat letter here, so why does any of this make a difference? The comparison reveals that the real legal basis for the absence of any threat of enforcement is not the “successful facial challenge” in case (1) or (2), but the defendants’ agreement that the statute is unconstitutional and their promise (rather than their legal obligation) not to enforce the statute. The fact that they made this agreement in connection with a stipulated judgment and an order to pay over $20,000 in attorneys’ fees makes their commitment to non-enforcement credible.

This discussion of the reasoning underlying the no-standing dismissal in Platinum Sports is not just idle nitpicking about a minor issue. The effectiveness of agreement about unconstitutionality to preclude standing by eliminating threatened enforcement goes to the very fundamentals of pre-enforcement adjudication of constitutional challenges to constitutionally questionable laws. Consider, for example, a pre-enforcement challenge to a State’s partial-birth abortion prohibition in which the sole theory of constitutional infirmity is that the statute is unconstitutional as applied to performance of the constitutionally protected D&E procedure. (Such a limited claim would be unusual but not completely implausible given the Supreme Court’s statement of a preference for as-applied challenges in this area.) Suppose the Attorney General’s position is that the statute does not criminalize the D&E procedure, but even if it did, the State would never use the statute to prosecute for the performance of a D&E because the Attorney General agrees that the statute would be unconstitutional as applied to D&Es. Suppose that no prosecutor can initiate a prosecution without the AG’s approval. If an agreement not to enforce precludes standing, then there would be no standing to bring this challenge. Or would there be?

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Marc DeGirolami has a post bearing this title over at CLR Forum. The post reports on yesterday’s Fourth Circuit decision in Moss v. Spartansburg County School District Seven. Judge Niemeyer wrote the opinion for the court, in which Judge Gregory and Judge Wynn joined.

Apart from its discussion of substantive Establishment Clause principles, the opinion may be of interest for its assessment of Establishment Clause standing (an area of the law that could probably use some rethinking).

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An important but overlooked case due to be decided tomorrow is First American Financial Corp. v. Edwards. The case is about Article III standing. The Court is reviewing a Ninth Circuit decision that set forth a permissive approach to congressionally created standing. I expect that the Court will view the Ninth Circuit’s approach as too permissive but nevertheless conclude that the plaintiff has standing. If there were five sure votes in the opposite direction, I would have expected to see the decision before now. We shall see soon enough.

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The degree to which the courts become converted into political forums depends not merely upon what issues they are permitted to address, but also upon when and at whose instance they are permitted to address them. As De Tocqueville observed:

“It will be seen . . . that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.”

The great change that has occurred in the role of the courts in recent years results in part from their ability to address issues that were previously considered beyond their ken. But in at least equal measure, in my opinion, it results from the courts’ ability to address both new and old issues promptly at the behest of almost anyone who has an interest in the outcome. It is of no use to draw the courts into a public policy dispute after the battle is over, or after the enthusiasm that produced it has waned. The sine qua non for emergence of the courts as an equal partner with the executive and legislative branches in the formulation of public policy was the assurance of prompt access to the courts by those interested in conducting the debate. The full-time public interest law firm, as permanently in place as the full-time congressional lobby, became a widespread phenomenon only in the last few decades not because prior to that time the courts could not reach issues profoundly affecting public policy; but rather because prior to that time the ability to present those issues at will (to make “wanton assaults,” to use De Tocqueville’s pejorative characterization) was drastically circumscribed. The change has been effected by a number of means, including such apparently unrelated developments as narrowing the constitutionally permissible scope of laws against champerty and maintenance (so that the cause may now more readily seek a victim to represent), alteration in the doctrine of ripeness (so that suits once thought premature may now be brought at once), and–to return to the point–alteration in the doctrine of standing.

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk. Univ. L. Rev. 881, 892-93 (1983).

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Last Friday, the Fourth Circuit dismissed as non-justiciable the appeal of a judgment in a challenge to potential improvements to specific sections of I-81. Judge Wilkinson wrote the opinion for the Court in Shenandoah Valley Network v. Capkawhich was joined in by Judge King and Judge Keenan. The I-81 improvement project will take place in two tiers. This litigation arose at the end of Tier 1, before Tier 2 had run its course. The nub of the dispute was the extent to which decisions made at Tier 1 would foreclose consideration of alternatives at Tier 2. The court concluded that the appellants were mistaken about the extent of foreclosure at Tier 2. The court was satisfied that, once the parties’ positions were clear, there was no actual dispute giving rise to a case or controversy. Accordingly, dismissal was warranted: “Because such [an actual] dispute is lacking here–and because we cannot issue an advisory opinion–we have no authority to adjudicate this suit.” The court also cashed out its justiciability conclusion in standing terms: There was no injury or threat of imminent injury.

One interesting feature of the decision comes in a footnote at the end, in which the court notes that it would not order vacatur of the district court’s judgment: “The gist of the district court’s ruling is that the review process should be allowed to move beyond Tier 1 to Tier 2. Because vacatur is an equitable remedy, U.S. Bancorp Mortg. Co. v. Bonner Mall P’Ship, 513 U.S. 18, 29 (1994), and because the balance of factors reveals no good reason to vacate the district court’s ruling, we decline to do so.” This reasoning, and the court’s careful phrasing of the justiciability problem (i.e., “there remains nothing to dispute” and “no justiciable controversy lingers”) suggests that the justiciability problem was not a pure standing issue, but some combination of mootness (of claims about Tier 1) and ripeness (of claims about Tier 2) .

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