Saturday, December 30, 2006

Fourth Circuit and RLUIPA

Loblaw has this post titled "Fourth Circuit Knocks the Teeth out of RLUIPA."

In Madison v. Virginia, on appeal from the W.D. Va., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Michael and Duncan, held that the Religious Land Use and Institutionalized Persons Act is constitutional as applied to the Commonwealth of Virginia except to the extent that it authorizes awards of money damages.

On the Spending Clause issue, the Court rejected Virginia's arguments, including the claim that the Supreme Court's decision in Rumsfeld v. FAIR somehow restricted the authority of Congress - since after all, that case "rejected a Spending Clause challenge."

On the money damages issue, the Court concluded "that RLUIPA's 'appropriate relief against a government' language falls short of the unequivocal textual expression necessary to waive State immunity from suits for damages." The Court went on to conclude that the Civil Rights Remedies Equalization Act was inapplicable to RLUIPA.

This outcome sounds like one of those Rehnquist-era federalism decisions, but since the panel included Judge Michael it seems unlikely that there would be a different outcome on rehearing by the en banc court.

In Lovelace v. Lee, Judges Michael and Wilkinson disagreed on the claims of a Muslim inmate at Keen Mountain against prison officials under RLUIPA and the First Amendment. Judge Kiser for the W.D. Va. granted summary judgment for all defendants on all claims.

Judge Michael, joined by Judge Motz, vacated summary judgment against a correctional officer in his individual capacity on the plaintiff's Free Exercise and RLUIPA claims, and vacated summary judgment against the warden in his official capacity. Judge Wilkinson agreed the claims against the individual officer should go forward, but dissented as to the official capacity claims against the warden.

In response to Judge Wilkinson's strongly-worded dissent, Judge Michael explained: "Today's remand provides nothing akin to a license for courts to plunge into prison policymaking or prison management. We merely require that the prison itself explain in a responsive fashion why the Ramadan policy's burdens on religious exercise are justified under RLUIPA's standard. It is our dissenting colleague who delves into prison policymaking by coming up with his own reasons as to why the policy's restrictions are necessary to insure safety and security. If a court could, as the dissent would have it, offer explanations on its own, then prisons would be effectively relieved of their responsibilities under RLUIPA. Or what is more fundamental, court-generated explanations would cut severely against Congress's intent to provide inmates with greater protections in the area of religious exercise."

Of the claim against the warden, Judge Wilkinson wrote: "Thus the majority's remand must be seen for precisely what it is: an invitation to finetune prison policy from the judicial perch. While a prison policy may well be called into question where it imposes a substantial burden on religious freedom, this is not such a case. It is plaintiff Lovelace who must prove under the statute that the policy, as opposed to Lester's violation of it, somehow imposed a substantial burden upon his religious exercise, and he has not even begun to do so. To enlarge a case involving an essentially individual act into a wholesale attack upon a sound prison policy, on no fewer than three different grounds, not only makes a mountain out of a molehill but also reinforces the old adage that no good deed goes unpunished. Under the majority's view, the most progressive and enlightened prison policy imaginable, a policy that accomodates every religion in every way, would be called into question by a single policy violation. Forcing prison officials to pay for their own progressive steps to protect religious liberty runs counter to the precise statutory and constitutional provisions that the majority purports to enforce. I therefore concur in the judgment remanding the case for further proceedings against defendant Lester, but I respectfully dissent from the majority's RLUIPA, free exercise, and due process determinations as to the prison policy itself."

Somewhat obscured by these fireworks, the Court's discussion about qualified immunity strikes me as wrong. Judge Kiser held that the individual was entitled to qualified immunity because the constitutionality of RLUIPA was clearly established. Judge Michael rejected this conclusion, because at the time of the events in question, no court had yet ruled one way or the other on the constitutionality of the new statute. RLUIPA was passed by Congress after the Supreme Court held that its predecessor was unconstitutional. To say that its constitutionality was clearly established in 2002, when it was an open and difficult question for the appeals courts when they made their decisions in 2003 and later, seems to turn the qualified immunity analysis upside down. RLUIPA was born of constitutional uncertainty, which is the very stuff of which the qualified immunity defense is made.

Thursday, December 28, 2006

The public defenders for the W.D. Va.

I finally noticed here the list of attorneys hired to staff the new office of the Public Defender for the W.D. Va. The list includes:

Randy V. Cargill, AFPD (Roanoke)
B.S. 1978 United States Military Academy (2nd in class)
J.D. 1984 University of Virginia
1985-1991 U.S. Army Judge Advocate General’s Corps
1991-2006 Private practice in Roanoke

Nancy Dickenson, AFPD (Abingdon)
B.A. 1982 Randolph-Macon College
J.D. 1987 University of Richmond
1994-1995 Commonwealth’s Attorney for Russell County
1995-2006 Private practice in Lebanon, Virginia

Andrea Lantz Harris, AFPD (Charlottesville)
B.A. 1988 University of Notre Dame
J.D. 1994 University of Louisville
1999-2006 Charlottesville Public Defender’s Office

Frederick T. Heblich, Jr., AFPD (Charlottesville)
B.A. 1971 University of Virginia
J.D. 1982 University of Virginia
1982-2006 Private practice in Charlottesville

Monroe Jamison, Jr., AFPD (Abingdon)
B.A. 1984 University of Kentucky
J.D. 1987 University of Kentucky College
1989-2006 Private practice in Abingdon

Fay Spence, AFPD (Roanoke)
B.A. 1982 St. Leo College
J.D. 1987 William & Mary
M.A. 2005 Old Dominion University
2005-2006 Public Defender, City of Newport News, Virginia

Christine Spurell, Legal Research and Writing Specialist (Abingdon)
B.A. 1988 Oberlin College
J.D. 1991 Harvard University (Editor & member of the Articles Office, Harvard Law
1991-1993 Prettyman Fellow, Georgetown Law Center
1994-1996 Law Clerk, Chambers of the Honorable Vanessa Ruiz, D.C. Court of
1996-2001 Private practice, Washington, D.C.
2001-2003 Associate Chief Counsel, Food & Drug Administration Rockville, MD
2004 Law clerk, chambers of the Honorable Elizabeth McClanahan, Court of
Appeals of Virginia, Abingdon
2005-2006 Private practice in Abingdon, Virginia

Statewide or by congressional district

Sometimes you hear the idea that the Electoral College, for the selection of U.S. Presidents under the Constitution, should not be winner-take-all for each state. An alternative proposed by some is that the electoral votes should be awarded based on the vote in each congressional district, with the two leftovers going to the overall winner.

In 2006, it seems to say here that George Allen lost the statewide vote but was the winner in 7 of 11 Congressional districts in Virginia.

Wednesday, December 27, 2006

Non-filing of discovery mania

By rule and standing order in our federal court, discovery material is not to be filed.

Rule 5(d) of the Federal Rules of Civil Procedure says:

"All papers after the complaint required to be served upon a party, together with a certificate of service, must be filed with the court within a reasonable time after service, but disclosures under Rule 26 (a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing:
(i) depositions,
(ii) interrogatories,
(iii) requests for documents or to permit entry upon land, and
(iv) requests for admission."

The standing orders include this one for Judge Jones ("That in civil cases, except prisoner actions, assigned to Judge James P. Jones, discovery material will not be accepted for filing by the clerk of court on or after October 1, 1996, unless filing of same is ordered by the court.") Judge Williams is arguably the exception, but I think Rule 5(d) applies to his cases as well.

Nevertheless, we have in our district the practice of filing "discovery letters," which I never do. If the discovery request itself is not to be filed, why would the cover letter be filed? Similarly, I am opposed to the filing of deposition notices and other flotsam and jetsam related to discovery unless and until the Court orders their filing, or their are part of a motion, or they are attached to some subpoena on which a return of service has to be filed. It seems to me that these papers should not be filed because they are no use to the Court and their filing is at odds with possibly the letter and certainly the policy of the rule against filing discovery material.

Am I wrong about this?

Wallace bows out, will others do likewise?

ACSblog posts that Fifth Circuit nominee Michael Wallace is asking that his nomination be withdrawn, the post notes the usual complaints about Fourth circuit nominees Boyle and Haynes and that the Washington Times has editorialized that President Bush should name other people to try to get some more appeals court judges confirmed while he still has the chance.

There is no shortage of good judges who could do the job.