Posted in Law on July 31, 2011|
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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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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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Posted in Law, tagged Fourth Amendment, Fourth Circuit, Kennedy, Norton, qualified immunity, Scalia, Shedd, strip search, technology, Wilkinson on July 22, 2011|
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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