Category Archives: constitutional law

California Bans State Judges From Joining Boy Scouts

By:  Eric G. Young, Esq.
California Supreme Court January 2015

California Supreme Court

On January 23rd, the California Supreme Court unanimously decided that state judges can no longer belong to the Boy Scouts of America.   Under a statewide judicial ethics provision, California’s judges are prohibited from belonging to an organization that “practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.”  (Canon 2C, California Code of Judicial Ethics.)

Until the Court’s decision, this ethics provision was mitigated by two exceptions. First, California judges are permitted to belong to religious organizations notwithstanding those organizations’ discriminatory practices.  Second, judges were permitted to belong to nonprofit youth organizations, an exception implicitly benefiting the Boy Scouts and its member affiliates.

The Court eliminated this second exception, characterizing the Boy Scouts as an organization that practices “invidious discrimination” because it prohibits openly gay Scout leaders from participating in the organization.  In reaching this conclusion, the Court adopted the recommendation of the California Advisory Committee on the Code of Judicial Ethics and the California Judges Association. The decision also brings California in line with a similar prohibition included in 1990 as part of the American Bar Association’s Model Code of Judicial Conduct.

Though unstated in its decision, the underlying rationale for the Court’s decision is, apparently, a concern that state judges retain at least the appearance of impartiality in their conduct.  Such conduct includes the organizations in which state judges declare membership.

On its face, the Court’s decision seems well-founded.  Judicial fairness and impartiality are of paramount concern to society.  Without these, a core function of the judiciary is lost – the ability to follow the rule of law unscrupulously despite the pressures of political will.  And, it is not far-fetched to argue that a judge’s membership in a discriminatory organization like the Boy Scouts gives the appearance that the judge might not be fair and impartial, at least under certain circumstances.

The problem with the California Supreme Court’s approach is that, no matter how laudable its intentions, it may be trampling on state judges’ First Amendment right to free association.  Although not expressly mentioned in the First Amendment, the right to free association was recognized by the U.S. Supreme Court in National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958).  The Court also stressed the importance of the right of free association in Roberts v. United States Jaycees, 468 U.S. 609 (1984) , writing:

“Implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”

As an article in BloombergView pointed out, me, you, all of us have a right to join whatever organizations we see fit.  Consequences may result from our decision to join an organization that discriminates against others.  Nevertheless, the freedom of association protects our right to make that decision.  Should the rule of law be different for state judges?  Might it depend on the organization the judge has joined?  For example, what if the case involved a judge who was a member of the Ku Klux Klan?

The answers to such questions are not necessarily clear in a case involving judges. The U.S. Supreme Court has limited government employees’ First Amendment rights under certain circumstances.  See, e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006) [district attorney had no free speech protection for statements made pursuant to his public duties].  The Court might well decide that similar limitations ought to apply to state judges – particularly when judicial impartiality is at issue – and leave regulation of such conduct up to the states.

On the other hand, in the first campaign finance case to involve the judiciary, the U.S. Supreme Court heard oral arguments on January 20th in Williams-Yulee v. The Florida Bar.  Williams-Yulee raises the issue whether state judicial candidates have a First Amendment right to solicit campaign contributions.  As an NPR article observed, 30 states currently have laws banning such solicitations. Like the ban announced by the California Supreme Court, the reasoning behind laws prohibiting judges from soliciting campaign contributions is to preserve judicial impartiality.

State laws banning campaign solicitations by judges, however, presumably have no more force than state ethics provisions pertaining to judges.  Therefore, if the U.S. Supreme Court disapproves of campaign finance bans and recognizes a First Amendment right among state judicial candidates to solicit campaign contributions – despite impartiality concerns – then state judges may have some right to free association under the First Amendment notwithstanding impartiality concerns.  If that is the case, then California’s ban may be of dubious constitutionality.

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Supreme Court Strikes Down Calif. Video Game Law

Reprinted from my blog, Cyber-Esq.  The full Supreme Court opinion is in the Box under “Brown v. Entertainment Merchants Video Game Case:”

On Monday, the U.S. Supreme Court ruled, in a 7-2 opinion, that a 2005 California law aimed at banning the sale of violent video games to children went too far.  Created by California state Senator Leland Yee (D-San Francisco), the law imposed a fine of up to $1,000 on retailers found to be in violation.  However, because of the litigation, the law never went into effect.

This is the highest-level decision to date on the subject of legal restrictions on violent video games.  In the wake of the Court’s decision, one thing is now clear – video games are entitled to the same First Amendment protections as books, plays and movies.  Moreover, the Court emphasized that First Amendment protections are subject only to historically limited categories of speech such as obscenity, incitement or fighting words.  These protections do not wane with the advent of new technologies.  As a result, the state – as California did – cannot create a wholly new category of speech that is unlawful unless it can meet the “strict scrutiny” test; i.e., justify its law with a “compelling state interest.”

On the question of “strict scrutiny,” the Court found that California failed to meet its burden.  Of specific interest, the Court doubted the strength of psychological evidence that claims such games cause children to behave violently or aggressively, at least more than any other available media.  In addition, the Court found that the voluntary rating system – known as the Entertainment Software Ratings Board‘s (ESRB) classification system – already achieved the needs of parents without the government enacting legislation that infringes on free speech.

According to an article in ZDNet:

“the majority of video game resellers in the United States – including major retailers like GameStop and Best Buy – support the use of the…(ESRB) classification system, which rates games based on content and applies an age rating, which is featured on the video game box. It’s a purely voluntary system modeled after the Motion Picture Association of America’s ratings for movies.”

What do you think of the Court’s decision?  In particular, the Court mentioned the fact that California had not limited access to “Saturday morning cartoons” in support of its decision, indicating that this raised the possibility that the state was singling out a particular industry or speaker for sanction.  Is this a defensible analogy to violent video games?

 

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Palin Blasts Supremes’ Support Of Anti-Gay Church

The Westboro Baptist Church picketing at the m...

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On March 2, the United States Supreme Court ruled in favor of Westboro Baptist Church’s right to picket funerals, espousing anti-gay rhetoric such as “God Hates Fags,” “You’re Going to Hell” and, as shown in the picture here, “Fags Are Worthy Of Death.”  In an 8-1 vote, the Justices ruled that such behavior was protected speech under the First Amendment.

Chief Justice John Roberts wrote:

But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.

In the case at issue, the church picketed the military funeral of Matthew Snyder.  Interestingly, Matthew was not gay.  Matthew’s father sued and obtained a $5 million verdict against the church, which has now been set aside.

Surprisingly, conservative politician/commentator, Sarah Palin, initially blasted the High Court’s decision on Twitter, tweeting:

Common sense & decency absent as wacko “church” allowed hate msgs spewed@ soldiers’ funerals but we can’t invoke God’s name in public square

Subsequently, in an interview with the Daily Caller, Palin sought to “clarify” her remarks, saying:

Obviously my comment meant that when we’re told we can’t say ‘God bless you’ in graduation speeches or pray before a local football game but these wackos can invoke God’s name in their hate speech while picketing our military funerals, it shows ridiculous inconsistency.

Assuming Palin’s frustration is genuine, which I do for purposes of this article, I can understand where she is coming from.  Frankly, I am saddened that she felt the need to so quickly, sort of retract/clarify herself.  Where she seems to be coming from is quite legitimate, if you ask me.  Why is that, in certain circumstances, we cannot invoke religious verbiage or iconography – even if done so peacefully – but this rogue band of crazy, half-witted, inbred hate-mongers – pretending to be followers of Jesus Christ – get the full panoply of First Amendment freedoms?

As an attorney, I can – intellectually – comprehend the arguments on both sides.  On a personal level, I can even support the outcome, belonging as I do to a traditionally dis-enfranchised group that often needs First Amendment protection to make its own public case.  From a viewpoint based purely on political strategy, I can even see the benefit in exposing such idiots to the light of day rather than forcing them into the shadows where they fester like a stinking boil on the butt of Lady Liberty herself.

And yet, the difficulty I have – and which Palin may be trying her best to express – is that it does seem to be the case that this “church’s” hate-filled expression has received judicial imprimatur, while arguably neutral, civic expressions that merely touch upon religion are so frequently scorned or called into legal question.

What message are we sending?  Peaceful, neutral expressions of faith are a no go.  But, hateful expression is in.  In my opinion, true Christians ought to be concerned about this decision.  And, this “church” ought to be ashamed of themselves.

Furthermore, if they truly believe in Hell, they ought to be very afraid.  As my granny would have said, “Just because you can, doesn’t mean you should.”

Jesus Wept

The Dangerous Workings Of Sarah Palin

If you want to hear the real sound of “100% wacko,” then just listen to Sarah Palin.

In the wake of the shooting of Democratic Congresswoman Gabrielle Giffords, many around the country blame Palin’s “incitement to violence”-style rhetoric and imagery which includes, among other techniques, use of the now-infamous “cross hairs” map that – rather literally – targets Democratic leaders.  The “cross hairs” map is pictured below:

At the time of writing this article, the “cross-hairs” map was still publicly posted on Palin’s Facebook page.  Furthermore, in response to criticism, Palin says that she (and her cronies) are being unjustly blamed for the attack; it is their right to free speech that is being trampled.

In other words – just in case you missed it – Palin is the real victim here.  It is not Congresswoman Giffords whom Palin targeted with her map and other violent-provoking rhetoric.  No way.  It is not the federal judge killed by the gunman.  Uh-uh. It is not even the 5 others that were killed in the shooting, including a 9 year-old girl who just happened to have been born on 9/11/2001.

Nope, Sister Sarah is the victim here – she, her cronies, and, well, I suppose the First Amendment.  You remember the good-ole No. 1, don’t you?  It is part of that pesky document called the Constitution that so many dangerous, half-crazed, ne0-con zealots can never seem to stomach – until it becomes useful to wrap themselves up in it for protection and justification.

Here’s a news bulletin for Sister Sarah – you can put lipstick on a pig, but in the end, you still got a pig.  And, in this case, a rather dangerous pig.  In this case, we have a pig willing to use this tragic event to transform herself into some kind of victim or martyr; or, at the very least,  Constitutional champion.  In so doing, Palin is revealing either a profound degree of psychological disturbance, or she is demonstrating her willingness to stoop deep to promote her own domination agenda.  Maybe both.

Also shocking are those that have publicly defended Palin.  For example, Barbara Walters feels Sister Sarah’s pain, saying that it is unfair to blame her for the shooting.  Although I normally regard Walters higher than most, not on this occasion.  As Lynn M. Paltrow noted in her “Open Letter to Sarah Palin,” Congresswoman Giffords – in particular – criticized Palin’s methods, including the “cross hairs” map.  What a coincidence, eh Babs?!?!

Walters is, of course, known for her own brand of “in your face” journalism.  However, as she should know, speech that promotes the public good by encouraging debate or controversy – even spirited or agitated – is not the same thing as the self-indulgent calculations of a demagogue trolling her cult of personality for violence with military-style words and imagery.  For example, evidence continues to mount suggesting that Palin’s racists comments aimed at President Obama has led to death threats against the President.

If Sarah Palin’s brand of “speech” is protected, then we ought to start now and re-write every Constitutional law textbook so that they feature the likes of Charles Manson and Jim Jones alongside Constitutional champions like Mary Beth Tinker (pictured below), Clarence Earl Gideon and Rosa Parks.  Hyperbole, you say?  Sarah Palin is nothing like Jim Jones?  How would we know that – until it is too late?

What if we suddenly learned that Sarah Palin had direct ties to a terrorist organization whose mission is to cause anarchy and civil unrest in the U.S. to destroy democracy?  What is the gunman in this case had ties to the same organization?  Suddenly, it might seem as though Palin’s comments were something less akin to pure free speech and something strikingly closer to conspiracy.

Even if Palin’s “speech” is protected, let us not dignify that which does not deserve dignity.   A lot of very undignified “speech” is legally protected by our Constitution, whether we like it or not.  That does not mean dignified citizens should go out of their way to be cheerleaders.

Mary Beth Tinker talks to students at Cardozo High about their constitutional rights. In eighth grade, Tinker was suspended for wearing a black armband, inspiring a Supreme Court case that upheld students' freedom of expression. (By James A. Parcell -- The Washington Post)

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Scalia To Women: Corporations Have Rights, Not You

Official portrait of Supreme Court Justice Ant...
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Just how ridiculously narrow-minded and oppressive will U.S. Supreme Court Justice Antonin Scalia get?  It boggles the mind when you consider his latest rant.

In an interview with the online publication California Lawyer” this past week, Scalia declared that the 14th Amendment does not protect gays or women from discrimination.

Scalia stated:

Q. In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

A. Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.

If I understand the good Justice, taking into consideration his opinion in the recent Citizens United case, corporations have constitutional rights but women and other minorities are free game for discrimination, at least as far as the 14th Amendment goes.   Do you find it astounding that a jurist sitting on the Nation’s Court of Last Resort thinks that AT&T or Halliburton or BP has more rights than your mom does or your sister?  I do.

We all need to think very seriously about Justice Scalia’s comments.  Think about them in the context of this quote which I am re-printing from an excellent article in U.S. News’ Politics blog:

“…laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

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SCOTUS Rules No Life Without Parole For Juveniles Who Haven’t Killed

In a 5-4 decision, splitting along liberal-conservative lines, the U.S. Supreme Court ruled today that juveniles cannot be incarcerated for life without parole if they were not convicted of homicide.

The case involved Terrance Graham, implicated in armed robberies when he was 16 and 17, and now serving a life sentence in Florida.  Florida which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

Writing for the majority, Justice Kennedy wrote that “the Eight Amendment does not permit” the states to deny a juvenile “any chance to later demonstrate that he is fit to rejoin society based solely on a non-homicide crime that he committed while he was a child in the eyes of the law.”

Approximately three dozen states allow for the incarceration of juveniles for life without parole based on non-homicide crimes.  Over 100 prison inmates in the United States are serving those terms in Florida and seven other states — California, Delaware, Iowa, Louisiana, Mississippi, Nebraska and South Carolina.

Justices Roberts, Thomas, Scalia, and Alito dissented from the Court’s ruling.

Court Upholds Adam Walsh Child Protection and Safety Act:

In another criminal procedure ruling, the Court upheld the Adam Walsh Child Protection and Safety Act, signed by President George W. Bush in 2006.  The law permits states to set up civil commitment procedures for “sexually dangerous” prison inmates, allowing for the indefinite incarceration of such inmates long after they have served their sentences.

In a 7-2 decision authored by Justice Breyer, the Court wrote that the law is:

“[A] ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others.”

Under the federal law, in order to detain such inmates, the state must prove the following:

  1. The individual has previously “engaged or attempted to engage in sexually violent conduct or child molestation”;
  2. He/She currently “suffers from a serious mental illness, abnormality, or disorder”;
  3. The prisoner “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

“If the Government proves its claims by ‘clear and convincing evidence,’ the court will order the prisoner’s continued commitment,” Breyer said.  “Clear and convincing evidence” is the highest standard of proof required in a civil proceeding, but is not as high a standard as the “beyond a reasonable doubt” standard applicable in criminal cases.

Justice Thomas and Scalia dissented, writing that nothing in the Constitution gave Congress the power to enact such sweeping legislation.

You can read more about these decisions here and here.

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2nd Circuit Upholds Constitutionality Of Post-Shooting Breathalyzers For NYPD

It has been a little while since I posted here, so I am catching up on some “semi-recent” court rulings of note from around the country.  Here is one that may have slipped by you, but is worth a look.  As recently reported in Adjunct Law Prof Blog, the 2nd U.S. Circuit Court of Appeals has upheld a New York City policy requiring breathalyzer tests on officers immediately following a shooting death or injury caused by the use of their service pistol.  The case is entitled Lynch v. City of New York. I have placed a PDF of the case in the Box.

The NYPD breathalyzer policy requires that senior NYPD officials be notified of an officer-involved shooting with a gun, including the Internal Affairs Bureau (IAB). The policy then requires that a “portable breathalyzer test” be administered “in a private setting” to the “uniformed member(s) of the service who discharged a firearm.” If the portable breathalyzer test yields a reading of blood alcohol level of 0.08 or greater—the legal limit for driving an automobile in New York State—the officer in question must be transported to an IAB testing facility where he or she will be given a second test on a more accurate “Intoxilyzer” machine.

This particular policy arose out of a November 2006 shooting death of a suspect by undercover NYPD officers in Queens, New York.  Intense and widespread criticism from the public followed. In the wake of the Bell shooting, the Commissioner of the NYPD appointed a committee to review the Department’s undercover operations and to make recommendations for improvements. One recommendation was the breathalyzer policy.

Police unions challenged the policy on Fourth Amendment grounds, arguing that the officers’ Fourth Amendment privacy interests outweighed the NYPD’s interest in detecting and disciplining officers who use their guns while intoxicated. That argument was rejected, the court is essence holding that the police department has a substantial interest in deterring its officers from using firearms while intoxicated.

To my knowledge, the policy does not yet apply to other types of force (e.g., Tasers, batons, etc.) even if that use of force seriously injures.  Should it apply to Tasers?  I have personally handled cases where a Taser fired at the wrong part of the body can inflict serious and life-long injury.

What about some other, so-called “less lethal” weapons that still can cause substantial, possibly life-threatening injury?  See, e.g., Deorle v. Rutherford (9th Cir. 2001) 272 F.3d 1272 [Officer used “less lethal” bean bag shotgun, causing serious and substantial injury to emotionally distressed suspect, including multiple cranial fractures and dislodging one eye].  I have seen an unauthorized, military-style, “take down” maneuver cripple a suspect.

Does it matter what size police department is under analysis?  Perhaps, the NYPD has had significant problems of this sort in the past, and that history justifies the policy.  What if that history is not present?

If one lets the mind wander a bit, it is not difficult to conclude that any type of force that results in serious or substantial; or, perhaps, “life-threatening,” should be the subject of inquiry into the officer’s state of mind, including state of intoxication, if any.  Why not include a drug test, too?  It hardly makes sense to just test for alcohol, but not drugs – does it?

Having handled a dozen or so police misconduct cases, I have been critical of police officers in particular circumstances in how they use force.  I also happen to agree with the New York policy as it currently stands.  However, I think there is some danger if this kind of policy expands to include other uses of force.

On the one hand, there are officers like Bay Area Rapid Transit (BART) Officer Johannes Mehserle who fatally shot an unarmed and prostrate Oscar Grant in Oakland, CA early New Year’s Day 2009.  As part of his defense, Mehserle states that he believed he was firing his X26 model Taser, not his service pistol.  Even if true, the X26 is bright yellow, while service pistols are the typical gun barrel black.  Assuming for the moment that Mehserle is right, an officer who makes a mistake that confuses his black pistol with a yellow Taser (ruling out color-blindness or some other physical impairment), one might conclude that analyzing the officer’s sobriety at the time is reasonable.  For more on this case, extensive coverage can be found here and here.

On the other hand, there is the officer called out to the domestic violence scene.  Faced with a generally tense, often rapidly-evolving situation, where the officer has already been warned that this is the type of service call statistically the most dangerous to his or her person, the officer is naturally on edge.  That is simply human nature.  Then, something happens which sends the events down a tragic path, and the suspect is shot and wounded or killed. Does that mean every time such a shooting occurs, officers are subjected to alcohol testing, or possibly drug and alcohol testing, when they were exercising their discretion in the field under those incredibly tense and dangerous circumstances?

What do you think?  Is the Lynch decision a civil RIGHT or a civil WRONG?  All opinions are welcome on this important topic.


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