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Archive for March, 2013

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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The Fourth Circuit today ordered the district court to reinstate a jury verdict that had been set aside in response to a renewed post-trial motion for judgment as a matter of law on the basis of claim preclusion and issue preclusion. The appeals court held that trademark infringement defendant von Drehle Corporation had failed to timely assert these affirmative defenses against plaintiff Georgia-Pacific Consumer Products, LP. Judge Keenan wrote the opinion for the court in Georgia-Pacific Consumer Products, LP v. von Drehle Corporation, in which Judge Gregory and Judge Payne (senior judge, EDVA) joined. After seven years of litigation and two trips to the Fourth Circuit, Georgia-Pacific stands to collect a judgment of $791,431 from von Drehle.

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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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Courts make decisions on the basis of the facts in front of them, but those facts may be atypical. The resulting rule might not make much sense as applied to more typical cases. This is the idea behind the Oddball Doctrine, as discussed by Illinois law professor Suja Thomas in this forthcoming paper. The abstract of the paper brought to mind Judge Henry Friendly’s observations from 35 years ago:

[C]ourts can act on questions of social policy only at the call of litigants; then, they generally must act although postponement might be the wiser course. While courts are, or should be, aware of the effects of their decisions beyond the case sub judice, their response is often triggered by outrageous facts that may not be at all representative. Professor Morris R. Cohen considered the judicial system to be “intellectually the weakest part of our government,” having “the least opportunity to get information on the issues which it has to decide.”

Henry J. Friendly, The Courts and Social Policy: Substance and Procedure, 33 U. Miami L. Rev. 21, 22-23 (1978).

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A federalism-focused anti-DOMA brief has now been the subject of a flurry of posts on Volokh Conspiracy and NRO’s Bench Memos. (Jonathan Adler’s recent post includes direct links to the posts.) These posts line up Jonathan Adler, Randy Barnett, Dale Carpenter, and Ernie Young against Nick Rosenkranz and Ed Whelan.

In my view, Rosenkranz and Whelan have the better of the exchange. But there is still an important element missing from the discussion, for both sides of this debate assume that the Supreme Court should inquire whether Congress had power to pass the law containing DOMA § 3’s definitions. That’s the wrong question. The Court in Windsor has no good reason to consider the constitutionality of DOMA’s definitions except insofar as that definition is plugged into the estate tax. And when the Court considers the constitutionality of DOMA’s definitions of “marriage” and “spouse” in connection with the estate tax, the “necessary and proper” analysis has a straightforward answer.

DOMA § 3 has the kind of legal effect that the federal courts have business dealing with in Windsor only by virtue of that provision’s application in conjunction with the estate tax. By its terms, DOMA § 3 is nothing more than a directive about how to determine “the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.” The “Act of Congress” in this case is codified at 26 U.S.C. 2056, a spousal exemption from the federal estate tax. Ms. Windsor would have avoided paying a significant amount of money in estate taxes if she had qualified under federal law as Ms. Spyer’s “spouse.” Because Ms. Windsor did not qualify as a “spouse” for purposes of the federal estate tax, she had to pay.

Ms. Windsor’s challenge to the limited reach of the estate tax’s spousal exemption takes the form of a refund action. The “judicial review” question is whether a court may give legal effect to DOMA’s definitions in the course of deciding this refund action.

The federalism-based anti-DOMA brief answers this question “no” on the grounds that a court may not give legal effect to DOMA’s definitions in any case–the provision as a whole (DOMA § 3, but not all of DOMA) exceeds Congress’s powers. The federalism-based anti-DOMA brief attacks DOMA’s definitions on their own and in conjunction with every other provision of federal law in which DOMA’s definitions of “marriage” and of “spouse” might apply. But the brief does not attack DOMA’s definitions insofar as they are plugged into the estate tax exemption at issue in the case.

The brief argues that “[a] federal definition of marriage that indiscriminately applies to more than 1100 federal statutes and programs can be ‘plainly adapted’ to none of them.” But that is not right. DOMA’s round peg fits into all the round holes, and there are many of them in federal law.

If the spousal exemption in the estate tax is a round hole, such that DOMA’s definitions are “plainly adapted” to it, that is the end of the no-power argument for this case. Congress has power to tax and concomitant power to define the scope of the federal estate tax in a way that declines to exempt Ms. Windsor and others similarly situated.

To escape this move, the anti-DOMA federalism briefers might try to argue that the court should entertain a kind of overbreadth challenge to DOMA: Even though DOMA’s definitions are plainly adapted to the estate tax, the definitional provision is invalid in its entirety because it is not plainly adapted to some other areas of federal law (like, for example, bribery rules). This argument would probably fail on its own terms, as DOMA’s definitional provisions have a plainly legitimate sweep. But the more fundamental problem is to explain why this form of challenge should be entertained at all.

My analysis is closest to the portion of Whelan’s in which he writes that “section 3 of DOMA is merely definitional and … section 3 plugs into other congressional enactments. If those other enactments are within Congress’s power, then it is plainly within Congress’s power to define the terms it uses in those enactments.” And it is similar to Rosenkranz’s, which describes DOMA § 3 as a “cut-and-paste function”:

DOMA Sec 3, like all definitional provisions, is essentially a cut-and-paste function. Where you see X, you should read Y. Obviously Congress could simply have erased X throughout the US Code and replaced it with Y. Likewise, presumably, Congress could have added an “X shall mean Y” definitional section at the end of every single statute. And so, I can’t see any objection to a global definition at the beginning of the U.S. Code.

But one objection raised by the anti-DOMA federalism brief is to the use of a “global definition.” Because it is global, the argument goes, it is not “plainly adapted” to any particular exercise of an enumerated power. My analysis provides a response to this form-based objection.

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