Earlier this month, Josh Blackman offered this play-by-play review of retired Justice John Paul Stevens’ recent Supreme Court roundup (July 31st) at the ABA International Human Rights Award Luncheon. It’s an interesting “insider” view of the Court’s most recent term. Justice Stevens offered his opinion on a wide range of cases, including King v. Burwell, Arizona State Legislature v. Arizona Independent Redistricting Commission, Glossip v. Gross, Obergefell, Lochner, and McDonald v. Chicago.
Month: August 2015
Washington State Supreme Court Imposes Sanctions in McCleary Case
The Washington State Supreme Court, today, issued a decision imposing sanction on the Legislature in the McCleary case. Recall that the Court held, back in September of 2014, that the Legislature violated the state constitutional mandate that K-12 education is the paramount duty of the State and held the Legislature in contempt of court. In spite of the Court’s holding at that time, it deferred on the question of which sanctions to actually impose. Although members of the Court discussed and asked many questions about what types of sanctions would be most appropriate, it ultimately decided to delay the imposition of sanctions until after the completion of the 2015 legislative session.
The Court issued it’s decision on the question of sanctions today, without a subsequent hearing, a mere 24 business days following the last day of the 2015 legislative session, and a mere 13 business days following the filing of the Legislature’s required report to the Court. Clearly, the Court had a plan for it’s next steps in the case and for the imposition of sanctions against the Legislature, well before the Legislature completed its 2015 session and before it heard from the Legislature following the session.
The central weapon in the Court’s sanctions order is a “penalty” of $100,000 per day until the Legislature adopts “a complete plan for complying with” the state constitution. This is an interesting choice of sanctions, for several reasons. First, the “penalty” will be paid into a “segregated account for the benefit of basic education.” So, if the Legislature does nothing, the Court’s purposes will be fulfilled. Granted, at the rate of $100,000 per day, the Court’s expectations won’t be satisfied for a few decades, but the sanctions, ironically, allow the Legislature to satisfy the Court without doing anything.
Second, the Court’s sanctions apply to “the State of Washington”. (Throughout this case, the Court has made a tortured point to refer to the Legislature as “the State.” Why? The stated reason is, likely, that the state constitution mandates that “it is the paramount duty of the state” and the Court would likely explain that it is merely following the language of the Constitution. But the more likely reason is that the Court is quite sensitive about stirring the pot of separation of power, so it repeatedly refers to “the State”, rather than “the Legislature”, as the target of it’s orders. The Court must think we’re pretty dense. It’s impossible for the Court to disguise it’s aggressive, inter-branch campaign. The Court, consistent with it’s practice in this case, imposed the sanctions on the State of Washington.) This presents an interesting question: can the Court dictate the appropriation of state monies to this segregated fund where the state constitution clearly provides that the legislative authority of the State (including, presumably, the power to appropriate funds) shall be vested in the Legislature? The Legislature could, in it’s constitutional discretion, ignore the Court.
And, finally, the Court attempts to strengthen it’s sanction by announcing that the penalties “will continue to accrue until the State achieves compliance.” This is one of the most curious statements. Granted, questions about the Court’s authority to enforce any sanctions against the Legislature have been swirling for years. Now, this statement, in the context of the sanctions themselves, reads almost as if the Court finally and pathetically came to the realization that, when it comes to enforcing it’s will against another branch of government, is limited. If we flash forward to 2018, the year the Court expects the Legislature to have completed it’s plan, and imagine that the Legislature has done nothing to complete such a plan, or hasn’t done what the Court expected, then what? What can or will the Court do at that point? Will it retain jurisdiction in the case for another 3 years? Will it have the desire to continue the unconstitutional, inter-branch campaign? Will the composition of the Court be different, with different Justices, with different opinions on the appropriateness of such a campaign?
Lots of open questions remain. One thing’s for sure: when the Court finally realized the limits of it’s authority, it meant that the State Constitution, and the critical concept of separation of powers, had prevailed.
The British Surveillance Perspective
I just ran across this fascinating article on what might be considered the British version of the Snowden and the NSA surveillance stories. I haven’t read the entire article, but I think it might be more accurately characterized as the British perspective on those stories. Plus, great photos . . .
Supreme Court Asked to Review Warrantless Cell Phone Location Surveillance
The Supreme Court has been asked to review a case involving surveillance of cell phone location. The story appeared in ars technica:
Warrantless mobile phone location tracking heads to Supreme Court
Will the justices rule for the government or Fourth Amendment privacy
by David Kravets
The US Supreme Court is being asked to resolve once and for all whether the authorities need a court warrant under the Fourth Amendment to obtain a suspect’s cell-site location data records.
The case the justices were asked to review Friday concerns a Florida man who got a life term for several robberies in a 2012 case built with his mobile phone’s location data the police obtained without a warrant.
The case has big privacy implications for anybody who carries a mobile phone. According to the government, that device may be tracked at will without the Fourth Amendment’s probable cause standard being met.
What’s more, the petition to the high court from defendant Quartavious Davis comes as cell-site tracking has become a choice surveillance tool in the aftermath of a Supreme Court ruling that said the authorities needed a warrant to affix GPS trackers to vehicles. In that 2012 decision, the high court declared that the government’s act of affixing a GPS device on a vehicle was the equivalent of a search usually requiring a warrant.
The American Civil Liberties Union is representing Davis and wants the high court to overturn a March decision (PDF) from the 11th US Circuit Court of Appeals, which ruled against Davis based on precedent from the analog age.
According to ACLU attorney Nathan Freed Wessler:
… the Eleventh Circuit relied on Supreme Court cases from the 1970s that held that certain limited information that people voluntarily share with third-party businesses can be accessed by law enforcement without a warrant. But the logic behind those precedents, known collectively as the “third-party doctrine,” has not held up well in the digital age.
The petition (PDF) to the Supreme Court says:
It is virtually impossible to participate fully in modern life without leaving a trail of digital breadcrumbs that create a pervasive record of the most sensitive aspects of our lives. Ensuring that technological advances do not ‘erode the privacy guaranteed by the Fourth Amendment’ requires nuanced applications of analog-age precedents.
In a string of federal appellate court decisions, the government had successfully argued that cell-site records are not constitutionally protected and instead are business records that telcos may hand over if the government asserts that reasonable grounds exist to believe the data is relevant to an investigation.
In all the decisions, the appellate courts and the government cited US Supreme Court precedent known as Smith v. Maryland—the same 1979 decision that paved the way for the National Security Agency’s telephone metadata snooping program that Edward Snowden exposed.
Given that no federal appeals court has sided with the Fourth Amendment on the issue, there’s a slim likelihood the Supreme Court would intervene at this juncture. However, a California federal judge ruled (PDF) this week that warrants were required for such data. If that is upheld on appeal, that could create the appellate court split that would make the issue ripe for the Supreme Court.
In the case pending before the Supreme Court, the data at issue encompasses MetroPCS records from August 1, 2010 to October 6, 2010. Davis, the defendant, made dozens of calls daily.
The data given to the government includes the dialed numbers of calls made by and to his phone. It also shows whether calls were incoming or outgoing and includes the date, time and duration of calls.
The key dispute involves the data about the cell tower that wirelessly connected the calls from and to Davis, and the location of those towers.
the docket 