Fictional Attorney of the Month: Tom Hagen

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The Godfather is a great film. So is The Godfather Part II. And part of what makes them great are the great characters.

Tom Hagen is an Irish-German adopted son in the Corleone family. As a non-Italian, he's excluded from certain mafia-related events. But his career as an attorney makes him an invaluable asset to a notorious criminal gang.

When his credentials are questioned by another attorney in the film, he calmly explains, "I have a special practice. I handle one client." That client, of course, is Don Corleone.

Tom is a quiet character, but his presence is a valuable contrast to the hot-tempered emotions or conniving schemes of the Corleones around him. And perhaps (or so I like to think) it's because he has a slight dispassion in his role as advisor and counselor. He's allegedly based, at least in part, on University of Southern California Law School alumnus Frank DeSimone. And it's for Tom's profession as an attorney that he's the Fictional Attorney of Month.

Tenth Circuit considers justiciability of Guarantee Clause today

Today, the Tenth Circuit heard argument concerning the justiciability of the Guarantee Clause in Kerr v. Hickenlooper before a panel (PDF) with Judges Briscoe, Seymour, and Lucero. A district court last year accepted the argument that the Guarantee Clause was at least potentially justiciable.

In 1992, Colorado voters, by initiative, enacted a "Taxpayer Bill of Rights" (TABOR) that prohibits the legislature from raising tax rates or imposing new taxes without voter approval. Plaintiffs recently sued and claimed that the legislature had a kind of inherent right as a republican form of government to control tax increases.

The argument is intriguing. The Guarantee Clause in Article IV of the Constitution requires, "The United States shall guarantee to every State in this Union a Republican Form of Government . . . ." It has never been found justiciable--that is, capable of judicial resolution. In Luther v. Borden, the Supreme Court rejected an opportunity to resolve a dispute as to the proper form of government in Rhode Island under the Guarantee Clause, and that precedent has dramatically limited the universe of possible situations when a judiciary might inject itself into a dispute.

There are several options at the panel's disposal to resolve the case, including a standing issue. But I thought I would examine three points regarding the Guarantee Clause claim in particular. 

I. Defining Justiciability

The Supreme Court in Baker v. Carr offered six factors for considering whether the judiciary could resolve a dispute, or whether it was best left to other political branches. The first point, a "textually demonstrable constitutional commitment of the issue to a coordinate political department," is not as on-point here as it was in Nixon v. United States, when the Court declined to review the impeachment of a federal judge on the basis that the task was "sole[ly]" committed to the House of Representatives.

The second prong, however, is salient: "a lack of judicially discoverable and manageable standards for resolving it." Defining a "Republican Form of Government" is not an easy task, and certainly not one the judiciary has undertaken in over 200 years. 

Further, the narrowness of the question weighs against examining the definition. The defendants who appealed note in their briefs that there are limited sitations in which it might be justiciable--such as if a state instituted a tyranny or a monarchy. But here, the question is whether the legislature has a right to raise taxes absent the popular vote of the people-and, perhaps as a prior question, whether the people can remove a delegated task of certain kinds of taxation from their representatives by initiative and restore it to themselves.

The district court decided that it was too early to decide and denied the motion to dismiss. It explained, the inquiry "reflects the fact that the discussion is premature at this stage of the litigation. Resolving the issue of whether there are judicially discoverable and manageable standards for determining the merits of Plaintiffs’ Guarantee Clause claim would necessarily require this Court to begin to wade into the merits of this dispute." 

To be frank, the court is wrong. Deciding whether there are  standards for adjudicating a Guarantee Clause claim is fundamentally different from deciding whether  those standards were met such that the plaintiffs win. Admittedly, beginning to answer the question of what the law is will very quickly get to the merits issue. But there is no "discovery" that will "reveal" what the Guarantee Clause requires--it is not the kind of thing that should survive a motion to dismiss for further investigation.

I confess that I do not find an amicus curiae brief (PDF) by several law professors much more persuasive. The brief explains:

The briefs submitted by the State and their amici, for example, present arguments about how to interpret the language of the Guarantee Clause. The Response brief provides a set of counterarguments on the same question. Both sides support their arguments with historical evidence and judicial precedent. These arguments are precisely the type that courts regularly consider in interpreting the Constitution. 

That, flatly, cannot be the test. The parties in Nixon disputed whether a court could interpret the word "try," and the parties, of course, each had their own set of arguments about what it means to "try" a party for purposes of impeachment. The Court--while recognizing that the task was left "sole[ly]" to the House--refused to entertain a question of the definition and usurp the role of Congress, and this question of judicially-manageable standards "strengthen[ed] the conclusion" that the matter was left to another branch other than the judiciary.

II. A Guarantee Against Whom?

The parties, several members of the legislature, sued the governor for enforcement of the Guarantee Clause. But the defendants raise an intriguing matter: against whom may the Guarantee Clause be enforced? The defendants note that "The United States" is the one that guarantees a republican form of government. Any enforcement, therefore, must come against the United States, and not against the executive or some other state officer.

It's a point I haven't encountered (and perhaps there is robust discussion of it somewhere), but it is one worth considering.

III. Narrow Guarantees and Broad Guarantees

Circling back to an issue raised in the first point, the breadth or narrowness of the issue matters greatly if it concludes that the Guarantee Clause is justiciable (or when deciding that this specific matter is not justiciable as alleged).

A narrow ruling would address solely the issue in this case--specifically, whether the people could vote by initiative to remove the power to increase taxes from the legislature absent a popular vote. It is not, strictly speaking, that the legislature cannot raise taxes: it is that they cannot do so without popular approval. And it is not that the legislature has lost the power to do so: it lost the power because of a citizen initiative. Narrowly, this issue does not strike me as the kind of "core" definition of "Republican Form of Government," given the fact that the people enacted it by initiative and that the power still exists in a different form.

A broad ruling, however, may call into question the entire initiative regime as it exists in the United States. Initiatives that affect some "core" legislative power--here, tax; elsewhere, the question remains open--may be subject to judicial review.  The specific approach that the court chooses to employ matters greatly. 

There is much to heed in this case, and the Tenth Circuit panel has much to consider. It has already proved a fascinating saga. 

Citizens United in Affordable Care Act litigation, Part IV

Fresh off the heels of yesterday's Part III, here comes Part IV.  A petition for writ of certiorari (PDF) has been filed with the Supreme Court appealing the Third Circuit's decision in an Affordable Care Act case regarding a business alleging a right to religious liberty. The petition invokes Citizens United twice, noting that "other areas of First Amendment law, including the free speech doctrine, recognize that 'First Amendment protection extends to corporations,'" "'for-profit and non-profit.'" (p. 10 & 25)

Citizens United in Affordable Care Act Litigation, Part III

After my first two posts about the link between the Supreme Court's decision in Citizens United  and litigation under the Affordable Care Act, we have a third opinion from a federal circuit court.  The Sixth Circuit, in Autocam Corp. v. Sebelius (PDF), has rejected a First Amendment religious liberty challenge from manufacturing companies. It includes little discussion about Citizens United, but it does mention it.

Autocam’s attempt to fill this void by relying on freedom of speech cases, most notably Citizens United v. Federal Election Commission, is unavailing.  In Citizens United, the Court “recognized that First Amendment protection extends to corporations” and collected a significant number of cases recognizing this rule.  But these cases all arose under the Free Speech Clause. [citing the Third Circuit's opinion on this.] No analogous body of precedent exists with regard to the rights of secular, for-profit corporations under the Free Exercise Clause prior to the enactment of RFRA.  The Free Exercise Clause and Free Speech Clause of the First Amendment have historically been interpreted in very different ways. Id. (tracing the differences in the Court’s treatment of these clauses). Therefore, the Court’s recognition of rights for corporations like Autocam under the Free Speech Clause nearly twenty years after RFRA’s enactment does not require the conclusion that Autocam is a “person” that can exercise religion for purposes of RFRA.

 (some citations omitted)

It's curious that the Sixth Circuit includes the discussion of Citizens United , the First Amendment, and Free Exercise in its interpretation of whether a company is a "person" for purposes of the Religious Freedom Restoration Act. The statutory interpretation question is a fairly different matter than the scope of constitutional protection. I suppose, reading through a bit of the court's awkward analysis, one could argue that because there had been no precedent contemplating the kind of Free Exercise right anticipated in this case prior to Employment Division v. Smith, Congress did not contemplate that kind of right when it enacted RFRA.

Perhaps part of the court's awkward analysis arose because of a decision by the litigants.  Plaintiffs apparently only appealed a preliminary injunction denial on the RFRA claim and did not include a First Amendment claim in the appellate brief.

If that's the case, then the usefulness of Citizens United as analogy drops dramatically, which explains why the court's discussion is brief.

Why aren't more journals like the Case Western Reserve Law Review?

What is the purpose of a Law Review?

It's 2013, but consulting the first issue of the Harvard Law Review (1 Harv. L. Rev. 35 (1887)) may prove instructive.

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In many ways, the purposes of law reviews have not changed in 126 years. There is less an emphasis on "news" from the law school, but from symposia to student scholarship there is a school-centered emphasis in the scholarship published. The journal seeks to assist the profession as a whole (although its success achieving this point is certainly debatable). And it hopes to provide scholarship of "permanent value."

And while the purposes (as a general matter) have not changed, neither have the means. Apart from the thickness or a journal, the frequency of publication, the length of articles, the quantity of citations, and so on, law reviews look pretty much the same. They communicate to a generalist audience with a general subject matter. They are published at a few intervals each year, in print, with a lengthy editing process. They are printed, and circulated, and the process resumes.

The bulk of student editors' work is focused on citations. While the original Bluebook manual for citations, published in 1926, did "not pretend" to be exhaustive, the latest manual spans over 500 pages, is updated every few years, and consumes the overwhelming portion of students' attention. And students have just a year in charge of the journal: they accept positions in the early spring of their second year; they hit the ground running in article selection and editing; and, in one year, they turn over their duties to another set of students who begin again. Institutional memory is limited. Rewards for innovation appear few, as the process rewards catching up and meeting short-term goals in a one-year term over long-term investments beyond one's limited term.

But the Case Western Reserve Law Review has introduced a number of innovations to share scholarship and scholarly ideas in a variety of formats, and it has reconsidered some of the traditional means of scholarship in very good ways.

It has renovated its typography and publication format. It created a font, Legal Modern, [update: it is a "a repackaged distribution of Computer Modern for lawyers, not a new design"] designed for optimization both in print and on electronic media. It includes, among other things, "true" small caps. The old wide page margins were abolished in favor of very narrow margins, a recognition that reading an article in PDF on an electronic reader like a Kindle or iPad would improve. The old printed format had different headers on even and odd pages, assuming one viewed pages two at a time; the new format assumes single-page headers.

The law review hosts a podcast, Below the Line (available on iTunes), in which a recent author and two other scholars in the field discuss the author's recent work. It produces an organic and often lively discussion of the recent scholarship, and it provides an alternative outlet for learning about the work.

Its Twitter account is active, with a sense of humor and a high level of engagement. It accepts submissions via Twitter. It launched a Twitter symposium, first "Terrorism and Miranda," then on the Court's decision in Myriad, in which it retweeted law professors' thoughts on the matter and noted the "organic and lively" discussion that took place. And it's sponsoring a Lego Supreme Court giveaway for those who review a recent article published in the Law Review. It's more than simply a feed repeating the titles of articles: the social media is used as a different kind of presence.

(Let me offer a small word about letterhead bias and Twitter. The Cornell Law Review has a single tweet from 2010 and has over 400 followers. The Duke Law Journal has no tweets and over 350 followers. In contrast, the Case Western Reserve Law Review has interesting and unique content, an engaging and interactive presence, but boasts just over 250 followers. It's staggering to me that such a disparity exists.)

When I asked the Law Review about the barriers to innovation given a limited institutional memory, I was told that the enthusiasm from the previous editorial boards helps drive future boards to take the innovations and develop them. The ideas have been communicated to the new staff members at a very early stage with the hopes that they will take the inheritance and continue to improve upon the foundation created.

And what about the print edition itself? Well, the Law Review is going to preserve that form for a while longer, but I may have some words on it in a post to come. 

Why aren't more law reviews doing it?  Admittedly, institutional memory is a significant problem, as are the seemingly pressing short-term goals. But with vision and a staff that buys in, positive changes can occur. 

So take note, law reviews, about the changes that the Case Western Reserve Law Review has begun--and keep an eye out for future changes.  This is the way to operate a law review.

Special thanks to Volume 64 Publisher Elizabeth Horan for taking the time to discuss the Case Western Reserve Law Review with me.

Has Prop 8 litigation permanently undermined California initiatives and the rule of law?

When the voters of California enacted Proposition 8 in 2008, which amended the state Constitution to read, "Only marriage between a man and a woman is valid or recognized in California," litigation ensued. But the executive officials in California tasked with defending the law in court declined. Instead, proponents of the measure intervened to defend the law.

To avoid a lengthy discussion of events that have already occurred, intervenors did defend the law but were found to lack the authority to appeal an adverse judgment. The Supreme Court this year in Hollingsworth v. Perry affirmed that holding.

So, too, did the voters of Los Aneles County enact Measure B in 2012, which required performers in pornographic films to wear condoms. In Vivid Entertainment v. Fielding , a pornographic film studio sought to enjoin enforcement of the measure. In its answer, the County included the following as its first affirmative defense:

Defendants reserve the right to have proponents of Measure B intervene and defend the constitutionality of Measure B in light  of Perry v. Brown.

(Perry v. Brown being the Proposition 8 case in the California Supreme Court that held that initiative proponents have authority to defend the initiative's validity when elected officials so decline.)

Moreover, when Measure B's proponents did move to intervene, the County filed a notice of "non-opposition" and went further, explaining, "Defendants have indicated in their Answer that Measure B's proponents were necessary parties in litigating the constitutionality of Measure B."

Ultimately, the district court  allowed intervention.

I do not live in Los Angeles County, and I make no claim as to the wisdom of such a regulation, but I offer these thoughts. 

An affirmative defense is usually the kind of thing that would exculpate the defendant in the litigation. But I've never run across the possibility of Rule 24 intervention as an affirmative defense, as opposed to, what I suspect may be the case, merely an indirect way for the defendant to signal to the court, to the parties, and to the public how it intends to behave.

Furthermore, initiative proponents are almost assuredly not "necessary" parties in federal court. Among other things, Rule 24 requires that a party have a "substantial legal interest" in the litigation. Borrowing substantial precedent from other cases, merely advocating for a ballot question, absent regulation of the organization itself or its members, and absent members who would personally have a substantial legal interest, is insufficient for Rule 24 intervention. See, e.g., Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (2007) (rejecting intervention for initiative proponents); Coalition to Defend Affirmative Action v. Granholm, 501 F.3d 775 (6th Cir. 2007) (same).

And although Judge Reinhardt on behalf of a panel in the Ninth Circuit once concluded in 1991, "There appears to be a virtual per se rule that the sponsors of a ballot initiative have a sufficient interest in the subject matter of the litigation to intervene," six years later the Court expressed "grave doubts" in Arizonans for Official English v. Arizona, reiterated by the Court in Hollingsworth, about the analysis .

Admittedly, in many of these cases, the existing parties may well represent the interests of the absent organizations, particularly as they were not abstaining from defending the law.  But that is another prong of the analysis, not one that can overcome the requirement that a party seeking to intervene assert a substantial legal interest.

But, worse than this pair of misguided statements of procedure, California has now incentivized public officials to disclaim defense of initiatives and turn over their public duties to private citizens. 

It is understandable, of course, that public officials would regularly not be enthused with the results of a popularly-enacted initiative. Such direct democracy often occurs because the ordinary legislative channels have failed to enact the very law that the people have just enacted. 

But now public officials have begun to evade their duties, and their oath, to uphold the law, outsourcing the task to roving citizens' groups to take on their job. 

Perhaps the refusal of a public official to defend a popular initiative should trigger an immediate recall election--although, admittedly, the enforceability of defining "refusal" may be problematic. But if the public officials of a state intend to stop enforcing laws enacted by initiative, then the initiative process itself may well be permanently undermined in California.