More on Murr – a response to Rick Hills

New York University law Professor Roderick Hills has posted a thoughtful response to my post criticizing the Supreme Court’s just-issued decision in em>Murr v. Wisconsin. Rick makes two interesting arguments. Neither persuades me that Murr was rightly decided.

Rick’s first point is that, if local governments were not allowed to treat contiguous parcels owned by the same person as a single unit for takings purposes, they could try to impose high fees on attempts to subdivide lots, thereby forcing owners to buy a kind of “takings insurance.” It is far from clear that anything like would ever happen. The imposition of such fees would annoy powerful interest groups in most communities, such as politically influential developers, who depend on subdivision to run their businesses. But if it did, the obvious solution would be for courts to rule that such extortion itself qualifies as a taking. When the government attempts to use exactions and fines to undermine constitutional rights in other contexts, courts usually don’t hesitate to step in. For example, the government cannot circumvent First Amendment rights by imposing high fees on speakers, or circumvent abortion rights by imposing high taxes on abortion providers. In Rick’s scenario, the government would effectively be using a monetary exaction to avoid having to pay compensation for takings.

The Court has already curbed the use of monetary exactions to circumvent the Takings Clause in the 2013 Koontz decision (another case Rick and I have debated). And Koontz was a much less egregious attempt to circumvent the Takings Clause than Rick’s scenario.

More generally, government officials can potentially use fines and exactions to try to circumvent virtually any constitutional right. If the courts ban regulations that directly attack the right, it is always possible to try to repress it by imposing fines on those who exercise it, imposing indirect regulatory obstacles on them, and so on. There is no perfect remedy for such shenanigans. But the judiciary has kept them under control in many other contexts. There is no reason to believe that they are any less capable of protecting property rights against them, than any other constitutional rights.

Rick’s second point is that victories in Murr and other recent regulatory takings cases brought by property rights advocates won’t do much to undermine restrictive zoning, which he considers to be the “greatest attack on property rights” in the United States. He urges us to abandon litigation and instead focus on combating zoning in the political process at the state level.

I very much share Rick’s concerns about zoning, which is indeed a grave menace, particularly to the poor and lower middle class. But even if regulatory takings litigation cannot do much to curb it, that does not mean we should not use it to attack other violations of constitutional property rights. The best should not be the enemy of the good.

Moreover, for reasons I recently outlined here, takings litigation does in fact have some potential for curbing abusive zoning. The more the Takings Clause is enforced against other infringements on property rights, the more it can potentially be used against zoning regulations that undermine those rights in much the same way. It is doubtful that litigation will enable us to curb all or even most abusive zoning any time soon. But it can help take down some of the more egregious practices. As with past efforts to expand protection for constitutional rights and liberties, the best strategy is usually one that combines litigation with political action, rather than relying on either exclusively. That’s the lesson of the civil rights movement, the feminist movement, the struggle over same-sex marriage, efforts to expand gun rights, and past efforts to strengthen protection for constitutional property rights.

Here, as elsewhere, we should avoid falling prey to the all or nothing fallacy, under which judicial review must be abjured unless it provides 100% ironclad protection for the right in question, without any exceptions or limitations. Regulatory takings litigation cannot and will not provide perfect protection for property owners. Nor can it forestall all possible efforts at circumvention. But it can do a great deal of good nonetheless.

NOTE: I coauthored an amicus brief in Murr supporting the property owners, on behalf of nine state governments led by the state of Nevada. As with other posts about Murr, what I write here represents solely my own views, not those of the state governments I helped write the amicus brief for. The brief is a pro bono project, and I have no financial interest in the case.

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Translating Genesis

Last year I published an article on the phrases “necessary and proper” and “cruel and unusual.” I argued that both phrases are best seen as instances of the figure of speech hendiadys. Hendiadys is the use of two distinct terms, separated by a conjunction, that work together as a single unit of meaning. For example, a farmer who says his cow is “nice and fat” is not saying two things — the cow has a nice disposition and also is fat — but only one thing, that the cow is nicely fat, quite fat. I won’t rehash the argument here about the two constitutional phrases. But you might wonder where the idea of hendiadys came from, especially since it is not found in most books on figures of speech. The genesis of that article was, quite literally, Genesis.

A scholar of biblical Hebrew (John Hobbins) and I have been working on a translation of the Book of Genesis, and the volume with chapters 1-11 was published Friday. You can order it from the publisher or from Amazon.

In a series of posts, I’ll be discussing the translation. For me, Genesis is not just a cultural text; it’s a religious one. But in my posts I’ll discuss points that will be of interest to everyone who cares about language and law.

Let’s start with an example. One of the most famous stories in the Book of Genesis is the Tower of Babel. Translators and translation theorists love this story (e.g., George Steiner). Maybe because it tends to justify translators’ existence. It’s short, just nine verses (11:1–9). It has a lot of punning and wordplay. One pun is absolutely central, the pun on the name of the city (Heb. babel) and the Hebrew word for mixing (Heb. balal), often used for mixing the flour and oil for a sacrifice.

The Babel story concludes this way in the New International Version, currently the best-selling Bible in the United States:

That is why it was called Babel — because there the LORD confused the language of the whole world. From there the LORD scattered them over the face of the whole earth.

Here’s how the same verse reads in our translation:

Hence her name is called Babylon, for there the LORD scrambled the tongue of all the earth and made it babble. And from there the LORD scattered them over the face of all the earth.

There are about 10 points of difference I could discuss, but let’s just focus on two.

First, the name of the great city. If the pronunciation were carried over from the Hebrew, it would be “Babel” — the traditional English translation in Genesis 11. But the city referred to is the one conventionally known in English as “Babylon.” That’s how English translations render the word outside of Genesis. The decision to vary the translation in Genesis 11 does have antecedents. In Genesis 11, an ancient Greek translation (the Septuagint) translated the name as “Confusion” instead of using the city’s Greek name (Babulon), and an ancient Latin translation (the Vulgate) mimicked the Hebrew pronunciation with Babel instead of using the city’s Latin name (Babylon). But there are costs to giving the city’s name a special rendering just in Genesis 11. “Babel” in Genesis and “Babylon” everywhere else keeps the reader from seeing the many allusions to this story in later biblical passages (e.g., Jeremiah 51:9, 53; Daniel 4:20–22[17–19]; Revelation 18:1–5). A consistent rendering lets the reader see these connections.

Second, there’s the question of how to translate the word for mixing. Until recently most English translations chose “confounded.” Then, in the 20th century, English translations switched en masse to “confused.” (Herd choices in translation is an interesting sociological phenomenon.)

“Confounded” and “confused” aren’t bad translations. But what they do is swap out the insistently physical Hebrew for an English equivalent that is more abstract. They lose the metaphor.

Our translation tries to keep the physical metaphor with “scramble.” That word has a culinary association in English that matches the original. And it even makes a nice connection across semantic domains (cooking and language), because letters get “scrambled” to make a code.

And one more twist: We give a double translation. For a single phrase in the original, we have both “scrambled the tongue” and “made it babble.” What this double translation allows us to do is keep the physical image (scrambling) and carry over into English the central pun in the story. Babylon may seem powerful, says Genesis, but it’s really just a place where they babble on.

(Page references to our volume: The Babel story appears on p. 36, and the notes explaining translation choices for that story are on pp. 185-190.)

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Should regulatory takings doctrine be reconsidered from the ground up?

Justice Clarence Thomas is well known for writing separate opinions highlighting the gap between the Supreme Court’s contemporary jurisprudence in a given area and the original constitutional understanding or original public meaning of the relevant constitutional provisions. Earlier this week, for example, Thomas suggested that the court should reconsider its qualified immunity jurisprudence.

Friday, in Murr v. Wisconsin, Thomas suggested that the court should reconsider the constitutional foundation of regulatory takings doctrine. Although he joined the dissent authored by Chief Justice John G. Roberts Jr., Thomas also wrote separately to highlight the tension between the court’s doctrine and the original meaning of the Fifth Amendment’s takings clause. He wrote:

I join THE CHIEF JUSTICE’s dissent because it correctly applies this Court’s regulatory takings precedents, which no party has asked us to reconsider. The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), the Court announced a “general rule” that “if regulation goes too far it will be recognized as a taking.” But we have since observed that, prior to Mahon, “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a ‘practical ouster of [the owner’s] possession,’ Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879).” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992). In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).

The paper Thomas cites at the end of his opinion is by University of San Diego law professor Michael Rappaport, a prominent originalist scholar (and contributor to the Originalism Blog). Here is the abstract to Rappaport’s paper:

This article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.

In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amar’s theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.

Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitution’s original meaning does not apply to state regulatory takings.

Regulatory takings is not the only context in which property rights activists may be asking the Fifth Amendment to do the constitutional work better done by the 14th Amendment (if it is to be done at all). Eminent domain may be another (for reasons I briefly sketch in this exchange).

If there is to be greater clarity about regulatory takings, it might help if the entire doctrine rested on a more secure — and constitutionally sound — foundation.

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A loss for property rights in Murr v. Wisconsin

Donna Murr speaks at a press conference at the Murr family’s cabin on the St. Croix River. The Murr family are the plaintiffs in Murr v. Wisconsin.

The Supreme Court just issued its decision in Murr v. Wisconsin, by far the most important property rights case of the term. The opinion is both a setback for constitutional property rights and likely to create confusion and uncertainty going forward.

The Takings Clause of the Fifth Amendment requires the government to pay “just compensation” any time it “takes” private property for public use. Murr considers the important issue of whether an action that might otherwise be a taking might cease to be one merely because the owner of the affected lot also happens to own other property contiguous to it. In at least some cases, today’s indeed ruling allows the government to avoid compensating property owners for the taking of their land, merely because they also own the lot next door. But the vague nature of the test established by the Court makes it very hard to figure out exactly when that might happen.

In the famous 1978 Penn Central case, the Supreme Court ruled that whether regulatory restrictions on property rights amount to a taking depends on their impact on the “parcel as a whole.” If the regulation affects only a small part of the parcel or has little effect on its overall value and use, it probably will not be ruled a taking, and no compensation is required. The bigger the unit that counts as the relevant parcel, the less likely it is that the courts will rule that a restriction on the use of any part of it is a taking requiring compensation. Regulators who want to avoid paying compensation therefore have an obvious interest in counting contiguous parcels as well as the one actually being restricted. Property owners’ interests are the opposite.

I. The Court’s New Dangerously Vague Balancing Test.

After the oral argument in March, I worried that the Court might end up issuing a muddled decision that creates needless confusion. Sadly, that is exactly what the justices have done. In a close 5-3 decision (Justice Neil Gorsuch did not participate because he was not yet on the Court when the case was argued), the majority sided with the government against the property owners. But they rejected the state of Wisconsin’s position that the courts should simply treat contiguous parcels as one anytime state law indicates they should be. But they also rejected the opposite view: that there should be a strong presumption in favor of analyzing each parcel separately.

Instead, Justice Anthony Kennedy’s majority opinion (joined also by the four liberal justices) creates a vague multifactor balancing test for addressing these issues. it states that courts must consider a variety of factors in an attempt to “determine whether reasonable expecta­tions about property ownership would lead a landowner to anticipate that his holdings would be treated as one par­cel, or, instead, as separate tracts.” These factors “include the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land.” The treatment of the land under state and local law includes restrictions on land use in place at the time the owner acquired the lots, but possibly other regulations, as well. The relevant “physical characteristics” include “the physical relationship of any distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment.” Consideration of “prospective value” includes the need to “assess the value of the property under the challenged regulation, with special attention to the effect of burdened land on the value of other holdings. Though a use restriction may decrease the market value of the property, the effect may be tempered if the regulated land adds value to the remaining property, such as by increasing privacy, expanding recreational space, or pre­serving surrounding natural beauty.”

Even this many not exhaust the list of potentially relevant factors. The Court also emphasizes that “the reasonable expectations at issue derive from background customs and the whole of our legal tradition.” Other aspects of those customs and traditions may turn out to be relevant too!

The above list is a recipe for confusion, uncertainty, and constant litigation. All of the factors in the test are complicated and difficult to measure. Often, which way they cut is in the eye of the beholder. For example, who can say which preexisting land-use restrictions should count against the owner, or what really counts as a relevant aspect of “the surrounding human and ecological environment?” In addition, the Court provides little if any guidance on what to do if some of these factors cut in favor of the government, and others in support the property owners. Judges can hardly avoid deciding these kinds of issues at least in large part based on their personal and ideological preferences.

The Court states that the inquiry they require is “objective.” Given its extreme vagueness, I don’t see how that could possibly be the case. Subjective considerations will inevitably have a substantial influence on judges’ consideration of the different factors and how to weigh them against each other.

The majority’s balancing test is great news for takings lawyers and property scholars. Because of the uncertainty and litigation it will generate, the decision will surely help make our income great again! It’s almost a full-employment act for experts in this field. For the rest of America, the decision creates needless risk and uncertainty about the scope of our property rights.

II. What the Court Should Have Done.

As Chief Justice John Roberts explains in his dissent, regulatory takings jurisprudence already includes a conceptual muddle in the Penn Central test for determining whether a given regulation restricts property rights severely enough to qualify as a taking. Today’s decision adds an additional layer of severe uncertainty when it comes to determining what counts as the relevant property interest in the first place. He argues – correctly, in my view – that it would be better to adopt a presumption in favor of treating each parcel separately:

State laws define the boundaries of distinct units of land, and those boundaries should, in all but the most exceptional circumstances, determine the parcel at issue. Even in regulatory takings cases, the first step of the Takings Clause analysis is still to identify the relevant “private property.” States create property rights with respect to particular “things.” And in the context of real property, those “things” are horizontally bounded plots of land.

For reasons outlined in an amicus brief I coauthored on behalf of nine state governments, this approach better fits the text, history, and original meaning of the Takings Clause. The text of the Fifth Amendment states that the government must pay “just compensation” any time it takes “private property” for public use. Nothing in the amendment creates an exception for cases where the owner happens to own a lot next door that has a At the very least, nothing in that history – or in previous Supreme Court decisions – requires the kind of muddled balancing test adopted by the majority.

As also discussed in our brief, the approach endorsed by the majority is likely to lead to wasteful efforts at strategic manipulation by both property owners and local governments. The former may try to avoid placing contiguous lots under common ownership so as to lessen the risk of exposure to uncompensated takings. The latter, by contrast, will have incentives to try to manipulate the various factors listed in the majority opinion, so that they come out in their favor. The brief also explains how allowing contiguity to influence takings may put state property at risk of uncompensated regulatory takings imposed by the federal government. As with the risk to private property, this danger will be hard to gauge in any given case, because of the vague nature of the test established by the Court.

In fairness to the majority, some of the problems created by today’s decision are ultimately rooted in the flaws of the “parcel as a whole” rule itself. As scholars on both right and left have pointed out, this rule has little if any basis in the text or original meaning of the Constitution. It is a judicial invention and an ill-conceived one at that. Even when it comes to a single parcel, there is no good reason for concluding that a regulation that qualifies as a taking for a one acre parcel might cease to be one if the parcel were two acres instead. The question to ask in a takings case is what property rights government has taken away from the owner, not how much property may be left to her. The text of the Fifth Amendment requires compensation whenever private property is “taken,” and does not create exceptions for situations where the owner loses only part of her rights. As Richard Epstein argues in a recent article about Murr , the Court should simply abolish the parcel as a whole rule entirely. Short of that, they could have limited the damage the rule does by adopting Chief Justice Roberts’ relatively clear approach. Sadly, the justices have not only retained “parcel as a whole,” but made it worse than before.

Today’s decision breaks a streak of important victories for property owners in important Supreme Court Takings Clause cases, including several issued in 2013, and the 2015 raisin takings case. Hopefully, Murr will not be the start of a trend going the other way.

Sadly, today is also the twelfth anniversary of Kelo v. City of New London, another unfortunate setback for constitutional property rights. On this date last year, the Court issued the dubious Fisher II decision, and Britain voted Brexit. Perhaps the real lesson here is not to schedule anything important for June 23. That may be a better rule than the one adopted by the majority in Murr.

NOTE: As mentioned above, I coauthored an amicus brief supporting the property owners, on behalf of nine state governments led by the state of Nevada. As with other posts about Murr, what I write here represents solely my own views, not those of the states I represented. The brief is a pro bono project, and I have no financial interest in the case.

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Justice Gorsuch’s first opinions reveal a confident textualist

Supreme Court Associate Justice Neil Gorsuch is seen during an official group portrait at the Supreme Court building in Washington on June 1. (J. Scott Applewhite/Associated Press)

Associate Justice Neil Gorsuch has now written three opinions — a majority, a partial concurrence and a dissent. All three show the Supreme Court’s newest justice to be a confident, committed textualist with a distinctive writing style — and a justice who is not afraid to challenge his new colleagues.

First came Gorsuch’s opinion for a unanimous court in Henson v. Santander Consumer USA. In this brief opinion — notable for its lack of section breaks — Gorsuch held that a company may seek to collect acquired debts without qualifying as a “debt collector” under the Fair Debt Collection Practices Act. Focusing on the plain language of the statute, Gorsuch concluded that debt collectors under the FDCPA are third-party collection agents, not those who seek to collect debts they are owed themselves.

Many commentators noted the alliteration in the opinion’s opening passage:

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices. So perhaps it comes as little surprise that we now face a question about who exactly qualifies as a “debt collector” subject to the Act’s rigors. Everyone agrees that the term embraces the repo man—someone hired by a creditor to collect an outstanding debt. But what if you purchase a debt and then try to collect it for yourself— does that make you a “debt collector” too? That’s the nub of the dispute now before us.

Later on, Gorsuch stressed that it is not for the courts to override or extend statutory text to conform with legislative purpose.

while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced… . Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pursues its [stated] purpose[ ] at all costs.” … For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legislature says … what it means and means … what it says.”

The opinion concludes:

In the end, reasonable people can disagree with how Congress balanced the various social costs and benefits in this area. We have no difficulty imagining, for example, a statute that applies the Act’s demands to anyone collecting any debts, anyone collecting debts originated by another, or to some other class of persons still. Neither do we doubt that the evolution of the debt collection business might invite reasonable disagreements on whether Congress should reenter the field and alter the judgments it made in the past. After all, it’s hardly unknown for new business models to emerge in response to regulation, and for regulation in turn to address new business models. Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process—to apply, not amend, the work of the People’s representatives.

Yesterday, the court issued Maslenjak v. United States. Justice Elena Kagan delivered the opinion of the court, and Gorsuch wrote an opinion concurring-in-part and concurring-in-the-judgment, joined by Justice Clarence Thomas. Here Gorsuch argued that the text of the statute in question called for a more limited holding than that adopted by the court.

The Court holds that the plain text and structure of the statute before us require the Government to prove causation as an element of conviction: The defendant’s illegal conduct must, in some manner, cause her naturalization. I agree with this much and concur in Part II–A of the Court’s opinion to the extent it so holds. And because the jury wasn’t instructed at all about causation, I agree too that reversal is required.

But, respectfully, there I would stop. In an effort to “operational[ize]” the statute’s causation requirement, the Court says a great deal more, offering, for example, two newly announced tests, the second with two more subparts, and a new affirmative defense—all while indicating that some of these new tests and defenses may apply only in some but not all cases… . The work here is surely thoughtful and may prove entirely sound. But the question presented and the briefing before us focused primarily on whether the statute contains a materiality element, not on the contours of a causation requirement. So the parties have not had the chance to join issue fully on the matters now decided… .

Respectfully, it seems to me at least reasonably possible that the crucible of adversarial testing on which we usually depend, along with the experience of our thoughtful colleagues on the district and circuit benches, could yield insights (or reveal pitfalls) we cannot muster guided only by our own lights. … For my part, I believe it is work enough for the day to recognize that the statute requires some proof of causation, that the jury instructions here did not, and to allow the parties and courts of appeals to take it from there as they usually do. This Court often speaks most wisely when it speaks last.

Today, the court decided Perry v. Merit Systems Protection Board. The case concerned a technical issue only lawyers could love: Whether the proper forum of MSPB dismissals of mixed cases on jurisdictional grounds is a federal district court or the U.S. Court of Appeals for the Federal Circuit. Justice Ruth Bader Ginsburg wrote for a seven-justice majority. Gorsuch dissented, joined by Thomas. Here again, Gorsuch focused on the text.

Gorsuch’s dissenting opinion in Perry is very conversational. It begins:

Anthony Perry asks us to tweak a congressional statute—just a little—so that it might (he says) work a bit more efficiently. No doubt his invitation is well meaning. But it’s one we should decline all the same. Not only is the business of enacting statutory fixes one that belongs to Congress and not this Court, but taking up Mr. Perry’s invitation also seems sure to spell trouble. Look no further than the lower court decisions that have already ventured where Mr. Perry says we should follow. For every statutory “fix” they have offered, more problems have emerged, problems that have only led to more “fixes” still. New challenges come up just as fast as the old ones can be gaveled down. Respectfully, I would decline Mr. Perry’s invitation and would instead just follow the words of the statute as written

Later on, Gorsuch explains why courts should confine themselves to the text, even if this may produce a potentially problematic result.

Mr. Perry’s is an invitation I would run from fast. If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty. Besides, the law of unintended consequences being what it is, judicial tinkering with legislation is sure only to invite trouble. Just consider the line of lower court authority Mr. Perry asks us to begin replicating now in the U. S. Reports. Having said that district courts should sometimes adjudicate civil service disputes, these courts have quickly and necessarily faced questions about how and when they should do so. And without any guidance from Congress on these subjects, the lower courts’ solutions have only wound up departing further and further from statutory text—and invited yet more and more questions still. A sort of rolling, case-by-case process of legislative amendment.

His opinion concludes:

At the end of a long day, I just cannot find anything preventing us from applying the statute as written—or heard any good reason for deviating from its terms. Indeed, it’s not even clear how overhauling the statute as Mr. Perry wishes would advance the efficiency rationale he touts. The only thing that seems sure to follow from accepting his invitation is all the time and money litigants will spend, and all the ink courts will spill, as they work their way to a wholly remodeled statutory regime. Respectfully, Congress already wrote a perfectly good law. I would follow it.

And that’s how the opinion ends.

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Bad police training may have killed Philando Castile

A memorial left following the police shooting death of Philando Castile, on July 7, 2016, in St. Paul, Minn. (Stephen Maturen/Getty Images)

Can the family of Philando Castile sue the St. Anthony, Minn., Police Department? There may be a strong case, based on failure properly to train the department’s officers.

Let’s start with the legal standards. The 14th Amendment provides: “nor shall any state deprive any person of life, liberty, or property, without due process of law.” Because local governments derive all their powers from their state, the 14th Amendment also applies to local government agencies, such as the St. Anthony Police Department.

Section 5of the 14th Amendment grants Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to Section 5, Congress has enacted civil rights statutes, including one creating a legal cause of action for violations of civil rights: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. … ” 42 U.S. Code § 1983.

Castile’s family has announced plans to sue Jeronimo Yanez, the officer who killed him, but I will address the question of when a police department can be sued. The leading case is City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). Citing the 1978 case Monell v. New York City Dept. of Social Services, 436 U.S. 658, the Canton court reiterated that “a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Thus, our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.”

The court set a high bar for failure-to-train cases: “We hold today that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Following statutory language and precedent, municipalities are liable under section 1983 for a “policy or custom.” So “only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality — a ‘policy’ as defined by our prior cases — can a city be liable for such a failure under § 1983.”

The court went on: “It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.”

In a footnote, the court addressed a specific example of failure to train on deadly force:

For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force, see Tennessee v. Garner, 471 U.S. 1 (1985), can be said to be “so obvious,” that failure to do so could properly be characterized as “deliberate indifference” to constitutional rights.

It could also be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are “deliberately indifferent” to the need.

The court set several limits to training-related lawsuits. First, merely proving inadequate training may not be sufficient, “for the officer’s shortcomings may have resulted from factors other than a faulty training program.” For example, “an otherwise sound program has occasionally been negligently administered.” Nor is it sufficient merely to prove that the outcome would have been better if there had been more training: “Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable.”

In short, “the city’s failure to provide training to municipal employees … can only yield liability against a municipality where that city’s failure to train reflects deliberate indifference to the constitutional rights of its inhabitants.”

I do not know the training policies of the St. Anthony Police Department. But there is some evidence, beyond the Castile case, that these policies were woefully bad and that the city was on notice about the dangerous deficiency.

The evidence has been supplied by professor Joseph E. Olson, who is now an emeritus tax law professor at Mitchell Hamline Law School in St. Paul.

I have a good basis for assessing Olson’s credibility and veracity. He and I have co-written three law review articles, most recently “Knives and the Second Amendment,” 47 University of Michigan Journal of Law Reform 175 (2013) (also with Clayton Cramer). I have known Olson for about a quarter-century and have interacted with him at many conferences, seminars and other meetings. He served on the NRA Board of Directors in the 1990s and leads Minnesota’s Gun Owners Civil Rights Alliance.

Olson has probably written more of the text of Minnesota gun laws than any other person. This includes the state’s right-to-carry statute, the Minnesota Citizens’ Personal Protection Act, which is one of the strongest such laws in the United States. I have no doubts about the accuracy or the veracity of his recollection of events.

Shortly after the Castile killing in July 2016, Olson disclosed his own encounter with the St. Anthony police. Olson’s report was extensively covered by the Minnesota media and received national coverage from Courthouse News and ThinkProgress (a left-leaning national political commentary site). In 2013, Olson ran a red light and was pulled over by a St. Anthony officer. He does not recall who the officer was, but is sure that it was neither of the officers involved in the Castile incident.

According to Courthouse News:

“Instead of coming up to the door, he stops three feet behind my bumper and tries to conduct the interview through the rearview mirror,” Olson said. “He can’t see my hands. He can’t see what’s on my seat. He can’t see anything that’s in the car. And his voice has tremors of fear in it. I think to myself, ‘Oh my god, I’m going to have to control this situation because he’s not.‘”

Olson said that is not a burden that should be put on citizens. He claims he was able to “control” the situation by effectively communicating with the officer, but at the same time he felt “scared.”

“I didn’t see the problem as [the police officer] so much as I thought it was a department problem,” he said

As Olson told ThinkProgress:

“And he’s standing three feet behind my bumper interviewing me through the outside rear-view mirror, which is really weird, and he sounds terrified. I have a Jeep Grand Cherokee that has tinted windows, so he can’t see in the vehicle very well, he can’t see my hands at all, and he conducts the entire interview through my rear-view mirror.”

Olson said he “could’ve had somebody sitting in the back seat with a rifle” and the cop wouldn’t have been able to tell. He added that the officer’s unusual demeanor “made me afraid, and he was incompetent, and that made me more afraid.”

The key problem, Olson explained to the Minneapolis Star-Tribune, was that the officer could not see Olson’s hands:

“He couldn’t see my hands. He couldn’t see if anyone was in the car. I thought: This is dangerous for both of us.”

Eventually the officer asked Olson for his license and registration, but he couldn’t see Olson while he was digging in the glove box.

“I realized I could have had a grenade on the seat and he’d have no idea,” Olson said.

In 2015, less than a year before the Castile killing, Olson met with the then-St. Anthony Police Chief John Ohl. He summarizes what he told the chief:  “You have a training problem. You have a problem in your department. If you don’t fix it, it’s going to bite you.”

“Instead, he said Ohl praised the officer. ‘I realized he wasn’t listening,’ ” Olson recalled.

In the Castile case, the officer did not conduct the stop through the rear-view mirror (as in the Olson stop), but it is clear that the officer was not positioned so that he could see Castile’s hands at all times. Indeed, a key point in the prosecution’s argument was that the officer should have simply ordered Castile to show his hands.

The dashcam video shows the Castile traffic stop changing the moment that Castile informed the officer that he had a gun. Unlike Olson, who wrote the Minnesota right-to-carry law, Castile may not have understood that in Minnesota, a lawful arms carrier has no duty to inform the police unless an officer specifically asks. Minn. Stats. 624.714, subd. 1b. Some other states do impose an affirmative duty of disclosure. Regardless, because carrying arms in lawful in every state and very common in almost all, every police officer must be trained in proper and safe methods for interacting with lawful carriers.

In short, Olson’s report provides some evidence of a “policy or custom” of improper training, particularly for traffic stops, since any motorist may be armed (lawfully or unlawfully). Further, Olson’s meeting with the chief put the municipality on notice about the improper training.

Other people may have different analysis. For example, the website LeftMN speculates that the officer in Olson’s case ran Olson’s license plate, realized that “he was dealing with the state’s Alpha gun nut, in a darkened car, and he decided he should approach the old fool with a little circumspection.”

In a civil rights lawsuit, there would be an opportunity for discovery about St. Anthony’s training practices and other officers’ encounters with lawfully armed citizens. Olson’s experience at least suggests the possibility that the killing of Castile was not just the result of terrible decision-making by a single officer, but perhaps the inevitable result of deliberate indifference by the municipality: poor training that inevitably endangered the safety of police and the public.

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Can you delegate to the American Medical Association?

Under Pennsylvania’s Workers Compensation Act, employers can require employees to get an impairment-rating evaluation to determine what degree of impairment is due to the employee’s workplace injury. Doctors doing these evaluations have to use “the most recent edition” of the American Medical Association’s Guides to the Evaluation of Permanent Impairment.

Using these guides, a doctor evaluated an injurer worker and gave her a 10% impairment rating; the worker thought her impairment rating should be higher (which would increase her workers comp benefits), and one of her arguments was that the legislature unconstitutionally delegated legislative power to the AMA. Pennsylvania’s non-delegation doctrine, similar to the federal one (which I’ve written about in this Harvard JLPP article and in this forthcoming Emory L.J. article), is based on the vesting clause of its constitution: “[T]he legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.”

Again like Congress under the federal non-delegation doctrine, the Pennsylvania legislature is allowed to delegate authority to others (for instance, state agencies); this delegation of authority is saved from being a forbidden delegation of legislative authority as long as the legislature makes “the basic policy choices” and the legislation includes “adequate standards which will guide and restrain the exercise of the delegated administrative functions”. (The analogous phrase in federal doctrine is “intelligible principle”.)

One contributing factor that can save a delegation is if there are “procedural mechanisms that serve to limit or prevent the arbitrary and capricious exercise of delegated power” — that, too, is a factor present in federal doctrine, though, similarly to what I’ve argued before (see this Supreme Court amicus brief and this D.C. Circuit amicus brief), this comes close to commingling non-delegation concepts with due process concepts — which it’s better to keep doctrinally separate.

Anyway, under these standards, the Pennsylvania Supreme Court held that the delegation of authority to the AMA violated the state constitution’s non-delegation doctrine. (You can find a very brief concurring opinion here, and a dissenting opinion here.) The authority was “broad and unbridled”; the legislature didn’t tell the AMA what policies to pursue or prescribe any standards; nor did the legislature prescribe any procedural mechanisms to ensure that the AMA wasn’t acting arbitrarily.

* * *

One interesting aspect of the case is that — unlike in some previous Pennsylvania non-delegation cases — the AMA is a private organization. In a case from last year, West Philadelphia Achievement Charter Elementary School v. School District of Philadelphia, the Pennsylvania Supreme Court struck down a statute allowing a School Reform Commission to suspend Board of Education regulations and Public School Code provisions in order to improve school district finances. The Court held that the statute had insufficient constraints on the Commission’s decision-making ability and didn’t have safeguards against arbitrary decision-making.

Here, the Court held that the AMA’s power was “even more broad and unbridled” than that of the Commission in the School Reform Commission case. The Commission was a public body, and the AMA is private — what difference does that make? I’ve taken an interest in whether there’s any special non-delegation doctrine for private parties (see my Cato Sup. Ct. Rev. article, as well as the two amicus briefs linked above); some federal courts (and some recent non-majority opinions by some Supreme Court Justices) have taken the view that the non-delegation doctrine prohibits delegations to private parties, and the state lower court here did put some weight on the AMA’s being private. The Texas Supreme Court has enunciated a whole doctrine, in the Texas Boll Weevil Eradication Foundation case, limiting delegations to private parties more than delegations to public agencies.

Here, the Pennsylvania Supreme Court held that, since it was already striking down the delegation based on the ordinary non-delegation doctrine, it didn’t have to decide whether there was any special doctrine for private parties. The Court noted that “our precedents have long expressed hostility toward delegations of governmental authority to private actors”, but that they “have not unequivocally supported the … view that the [legislature] cannot, under any set of circumstances, delegate authority to a private person or entity.” In fact, in some recent cases, the Court stated the same doctrinal test for both private and public delegates, and has struck down delegations to private parties without mentioning that there was any special private-specific test.

The Court concluded: “Although we highlight this tension in our jurisprudence, we need not resolve it today” — since the statute was already unconstitutional enough even under the ordinary standard. “We merely caution that our holding today should not be read as an endorsement or rejection of the [lower court’s] view that the delegation of authority to a private actor is per se unconstitutional. Nor do we foreclose the distinct possibility that a more exacting form of judicial scrutiny is warranted when the General Assembly vests private actors with regulatory or administrative powers.”

(The opinion went on to discuss and reject a possible constitutional avoidance rationale, under which “most recent edition” could be read to mean “most recent edition as of the date this statute was enacted”; and then also discussed issues of severability, which I’ll omit here.)

Anyway, I’m glad to see (1) that courts are discussing the federal and state non-delegation doctrines, (2) that they’re actually striking down statutes under those doctrines, and (3) that some recent cases, including this one, have stopped short of stating any special rule against delegations to private parties. This will be an issue to watch in Pennsylvania.

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