Archive for July, 2011

Judge Niemeyer’s dissent in Joyner v. Forsyth County argues that the Board’s prayer policy does not violate the Establishment Clause because the Board allows “all and any religious leaders to deliver invocational prayers of their own composition before Board meetings and has sought proactively to be inclusive.”

The principal division between the majority and the dissent is over whether including “sectarian references” in prayers creates an Establishment Clause problem. Judge Niemeyer argues that the majority’s position “entangles the legislative bodies in determining what form of prayer is sectarian or offensive to given members of the public.” He asserts that “we should not constitutionally mandate that any government body supervise the content of prayer given by private individuals.” Moreover, this supervision will be difficult to carry out (and for courts to supervise), because “there is no clear definition of what constitutes a ‘sectarian’ prayer.” Under the majority’s approach, a prayer that invokes the name of Jesus is sectarian, but “Lord of [l]ords,” and “King of [k]ings” are not — even though, Judge Niemeyer writes, “those phrases refer to Jesus in the New Testament.”

Judge Niemeyer’s conclusion is worth quoting in full:

I respectfully submit that we must maintain a sacred respect of each religion, and when a group of citizens comes together, as does the Forsyth County Board of Commissioners, and manifests that sacred respect—allowing the prayers of each to be spoken in the religion’s own voice—we must be glad to let it be. The ruling today intermeddles most subjectively without a religiously sensitive or constitutionally compelled standard. This surely cannot be a law for mutual accommodation, and it surely is not required by the Establishment Clause.

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When it comes to interpreting the Constitution on the United States Court of Appeals for the Fourth Circuit, Judge Wilkinson and Judge Niemeyer do not often engage in such sharply divergent analyses as are apparent in today’s opinions in Joyner v. Forsyth County. At issue is the constitutionality under the Establishment Clause of the prayer policy of the Forsyth (NC) County Board of Commissioners, as implemented during 2007 and 2008. In an opinion authored by Judge Wilkinson and joined by Judge Keenan, the Fourth Circuit finds that Forsyth County has violated the Establishment Clause. Judge Niemeyer dissents.

Snippets from the majority opinion after the jump. Portions of the dissent and issue analysis in later posts.


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The Fourth Circuit affirmed the denial of relief to a student alleging that punishment imposed by school officials for her internet speech violated various provisions of the Constitution. Judge Niemeyer wrote the opinion in Kowalski v. Berkeley County Schools, which was joined by Judges Duncan and Agee.

Summary and snippets after the jump.


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The Fourth Circuit has affirmed the suppression of drugs seized during a traffic stop on I-95 in Maryland. Senior Judge Hamilton wrote the opinion in United States v. Digiovanni, which Judges Motz and Diaz joined.

A few tidbits from the opinion are after the jump below. From the non-specialist point of view, there seem to be a few take-aways for civilian motorists and law enforcement alike. For civilian motorists: (1) pack your shirts in a garment bag, or you might be suspected of being a drug trafficker; (2) don’t keep your car too clean, or you might be suspected of being a drug trafficker; (3) never off-handedly say “oh boy” while answering an officer’s question; (4) when asked if you use marijuana, don’t say “I never smoked marijuana in my life. It makes me sleepy.” Most important, don’t agree to transport over 34,000 oxycodone pills from Miami to Boston. The take-away for law enforcement is to get consent faster, running through questions after plugging in license information.


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Cardinal George of Chicago is one of the Catholic Church’s sharpest thinkers and clearest voices on the relationship of law and culture in the United States today. I am working my way through his new book, God in Action: How Faith in God Can Address the Challenges of the World, and will occasionally post excerpts.

When American law was mostly common law, as it was when Holmes addressed his Boston listeners, its relationship to culture was harmonious, because the law was almost wholly derivative from the culture. The common law was conceived of as the distillation of shared practice, of culturally common activities. The law was not any judge’s say-so or even the say-so of the judiciary as a body; judicial declarations counted, rather, as so much evidence of the law. The law remained the common practices of the people, discerned more or less adequately by judges but not made or determined by them.

. . .

We live in an age of statutes, administrative rules, executive orders, treaties, and judicial decisions conceived differently—more creatively and more like legislation—than was the common law. Law characteristically is, for us, the purposive ordering of norms, first imagined, debated, and then given life, once and for all, on a certain date, down at city hall, up in the statehouse, or in a court in Washington, D.C. All these forms of law, these enactments, bind by dint of someone’s or some institution’s authority, not by dint of prior custom and practice. The modern relationship between law and culture is therefore fragile, more complex and problematic.

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On July 11, a closely divided Fourth Circuit issued an en banc decision in Aikens v. Ingram. (Apologies for the delay in posting. I was vacationing in the northwestern reaches of the Fourth Circuit’s jurisdiction when the decision came down.)

The ruling affirms the dismissal of a former military reservist’s claim for relief from a prior judgment under Rule 60(b)(6). This provision comes at the tail end of Rule 60(b), which sets forth various circumstances that justify relief from a final judgment. After five subsections identifying particular circumstances, (b)(6) authorizes relief from a final judgment “for any other reason that justifies relief.” The varying interpretations of this capaciously worded procedural provision provide insight into the state of the Fourth Circuit as President Obama’s appointees (Davis, Keenan, Diaz, and Wynn) continue to settle in. (Note: Judge Wynn did not participate in the decision.)

The en banc ruling largely tracks the panel opinion. Judge Niemeyer authored that opinion, joined by a senior Sixth Circuit judge sitting by designation. Judge King dissented.

The principal en banc opinions had the same authors in the same arrangement. Judge Niemeyer wrote for the majority, to affirm, joined by Traxler, Wilkinson, Shedd, Duncan, Agee, and Diaz. Judge King wrote the lead dissent,to vacate and remand, joined by Motz, Gregory, Davis, and Keenan. There were two additional opinions: a concurrence by Judge Diaz (joined by Shedd, Duncan, and Agee), and a solo dissent by Judge Davis.

The voting distribution reveals some crossover from what one might predict based solely on perceived ideology as measured by the appointing President. If Obama-appointed Judge Diaz had voted to vacate and remand instead of affirm, the court would have been split 6-6. (And if Judge Wynn had participated and also voted to vacate and remand, the outcome would have gone the other way.) As it is however, Judge Diaz voted to affirm. The substantive and tonal differences between Judge Diaz’s concurrence and Judge Davis’s dissent are notable.

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Judge Wilkinson authored an opinion for a three-judge panel of the Fourth Circuit (Wilkinson, Shedd, Norton by designation) affirming the grant of qualified immunity to Maryland prison employees in Braun v. Maynard. The court holds that strip searches following the positive alert of “a portable ion scanning machine capable of detecting minute amounts of controlled substances” do not violate clearly established federal law implementing the Fourth Amendment.

One interesting tidbit is Judge Wilkinson’s citation of the Supreme Court’s decision in City of Ontario v. Quon, which the opinion invokes as support for the proposition that “[i]t is often difficult for judges, let alone prison officials, to apply Fourth Amendment concepts to cases involving novel technology.” Justice Kennedy’s opinion for the Court in Quon does have a lengthy discussion of Fourth Amendment problems raised by new technology. This discussion drew the ire of Justice Scalia, who thought the majority’s “excursus on the complexity and consequences” of answering a question about the correct application of the Fourth Amendment to new technology not only “unnecessary” but also “exaggerated.” Justice Scalia wrote: “Applying the Fourth Amendment to new technology may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)–or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions–is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse of disregard of duty.”

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