Law – Page 3 – From the Peanut Gallery

U.N. Vote Against Quran Burning Raises Free Speech Concerns

In the news yesterday was a vote by the United Nation’s Human Rights Council to adopt a resolution on “Countering religious hatred constituting incitement to discrimination, hostility or violence” by a vote of 28-12 with seven abstentions.¹

This appears to be the actual text:

the Council condemns and strongly rejects any advocacy and manifestation of religious hatred, including the recent public and premeditated acts of desecration of the Holy Quran, and underscores the need for holding those responsible to account in a manner consistent with obligations of States arising from international human rights law; and calls upon States to adopt national laws, policies and law enforcement frameworks that address, prevent and prosecute acts and advocacy of religious hatred that constitute incitement to discrimination, hostility or violence, and to take immediate steps to ensure accountability.

The Council urges the United Nations High Commissioner for Human Rights and all relevant Special Procedures of the Human Rights Council, and treaty bodies within their respective mandates, to speak out against advocacy of religious hatred and to formulate recommendations on addressing this phenomenon; requests the High Commissioner to present at its fifty-fourth session an oral update on the various drivers, root causes and human rights impacts of religious hatred constituting incitement to discrimination, hostility or violence, highlighting gaps in existing national, legal, policy and law enforcement frameworks, to be followed by an interactive dialogue; decides to organise an interactive panel discussion of experts at its fifty-fifth session to identify drivers and root-causes and human rights impacts of desecration of sacred books, and places of worship as well as religious symbols as a manifestation of religious hatred which could constitute incitement to discrimination, hostility or violence.
Source: Human Rights Council Condemns and Strongly Rejects Any Manifestation of Religious Hatred, Including Recent Public Acts of Desecration of the Holy Quran | OHCHR

Although religious hatred is bad, the requirement to “prevent and prosecute acts and advocacy of religious hatred that constitute incitement to discrimination, hostility or violence,” especially with the apparent specific intent of banning the burning of the Quran (Islam’s holy book)² led the United States and the European countries on the council to vote against the resolution. The language is a bit vague, but I think it can fairly be read to call upon countries to ban the burning of the Quran, at least when that action is intended to be expressive, and I am willing to believe that is the entire point.³ One of the concerns expressed by Turkey with Sweden’s joining NATO was that Sweden did not prevent the burning of the Quran at a demonstration.

Inasmuch as the U.S. Supreme Court has ruled that that burning the flag of the United States is protected speech under the First Amendment⁴, I doubt that the United States could comply with that ban, even if it wanted to.

The resolution also raises the question of when it is appropriate to use the coercive power of the state to prevent conduct because it offends the religious sensibilities of some. It may be understandable to prohibit the burning of a book sacred to two billion adherents of Islam, but on what principled basis does the same government not prohibit the slaughter of cows, which is considered sacrilegious for Hindus?

Here the breakdown of how the 47 member countries voted:
In favour (28): Algeria, Argentina, Bangladesh, Bolivia, Cameroon, China, Cote d’Ivoire, Cuba, Eritrea, Gabon, Gambia, India, Kazakhstan, Kyrgyzstan, Malawi, Malaysia, Maldives, Morocco, Pakistan, Qatar, Senegal, Somalia, South Africa, Sudan, Ukraine, United Arab Emirates, Uzbekistan and Vietnam.
Against (12): Belgium, Costa Rica, Czechia, Finland, France, Germany, Lithuania, Luxembourg, Montenegro, Romania, United Kingdom and United States.
Abstentions (7): Benin, Chile, Georgia, Honduras, Mexico, Nepal and Paraguay. ↩︎
I am more used to seeing the term spelled “Koran.” Perhaps it’s a transliteration change; I do not mean to make an issue of the spelling. ↩︎
I am certainly no expert, but at least one source indicates that when a copy of the Quran is worn, burning is an acceptable way to dispose of it, just like burning a worn U.S. flag is an acceptable means of disposal. ↩︎
Texas v. Johnson, 491 U.S. 397 (1989). ↩︎

Media Reports of Public Opinion of Courts a Sort of Self-Fulfilling Prophecy

Because the only information most Americans get about court decisions (as just about any other public institution) comes from an increasingly opinion-dominated professional news media, and those media emphasize the politics and personalities of major judicial decisions rather than the actual legal issues and arguments, it is not surprising, as ABC News recently reported,¹ that public opinion tends to accept the narrative that judicial decisions are driven by politics.

We don’t have to rely solely on major media. The United States Supreme Court’s website is a comprehensive resource to learn about the cases before it, the arguments of the parties and the Court’s own decision. A reader can find all the briefs, on the day the case is argued a live audio feed is provided, later that day both the recorded feed and a transcript is available, and of course all the opinions are available as soon as they are released. Other courts are not quite so comprehensive, but usually at least the decisions can be found.((New reports of judicial decision, at least the on-line stories, should link to a freely available opinion or at least provide sufficient information, like case name and docket number, that a search can locate it.))

Of course, the subtext of the most media coverage is that being driven by politics is a bad thing only of the judicial decisions under discussion are viewed as supportive of conservative policies. Many conservatives advocate interpreting constitutional and legislative texts according to the meaning they would have conveyed at the time of their adoption. Liberals decry reliance upon originalism and might well argue that the law’s text must not get in the way of its primary goal which is . . . well, whatever the judge wants to say it is. If that’s not politics, what is?

Jay Bohn

May 11, 2023

More say politics, not the law, drive Supreme Court decisions: POLL [↩]

Supreme Court Case May Require Significant Changes to the Way New Jersey Collects Real Estate Taxes

Until the recent oral argument, the major media have not given much attention to Tyler v. Hennepin County, Minnesota, a case before the United States Supreme Court that may up-end the way in which New Jersey and many other States enforce the requirement to pay real estate taxes.((There was a guest column in the Star-Ledger on the issue last September that appears as a subscriber exclusive on NJ.com, under the title “New Jersey stole an immigrant mother’s investment.”)) Last Wednesday’s oral argument (audio | transcript) should be a warning for the Legislature to put together a replacement mechanism.((See, for example, Amy Howe, Justices appear likely to side with homeowner in foreclosure dispute, SCOTUSblog (Apr. 26, 2023, 3:22 PM).))

The Pacific Legal Foundation, which describes itself as “a national nonprofit legal organization that defends Americans from government overreach and abuse,” represents the plaintiff in Tyler and is campaigning to end what it calls “home equity theft.” As the PLF concisely described the case, “When Geraldine [Tyler] fell behind on the property taxes for her one-bedroom condo, the government seized the home, sold it, and kept every penny—even though it was more than double what Geraldine owed. ‘When the government takes more than it is owed in taxes, that’s home equity theft’ . . .” While Tyler may not be the best case factually to achieve this goal (there is some question whether the plaintiff actually had any equity on the condominium unit after mortgage and condominium association liens), other cases are pending with better facts, as the attorney for the county acknowledged.

New Jersey real estate taxes((This discussion is somewhat simplified and for its purposes I am considering other amounts enforceable by municipalities as taxes, such as municipal utility charges, as taxes.)) are a lien on real estate superior to every other lien (except subsequent taxes). When taxes become delinquent, the municipal tax collector sells the tax lien and issues a tax sale certificate. (It is a public sale and if more than one person wants to buy the tax lien there is an auction process in which they bid down the interest that will accrue. Interest rates start at 18%.) The purchaser pays the delinquent taxes and may pay subsequent taxes and add that amount to the lien. If the property owner has not redeemed the property by paying the amount of the lien, accrued interest and costs and penalties within two years (for a private lien holder, if the lien holder is the municipality the period is six months), the lien holder may start a foreclosure action that will ultimately result in an order setting the time, place, and amount necessary for redemption. If the property owner does not pay by that deadline, the lien holder then has title to the property.((As noted, this discussion is somewhat simplified.))

This procedure differs from the manner in which other liens, such as mortgages, are enforced. There the foreclosure process will result in a court order for the sheriff to sell the property at auction. After the sheriff’s fees, the proceeds are paid to the lienholder, up to the amount adjudicated to be due, and thereafter paid into court. If there are no other liens to be satisfied, the surplus funds go to the (former) property owner.

The purchasers of tax sale certificates do so because it is a relatively secure investment, backed by real estate, with a good return and the possibility of a significant windfall if the value of the property is much greater than the tax debt. It also works for the municipalities because they do not carry large delinquencies for years as the purchasers of tax sale certificates will not only have paid what was due as of the sale but are also likely to continue to pay subsequent taxes that come due to protect their investment from future tax sales.

Whether in this case, or one of those others pending, I expect the Supreme Court to find that the windfall to the foreclosing tax sale certificate holder violates some constitutional right of the property owner and our Legislature would be well advised to change the way that property tax liens are enforced, such as by judicial sale like mortgages.

Jay Bohn

May 1, 2023

Post script

Earlier today the Supreme Court ruled unanimously that the former owner’s takings argument stated a claim and remanded for further proceedings. Here is some additional coverage of the decision on SCOTUSblog.

J.B.B.
May 25, 2023

Some Concerns About the Multilingual Mandate

Yesterday NJ.com published an article((It is indeed more factual than most of the unlabeled opinion pieces, but it clearly conveys support for the bill.)) about a bill((Kudos are due for not only specifically identifying the bill but also providing a link.)) that will require state executive branch agencies to “translate vital documents and information . . . in[to] the 15 most common non-English languages spoken by individuals with limited-English proficiency in this State . . . .” Implementation of the law would be paid for, in part, by federal COVID funds.¹ The article quotes one Republican senator who voted against the bill due to its cost and the requirement of 15 languages.((The article preceded the explanation with the suggestion that all but one Republican voted against the bill because they are all white.))

Cost is indeed a concern. Also, will agencies have to hold up issuing documents and information until all of the translations are completed?

My greater concern, however, is the potential for this mandate to expand from state agencies to local governments to private businesses. Cost would be a factor there too (and no doubt there will be no COVID funds left), but I am more concerned about whether the translations are deemed to be of equal weight with the English version? It is hard enough to draft a legal document in one language so that some reader cannot find or invent ambiguity, what about a translation into fifteen other languages?

Accessibility of government information to those who cannot speak English is not itself a bad idea, so long as it does not become a mandate that declares that the meaning of a document is the translation least favorable to its author.

Jay Bohn

March 27, 2023

The connection with the pandemic must be too obvious to require explanation. [↩]

Supreme Court a Scapegoat for Those Who Can’t Abide Judicial Review of Policies with Which They Agree

Stop me if you’ve heard this before. I politician addresses a rally in Washington, urging the crowd of activists to affect an official proceeding. I am of course talking about Senator Elizabeth Warren addressing supporters of student loan debt cancellation outside the Supreme Court while the justices heard arguments on whether the HEROES Act gives the secretary of education the power to do just that. ABCNEWS.com quotes Senator Warren as saying, “We are here today because President Biden has the legal authority to cancel student loan debt. Let me say that one more time and make ‘em hear it inside.” It is different less in kind than degree (albeit a lot of degree) from what Donald Trump did on January 6, 2021.

Senator Warren is then quoted as saying, “It is time for the Supreme Court to stop playing politics and just apply the law and let us cancel this debt.” What is holding a rally outside the court building, if not politics? I get it, it’s different. She’s on the right side.

While the nine justices are not as divorced from politics as one might hope,¹ their treatment of this issue can hardly be called playing. The Supreme Court is involved because the Biden Administration asked it to be when it sought review of two lower court actions that stalled the scheme. The Court granted certiorari before judgment in the courts of appeals (rare); did so within two weeks of the initial application; and scheduled the cases to be heard within a matter of months. As usual, a decision is likely before the Court breaks for the summer in late June or early July.

This timeline is much quicker than the Biden Administration’s revealing of its student loan forgiveness plan. President Biden ran on the promise to cancel $10,000 of debt per borrower, a lot like the program he ultimately approved. He took the oath of office on January 20, 2021. Of course, first he had to deal with a Justice Department legal opinion that he (or perhaps more specifically, the secretary of education) did not have the authority to cancel the debt.((As I have previously written, then-House Speaker Nancy Pelosi agreed with this position.)) The plan was finally announced in August 2022, some 19 months later, just in time for the mid-term campaign season. Then it became urgent as the Biden Administration tried to run out the clock to prevent challenges.

Lets be clear. For many who are criticizing the court, the only justification that is needed for the program is that it is good policy, regardless of by whom or how it was created. The substance rather than the process is what’s important. But, as I said before, “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.” Or, as I said in another context, “The hypothetical reader of this blog would recognize this logic– it is what supported many of the executive orders during the rule-by-decree phase of the COVID-19 pandemic: ‘the governor should have the power because the governor makes better choices than the legislature’ (or something like that).”

Jay Bohn

March 6, 2023

While there is some merit in the comment that the “fairness” of the program is not a relevant consideration for the Court, neither is the solicitor general’s assertion at the commencement of the argument [transcript here] that “Over the past three years, millions of Americans have struggled to pay rent, utilities, food, and many have been unable to pay their debts.” [↩]

If We are to Have a Government of Laws, Someone Must Be Able to Enforce Limits on Executive Power

Several of my recent posts have discussed the legal concept of “standing,” which is a limit on the power of federal courts derived from the fact that the Article III, section 2, of the United States Constitution extends the judicial power of the United States only to “Cases” and “Controversies.”((See There’s a Difference Between “Constitutional” and “Unreviewable”; CNN Adds to Laurels with Good Explanation of Standing Issue in Student Loan Case; Texas Federal Court’s Dash to Invalidation of Biden’s Student Loan Forgiveness Program Likely to be Called Back for False Start.)) The requirement of standing is said to prevent courts from rendering advisory opinions, but it can be frustrating because standing does not exist where the prospective plaintiff’s concern is a generalized grievance such as, I have predicted,((Mixed Bag in Media Review)) whether President Biden’s student loan forgiveness plan is authorized by the HEROES Act.((On Tuesday the Supreme Court heard oral argument on the student loan cases: Biden v. Nebraska (audio feed | transcript) and Dept. of Education v. Brown (audio feed | transcript). A good academic analysis of the requirement of standing in relation to challenges to student loan forgiveness can be found in Hoover, Standing and Student Loan Cancellation, 108 Va. L. Rev. Online 129 (2022).))

Should the requirement of standing be relaxed where there is an important question that would otherwise be unreviewable?((I approach this question from a policy perspective, not by way of a legal argument that present standing doctrine is wrong.)) I guess that depends on whether you agree with the policy sought to be reviewed. After all, checks and balances are most important with respect to actions that one opposes.

New Jersey’s state courts do not have the same standing requirement as do federal courts. Standing in New Jersey requires only “a sufficient stake and real adverseness.”((Crescent Park Tenants Ass’n v. Realty Equities Corp., 58 N.J. 98, 107 (1971))) The question of expanded federal standing is considered by CNN’s Supreme Court reporter Ariane de Vogue in an article I have earlier praised, “The Supreme Court’s student loans case is about more than student loans.”

While shutting the courthouse door to opponents of executive action may empower Presidents in the short-term, it should give Congress pause in being too loose in the delegation of power in the longer term. You may trust today’s President, but what about the next?

Jay Bohn

March 2, 2023

There’s a Difference Between “Constitutional” and “Unreviewable”

Just because a court rejects a challenge to a government action does not mean that the court necessarily has ruled that the action is constitutional or legal. The court may have rejected the challenge on procedural grounds and not considered the merits of the question.

Procedural grounds are not merely technicalities, although they may vary in importance. The most important procedural ground is whether the court has (subject-matter) jurisdiction to decide the case in the first place. Federal courts have limited jurisdiction and are supposed to determine whether they have jurisdiction in a particular case before moving to the merits. As we’re hearing now, this is a big (and I believe decisive) issue in the student loan cases, which will be argued tomorrow, where the specific question is whether the plaintiffs in those cases have “standing.” If the Supreme Court rules that they do not, the challenges to the student loan forgiveness program will be dismissed, but that will not answer the question of whether the secretary of education’s action was legal. That may become largely academic as it will be hard to imagine anyone who would have standing.((The need for standing can be frustrating as it insulates certain actions from review, no matter how contrary to the Constitution they may be. I don’t particularly think the lack of any chance to review whether the decision to forego the repayment of $400 billion is legal is something to celebrate.))

In addition to lack of standing, a federal court will not have jurisdiction if there is some applicable immunity. The immunity conferred by the Constitution’s Speech and Debate Clause((“Senators and Representatives … for any Speech or Debate in either House … shall not be questioned in any other Place.” U.S. CONST. art. I, § 6, cl. 1.)) was the basis for the dismissal of now-Speaker Kevin McCarthy’s challenge to proxy voting in the House of Representatives. McCarthy v. Pelosi, 5 F.4th 34 (D.C. Cir. 2021), cert. denied ___ U.S. ___ (2022).

The D.C. Circuit’s ruling is binding authority only over the U.S. District Court for the District of Columbia.((The Supreme Court’s denial of review is not an indication that it agrees with the result and is not precedential.)) Recently the attorney general of Texas filed a challenge to the Consolidated Appropriations Act of 2023 in the Northern District of Texas, arguing that representatives not physically present but “represented” by proxy cannot be counted toward whether a quorum is present.¹

In a rather histrionic article, “Texas asks a Trump judge to declare most of the federal government unconstitutional,” Vox senior correspondent Ian Millhiser characterized McCarthy v. Pelosi as a ruling that proxy voting is constitutional when, as we’ve seen, it did not reach the merits. Although he has some interesting arguments on the merits and may well be right, it appears to me that the author of this article was mostly concerned with attacking Republican judges.

And just because the House of Representatives may be able to get away with proxy voting doesn’t mean it should.

Jay Bohn

February 27, 2023

Without a quorum the House of Representatives cannot act. [↩]

CNN Adds to Laurels with Good Explanation of Standing Issue in Student Loan Case

This is a good week for CNN.com. My most recent post lauded a fact-checking piece and now I’m going to write about a story last Tuesday which gives a good explanation of what I believe will be the basis of the Supreme Court’s decision on the student loan forgiveness cases — the challengers’ lack of standing.

In “The Supreme Court’s student loans case is about more than student loans,” CNN Supreme Court reporter Ariane de Vogue provides a good explanation of the concept of “standing,” which is a limit on the power of federal courts derived from the fact that the Article III, section 2, of the United States Constitution extends the judicial power of the United States only to “Cases” and “Controversies.”((I discussed standing in my November 17, 2022, post Texas Federal Court’s Dash to Invalidation of Biden’s Student Loan Forgiveness Program Likely to be Called Back for False Start.)) For once this is not a hidden opinion piece which introduces a hard-working American facing the impossible prospect of ever paying off student loans and leveraging that emotional appeal into an argument that the Supreme Court should uphold the program for one or another reason unrelated to the actual questions before the Court, with a detour to equate this program with PPP loan forgiveness.((See my August 29, 2022, post Thoughts About Student Loan Forgiveness.))

But, as its title indicates, the article is not just about the fate of Biden’s student loan forgiveness plan. It traces the recent expansion of State standing to Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), which allowed States to sue the Environmental Protection Agency to compel it to regulate greenhouse gases and led to a skyrocketing of “lawsuits brought by state attorneys general challenging actions by the federal government . . . with states making extravagant standing arguments.” Whether that’s good or bad depends upon who’s president.

Jay Bohn

February 2, 2023

Social Media Regulation the Antithesis of Free Speech

Sometimes I feel as if no one is listening. “Free speech” means that the speaker is allowed to be anti-(whatever you’re for) as well as racist, sexist and any other -ist. We’re all in danger if, as advocated in “Social media needs rules,” an op-ed published on NJ.com yesterday, the government regulates the content of social media (or forces/coerces the platforms themselves to regulate it).

The author of the piece goes out of her way to criticize what she considers to be “far-right extremists” with no corresponding example of left-wing ideas. They must not need moderation.

The cure for misinformation is complete and accurate information. This requires articles that report facts, not just reporting the helpful bit and turning every story into a tool to advance the newspaper’s editorial agenda.

Jay Bohn

January 23, 2023

News Media Should At Least Get Legal Basics Right

A large portion of my internet surfing involves looking at news sites, including so-called “aggregators” like MSN. Despite the dross, sometimes these sites provide links to interesting stories that don’t show up elsewhere. For example, yesterday there was a story entitled “Supreme Court backs Maine consumer protection law.”¹ The headline piqued my curiosity because I know that the U.S. Supreme Court (which is the supreme court to which the headline refers) has yet to issue an opinion this Term. The story includes four paragraphs about the decision (with quotations), citing in part “court documents” (which turn out to be Maine’s brief in opposition to the petition for certiorari), purporting to report how the Supreme Court ruled. As I suspected, the story misstates what happened.

In 2020 Maine’s legislature passed a law that requires cable companies to provide a pro rata rebate for the month in which a subscriber cancels service, essentially requiring billing for the final month to be on a daily rather than monthly basis. Cable companies challenged the law, claiming that it was preempted((Preemption arises when state and federal laws conflict. Under the Constitution’s Supremacy Clause, federal laws trump state laws.)) by the Cable Communications Policy Act of 1984 which prohibits state regulation of “the rates for the provision of cable service.” The cable companies won at the district court level but lost at the circuit level and sought review in the U.S. Supreme Court by means of a petition for certiorari.((Certiorari was one of the common law prerogative writs whereby a superior tribunal ordered an inferior tribunal to send up its record on a case.))

Let me pause for a moment to explain how “appealing” to the Supreme Court works. The Supreme Court has discretion whether or not to take the vast majority of cases eligible for its review when such review is sought. The “right” to appeal to the Supreme Court is very limited, if it exists at all. The party seeking to have the Court take a case files a petition for certiorari; four justices must vote to grant the writ. Most petitions are denied without so much as a comment, but occasionally a justice may choose to write a brief opinion commenting on the denial or dissenting from the Court’s action granting or denying. The denial of a petition for certiorari has no legal effect beyond that particular case; it does not mean that the Court concludes that the decision below was correct.

So, where were we? Right, the cable companies lost in the court of appeals, so they asked the Supreme Court to take the case. The Court’s docket reflects the following action on January 9, 2023: “Petition DENIED.” The four paragraphs reporting on (and quoting) the Supreme Court’s ruling are inaccurate. Maybe the average American should not be expected to know the ins and outs of Supreme Court procedure, but journalists attempting to report on its activities should be more careful.((Although this post is about media inaccuracies, not the merits of the cable companies’ preemption argument, I do have to comment on a portion of the Maine attorney general Aaron Frey’s press release celebrating the denial of certiorari. He is quoted as saying, “Just as it would be unacceptable for a restaurant to charge for undelivered food or Amazon to charge for an undelivered package, large cable companies should not be permitted to charge for cable that is not provided.” The better simile might be whether a restaurant should have to proportionally refund the cost of a half-eaten meal because it was more food than the customer ultimately wanted or whether a city must refund part of the cost for a parking meter if the driver leaves before the time is up.))

Jay Bohn

January 16, 2023

Post script

While this post is not intended to be about the merits of the cable companies’ claim, I should point out that on October 15, 2021, New Jersey’s intermediate appellate court, the Appellate Division of the Superior Court, ruled that a New Jersey regulation requiring the same kind of proration was preempted by federal law. The NJ Supreme Court has granted review and heard oral argument today.((The cable company involved also obtained relief in federal district court, but the court of appeals ordered that case dismissed for procedural reasons.))

J.B.B.

January 17, 2023

MSN’s source for the story was the Washington Examiner. [↩]