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Posts Tagged ‘MacDonald v. Moose’

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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With Buzzfeed having picked up Virginia’s petition for rehearing en banc in MacDonald v. Moose (previously discussed here and here), I am prompted to post a quotation from the Court’s opinion in Lawrence v. Texas that recently jumped out at me.

First, some background. I argued in my first post on the case that the panel majority misread Lawrence v. Texas as requiring facial invalidation of the “anti-sodomy provision” in Virginia’s “crimes against nature” statute. One basis for my argument was the claim that “reasoning throughout [Lawrence] is all about the petitioners’ personal interests in liberty and privacy.” One commenter on that post criticized its reasoning by asserting that “bending over backwards to say that the facts here are slightly different and that should be sufficient is not a reasonable position to take because it is based on narrowing Justice Kennedy’s entire due-process analysis to one case and one case only.” That is not the position I meant to adopt. Rather, the force of Lawrence as a precedent rests on its ratio decidendi, which is an understanding of the constitutionally protected personal liberty interests of two adults to engage in certain private, consensual conduct.

Apart from what I have previously posted on the subject, support for my reading of the case can be seen in Justice Kennedy’s description of how the case ought to be decided: “We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution” (emphasis added). If one reads Lawrence in this way, then the Virginia court’s disposition of the petitioner’s challenge to his conviction was plainly not contrary to or an unreasonable application of clearly established law.

 

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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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