Category: reason

SCOTUS Declines To Intervene in Lawsuit Blaming Gun Maker for Sandy Hook Massacre

The Supreme Court yesterday declined to intervene in a lawsuit that seeks to hold Remington Arms responsible for the 2012 shooting that killed 20 children and six adults at Sandy Hook Elementary School in Newtown, Connecticut. That decision means the plaintiffs—a survivor of the attack and relatives of nine people murdered at the school—can try to prove in state court that Remington violated the Connecticut Unfair Trade Practices Act (CUTPA) by marketing the Bushmaster XM15-E2S rifle used by the perpetrator, Adam Lanza, in a way that emphasized its “militaristic and assaultive qualities.”

The CUTPA claim was the one cause of action left standing by the Connecticut Supreme Court last March, when it rejected a breathtakingly broad understanding of “negligent entrustment” that would make any supplier of military-style rifles liable for crimes committed with them. Under CUTPA, people can seek damages for injuries caused by “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

Both theories were attempts to get around the Protection of Lawful Commerce in Arms Act (PLCAA), a 2005 federal law that generally protects gun manufacturers and distributors from liability for criminal uses of their products. The CUTPA claim is based on one of the exceptions made by the PLCAA, which allows lawsuits alleging that “a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.”

The question presented to the U.S. Supreme Court, which it decided not to consider at this point, is whether that exception “encompasses alleged violations of broad, generally applicable state statutes” like CUTPA. Remington and briefs supporting its position argue that the phrase “statute applicable to the sale or marketing of the product” should be read to mean a firearm-specific law. They note that both examples mentioned in the PLCAA involve such laws, and they cite legislative history indicating that Congress intended to block lawsuits like this one.

“The lawsuits the PLCAA was enacted to address commonly included claims of negligent, unfair, or deceptive advertising, as well as claims under state unfair trade
practices statutes,” Remington notes in its Supreme Court brief. “During the debates, Senator [Orrin] Hatch specifically criticized lawsuits ‘citing deceptive marketing’ and ‘claim[ing] that sellers give the false impression that gun ownership enhances personal safety.'”

The plaintiffs, by contrast, argue that “statute applicable to the sale or marketing of the product” means any law that could be applied to firearms. Their interpretation was endorsed by the Connecticut Supreme Court, which disagreed on that point with two federal appeals courts.

In the 2009 case Ileto v. Glock, the U.S. Court of Appeals for the 9th Circuit concluded that “Congress had in mind…statutes that regulate manufacturing, importing, selling, marketing, and using firearms or that regulate the firearms industry,” as opposed to “general tort theories that happened to have been codified by a given jurisdiction.” The U.S. Court of Appeals for the 2nd Circuit allowed for a somewhat broader understanding of the exception in the 2008 case City of New York v. Beretta, saying it might include “a statute of general applicability” that does not explicitly mention firearms. But the court warned that reading “applicable” to mean “capable of being applied” would allow the exception to “swallow the statute.”

In a brief urging the U.S. Supreme Court to hear this case, the National Rifle Association likewise warns that “the exception allowed by the Connecticut Supreme Court will swallow the [PLCAA] rule nationwide.” It notes that “many other states” have laws similar or identical to CUTPA, “any one of which can now be used to circumvent national policy if the decision below is not corrected.” The result, it says, will be precisely the sort of frivolous but expensive litigation that Congress saw as a threat to the Second Amendment.

“Exempting Respondents’ lawsuit from PLCAA’s immunity will result in a de facto ban on manufacturing or selling firearms, effectively preventing law-abiding Americans from purchasing constitutionally protected instruments,” the NRA says. “This ban eventually will grow to encompass the sale of virtually every firearm in nearly every jurisdiction. Imposing what is effectively a company-killing level of liability cannot be squared with the basic policy judgments that underlie the Second Amendment. The right to acquire firearms is meaningless if the industry that provides firearms is litigated out of existence.”

Then again, if this lawsuit ultimately fails, any flurry of litigation it inspires may be sparse and brief. The plaintiffs still have to prove that Remington’s marketing was not only “unfair or deceptive” under CUTPA but also, per the PLCAA, “a proximate cause” of the Sandy Hook massacre. The Connecticut Supreme Court also applies a proximity requirement to CUTPA claims.

The National Shooting Sports Foundation, an industry group that asked the U.S. Supreme Court to take up this case, notes that the plaintiffs have not offered any evidence that Lanza or his mother, who bought the rifle he used, was “influenced in any way by any advertisement,” let alone that advertising precipitated the mass shooting or made it deadlier. As the Connecticut Supreme Court itself observed while allowing the lawsuit to proceed, “proving such a causal link at trial may prove to be a Herculean task.”

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SCOTUS Declines To Intervene in Lawsuit Blaming Gun Maker for Sandy Hook Massacre

The Supreme Court yesterday declined to intervene in a lawsuit that seeks to hold Remington Arms responsible for the 2012 shooting that killed 20 children and six adults at Sandy Hook Elementary School in Newtown, Connecticut. That decision means the plaintiffs—a survivor of the attack and relatives of nine people murdered at the school—can try to prove in state court that Remington violated the Connecticut Unfair Trade Practices Act (CUTPA) by marketing the Bushmaster XM15-E2S rifle used by the perpetrator, Adam Lanza, in a way that emphasized its “militaristic and assaultive qualities.”

The CUTPA claim was the one cause of action left standing by the Connecticut Supreme Court last March, when it rejected a breathtakingly broad understanding of “negligent entrustment” that would make any supplier of military-style rifles liable for crimes committed with them. Under CUTPA, people can seek damages for injuries caused by “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

Both theories were attempts to get around the Protection of Lawful Commerce in Arms Act (PLCAA), a 2005 federal law that generally protects gun manufacturers and distributors from liability for criminal uses of their products. The CUTPA claim is based on one of the exceptions made by the PLCAA, which allows lawsuits alleging that “a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.”

The question presented to the U.S. Supreme Court, which it decided not to consider at this point, is whether that exception “encompasses alleged violations of broad, generally applicable state statutes” like CUTPA. Remington and briefs supporting its position argue that the phrase “statute applicable to the sale or marketing of the product” should be read to mean a firearm-specific law. They note that both examples mentioned in the PLCAA involve such laws, and they cite legislative history indicating that Congress intended to block lawsuits like this one.

“The lawsuits the PLCAA was enacted to address commonly included claims of negligent, unfair, or deceptive advertising, as well as claims under state unfair trade
practices statutes,” Remington notes in its Supreme Court brief. “During the debates, Senator [Orrin] Hatch specifically criticized lawsuits ‘citing deceptive marketing’ and ‘claim[ing] that sellers give the false impression that gun ownership enhances personal safety.'”

The plaintiffs, by contrast, argue that “statute applicable to the sale or marketing of the product” means any law that could be applied to firearms. Their interpretation was endorsed by the Connecticut Supreme Court, which disagreed on that point with two federal appeals courts.

In the 2009 case Ileto v. Glock, the U.S. Court of Appeals for the 9th Circuit concluded that “Congress had in mind…statutes that regulate manufacturing, importing, selling, marketing, and using firearms or that regulate the firearms industry,” as opposed to “general tort theories that happened to have been codified by a given jurisdiction.” The U.S. Court of Appeals for the 2nd Circuit allowed for a somewhat broader understanding of the exception in the 2008 case City of New York v. Beretta, saying it might include “a statute of general applicability” that does not explicitly mention firearms. But the court warned that reading “applicable” to mean “capable of being applied” would allow the exception to “swallow the statute.”

In a brief urging the U.S. Supreme Court to hear this case, the National Rifle Association likewise warns that “the exception allowed by the Connecticut Supreme Court will swallow the [PLCAA] rule nationwide.” It notes that “many other states” have laws similar or identical to CUTPA, “any one of which can now be used to circumvent national policy if the decision below is not corrected.” The result, it says, will be precisely the sort of frivolous but expensive litigation that Congress saw as a threat to the Second Amendment.

“Exempting Respondents’ lawsuit from PLCAA’s immunity will result in a de facto ban on manufacturing or selling firearms, effectively preventing law-abiding Americans from purchasing constitutionally protected instruments,” the NRA says. “This ban eventually will grow to encompass the sale of virtually every firearm in nearly every jurisdiction. Imposing what is effectively a company-killing level of liability cannot be squared with the basic policy judgments that underlie the Second Amendment. The right to acquire firearms is meaningless if the industry that provides firearms is litigated out of existence.”

Then again, if this lawsuit ultimately fails, any flurry of litigation it inspires may be sparse and brief. The plaintiffs still have to prove that Remington’s marketing was not only “unfair or deceptive” under CUTPA but also, per the PLCAA, “a proximate cause” of the Sandy Hook massacre. The Connecticut Supreme Court also applies a proximity requirement to CUTPA claims.

The National Shooting Sports Foundation, an industry group that asked the U.S. Supreme Court to take up this case, notes that the plaintiffs have not offered any evidence that Lanza or his mother, who bought the rifle he used, was “influenced in any way by any advertisement,” let alone that advertising precipitated the mass shooting or made it deadlier. As the Connecticut Supreme Court itself observed while allowing the lawsuit to proceed, “proving such a causal link at trial may prove to be a Herculean task.”

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Judge Rules Feds Need Reasonable Suspicion Before Searching Tech Devices at the Border

Border agents who seize and search people’s tech devices at entry points to the United States without any suspicion of criminal activity are violating Fourth Amendment rights, a federal judge ruled this week in a case likely headed to the Supreme Court.

The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) sued in 2017 on behalf of 11 travelers—10 American citizens and one permanent resident—who had been ordered by Department of Homeland Security officials to let them review and copy the contents of their devices without any sort of warrant or explanation of what agents were looking for.

Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) officials have long been arguing the authority for these warrantless searches on the basis of the so-called “border search exception.” Courts have traditionally ruled that America’s sovereign interest in controlling what and who it allows to enter its borders permits officials to search people and property coming into the country (or within 100 miles of a border) without needing a warrant or any sort of suspicion.

While this has historically been a mechanism for fighting smuggling, in a post-9/11 era it has been escalated into a demand to search people’s technology and access their files and contents. Each year, CBP searches tens of thousands of devices of people crossing the border.

The ACLU and EFF have been fighting these violations of privacy, and lawmakers like Sens. Rand Paul (R–Ky.) and Ron Wyden (D–Ore.) have been proposing legislation to mandate warrants for tech searches.

In a 48-page decision in Alasaad v. McAleenan handed down Tuesday, Judge Denise J. Casper of the U.S. District Court of Massachusetts ruled that there are limits to the extent that officials can engage in warrantless, suspicionless border searches, and these intrusive tech searches cross the line, violating the Fourth Amendment rights of the plaintiffs. While it’s true Americans should expect less privacy at the border, it doesn’t mean they have absolutely none.

In the ruling, Casper notes that, unlike border searches of property and vehicles looking for contraband people might be trying to smuggle into the country, these tech searches are typically about accessing data that officials argue may alert them to criminal activity. But that’s similarly true of the data of tech devices once they’re inside the country, and police still need to get warrants to search them. Casper notes that DHS is defending these searches by claiming they might catch contraband like child pornography, but DHS did not provide data as to how frequently such contraband is found during random searches (thus Casper could not perform any sort of privacy balancing test). According to her ruling, DHS has supplied that they’ve uncovered 34 cases of “digital contraband” via tech border searches. But they’ve performed more than 100,000 searches of tech devices between 2012 and 2018. Those aren’t terribly good numbers to justify mass, intrusive violations of people’s personal information.

Casper further notes, on a more technical level, that these tech searches are not “routine” because of the exceptionally intrusive nature of looking through a person’s phone or laptop, compared to searching somebody’s luggage or vehicle. Some of the data officials accessed through the plaintiffs’ tech devices included confidential communications with attorneys, email and text message histories, and troves of deeply personal information. Some plaintiffs’ devices were seized and kept for weeks before they were returned—after border officials had copied the contents of the files into their own systems.

Casper writes in her ruling that the Supreme Court decision in Riley v. California is “particularly instructive.” In that 2014 case, the Supreme Court ruled unanimously that police need to get a search warrant to look through the contents of the cell phone of a person they’ve arrested. DHS does not want that ruling to extend to border tech searches, which is why they’re leaning so heavily on the border exception. The Riley ruling rejected the idea that a search of a phone is no different from a search of a person’s body and possessions when they’re arrested. Similarly, Casper is rejecting the idea that searching a phone at the border is no different from looking through somebody’s luggage for drugs.

In the end, Casper denies the plaintiffs’ request to force the feds to expunge all the data they’ve collected from their tech devices. But she does declare that the current guidelines for border tech searches by CBP and ICE violate the Fourth Amendment rights of the plaintiffs because the guidelines require no reasonable suspicion that the devices contain contraband to justify extensive searches and seizing the devices and copying of the contents. But she stops short of putting in place an actual injunction prohibiting the feds from continuing these searches while DHS considers its options.

It seems obvious that this case will be fought all the way to the Supreme Court. For now, the ACLU and EFF are celebrating the ruling. The two organizations put out a joint statement:

“This ruling significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”

“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,” said Sophia Cope, EFF senior staff attorney.

Read the ruling here.

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Judge Rules Feds Need Reasonable Suspicion Before Searching Tech Devices at the Border

Border agents who seize and search people’s tech devices at entry points to the United States without any suspicion of criminal activity are violating Fourth Amendment rights, a federal judge ruled this week in a case likely headed to the Supreme Court.

The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) sued in 2017 on behalf of 11 travelers—10 American citizens and one permanent resident—who had been ordered by Department of Homeland Security officials to let them review and copy the contents of their devices without any sort of warrant or explanation of what agents were looking for.

Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) officials have long been arguing the authority for these warrantless searches on the basis of the so-called “border search exception.” Courts have traditionally ruled that America’s sovereign interest in controlling what and who it allows to enter its borders permits officials to search people and property coming into the country (or within 100 miles of a border) without needing a warrant or any sort of suspicion.

While this has historically been a mechanism for fighting smuggling, in a post-9/11 era it has been escalated into a demand to search people’s technology and access their files and contents. Each year, CBP searches tens of thousands of devices of people crossing the border.

The ACLU and EFF have been fighting these violations of privacy, and lawmakers like Sens. Rand Paul (R–Ky.) and Ron Wyden (D–Ore.) have been proposing legislation to mandate warrants for tech searches.

In a 48-page decision in Alasaad v. McAleenan handed down Tuesday, Judge Denise J. Casper of the U.S. District Court of Massachusetts ruled that there are limits to the extent that officials can engage in warrantless, suspicionless border searches, and these intrusive tech searches cross the line, violating the Fourth Amendment rights of the plaintiffs. While it’s true Americans should expect less privacy at the border, it doesn’t mean they have absolutely none.

In the ruling, Casper notes that, unlike border searches of property and vehicles looking for contraband people might be trying to smuggle into the country, these tech searches are typically about accessing data that officials argue may alert them to criminal activity. But that’s similarly true of the data of tech devices once they’re inside the country, and police still need to get warrants to search them. Casper notes that DHS is defending these searches by claiming they might catch contraband like child pornography, but DHS did not provide data as to how frequently such contraband is found during random searches (thus Casper could not perform any sort of privacy balancing test). According to her ruling, DHS has supplied that they’ve uncovered 34 cases of “digital contraband” via tech border searches. But they’ve performed more than 100,000 searches of tech devices between 2012 and 2018. Those aren’t terribly good numbers to justify mass, intrusive violations of people’s personal information.

Casper further notes, on a more technical level, that these tech searches are not “routine” because of the exceptionally intrusive nature of looking through a person’s phone or laptop, compared to searching somebody’s luggage or vehicle. Some of the data officials accessed through the plaintiffs’ tech devices included confidential communications with attorneys, email and text message histories, and troves of deeply personal information. Some plaintiffs’ devices were seized and kept for weeks before they were returned—after border officials had copied the contents of the files into their own systems.

Casper writes in her ruling that the Supreme Court decision in Riley v. California is “particularly instructive.” In that 2014 case, the Supreme Court ruled unanimously that police need to get a search warrant to look through the contents of the cell phone of a person they’ve arrested. DHS does not want that ruling to extend to border tech searches, which is why they’re leaning so heavily on the border exception. The Riley ruling rejected the idea that a search of a phone is no different from a search of a person’s body and possessions when they’re arrested. Similarly, Casper is rejecting the idea that searching a phone at the border is no different from looking through somebody’s luggage for drugs.

In the end, Casper denies the plaintiffs’ request to force the feds to expunge all the data they’ve collected from their tech devices. But she does declare that the current guidelines for border tech searches by CBP and ICE violate the Fourth Amendment rights of the plaintiffs because the guidelines require no reasonable suspicion that the devices contain contraband to justify extensive searches and seizing the devices and copying of the contents. But she stops short of putting in place an actual injunction prohibiting the feds from continuing these searches while DHS considers its options.

It seems obvious that this case will be fought all the way to the Supreme Court. For now, the ACLU and EFF are celebrating the ruling. The two organizations put out a joint statement:

“This ruling significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “By putting an end to the government’s ability to conduct suspicionless fishing expeditions, the court reaffirms that the border is not a lawless place and that we don’t lose our privacy rights when we travel.”

“This is a great day for travelers who now can cross the international border without fear that the government will, in the absence of any suspicion, ransack the extraordinarily sensitive information we all carry in our electronic devices,” said Sophia Cope, EFF senior staff attorney.

Read the ruling here.

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The Supreme Court Needs to Decide With Finality Whether DACA Is Legal

The Supreme Court’s October 2015 Term was cut short because of Justice Scalia’s unexpected passing. As a result, the Justices were unable to decide several of the most important issues on the docket. For example, the short-handed Court punted in Zubik v. Burwell. (To this day, the judiciary continues to grapple over the contraceptive mandate.) And the Court also split 4-4 in Texas v. U.S., which considered the legality of DAPA. At the time, I wrote in the Harvard Law Review that the latter case stood in a unique posture: “Because this case will likely return to the Court following the remand, there will be a rare opportunity to revisit the appeal in a new light.”

Of course, I expected Hillary Clinton to win the election, and continue to defend DAPA, as well as DACA. Instead, Donald Trump won the election. His administration promptly terminated DAPA, and after pressure from conservative states, announced the decision to suspend DACA.

The Supreme Court, therefore, was never called upon to decide the legality of DAPA, as well as DACA, directly at least. Instead, the Justices were asked to decide a related, but distinct question: could DACA be suspended based on the Attorney General’s conclusion that the policy is illegal.

In January 2018, the Solicitor General submitted a petition for certiorari before judgment. He urged the Court to hear the case as soon as possible in light of the sweeping consequences of the policy. The Solicitor General’s urgency was obvious: every day that lapsed, as Dreamers further relied on the policy, would make it more difficult to wind down DACA. The Court denied that petition in February 2018. As a result, the issue could not–and indeed will not–be resolved until June 2020. Right before the next presidential election.

Now the case is at last before the Court. And, based on my reading of oral argument, we may get a third dodge: the Justices will rule that the rescission memorandum is not subject to judicial review. This decision would leave open the legality of the policy for the foreseeable future. And, due to the timing of the wind-down period, the policy may not be suspended until after the inauguration date.

In theory, a Democratic President could simply revoke the cancellation memorandum on January 20, 2021, and allow the Dreamers to renew their status. Indeed, the new President would likely expand the policy to account for people who entered the United States at a later date. At that point, Texas would simply go back to District Court and seek another injunction to block the policy. Throughout this entire period, as the executive’s position waxes and wanes, the status of the Dreamers will remain in flux. And the cycle would continue indefinitely.

A Supreme Court ruling based on justiciability will usually be viewed as a minimalist decision (however that term is defined). Why should the Court decide a very difficult question when it doesn’t have to?

Justice Gorsuch alluded to an answer in a related colloquy, in which he cast doubt on the benefits of a remand:

JUSTICE GORSUCH: Well, if I might ask a question about that if we’re talking about the merits then, and then I –I’ll pass off the baton. The reliance interests that we’ve -we’ve talked about earlier, I –I think your -your friend on the other side would say we did address reliance interests in a paragraph and we could do it in 15 pages, but we’d say pretty much the same thing at the end of the day, and it would take another six years, and it would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this Court still on this issue.

The Court should resist the siren call of restraint. There is nothing minimalist about such a ruling. Indeed, another dodge would allow the reliance interests of the Dreamers to become even further cemented in our polity. However difficult it is for the government to justify rescission today, it will become even more difficult to do so in two years when the case comes back up on remand. A punt here would effectively cement DACA as a policy, without ever deciding its lawfulness.

The Court should issue, in Justice Gorsuch’s words, “a baseline rule of decision,” now. If DACA is illegal, then the administration was justified in suspending the policy. If DACA is legal, then the 46th President could resurrect the policy. I have an opinion on which answer is correct, but I would much prefer a clear decision one way or the other, rather than further dodges. Letting this issue linger for the foreseeable future creates uncertainty and doubt in all three branch of government, and worst of all, leaves the Dreamers under a “continuing cloud of uncertainty.”

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The Supreme Court Needs to Decide With Finality Whether DACA Is Legal

The Supreme Court’s October 2015 Term was cut short because of Justice Scalia’s unexpected passing. As a result, the Justices were unable to decide several of the most important issues on the docket. For example, the short-handed Court punted in Zubik v. Burwell. (To this day, the judiciary continues to grapple over the contraceptive mandate.) And the Court also split 4-4 in Texas v. U.S., which considered the legality of DAPA. At the time, I wrote in the Harvard Law Review that the latter case stood in a unique posture: “Because this case will likely return to the Court following the remand, there will be a rare opportunity to revisit the appeal in a new light.”

Of course, I expected Hillary Clinton to win the election, and continue to defend DAPA, as well as DACA. Instead, Donald Trump won the election. His administration promptly terminated DAPA, and after pressure from conservative states, announced the decision to suspend DACA.

The Supreme Court, therefore, was never called upon to decide the legality of DAPA, as well as DACA, directly at least. Instead, the Justices were asked to decide a related, but distinct question: could DACA be suspended based on the Attorney General’s conclusion that the policy is illegal.

In January 2018, the Solicitor General submitted a petition for certiorari before judgment. He urged the Court to hear the case as soon as possible in light of the sweeping consequences of the policy. The Solicitor General’s urgency was obvious: every day that lapsed, as Dreamers further relied on the policy, would make it more difficult to wind down DACA. The Court denied that petition in February 2018. As a result, the issue could not–and indeed will not–be resolved until June 2020. Right before the next presidential election.

Now the case is at last before the Court. And, based on my reading of oral argument, we may get a third dodge: the Justices will rule that the rescission memorandum is not subject to judicial review. This decision would leave open the legality of the policy for the foreseeable future. And, due to the timing of the wind-down period, the policy may not be suspended until after the inauguration date.

In theory, a Democratic President could simply revoke the cancellation memorandum on January 20, 2021, and allow the Dreamers to renew their status. Indeed, the new President would likely expand the policy to account for people who entered the United States at a later date. At that point, Texas would simply go back to District Court and seek another injunction to block the policy. Throughout this entire period, as the executive’s position waxes and wanes, the status of the Dreamers will remain in flux. And the cycle would continue indefinitely.

A Supreme Court ruling based on justiciability will usually be viewed as a minimalist decision (however that term is defined). Why should the Court decide a very difficult question when it doesn’t have to?

Justice Gorsuch alluded to an answer in a related colloquy, in which he cast doubt on the benefits of a remand:

JUSTICE GORSUCH: Well, if I might ask a question about that if we’re talking about the merits then, and then I –I’ll pass off the baton. The reliance interests that we’ve -we’ve talked about earlier, I –I think your -your friend on the other side would say we did address reliance interests in a paragraph and we could do it in 15 pages, but we’d say pretty much the same thing at the end of the day, and it would take another six years, and it would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this Court still on this issue.

The Court should resist the siren call of restraint. There is nothing minimalist about such a ruling. Indeed, another dodge would allow the reliance interests of the Dreamers to become even further cemented in our polity. However difficult it is for the government to justify rescission today, it will become even more difficult to do so in two years when the case comes back up on remand. A punt here would effectively cement DACA as a policy, without ever deciding its lawfulness.

The Court should issue, in Justice Gorsuch’s words, “a baseline rule of decision,” now. If DACA is illegal, then the administration was justified in suspending the policy. If DACA is legal, then the 46th President could resurrect the policy. I have an opinion on which answer is correct, but I would much prefer a clear decision one way or the other, rather than further dodges. Letting this issue linger for the foreseeable future creates uncertainty and doubt in all three branch of government, and worst of all, leaves the Dreamers under a “continuing cloud of uncertainty.”

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Republicans and Democrats Rev Up Spin Machine for Start of Public Impeachment Hearings

They’re here, they’re finally here.

On Wednesday, public impeachment hearings will begin in the House Intelligence Committee with the testimony of William B. Taylor Jr., the acting ambassador to Ukraine, and George Kent, deputy assistant secretary for state for European and Eurasian Affairs.

Both men have already testified in closed-door hearings that President Donald Trump and his political allies, including his personal lawyer Rudolph Giuliani, tried to inappropriately pressure Ukrainian officials to launch corruption probes into Hunter Biden and the Democrats in order to benefit the president’s 2020 reelection campaign.

Much of their testimony has already been made available in partially redacted transcripts. Today’s hearings, however, will give both Republicans and Democrats a chance to tell their respective stories about the House’s impeachment inquiry.

For Democrats, the narrative is clear: Trump is a corrupt extortionist who has hijacked U.S. foreign policy for his own selfish purposes.

“[Taylor and Kent] will describe their own experiences and how American policy toward Ukraine was subverted to serve the president’s personal, political interests, not the national interest,” said House Intelligence Committee Chairman Adam Schiff (D–Calif.) in a statement to The Washington Post.

Republicans meanwhile will do their best to present the case that Trump did nothing wrong in his dealings with Ukraine, and that the entire impeachment proceedings are a crass partisan attempt by Democrats, and occasionally the deep state, to unseat a duly elected president.

“Democrats want to impeach President Trump because unelected and anonymous bureaucrats disagreed with the president’s decisions and were discomforted by his telephone call with [Ukrainian] President Zelensky,” reads a Republican memo obtained by The New York Times, which references the July phone call Trump had with President Volodymyr Zelenskiy in which he appeared to have offered to trade $400 million in aid to Ukraine in exchange for that country opening investigations into Trump’s Democratic political rivals.

With so many of these accusations already out in the press, Wednesday’s hearings will likely be dominated by political theatrics from each side.

Media coverage is already billing the hearings as a dramatic, historic clash between Trump, his congressional allies, and House Democrats. Bars in Washington, D.C., are hosting watch parties for the morning’s hearings.

While Taylor and Kent testify again, two members of the Trump administration who allegedly have deep knowledge of the president’s Ukraine dealings will continue to say nothing: Mick Mulvaney, the acting White House chief of staff, and John Bolton, former national security adviser.

Both men have been subpoenaed by House Democrats, but so far, the two have declined to testify, citing the White House’s claim that senior presidential advisors can’t be compelled to testify before Congress.

Mulvaney tried briefly to join a lawsuit brought by a former Bolton aide asking a federal judge to rule on whether the president’s instructions to current and former advisors not to testify to Congress are outweighed by congressional subpoenas, before abandoning that effort Tuesday. He now says that he will not testify.

In addition to today’s events, public impeachment hearings featuring top diplomats and national security officials are scheduled for Friday and throughout next week.

On the whole, Trump is taking everything in stride.

FREE MARKETS

Congress’ Joint Economic Committee (JEC) has published a new study examining the role that restrictive zoning laws have on access to education.

“In a cross-city comparison, major cities with more restrictive residential zoning are less effective at providing high quality public education at a low, affordable price,” reads the study.

“Portland, Oregon features traditional residential assignment policies, restrictive residential zoning, and high, climbing average home values across increasing school quality levels. In contrast, Houston and Chicago, two major cities with less restrictive residential zoning, do a better job delivering access to high quality public schools than comparison cities with restrictive residential zoning, keeping home prices low and affordability high across school quality levels. As anticipated, cities with open enrollment or districtwide lotteries exhibit flatter relationships between home values and school quality.”

JEC policy analyst Vanessa Brown Calder, the report’s author, highlights some of her findings in this thread.

FREE MINDS

The Obama-era Deferred Action on Childhood Arrivals (DACA) program reportedly had a tough day of oral arguments at the Supreme Court on Tuesday.

A number of states are suing the Trump administration for trying to end DACA, which stayed deportations for people in the country illegally who were brought to the U.S. as children.

Trump has argued that DACA itself is illegal, and that it is within the administration’s power to end the program. Lower courts have so far stopped the administration from killing it.

However, most media outlets report that the court’s conservative majority appeared to side with the government during their questioning, saying that the Trump administration had offered good enough explanations for axing the program.

QUICK HITS

  • South Bend Mayor Pete Buttigieg posts impressive Iowa poll numbers, while support for Sen. Elizabeth Warren (D–Mass.) and former Vice President Joe Biden flags.

  • In The Atlantic, Jonathan Haidt and Tobias Rose-Stockwell propose some less-than-optimal fixes for the discourse on social media.

  • Another set of clashes between protesters and police in Hong Kong.
  • A little bit of perspective on the situation in Bolivia.
  • The San Francisco Board of Supervisors sides with people over plants, approving plans to redevelop the University of California, San Francisco’s Laurel Heights campus into 744-unit housing and retail complex. Neighborhood activists had sued, arguing the project would destroy valuable open space and some really nice trees.
  • Vandals are targeting D.C.’s bike share program with some underhanded tactics.

  • Nothing on Netflix? Maybe you should check out a live stream of border wall construction!

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via IFTTT

Republicans and Democrats Rev Up Spin Machine for Start of Public Impeachment Hearings

They’re here, they’re finally here.

On Wednesday, public impeachment hearings will begin in the House Intelligence Committee with the testimony of William B. Taylor Jr., the acting ambassador to Ukraine, and George Kent, deputy assistant secretary for state for European and Eurasian Affairs.

Both men have already testified in closed-door hearings that President Donald Trump and his political allies, including his personal lawyer Rudolph Giuliani, tried to inappropriately pressure Ukrainian officials to launch corruption probes into Hunter Biden and the Democrats in order to benefit the president’s 2020 reelection campaign.

Much of their testimony has already been made available in partially redacted transcripts. Today’s hearings, however, will give both Republicans and Democrats a chance to tell their respective stories about the House’s impeachment inquiry.

For Democrats, the narrative is clear: Trump is a corrupt extortionist who has hijacked U.S. foreign policy for his own selfish purposes.

“[Taylor and Kent] will describe their own experiences and how American policy toward Ukraine was subverted to serve the president’s personal, political interests, not the national interest,” said House Intelligence Committee Chairman Adam Schiff (D–Calif.) in a statement to The Washington Post.

Republicans meanwhile will do their best to present the case that Trump did nothing wrong in his dealings with Ukraine, and that the entire impeachment proceedings are a crass partisan attempt by Democrats, and occasionally the deep state, to unseat a duly elected president.

“Democrats want to impeach President Trump because unelected and anonymous bureaucrats disagreed with the president’s decisions and were discomforted by his telephone call with [Ukrainian] President Zelensky,” reads a Republican memo obtained by The New York Times, which references the July phone call Trump had with President Volodymyr Zelenskiy in which he appeared to have offered to trade $400 million in aid to Ukraine in exchange for that country opening investigations into Trump’s Democratic political rivals.

With so many of these accusations already out in the press, Wednesday’s hearings will likely be dominated by political theatrics from each side.

Media coverage is already billing the hearings as a dramatic, historic clash between Trump, his congressional allies, and House Democrats. Bars in Washington, D.C., are hosting watch parties for the morning’s hearings.

While Taylor and Kent testify again, two members of the Trump administration who allegedly have deep knowledge of the president’s Ukraine dealings will continue to say nothing: Mick Mulvaney, the acting White House chief of staff, and John Bolton, former national security adviser.

Both men have been subpoenaed by House Democrats, but so far, the two have declined to testify, citing the White House’s claim that senior presidential advisors can’t be compelled to testify before Congress.

Mulvaney tried briefly to join a lawsuit brought by a former Bolton aide asking a federal judge to rule on whether the president’s instructions to current and former advisors not to testify to Congress are outweighed by congressional subpoenas, before abandoning that effort Tuesday. He now says that he will not testify.

In addition to today’s events, public impeachment hearings featuring top diplomats and national security officials are scheduled for Friday and throughout next week.

On the whole, Trump is taking everything in stride.

FREE MARKETS

Congress’ Joint Economic Committee (JEC) has published a new study examining the role that restrictive zoning laws have on access to education.

“In a cross-city comparison, major cities with more restrictive residential zoning are less effective at providing high quality public education at a low, affordable price,” reads the study.

“Portland, Oregon features traditional residential assignment policies, restrictive residential zoning, and high, climbing average home values across increasing school quality levels. In contrast, Houston and Chicago, two major cities with less restrictive residential zoning, do a better job delivering access to high quality public schools than comparison cities with restrictive residential zoning, keeping home prices low and affordability high across school quality levels. As anticipated, cities with open enrollment or districtwide lotteries exhibit flatter relationships between home values and school quality.”

JEC policy analyst Vanessa Brown Calder, the report’s author, highlights some of her findings in this thread.

FREE MINDS

The Obama-era Deferred Action on Childhood Arrivals (DACA) program reportedly had a tough day of oral arguments at the Supreme Court on Tuesday.

A number of states are suing the Trump administration for trying to end DACA, which stayed deportations for people in the country illegally who were brought to the U.S. as children.

Trump has argued that DACA itself is illegal, and that it is within the administration’s power to end the program. Lower courts have so far stopped the administration from killing it.

However, most media outlets report that the court’s conservative majority appeared to side with the government during their questioning, saying that the Trump administration had offered good enough explanations for axing the program.

QUICK HITS

  • South Bend Mayor Pete Buttigieg posts impressive Iowa poll numbers, while support for Sen. Elizabeth Warren (D–Mass.) and former Vice President Joe Biden flags.

  • In The Atlantic, Jonathan Haidt and Tobias Rose-Stockwell propose some less-than-optimal fixes for the discourse on social media.

  • Another set of clashes between protesters and police in Hong Kong.
  • A little bit of perspective on the situation in Bolivia.
  • The San Francisco Board of Supervisors sides with people over plants, approving plans to redevelop the University of California, San Francisco’s Laurel Heights campus into 744-unit housing and retail complex. Neighborhood activists had sued, arguing the project would destroy valuable open space and some really nice trees.
  • Vandals are targeting D.C.’s bike share program with some underhanded tactics.

  • Nothing on Netflix? Maybe you should check out a live stream of border wall construction!

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via IFTTT

Can Childhood Sexual Abuse Complaints Be Routinely Temporarily or Permanently Sealed?

A Vermont statute (12 Vt. Stats. Ann. § 522) provides that key documents and hearings in lawsuits over “childhood sexual abuse”—alleged abuse that happened when the plaintiff was under 18—would be either temporarily or permanently sealed:

If a complaint is filed alleging an act of childhood sexual abuse, the complaint shall immediately be sealed by the clerk of the court.

The complaint shall remain sealed until the answer is served or, if the defendant files a motion to dismiss …, until the court rules on that motion.

If the complaint is dismissed, the complaint and any related papers or pleadings shall remain sealed.

Any hearing held in connection with the motion to dismiss shall be in camera.

(Note that the statute will often be applied when the plaintiff is no longer a child; indeed, Vermont just repealed the statute of limitations for such cases.)

This statute is very much an exception; the normal rule is that civil lawsuits are decided in open court, with openly filed papers, so that the public can monitor what the courts are doing. In the words of Justice Holmes writing in 1884,

It is desirable that the trial of [civil] causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

Indeed, most courts conclude that this rule of open access is generally mandated by the First Amendment (following Richmond Newspapers, Inc. v. Virginia (1980), which took that view as to criminal trials). The Vermont statute thus raises several questions:

[1.] Is it constitutionally permissible to temporarily seal complaints in these cases until an answer is filed—generally just three weeks, unless the defendant gets an extension—so that the public gets access to the complaint and the answer at the same time?

[2.] Is it constitutionally permissible to temporarily seal complaints until the motions to dismiss are decided, which could take months?

[3.] Is it constitutionally permissible to permanently seal complaints if the judge grants the motion to dismiss?

[4.] How is all this supposed to practically work, when the statute on its face calls only for the sealing of the complaint (until a motion to dismiss is granted, when “the complaint and any related papers or pleadings shall remain sealed”)? Does the “shall remain sealed” language suggest that the motion to dismiss and the responses (as “related papers or pleadings”) would themselves be sealed at the outset, because they generally discuss the facts of the case?

But a case brought under the statute, and then removed to federal district court, also raises another question:

[5.] Does the Vermont state sealing statute apply when the case is being litigated in federal court?

I’ve moved to intervene and unseal in this case, Giroux v. Foley, No. 2:19-cv-00187-cr, and I thought I’d post my motion, in case any of you are interested. (Note that, when I filed my motion, the entire docket was sealed; but yesterday the District Court unsealed the docket, my motion, and its initial order to seal.) Here are the juicier parts, for some values of the adjective “juicy”:

[II.] Whether this case is sealed is governed by federal common law and the First Amendment, not the Vermont statute to which the Motion to Seal appeals

The docket entry for Defendant’s Motion to Seal suggests that defendant is relying on Vermont’s statute that calls for mandatory sealing (whether temporary or permanent) of documents in childhood sexual abuse cases, 12 V.S.A. § 522(b). But “[u]nder the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law,” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996); the rules controlling access to court files are procedural, not substantive. And, of course, even if the Vermont statute did apply in federal court, it would be trumped by the First Amendment right of access. See, e.g., Burkle v. Burkle, 135 Cal. App. 4th 1045, 1048, 1070, 37 Cal. Rptr. 3d 805, 808, 827 (2006) (statute requiring “a court, upon the request of a party to a divorce proceeding, to seal any pleading that lists and provides the location or identifying information about the financial assets and liabilities of the parties” “is unconstitutional on its face as an undue burden on the First Amendment right of public access to court records”).

[III.] The public has a presumptive right of access to complaints, court orders, motions to seal, and the docket

[A.] Complaints: Under both federal common law and the First Amendment, the public has a presumptive right of access to complaints. Bernstein v. Bernstein Litowitz Berger & Grossmann, 814 F.3d 132, 140-41 (2d Cir. 2016). “‘A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court’s decision.'” Id. at 140 (quoting FTC v. Abbvie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013)).

“Public access to complaints allows the public to understand the activity of the federal courts, enhances the court system’s accountability and legitimacy, and informs the public of matters of public concern.” Id. at 141. “Of all the records that may come before a judge, a complaint is among the most likely to affect judicial proceedings. It is the complaint that invokes the powers of the court, states the causes of action, and prays for relief.” Id. at 142. And “the utility of the complaint to those who monitor the work of the federal courts” further supports the presumption in favor of access. Id. at 143.

Indeed, there is a right of access even as to complaints in cases in which the parties have settled before an answer was filed. Id. at 140. “[P]leadings are considered judicial records ‘even when the case is pending before judgment or resolved by settlement.'” Id. (citation omitted). The public thus has a right to access complaints in pending cases, in the weeks before an answer is filed, in the months while a motion to dismiss may be pending, and after any motion to dismiss is granted.

[B.] Court orders: The right of access is especially strong for court orders—”it should go without saying that the judge’s opinions and orders belong in the public domain.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000); Doe v. Public Citizen, 749 F.3d 246, 267 (4th Cir. 2014) (quoting Union Oil on this point).

[C.] Motions to seal: The right of access also applies “to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not.” Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 165 (3d Cir. 1993). “The common law right of access . . . encompasses all ‘judicial records and documents.’ It includes ‘transcripts, evidence, pleadings, and other materials submitted by litigants . . . .'” United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984) (citations omitted). This covers motions to seal.

[D.] The docket: The case appears to be entirely sealed on PACER, so it is impossible to even view the docket entries. (Volokh has been able to access the entries because they are still visible on Bloomberg Law.) Yet “the public and press enjoy a qualified First Amendment right of access to docket sheets.” Hartford Courant Co., 380 F.3d at 86.

[IV.] This strong presumption of public access is not rebutted here

“To overcome the First Amendment right of access, the proponent of sealing must ‘demonstrat[e] that closure is essential to preserve higher values and is narrowly tailored to serve that interest,'” Bernstein, 814 F.3d at 144 (citing In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987)), using “‘specific, on-the-record-findings,'” id. at 145 (citation omitted). Likewise, even the common-law right of access to documents “presented to the court to invoke its powers or affect its decisions” “can be overcome only by extraordinary circumstances.” Id. at 142 (internal quotation marks omitted). “In making the decision [whether to seal], the court should consider less restrictive ‘alternatives to sealing [that] provide an adequate record for review’ and should ‘state the reasons for its decision [with] specific findings.'” United States v. Harris, 890 F.3d 480, 492 (4th Cir. 2018) (citation omitted).

Volokh unfortunately cannot speak specifically to the defendant’s argument for sealing, precisely because the motion to seal is itself sealed. But it is not clear what “higher values” and “extraordinary circumstances,” see Bernstein, 814 F.3d at 144, can justify categorical sealing (whether temporary or permanent) of the complaint, the notice of removal, the motion to seal, and the sealing order.

In particular, “[t]he mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records,” Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). The danger of reputational harm and embarrassment is commonplace in court proceedings, which almost always proceed in public. “Adjudicating claims that carry the potential for embarrassing or injurious revelations about a [party’s] image . . . are part of the day-to-day operations of federal courts.” Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir. 2014).

Indeed, the same reputational arguments for secrecy could be made by defendants in a wide range of other intentional tort cases. And of course some criminal defendants might prefer to have all the allegations against them tried in secret as well. Yet the right of access to court records precludes such secrecy. A motion to seal is “properly denied” when the concerns on which it rests “could apply to nearly all cases filed in the federal courts.” Macias v. Aaron Rents, Inc., 288 F. App’x 913, 915 (5th Cir. 2008)

“[P]ublic access promotes . . . the public’s interest in monitoring the functioning of the courts.” Doe, 749 F.3d at 266. “It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.); see also, e.g., Goesel v. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013) (relying on the Cowley analysis). Public access is the general rule in federal cases, and there is no basis for an exception in this case.

[V.] This request should be considered expeditiously

The sealing order, as argued above, affects First Amendment rights to write about pending litigation. In such a situation, “[e]ach passing day may constitute a separate and cognizable infringement of the First Amendment.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006) (internal quotation marks omitted). Because of this, decisions on motions to unseal should be made “expeditiously,” id., just as the motion to seal was itself considered and granted expeditiously….

[VI.] If the documents are not unsealed, Volokh asks this Court to clarify whether he is restrained from publishing or discussing the copy of the Notice of Removal and the Complaint that he obtained before they were sealed

Volokh also asks that, if the Court denies the motion to unseal, it inform Volokh whether this sealing order prevents him from publishing or discussing copies of the Notice of Removal, of the Complaint, and of the docket, all of which he downloaded before they were sealed. Volokh has researched whether such sealing orders preclude authors—including those who are members of the media but also members of a bar, as he is—from writing about material that they had lawfully downloaded before it was sealed; but he has not been able to find a clear answer.

Florida Star v. B.J.F., 491 U.S. 524, 536 (1989), suggests that he would not be bound by such an order: That case holds that members of the media have a First Amendment right to publish government records they have lawfully obtained, even when state law expressly says otherwise, and even when the records had been erroneously released to them. It follows that the right would be even clearer when the records had been properly released (by being posted on PACER before any sealing was imposed) but a court later sought to recall them using a sealing order.

But Florida Star does not speak to whether the same rule applies to writers who, though not involved as lawyers in the underlying litigation, are nonetheless members of a bar. Volokh would like to clearly understand what his obligations are, in the event that his motion to unseal is denied….

Here is the order sealing the case, filed Oct. 31:

On October 28, 2019, Defendant filed an Unopposed Motion to Seal Proceedings Pursuant to 12 V.S.A. §522(b). The Plaintiff does not oppose this motion.

Vermont law pertaining to actions for childhood sexual abuse provides:

“If a complaint is filed alleging an act of childhood sexual abuse, the complaint shall immediately be sealed by the clerk of the court. The Complaint shall remain sealed until the Answer is served or, if the Defendant files a motion to dismiss under Rule 12(b) of the Vermont Rules of Civil Procedure, until the court rules on that motion.”

12 V.S.A. § 522(b). No responsive pleading is due until November 14, 2019.

Defendant’s unopposed motion to seal is GRANTED. The Notice of Removal and attached Complaint, the Unopposed Motion to Seal, and this Order, shall remain sealed until an Answer is served; or until the court has ruled on any motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, if the ruling is a denial of such motion.

And here are the relevant parts of the docket:

1 Oct 22, 2019 NOTICE OF REMOVAL by [Defendant] from Vermont Superior Court, Chittenden Unit, Civil Division, case number unknown. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet, # 3 Certificate of Service) (esb) Main document and Attachment 1 sealed pursuant to 13 Order on 10/31/2019 (law). (Entered: 10/23/2019) …

7 Oct 28, 2019 UNOPPOSED MOTION to Seal Proceedings Pursuant to 12 V.S.A. 522(B) (Images are sealed) filed by [Defendant]. (Attachments: # 1 Certificate of Service) (pac) (Entered: 10/29/2019) …

13 Oct 31, 2019 ORDER granting 7 Unopposed Motion to Seal Proceedings Pursuant to 12 V.S.A. 522(B). The 1 Notice of Removal and attached Complaint, the 7 Unopposed Motion to Seal, and this Order, are sealed until an Answer is served or until the court has ruled on any motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure (if the ruling is a denial of such motion). Signed by Judge Christina Reiss on 10/31/2019. (law) (Entered: 10/31/2019)

14 Nov 5, 2019 MOTION to Intervene, MOTION to Unseal, MOTION to Consider the Matter on an Expedited Basis, and (in the Alternative) MOTION to Clarify the 13 Sealing Order filed by Eugene Volokh. (Attachments: # 1 Certificate of Service) (pac) (Entered: 11/05/2019)

15 Nov 12, 2019 ORDER: The court directs the Clerk of Court to unseal: 14 Motion to Intervene, Motion to Unseal, and Motion to Consider the Matters on an Expedited Basis, 13 ORDER granting 7 Unopposed Motion to Seal Proceedings Pursuant to 12 V.S.A. § 522(b), and the docket sheet in advance of a hearing on the Motion to Intervene which shall be set promptly. These documents are related to the Complaint but do not disclose its allegations and are not required to be sealed by 12 V.S.A. § 522(b). (This is a text-only Order.) Signed by Judge Christina Reiss on 11/12/2019. (ejh) (Entered: 11/12/2019)

A hearing in this case is scheduled for Dec. 2, in open court; I’ll be appearing by phone.

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Can Childhood Sexual Abuse Complaints Be Routinely Temporarily or Permanently Sealed?

A Vermont statute (12 Vt. Stats. Ann. § 522) provides that key documents and hearings in lawsuits over “childhood sexual abuse”—alleged abuse that happened when the plaintiff was under 18—would be either temporarily or permanently sealed:

If a complaint is filed alleging an act of childhood sexual abuse, the complaint shall immediately be sealed by the clerk of the court.

The complaint shall remain sealed until the answer is served or, if the defendant files a motion to dismiss …, until the court rules on that motion.

If the complaint is dismissed, the complaint and any related papers or pleadings shall remain sealed.

Any hearing held in connection with the motion to dismiss shall be in camera.

(Note that the statute will often be applied when the plaintiff is no longer a child; indeed, Vermont just repealed the statute of limitations for such cases.)

This statute is very much an exception; the normal rule is that civil lawsuits are decided in open court, with openly filed papers, so that the public can monitor what the courts are doing. In the words of Justice Holmes writing in 1884,

It is desirable that the trial of [civil] causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

Indeed, most courts conclude that this rule of open access is generally mandated by the First Amendment (following Richmond Newspapers, Inc. v. Virginia (1980), which took that view as to criminal trials). The Vermont statute thus raises several questions:

[1.] Is it constitutionally permissible to temporarily seal complaints in these cases until an answer is filed—generally just three weeks, unless the defendant gets an extension—so that the public gets access to the complaint and the answer at the same time?

[2.] Is it constitutionally permissible to temporarily seal complaints until the motions to dismiss are decided, which could take months?

[3.] Is it constitutionally permissible to permanently seal complaints if the judge grants the motion to dismiss?

[4.] How is all this supposed to practically work, when the statute on its face calls only for the sealing of the complaint (until a motion to dismiss is granted, when “the complaint and any related papers or pleadings shall remain sealed”)? Does the “shall remain sealed” language suggest that the motion to dismiss and the responses (as “related papers or pleadings”) would themselves be sealed at the outset, because they generally discuss the facts of the case?

But a case brought under the statute, and then removed to federal district court, also raises another question:

[5.] Does the Vermont state sealing statute apply when the case is being litigated in federal court?

I’ve moved to intervene and unseal in this case, Giroux v. Foley, No. 2:19-cv-00187-cr, and I thought I’d post my motion, in case any of you are interested. (Note that, when I filed my motion, the entire docket was sealed; but yesterday the District Court unsealed the docket, my motion, and its initial order to seal.) Here are the juicier parts, for some values of the adjective “juicy”:

[II.] Whether this case is sealed is governed by federal common law and the First Amendment, not the Vermont statute to which the Motion to Seal appeals

The docket entry for Defendant’s Motion to Seal suggests that defendant is relying on Vermont’s statute that calls for mandatory sealing (whether temporary or permanent) of documents in childhood sexual abuse cases, 12 V.S.A. § 522(b). But “[u]nder the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law,” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996); the rules controlling access to court files are procedural, not substantive. And, of course, even if the Vermont statute did apply in federal court, it would be trumped by the First Amendment right of access. See, e.g., Burkle v. Burkle, 135 Cal. App. 4th 1045, 1048, 1070, 37 Cal. Rptr. 3d 805, 808, 827 (2006) (statute requiring “a court, upon the request of a party to a divorce proceeding, to seal any pleading that lists and provides the location or identifying information about the financial assets and liabilities of the parties” “is unconstitutional on its face as an undue burden on the First Amendment right of public access to court records”).

[III.] The public has a presumptive right of access to complaints, court orders, motions to seal, and the docket

[A.] Complaints: Under both federal common law and the First Amendment, the public has a presumptive right of access to complaints. Bernstein v. Bernstein Litowitz Berger & Grossmann, 814 F.3d 132, 140-41 (2d Cir. 2016). “‘A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court’s decision.'” Id. at 140 (quoting FTC v. Abbvie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013)).

“Public access to complaints allows the public to understand the activity of the federal courts, enhances the court system’s accountability and legitimacy, and informs the public of matters of public concern.” Id. at 141. “Of all the records that may come before a judge, a complaint is among the most likely to affect judicial proceedings. It is the complaint that invokes the powers of the court, states the causes of action, and prays for relief.” Id. at 142. And “the utility of the complaint to those who monitor the work of the federal courts” further supports the presumption in favor of access. Id. at 143.

Indeed, there is a right of access even as to complaints in cases in which the parties have settled before an answer was filed. Id. at 140. “[P]leadings are considered judicial records ‘even when the case is pending before judgment or resolved by settlement.'” Id. (citation omitted). The public thus has a right to access complaints in pending cases, in the weeks before an answer is filed, in the months while a motion to dismiss may be pending, and after any motion to dismiss is granted.

[B.] Court orders: The right of access is especially strong for court orders—”it should go without saying that the judge’s opinions and orders belong in the public domain.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000); Doe v. Public Citizen, 749 F.3d 246, 267 (4th Cir. 2014) (quoting Union Oil on this point).

[C.] Motions to seal: The right of access also applies “to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not.” Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 165 (3d Cir. 1993). “The common law right of access . . . encompasses all ‘judicial records and documents.’ It includes ‘transcripts, evidence, pleadings, and other materials submitted by litigants . . . .'” United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984) (citations omitted). This covers motions to seal.

[D.] The docket: The case appears to be entirely sealed on PACER, so it is impossible to even view the docket entries. (Volokh has been able to access the entries because they are still visible on Bloomberg Law.) Yet “the public and press enjoy a qualified First Amendment right of access to docket sheets.” Hartford Courant Co., 380 F.3d at 86.

[IV.] This strong presumption of public access is not rebutted here

“To overcome the First Amendment right of access, the proponent of sealing must ‘demonstrat[e] that closure is essential to preserve higher values and is narrowly tailored to serve that interest,'” Bernstein, 814 F.3d at 144 (citing In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987)), using “‘specific, on-the-record-findings,'” id. at 145 (citation omitted). Likewise, even the common-law right of access to documents “presented to the court to invoke its powers or affect its decisions” “can be overcome only by extraordinary circumstances.” Id. at 142 (internal quotation marks omitted). “In making the decision [whether to seal], the court should consider less restrictive ‘alternatives to sealing [that] provide an adequate record for review’ and should ‘state the reasons for its decision [with] specific findings.'” United States v. Harris, 890 F.3d 480, 492 (4th Cir. 2018) (citation omitted).

Volokh unfortunately cannot speak specifically to the defendant’s argument for sealing, precisely because the motion to seal is itself sealed. But it is not clear what “higher values” and “extraordinary circumstances,” see Bernstein, 814 F.3d at 144, can justify categorical sealing (whether temporary or permanent) of the complaint, the notice of removal, the motion to seal, and the sealing order.

In particular, “[t]he mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records,” Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). The danger of reputational harm and embarrassment is commonplace in court proceedings, which almost always proceed in public. “Adjudicating claims that carry the potential for embarrassing or injurious revelations about a [party’s] image . . . are part of the day-to-day operations of federal courts.” Doe v. Public Citizen, 749 F.3d 246, 269 (4th Cir. 2014).

Indeed, the same reputational arguments for secrecy could be made by defendants in a wide range of other intentional tort cases. And of course some criminal defendants might prefer to have all the allegations against them tried in secret as well. Yet the right of access to court records precludes such secrecy. A motion to seal is “properly denied” when the concerns on which it rests “could apply to nearly all cases filed in the federal courts.” Macias v. Aaron Rents, Inc., 288 F. App’x 913, 915 (5th Cir. 2008)

“[P]ublic access promotes . . . the public’s interest in monitoring the functioning of the courts.” Doe, 749 F.3d at 266. “It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.); see also, e.g., Goesel v. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 833 (7th Cir. 2013) (relying on the Cowley analysis). Public access is the general rule in federal cases, and there is no basis for an exception in this case.

[V.] This request should be considered expeditiously

The sealing order, as argued above, affects First Amendment rights to write about pending litigation. In such a situation, “[e]ach passing day may constitute a separate and cognizable infringement of the First Amendment.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006) (internal quotation marks omitted). Because of this, decisions on motions to unseal should be made “expeditiously,” id., just as the motion to seal was itself considered and granted expeditiously….

[VI.] If the documents are not unsealed, Volokh asks this Court to clarify whether he is restrained from publishing or discussing the copy of the Notice of Removal and the Complaint that he obtained before they were sealed

Volokh also asks that, if the Court denies the motion to unseal, it inform Volokh whether this sealing order prevents him from publishing or discussing copies of the Notice of Removal, of the Complaint, and of the docket, all of which he downloaded before they were sealed. Volokh has researched whether such sealing orders preclude authors—including those who are members of the media but also members of a bar, as he is—from writing about material that they had lawfully downloaded before it was sealed; but he has not been able to find a clear answer.

Florida Star v. B.J.F., 491 U.S. 524, 536 (1989), suggests that he would not be bound by such an order: That case holds that members of the media have a First Amendment right to publish government records they have lawfully obtained, even when state law expressly says otherwise, and even when the records had been erroneously released to them. It follows that the right would be even clearer when the records had been properly released (by being posted on PACER before any sealing was imposed) but a court later sought to recall them using a sealing order.

But Florida Star does not speak to whether the same rule applies to writers who, though not involved as lawyers in the underlying litigation, are nonetheless members of a bar. Volokh would like to clearly understand what his obligations are, in the event that his motion to unseal is denied….

Here is the order sealing the case, filed Oct. 31:

On October 28, 2019, Defendant filed an Unopposed Motion to Seal Proceedings Pursuant to 12 V.S.A. §522(b). The Plaintiff does not oppose this motion.

Vermont law pertaining to actions for childhood sexual abuse provides:

“If a complaint is filed alleging an act of childhood sexual abuse, the complaint shall immediately be sealed by the clerk of the court. The Complaint shall remain sealed until the Answer is served or, if the Defendant files a motion to dismiss under Rule 12(b) of the Vermont Rules of Civil Procedure, until the court rules on that motion.”

12 V.S.A. § 522(b). No responsive pleading is due until November 14, 2019.

Defendant’s unopposed motion to seal is GRANTED. The Notice of Removal and attached Complaint, the Unopposed Motion to Seal, and this Order, shall remain sealed until an Answer is served; or until the court has ruled on any motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, if the ruling is a denial of such motion.

And here are the relevant parts of the docket:

1 Oct 22, 2019 NOTICE OF REMOVAL by [Defendant] from Vermont Superior Court, Chittenden Unit, Civil Division, case number unknown. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet, # 3 Certificate of Service) (esb) Main document and Attachment 1 sealed pursuant to 13 Order on 10/31/2019 (law). (Entered: 10/23/2019) …

7 Oct 28, 2019 UNOPPOSED MOTION to Seal Proceedings Pursuant to 12 V.S.A. 522(B) (Images are sealed) filed by [Defendant]. (Attachments: # 1 Certificate of Service) (pac) (Entered: 10/29/2019) …

13 Oct 31, 2019 ORDER granting 7 Unopposed Motion to Seal Proceedings Pursuant to 12 V.S.A. 522(B). The 1 Notice of Removal and attached Complaint, the 7 Unopposed Motion to Seal, and this Order, are sealed until an Answer is served or until the court has ruled on any motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure (if the ruling is a denial of such motion). Signed by Judge Christina Reiss on 10/31/2019. (law) (Entered: 10/31/2019)

14 Nov 5, 2019 MOTION to Intervene, MOTION to Unseal, MOTION to Consider the Matter on an Expedited Basis, and (in the Alternative) MOTION to Clarify the 13 Sealing Order filed by Eugene Volokh. (Attachments: # 1 Certificate of Service) (pac) (Entered: 11/05/2019)

15 Nov 12, 2019 ORDER: The court directs the Clerk of Court to unseal: 14 Motion to Intervene, Motion to Unseal, and Motion to Consider the Matters on an Expedited Basis, 13 ORDER granting 7 Unopposed Motion to Seal Proceedings Pursuant to 12 V.S.A. § 522(b), and the docket sheet in advance of a hearing on the Motion to Intervene which shall be set promptly. These documents are related to the Complaint but do not disclose its allegations and are not required to be sealed by 12 V.S.A. § 522(b). (This is a text-only Order.) Signed by Judge Christina Reiss on 11/12/2019. (ejh) (Entered: 11/12/2019)

A hearing in this case is scheduled for Dec. 2, in open court; I’ll be appearing by phone.

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