Sunday, October 19, 2014
Susman Godfrey, the Houston subpoenas to nonparty pastors, and the utter ordinariness of burdensome third-party civil discovery
The City of Houston has filed a preliminary response to the motion to quash subpoenas it served on five nonparty pastors seeking discovery, among other things, of these pastors' sermons. Like the mayor's initial "blame it on the pro bono lawyers" defense, the response is hard to credit as anything other than a public relations move. The response removes the word "sermons," but even as amended, Houston's subpoenas are still asking for sermons and for much more.
Consider request number 4: "All communications with members of your congregation regarding HERO or the petition." Now consider the definition of "communications": "[E]very direct or indirect disclosure, receipt, transfer, or exchange of information, inquiry or opinion, however made, whether oral, visual, in writing or otherwise, including without limitation any conversation or discussion by means of letter, note, package, invoice, statement, notice, memorandum, inter-office correspondence, telephone, telegraph, email, telex, telecopies, text message, instant message, cable communicating data processors, or some other electronic or other medium."
There is no hard and fast rule at work here, but generally speaking discovery requests like these begin with the broadest claims and then narrow from there. The word "sermons" was originally in request number 12. By the time the recipient would have arrived at that point, however, it would have been obvious that even coming close to full compliance with these broad requests would take dozens of hours. If you don't believe me, take a look at request number 1 yourself.
The specific mention of "sermons" was an unforced error that allowed recipients to provide a hook that would draw public attention to the burdensome nonparty discovery requests sent by the city. But getting rid of that one word does not change the substance of the city's requests one bit. They remain as burdensome as they were from the beginning.
An underreported angle of this whole story thus far is the nature of the legal representation provided to the city. In particular, the Mayor's "blame the pro bono lawyers" response is hard to take seriously when the pro bono lawyers include a lead counsel team from Susman Godfrey, L.L.P. The subpoena request posted by plaintiffs' counsel went out under the signature of a Susman Godfrey associate and two partners. According to Susman Godfrey's website, the more senior partner is "lead counsel for the City of Houston in its lawsuit against a Xerox affiliate for breach of contract, fraud, and other wrongdoing in connection with billing and collection for hundreds of millions of dollars of emergency medical services provided by the City's Fire Department" and also "lead counsel for the City in its multi-hundred million dollar lawsuit against actuarial firm Towers Watson for gross negligence and professional malpractice in connection with benefits under the Houston Firefighters' Relief and Retirement Fund." The other partner is a former EIC of the Texas Law Review and law clerk for Fifth Circuit Judge Jerry Smith, currently serving as "Susman Godfrey's docket partner with responsibility for staffing client engagements across our five offices." These are very capable, experienced lawyers. At least one of them is currently handling litigation involving hundreds of millions of dollars for the city. Whether Mayor Parker was previously aware of the specific wording of specific subpoenas is beside the point. She knows full well how lawyers like these, with the kinds of practices that they have, would have approached third-party discovery in the City's HERO case. It is therefore not credible for Mayor Parker to put distance between herself and the city's litigation strategy as pursued by Susman Godfrey. The cosmetic and minuscule amendment offered by the city in its preliminary response after Mayor Parker's attention was drawn to these particular subpoenas suggests that the city's overall litigation strategy includes deliberately imposing substantial burdens on the plaintiffs' allies.
Mayor Parker and the city's lawyers seem to have been frustrated for months by what the city's lead counsel from Susman Godfrey has termed "the public hoopla" surrounding their case. (This characterization, for example, came in an August 2014 press release.) And by the standards of the typical business litigation dispute handled by the firm, this case does seem a bit of a circus on both sides. But the dispute over "sermons" in the subpoenas is itself a sideshow against the utter ordinariness of the burdens that lawyers inflict on nonparties every day through broad civil discovery requests. When everything settles down and the culture-war commentariat moves on, one can only hope that firm judicial management will lessen the burdens imposed by Houston's requests.
The City of Coeur D'Alene is a defendant in a federal lawsuit brought by Donald and Evelyn Knapp, a husband-wife team of ordained ministers who perform wedding ceremonies in their family business, The Hitching Post, LLC (also a plaintiff). The City has said that the Knapps' refusal to perform a same-sex marriage ceremony would violate the City's nondiscrimination ordinance. The Knapps contend that the City's threatened punishment of them would violate the First and Fourteenth Amendments and Idaho's Religious Freedom Restoration Act.
The complaint quotes a deputy city attorney as setting forth the city's stance and explaining how that stance depends on the Ninth Circuit's recent judicial redefinition of marriage in Idaho to require inclusion of same-sex couples:
“For profit wedding chapels are in a position now where last week the ban [on same-sex marriages] would have prevented them from performing gay marriages, this week gay marriages are legal, pending an appeal to the 9th Circuit… If you turn away a gay couple, refuse to provide services for them, then in theory you violated our code and you’re looking at a potential misdemeanor citation.”
It is noteworthy that this deputy city attorney describes the celebration of marriage ceromonies as just another "service," and the Knapps' refusal to celebrate a same-sex marriage ceremony as a refusal to provide services on the basis of sexual orientation. States that have statutorily redefined marriage to be an institution open to same-sex couples have included statutory exemptions for churches and clergy that would not require them to solemnize same-sex unions. Generally speaking, they distinguish between solemnization and other services related to marriage. Because Idaho's marriage redefinition has been accomplished by the judiciary instead of the legislature, the scope of obligations that may be imposed by state law (with which municipal law must typically comply) is unclear. To be sure, it is also unclear whether the Knapps' business--in contrast with the Knapps themselves--would have fallen within a statutory exemption even if there had been one in Idaho. But cases like this highlight the kinds of questions that will arise over the next several years as cities, states, and everyone else negotiates the changes that come from the federal judicial redefinition of marriage.
Eugene Volokh has provided a persuasive analysis concluding that the city's application of its nondiscrimination ordinance to the Knapps and The Hitching Post, LLC would violate the First Amendment's prohibition of compelled speech and the Idaho Religious Freedom Restoration Act. I continue to believe that an initial question in cases like these is whether a refusal to perform marriage premised on one's understanding of what marriage is amounts to discrimination on the basis of sexual orientation so as to violate an anti-discrimination law. This is a question of the relevant municipal, state, or federal anti-discrimination law; here, a question of city law. I think that the city should reconsider its position on the meaning and application of that law. I further think that the city should reconsider its position on both First Amendment and state RFRA grounds. The best outcome very well could be a promise not to prosecute or impose liability under municipal law when doing so would violate federal law or state law, as would be the case here.
To the extent that this lawsuit is a sign of things to come, as I think it is, it would be nice if city and state officials could get the limits of anti-discrimination law right in the first instance without the need for judicial involvement. That said, it is a good tactical move to proceed directly to federal court. If one waits for prosecution in state court or to defend in state administrative proceedings, it will be much more difficult to get a federal forum for one's federal claims.
Wednesday, October 15, 2014
Suppose one were to ask another to name the best three or four decisions that the Supreme Court has ever made, and that the answer is: Brown v. Board of Education, Marbury v. Madison, McCulloch v. Maryland, Gideon v. Wainwright, Baker v. Carr, and Reynold v. Sims. Would it be reasonable for the questioner to conclude that his interlocutor was someone disenchanted with the Supreme Court? I say no. The person providing such an answer obviously retains an enchanted understanding of the Supreme Court. But see Sahil Kapur on Erwin Chemerinsky, discussing "the progressive legal luminary's new book, provocatively titled "The Case Against The Supreme Court."
Thursday, October 9, 2014
Re: SSM cert denials -- generally speaking, state courts are not bound by federal circuit court of appeals precedents
Some of the reporting about state actions regarding marriage following the Supreme Court's denial of certiorari may leave the inaccurate impression that something in our nation's federal structure dictates that state courts are bound by federal circuit court of appeals precedents. But that is not the case. See Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring) ("The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located."). There are some older state appellate cases that appear to require state courts to follow federal authorities. Indeed, the state caselaw is surprisingly messy on this point. See generally Colin E. Wrabley, Applying Federal Courts of Appeals' Precedent: Contrasting Approaches to Applying Court of Appeals' Federal Law Holdings and Erie State Law Predictions, 3 Seton Hall. L. Rev. 1, 16-28 (2012). But most state courts have expressly stated (as they should) that they are not bound as a matter of vertical stare decisis by lower federal court decisions on questions of federal law. Id. at 17-19.
Consider what is taking place now in South Carolina. (HT: How Appealing) The South Carolina Supreme Court has issued an injunction prohibiting probate judges from issuing marriage licenses until a federal district court addresses the issue in a pending case, Bradacs v. Haley. A lawyer for two women seeking a marriage license has criticized South Carolina Attorney General Alan Wilson for seeking the injunction. The Post & Courier reports:
Asked whether Wilson was simply upholding South Carolina law by filing the injunction, S.C. Equality Attorney Malissa Burnette, who is representing Condon and Bleckley, said to do his job, Wilson must also uphold federal law.
"The Fourth Circuit Court of Appeals governs the South Carolina courts, and it has already stated that there's a fundamental right to marry for same sex couples and that to deny that is a denial of due process and equal protection," Burnette said. "That has already been decided. He has an oath to honor that law as well."
The South Carolina Supreme Court's order suggests that the South Carolina Supreme Court does not agree, although it is not as clear as it could be on this point. Perhaps this is because a South Carolina Supreme Court case from the 1940s stated that federal cases "are controlling of the meaning and effect of the Federal Constitution." State v. Ford Motor Co., 208 S.C. 379, 390 (1946). The court's statement about federal cases, in context, was not limited to decisions of the Supreme Court of the United States. As recently as last year, the Court of Appeals of South Carolina relied on this older state supreme court case for the proposition that lower federal cases are controlling. State v. Dukes, 404 S.C. 553, 562 (S.C. Ct. App. 2013). Regardless of what happens with same-sex marriage in South Carolina, the Supreme Court of South Carolina should clarify and fix the state's approach to the purported binding effect of lower federal court judgments.
Thursday, September 25, 2014
Today marks the two hundred and twenty-fifth anniversary of the day on which the First Congress proposed to the states for ratification the first set of amendments to the Constitution. The first two did not make it with other ten, which are now more commonly known as the Bill of Rights. (The first proposal was never ratified at all, while the second was ratified over two hundred years later as the twenty-seventh amendment.)
Finnis on the relationship between judicial impartiality and the technical rationality of positive law
I recently came across this passage from John Finnis that explains the relationship between judicial impartiality and the technical rationality of the law:
In the working of the legal process, much turns on the principle--a principle of fairness--that litigants (and others involved in the process) should be treated by judges (and others with power to decide) impartially, in the sense that they are as nearly as possible to be treated by each judge as they would be treated by every other judge. It is this above all, I believe, that drives the law towards the artificial, the techne rationality of laying down and following a set of positive norms identifiable as far as possible simply by their 'sources' (i.e. by the fact of their enactment or other constitutive event) and applied so far as possible according to their publicly stipulated meaning, itself elucidated with as little as possible appeal to considerations which, because not controlled by facts about sources (constitutive events), are inherently likely to be appealed to differently by different judges. This drive to insulate legal from moral reasoning can never, however, be complete.
John Finnis, Natural Law and Legal Reasoning, in Natural Law Theory, Robert George, ed., p. 150.
While Professor Finnis acknowledges that legal reasoning is never completely insulated from moral reasoning, this passage explains one way in which natural law theory justifies the positivity of positive law. It is a helpful corrective to a tendency in contemporary constitutional theory to set natural law reasoning in opposition to constitutional originalism.
Wednesday, September 24, 2014
The Judiciary Act of 1789 was enacted two hundred twenty-five years ago today. It was a monumental achievement for the First Congress. Among other things, the Act gave concrete institutional shape to a judiciary left open-ended in Article III. (Remember the "Madisonian compromise"? The biggest fight surrounding the first Judiciary Act centered on the need for an extensive system of lower federal courts.) The Act also began the process of working out the relationship between state and federal judiciaries, advancing a process of constitutional liquidation anticipated by Hamilton in Federalist No. 82. And Section 25 of the Act, which provided for Supreme Court review of state decisions via writ of error, explicitly contemplated judicial determinations of the constitutionality of statutes. (This is the practice we now call "judicial review," although that term did not emerge in connection with this practice until the early twentieth century.)
September 24 is also John Marshall's birthday; today would have been his 259th (b. 1755, d. 1835). It is fitting that Chief Justice Marshall and the federal judiciary share the same birthday. Perhaps the coincidence can remind us to be grateful not only for the Great Chief Justice, but also for Oliver Ellsworth, the father of the Judiciary Act and our third Chief Justice.
In reading through Josh Blackman's criticisms of Justice Ginsburg's forthcoming Elle interview, one of Justice Ginsburg's answers stood out to me:
Interviewer: Fifty years from now, which decisions in your tenure do you think will be the most significant?
J. Ginsburg: Well, I think 50 years from now, people will not be able to understand Hobby Lobby.
Justice Ginsburg's response not only fails to answer the question asked, but also advances an insupportable claim about the comprehensibility of a recent opinion of the Court. Are there any Supreme Court decisions from fifty years ago (which is just 1964) that people today cannot understand? What is it that Justice Ginsburg thinks future interpreters will find so hard to comprehend about Hobby Lobby?
In terms of comprehensibility to future interpreters, I tend to think that Justice Alito's more formalist opinion for the Court will be more understandable than Justice Ginsburg's purposivist dissent. Understanding the majority opinion requires less contextual knowledge of the sort that may fade with the passing of time. Someone trying to figure out how the majority and the dissent arrived at their respective conclusions about the scope of RFRA's coverage can more readily understand the largely textualist analysis of the majority opinion than the dissent's importation into RFRA of a judicially developed formula designed to implement a religious organization exemption for a different statute.
Perhaps future interpreters will disagree with the outcome in Hobby Lobby; hard to say with any confidence whether disagreement will be greater or lesser than it already is. But it should not be difficult for future interpreters to understand how the Court arrived at its decision.
Tuesday, September 23, 2014
The lawyers arguing about the constitutional redefinition of marriage (and arguing about who should be arguing about this)
Marcia Coyle of the National Law Journal and Adam Liptak of the New York Times have stories on the lawyers representing the various parties in the marriage-redefinition litigation. The NLJ story is titled "These Are the Lawyers Fighting Marriage Equality," and the NYT story bears the title "Seeking a Same-Sex Marriage Case Fit For History." It may not be intentional, but even these titles show a mixture of opinion and reporting functions.
Monday, September 22, 2014
The Catholic/Evangelical/Baptist/LDS/Lutheran amicus curiae brief in support of cert in the Utah same-sex marriage case
A couple weeks back, the United States Conference of Catholic Bishops, the National Association of Evangelicals, the Ethics & Religious Liberty Commission of the Southern Baptist Convention, the Church of Jesus Christ of Latter-Day Saints, and the Lutheran Church - Missouri Synod filed an amicus curiae brief in support of certiorari in the Utah same-sex marriage case.
The basic thrust of the brief seems right. The Supreme Court should "resolve without delay whether the Constitution requires the redefinition of marriage to include same-sex couples." At the same time, attention to the careful wording in the brief reveals the difficulty of simultaneously recognizing the Supreme Court's ultimacy in one sense, while also indicating the limited scope of that ultimacy and the possibility (and perhaps the likelihood) that constitutionalizing this matter will not shift the controversy over marriage from the Court to the People.
The brief opens:
The time has come to end the divisive national debate as to whether the Constitution mandates same-sex marriage. We are convinced that a charter “made for people of fundamentally differing views,” Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting), does not prescribe a single national definition of marriage so contrary to the beliefs, practices, and traditions of the American people. We are convinced that the best way to resolve this wrenching controversy is by trusting the People and their democratic institutions. But a chorus of federal courts disagrees.
It may be tactically wise to suggest in an amicus brief in support of certiorari that a Supreme Court ruling on same-sex marriage has the potential to "end the divisive national debate as to whether the Constitution mandates same-sex marriage." And it might make sense to invoke Holmes's Lochner dissent. But I would be surprised if there is anything that the Supreme Court would write in an opinion that would end the debate over whether states are constitutionally required to define marriage to include same-sex couples. And we've already seen what one Holmesian approach to this issue results in.
The religious organizations argue, persuasively, that the legal uncertainty created by Windsor has impeded legislatures from acting on religious liberty protections in connection with same-sex marriage:
In our experience, legislators and other officials are frequently excusing their unwillingness to negotiate protections for religious liberty in the context of same-sex marriage on the specious grounds that such protections are invidious because same-sex marriage is a constitutional right or, conversely, unnecessary because this Court has yet to decide it is a constitutional right. Impeding the channels of democratic debate and engagement has been especially detrimental for religious organizations, given that States adopting same-sex marriage through legislative or popular lawmaking have often included at least some protections for religious organizations, while States compelled to make that change by courts have tended not to include such protections at all.
Even after a likely 5-4 decision creating a new constitutional right to same-sex marriage, however, much uncertainty will remain. The fight will turn to the scope and contours of this right, as well as the implications (both political and logical) of the Court's reasoning. Unlike desegregation, there will be no need for complex remedial decrees in particular cases. But the transition will not be as simple as issuing new forms that eliminate the terms "husband" and "wife." The scope of protections for cultural dissenters from the new federally imposed understanding of marriage, and everything that comes along with it, will be up for grabs. And it will be essential for religious organizations and others who adhere to a different orthodoxy from the new federal orthodoxy to work quickly with all reasonable people of goodwill, not so much to negotiate terms of surrender as to change the terms of engagement.
Depending for one's protection on the very judicial institution that so profoundly aligned itself in opposition to one's view of the legal institution of marriage does not seem a sound long-term strategy. In the short term, though, it is necessary to obtain a definitive declaration from the Supreme Court about where that institution stands amidst the legal uncertainty that it has created.