1996 Term Argument Summaries

October 1, 1996

ACLU Participation Before the Supreme Court for the 1996 Term -- Summaries of Argument

ABRAMS, et al, v. JOHNSON, et al

No. 95-1425 (direct in support of appellants)

SUMMARY OF ARGUMENT

The district court abused its equitable powers in completely redrawing the congressional map of Georgia. The powers of the federal courts must be adequate to the task of fashioning remedies for violations, but those powers are limited. Any remedy must be related to the conditions that are found to offend the Constitution.

In the area of redistricting, deference by federal courts to state policy choices is especially compelling. That is true because the states have primary responsibility for apportionment. Then a district court must act in the legislature's stead, it must accomplish its task circumspectly, and in a manner that is free from any taint of arbitrariness or discrimination.

The district court ignored the state's traditional interest in preserving the core of existing districts. It completely relocated the Eleventh District and placed it in the northeast Atlanta corridor because it felt that was a better location for the district. The court also drastically reconfigured other districts, including the Third, the Eighth, and the Tenth.

The court's plan moved incumbents and pitted them against each other in a number of districts in disregard for the state's traditional policy of avoiding contests between incumbents. Two of the three dislocated incumbents were black, and only these two were placed in new districts with other incumbents.

The court's plan shifted nearly a third of the state's population into new districts. Least-change plans proposed by the parties and amici showed that it was possible to draw far less disruptive plans that at the same time cured the constitutional defects in the prior plan.

The court eliminated two of the three majority black districts in the existing plan, despite its acknowledgment of the legislature's decision to create a second majority black district after the 1990 census. The court's justification for refusing to draw a second majority black district was that Georgia's minority population was not geographically compact. The legislature, however, in enacting its first plan was of the view that the black population was sufficiently compact to constitute a majority in a second congressional district.

Proposed remedial plans were also submitted by the parties and amici which showed that a compact second majority black district can be drawn in Georgia while adhering to the state's traditional districting principles.

As long as a state does not subordinate-traditional redistricting principles to race, it may intentionally create majority-minority districts, and may otherwise take race into consideration, without being subjected to strict scrutiny.

The court's plan violates Section 2 of the Voting Rights Act. Blacks in Georgia are geographically compact. As appears from various plans submitted to the district court, it is clearly possible to draw two reasonably compact majority black congressional districts in the state.

Blacks are also politically cohesive, while their preferred candidates are usually defeated by whites voting as a bloc. As the lower court found, a district containing approximately 55% of black registered voters was necessary to avoid dilution of minority voting strength.

The district court's plan is retrogressive in violation of Section 5. The court's plan reduced the number of majority black districts from the levels in the third legislative plan (which had three of eleven) and the first legislative plan (which had two of eleven), to only one of eleven in a state that is 27% black. Minorities admittedly have fewer electoral opportunities under the court ordered plan than under any of these pre-existing plans.

The court used the 1982 plan as a benchmark for measuring retrogression. The 1982 plan was not only malapportioned but contained ten districts while the 1992 plan contains eleven. The ten seat 1982 plan by definition cannot serve as a reasonable benchmark by which to evaluate the court's eleven seat plan. The most appropriate benchmarks for determining retrogression are either the state's initial eleven seat plan containing two majority black districts, or the state's policy and goal of creating two majority black districts. Using either of these benchmarks, the court ordered plan would violate the retrogression standard of Section 5.

The court's plan does not comply with one person, one vote. Congressional. redistricting is held to even stricter standards than legislative redistricting. The total deviation among districts in the district court's plan is 0.35%. Plans with lower overall deviations were submitted to the court by the United States (0.19%) and by appellants (0.29 %). Other district courts have had no difficulty in drafting or approving plans with zero deviations.


ARIZONANS FOR OFFICIAL ENGLISH, et al., v. STATE OF ARIZONA, et al.

No. 95-974 (amicus in support of respondents)

SUMMARY OF ARGUMENT

Article 28 of the Arizona Constitution is unlike any other law ever challenged on First Amendment grounds in this Court. It is a sweeping injunction against speech in any language other than English, harming vital First Amendment interests of the public without any record evidence of a compelling, substantial or even rational justification.

On its face, Article 28 explicitly suppresses a vast body of pure speech. Its sweep affects virtually every transaction between non-English speakers and every branch of state and local government in Arizona. Its injunction against speech is indiscriminate and ex ante: it effectively precludes non-English speaking Arizonans, whatever their circumstances and needs, from communicating and interacting with their governments, including state and local legislators and their aides, even if the public employees and officials are willing and able to use non-English languages. It attempts to coerce compliance with a linguistic orthodoxy in a manner which actually undermines, rather than promotes, national unity. The extraordinary nature of this law -- whose proscriptions are so remarkably broad and sweeping as to defy the usual First Amendment categories of content and viewpoint neutrality -- warrants strict judicial scrutiny.

Petitioners contend that Article 28 should not be subject to any meaningful scrutiny, because it merely governs the State's speech in "internal operations" over which the government has virtually complete control. However, limiting this case to government control over us speech, internal or other-wise, ignores the most important participants in this First Amendment equation: the non-English speaking members of the public, joint stakeholders in the communications banned by Article 28, who will no longer be able to communicate and interact with the government on an almost limitless range of subjects. Article 28, therefore, strikes at the core of participatory democracy and undermines a fundamental value of the First Amendment -- the facilitation of self governance essential to a democratically organized society.

These burdens, moreover, are selectively and discriminatorily imposed, purposefully falling on a discrete and historically disadvantaged segment of the public -- comprised almost exclusively of ethnic minorities and immigrants -- who are thereby excluded from virtually all communications with government regardless of their importance to the individual.

This case, therefore, is not controlled by the Court's public employee or government speech cases. Pickering v. Board of Education, 391 U.S. 563 (1968), and its progeny have all concerned the protection afforded to speech initiated by a particular employee (such as a presentation to the board of education, a complaint to co-workers about working conditions, or writings or speeches to the public). In contrast, Article 28's ban interferes with interactive communications between citizens and their government, and thus directly infringes the First Amendment rights of the public as well as those of public employees or officials. Moreover, unlike Pickering, the State does not assert any employment-related justification for Article 28.

Nor does Article 28 embody the government's interest in communicating a particularized message or viewpoint such as the advisability of abortion (Rust v. Sullivan, 50 0 U.S. 173 (1991)) or the political nature of particular films (Meese v. Keene, 481 U.S. 465 (1987)). Rather, it bars an entire medium of speech irrespective of its substantive content or message.

Furthermore, even assuming the government may under certain circumstances restrict public employees from using non-English languages in the course of their duties, Article 28's indiscriminate reach is fatally overbroad. It bars non-English communications not only by Maria-Kelley Yniguez, but also by elected officials communicating with their constituencies, by judges performing marriage ceremonies, and by public teachers, academics, and librarians in and out of the classroom.

Accordingly, the Court's consideration of the constitutionality of Article 28 cannot be constrained by the mechanical application of public employee speech cases nor by the general proposition that the government has significant control over the content of its own speech. Rather, Article 28 must be examined in light of, and subject to searching scrutiny consistent with, the multiple First Amendment interests directly and substantially affected by its sweeping ban. Under this standard -- indeed, even under a less rigorous standard of review -- the asserted justifications for Article 28 are unpersuasive.

Although Petitioners assert that Article 28 will make the government more efficient, the State of Arizona has stipulated that its administrative efficiency and operational effectiveness is enhanced, not impeded, by its employees' ability to use non-English languages in the course of their duties. Indeed, independent of the State's stipulation, Article 28 undermines the asserted governmental interest in ensuring that its communications are "neither garbled nor distorted," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. , 115 S.Ct. 2510, 2518 (1995), precisely by requiring the State to communicate in a language incomprehensible to non-English speakers.

The general social goals Petitioners advance also fail to withstand scrutiny. Article 28 is not needed to protect English as the State's primary language: English is already spoken by 96% of Arizonans, and English acquisition remains a high priority among immigrants. Nor is Article 28 narrowly, or even reasonably, tailored to enhance English proficiency: it indiscriminately penalizes all non-English speakers by preventing them from interacting and communicating with government regardless of their circumstances or needs. Most importantly, Article 28 does not foster by "persuasion and example" the goal of national unity. See West Virginia State Board of Education v. Barnette, 319 U.S. 624, 640-42 (1943). Rather, Article 28 is an unconstitutionally coercive measure which categorically disenfranchises a discrete, disadvantaged and vulnerable segment of the population. Ultimately, its imposition of a rigid linguistic orthodoxy not only suppresses constitutionally protected communication in non-"official" languages, but it is divisive and counterproductive to social cohesion as well.


BLESSING v. FREESTONE

No. 95-1441 (amicus in support of respondent)

Blessing v. Freestone amicus brief

SUMMARY OF ARGUMENT

Although the word "federalism" does not appear in the Constitution, there is no doubt that it is crucial to the American constitutional system. Federalism refers to the division of powers between the national and the state governments. Under our constitutional system, each has its own sphere of authority and responsibility. Properly understood, therefore, federalism is as much about preserving the power and responsibility of the federal government as it is about preserving the power and responsibility of the states.

Petitioner emphasizes one aspect of federalism: safeguarding state governments from federal encroachments. The Tenth Amendment's limits on Congress and the Eleventh Amendment's restrictions on the federal judicial power reflect this constitutional concern. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. , 116 S.Ct. 1114 (1996); New York v. United States, 505 U.S. 144 (1992).

Petitioner, however, ignores the other aspect of federalism: protecting the interests of the national government. The single most important constitutional provision concerning federalism is found in Article VI: "The Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land." In short, federalism is also, in major part, about ensuring the supremacy of federal law. Sterling v. Constantin, 287 U.S. 378, 397 (1932); see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. , , 115 S.Ct. 1842, 1872 (1995)(Kennedy, J., concurring)(emphasizing that federalism is about protecting both state sovereignty and the interests of the national government).

There is no doubt that §1983 was meant to empower the federal courts to review state and local actions to ensure their compliance with federal law. During the debates preceding enactment of ?1983, one Congressman and Senator after another so declared. Cong. Globe, 42d Cong., 1st Sess. 321 (1871)(remarks of Rep. Stoughton); see also id. at 374-76 (remarks of Rep. Lowe); id. at 459 (remarks of Rep. Coburn); id. at 609 (remarks of Sen. Pool); id. at 687 (remarks of Sen. Surz); id. at 691 (remarks of Sen. Edmunds). Likewise, this Court has often recognized the critical importance of federal court review in assuring state compliance with the Constitution and laws of the United States. See, e.g., Mitchum v. Foster, 407 U.S. 225 (1972).

Contrary to petitioner's argument in this case, Ex Parte Young and Maine v. Thiboutot are not at war with federalism, they are essential to its preservation. It is through suits against state officers pursuant to Ex Parte Young that state compliance with federal law is achieved. As the Court noted in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 105 (1984)(Pennhurst II): "Our decisions repeatedly have emphasized that the Young doctrine rests on the need to promote the vindication of federal rights." Id. at 105. Or, as the Court explained in Green v. Mansour, 474 U.S. 64, 68 (1986): "[T]he availability of prospective relief of the sort awarded in Ex Parte Young gives life to the supremacy clause."

Likewise, it is through Maine v. Thiboutot that suits can be brought, pursuant to §1983, to ensure state and local compliance with federal statutes. Thus, after again reviewing the legislative history of §1983 in Maine v. Thiboutot, the Court concluded that "there can be no doubt that [§1983] was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights." 448 U.S. at 5, quoting Monell v. New York City Dep't of Social Services, 436 U.S. 658, 700-701 (1978).

Petitioner's brief is breathtaking in its willingness to disregard this Court's well-established jurisprudence and impose new restrictions on federal court jurisdiction. For all practical purposes, petitioner seeks to overrule Ex Parte Young by contending that the Eleventh Amendment bars all suits, including suits for injunctive and declaratory relief, where it is the state that is the real party in interest. Pet.Br. at 25. In Young itself, the State of Minnesota was the real party in interest: the injunction against Edward Young was to prevent the enforcement of a state statute. Indeed, in virtually every case, suits pursuant to Ex Parte Young are brought to enjoin enforcement of a state law or policy; ultimately, the state is the real party in interest in all these cases. In addition, petitioner expressly calls for this Court to overrule its decision in Maine v. Thiboutot, 448 U.S. 1. Pet.Br. at 30-48.

The radical changes urged by petitioner would dramatically upset the allocation of power between the national and state governments by allowing states to violate federal law with impunity. Instead of promoting federalism, the changes urged by petitioner would do exactly the opposite and would abandon the framers' plan for a national government supreme over the states.


CLINTON v. JONES

No. 95-1853 (amicus in support of respondent)

Clinton v. Jones amicus brief

SUMMARY OF ARGUMENT

Under Nixon v. Fitzgerald, 457 U.S. at 756, a President's entitlement to absolute immunity does not apply to actions taken beyond "the 'outer perimeter' of his official responsibility." The question presented here is whether a claim for damages that would otherwise be permissible under Fitzgerald should automatically, and in every case, be "deferred" until the expiration of the President's term in office.

We respectfully suggest that the answer to that question is no for two fundamental reasons. First, the notion of deferring any litigation activity involving the President for up to eight years in all damage cases is inconsistent with our nation's deeply held view that no person is above the law.

Second, the argument in favor of an automatic stay in all cases, regardless of circumstances, undervalues the very real prejudice that such a delay may create to aggrieved litigants. Among other things, memories fade and evidence becomes stale. The odds of prevailing on even nonfrivolous claims thus inevitably decline.

In some cases, that price may be inescapable. In others, it surely is not. Trial judges can and should be trusted to balance these competing interests with due deference to the special burdens faced by the President in fulfilling his duties. In particular, a trial court may fully utilize its authority over the pace and procedures of litigation to minimize the demands on the President. An automatic deferral of all litigation would, on the other hand, strip trial judges of their traditional case management responsibilities and effectively expand a President's absolute immunity from damages well beyond the carefully defined limits set forth in Fitzgerald.

The law disfavors immunities. Accordingly, the burden is upon the party seeking an immunity to establish its need. Neither the President nor his amici acknowledge this well established rule, nor do they seek to satisfy it except in the most general way -- by emphasizing the importance of allowing the President to conduct the nation's business without undue distraction. We agree with the importance of that interest, as did both courts below. The duties of the President of the United States, particularly with respect to foreign policy, are uniquely demanding. Presidents are called upon, often at all hours, to respond to national crises. But, as both courts below also held, it simply does not follow that no litigation can ever take place against a sitting President.

One of the major fears seems to be a threatened avalanche of frivolous lawsuits motivated by partisan political considerations. In our view, that fear is overstated. Nothing in the historical record supports it. Trial judges already have an arsenal of weapons at their disposal to deal with frivolous lawsuits if they occur. Finally, if not deterred by the prospect of sanctions, such lawsuits will be routinely dismissed with little or no demands on the President's time.

The difficult issue arises in nonfrivolous cases where the stakes are undeniably higher, both for the President and the opposing litigant. Even in this context, however, the demands on a President's time necessarily vary at different stages of the litigation, and from case to case. The absolute rule proposed by the President in this case does not take account of these differences. Instead, it effectively obliterates the line between official and unofficial conduct that this Court carefully established in Fitzgerald as the basis for a President's absolute immunity.

The President is not like any other litigant. But, like any other litigant, the President should still be required to justify a requested delay in the proceedings by showing that, given the particular phase of the case (e.g., motion to dismiss, deposition, interrogatory), the suit will significantly interfere with his ability to carry out the specific duties of his office then commanding his attention, and that his ability to carry out those duties cannot be preserved by a less drastic alternative than a potential eight-year stay. The decision below is consistent with that approach and should be affirmed.


EDWARDS, et al, v. BALISOK

No. 95-1352 (amicus in support of respondent)

SUMMARY OF ARGUMENT

In Heck v. Humphrey, 114 S. Ct. 2364 (1994), this Court held that a state prisoner cannot bring a damages action under 42 U.S.C. 1983 for constitutional violations leading to his conviction, if success in that action would necessarily imply the invalidity of his outstanding criminal conviction. The Court in Heck also reaffirmed its holding in Wolff v. McDonnell, 418 U.S. 539 (1974), that a prisoner may bring a damages action for use of unconstitutional prison disciplinary procedures in depriving him of good time credits, if the unconstitutionality of those procedures does not necessarily vitiate the denial of good time, and the action therefore does not call into question the lawfulness of the prisoner's continuing confinement.

The courts of appeals have uniformly followed Heck and held that a prisoner may not bring a section 1983 damages action for wrongful disciplinary procedures if success in that action would necessarily result in restoration of the prisoner's good time. Conversely, if the claim is simply for using the wrong procedures, and does not necessarily implicate the loss of good time, the action may proceed under Section 1983. This was the rule applied by the court of appeals below.

Petitioners propose a radically new rule that would require this Court to abandon both Heck and Wolff. Petitioners' proposed rule is unintelligible and would defy easy or consistent application in the lower courts. It is unsupported by either the language or the legislative history of Section 1983 or 28 U.S.C. Section 2254. Petitioners' arguments in support of their proposed rule are policy arguments about the optimal scope of section 1983, and are properly addressed to Congress rather than this Court.

The Court should decline petitioners' invitation to abandon Heck and Wolff. It should hold, consistent with those cases, that a state prisoner may bring an action under § 1983 for a deprivation of procedural due process in a prison disciplinary proceeding, as long as success in that action would not necessarily result in restoration of good time credits taken in that proceeding. It should then affirm the judgment of the court of appeals, because respondent's success in his § 1983 action would not necessarily result in restoration of his good time.

A fortiori, a former state prisoner who has completed his sentence, like amicus Gotcher, may directly seek damages under § 1983 for wrongful deprivation of good time credits, since the restoration of good time cannot possibly result from the § 1983 action. Because such a person is not in custody, and therefore cannot invoke federal habeas corpus jurisdiction to seek restoration of his credits, damages under § 1983 are the only federal remedy for the violation of his federal constitutional rights. Absent the possibility of proceeding under the more specific habeas corpus statute, the plain language of § 1983 grants the former prisoner a cause of action for damages for wrongful deprivation of good time credits.

Finally, Heck left undisturbed Wolff's holding that a state prisoner may seek prospective injunctive relief from unconstitutional prison disciplinary procedures. A claim for such relief does not call into question the lawfulness of the plaintiff's continuing confinement.


STATE OF IDAHO, et al, v. COEUR d'ALENE TRIBE, et al.

No. 94-1474 (amicus in support of respondents)

Idaho v. Coeur d'Alene Tribe Brief

SUMMARY OF ARGUMENT

The Tribe's claims against Idaho state officials for declaratory and injunctive relief fall squarely within the exception to the Eleventh Amendment articulated by the Court in Ex Parte Young.

Under the Young doctrine, the Eleventh Amendment does not bar a federal court from adjudicating a claim for prospective declaratory and injunctive relief against state officials who allegedly act contrary to federal law. Here, the Tribe claims that Idaho state officials, by regulating and administering the land in question, are violating federal law.

They are intruding on property rights conferred on the Tribe by a federal statute. The relief sought by the Tribe is prospective, as opposed to retrospective, in nature. It seeks to prevent further violations of its property rights. It does not seek damages or restitution for past wrongs, nor does it seek to rescind a past transfer of property.

Idaho state officials argue that the Young doctrine does not apply to this action, or to any action involving real property. More specifically, they contend that real property actions against state officials should be barred by the Eleventh Amendment because such suits actually seek to adjudicate the state's interest in or right to properly and cannot resolve title disputes. They further contend that they are entitled to Eleventh Amendment immunity in this action because Idaho has a greater right to the disputed property than the Tribe and the Tribe can bring suit against Idaho to quiet title in state court.

Idaho state officials' arguments should be rejected. First, the Young doctrine has been used repeatedly to enforce real and personal properly rights where, as here, the right to possess the property is founded in federal law or the deprivation of the property raises federal constitutional or statutory concerns. See, e.g., Meigs v. M'Clung's Lessee,13 U.S. (9 Cranch.) 11 (1815); United States v. Lee, 106 U.S. 196 (1882); Poindexter v. Greenhow, 114 U.S. 270 (1884); Pennoyer v. McConnaughy,140 U.S.1 (1891); Tindal v. Wesley, 167 U.S. 137 (1897); Goltra v. Weeks, 271 U.S. 536 (1926); Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670.

Creation of a real property exception to the Young doctrine would not only require the Court to overrule 200 years of jurisprudence, but would also seriously jeopardize the federal constitutional right to enjoy, own and dispose of property without undue governmental interference. Those deprived of such a right would not be able to bring suit in federal court to seek vindication.

Second, as this Court has repeatedly recognized, all actions using the Young doctrine are actions seeking to adjudicate a state's interests or rights. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89,101-02 (1984); Kentucky v. Graham, 473 U.S.159,166 (1985). Real property actions are no different.

Third, the fact that such suits cannot resolve title disputes is largely irrelevant. Here, as against the state officials, plaintiffs only seek cessation of those of Idaho's regulatory powers that are harmful to the Tribe. Should a court find in favor of plaintiffs and Idaho subsequently wishes to assert its ownership of the property, it may pursue its own remedies. Lee,106 U.S. at 222; Tindal,167 U.S. at 223.

Fourth, the fact that the state officials may ultimately prevail on the merits is also irrelevant. A determination of the merits in order to determine Eleventh Amendment immunity is patently improper. Treasure Salvors, Inc., 458 U.S. at 699-700 (Stevens, J.); id. at 703 (White, J.).

Finally, the availability of a state forum does not deprive a federal court of jurisdiction. Monroe v. Pape, 365 U.S.167 (1961); Zwickler v. Koota, 389 U.S. 241 (1967). To hold otherwise would mean that federal courts would no longer be the paramount protectors of federal rights. Each individual state legislature could prevent federal courts from adjudicating such rights by enacting some sort of remedial scheme.

Thus, because the Eleventh Amendment does not bar the Tribe's claims against the Idaho state officials, the decision of the Ninth Circuit must be affirmed.


STATE OF KANSAS v. HENDRICKS

No. 95-1649 (amicus in support of respondent)

SUMMARY OF ARGUMENT

Initially, the Petitions in this case raised potentially broad and fundamental issues concerning the scope of a state's constitutional authority to commit an individual involuntarily to a psychiatric hospital. In its opening Brief, the State of Kansas has substantially narrowed the issues presented to this Court.

There no longer appears to be any dispute about two fundamental issues. First, the State concedes that the Act is a civil, not criminal, statute and that substantive due process in three specific ways: The individual committed must be mentally ill; he must be dangerous; and finally, he must receive treatment. Each of the State's concessions are compelled by this Court's prior decisions. Second, the State concedes its interest in protecting society could have been met within its existing laws.

The State could have sentenced Respondent Leroy Hendricks to a total of 45 to 180 years under sentencing laws in existence at the time he was sentenced. Furthermore, the State could have sought commitment of Mr. Hendricks to a mental health facility for treatment under applicable laws while he was serving his prison sentence. If found to be mentally ill, Mr. Hendricks could have received treatment. The State took neither of these actions.

The remaining disputed issues, while less sweeping and fundamental, are nevertheless important ones. First, the State expends considerable effort to suggest the applicability of a rational relationship test rather than a strict scrutiny test, claiming that involuntary civil commitment does not implicate a fundamental liberty interest. To the contrary, this Court has long recognized that indefinite, involuntary civil commitment in a psychiatric hospital implicates the most basic and essential fundamental liberty interest. Under substantive due process analysis, this Court has required that involuntary civil commitment statutes be carefully limited and narrowly tailored to preclude commitment of those individuals to whom the states' legitimate and compelling purposes of commitment are inapplicable. Involuntary civil commitment is designed to treat these individuals who are mentally ill and protect society from those who are dangerous. Thus, in prior substantive due process cases involving involuntary civil commitment, the Court has applied a heightened due process scrutiny standard of review to measure the purposes of commitment.

Second, the State of Kansas in its Brief proposes to replace the Act's constitutionally defective definition with a new definition of "mental abnormality." The State's proposed definition, however, also suffers from a number of significant defects. In rewriting the statute so that it only reaches individuals with psychiatric diagnoses, the State ignores the language of the statute, its legislative history and the authoritative interpretation of the Act by the State's highest court. The State's newly proposed definition cannot satisfy the constitutional mental illness requirement that would permit commitment. Finally, the real purpose in adopting this Act was to extend incarceration for sex offenders who already have been sentenced, and not to provide bona, fide treatment for persons who are mentally ill. The structure of the statute and its legislative history demonstrate that treatment is simply a pretext for what really is continuing punishment for sex offenders beyond the time they lawfully may be confined.


LOPEZ, et al., v. MONTEREY COUNTY, CALIFORNIA et al.

No. 95-1201 (amicus in support of appellants)

SUMMARY OF ARGUMENT

This case involves the appeal of a three judge district court's order that is totally at odds with Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. Section 5 requires that, with respect to covered jurisdictions, the Attorney General or the United States District Court for the District of Columbia preclear any changes affecting voting prior to their implementation. Id. Amici curiae fully agree with appellants that the three judge district court (the "district court") radically subverted Section 5's mandate when it dissolved an injunction that had prohibited Monterey County, a covered jurisdiction, from implementing an unprecleared, at-large voting plan for the election of municipal judges in the County. See Clark v. Roemer, 500 U.S. 64b, 652-54 (1991) (requiring that courts enjoin the implementation of covered, unprecleared voting changes absent "extreme" circumstances). The district court's error was compounded by the fact that, prior to its order, Monterey County had sought to obtain preclearance for the plan from the District Court of the District of Columbia but abandoned that effort, stipulating that it was "unable to establish that [the at-large plan]. . . did not have the effect of denying the right to vote to Latinos in Monterey County due to [its] retrogressive effect. . . ." (J.A.126) The district court thus sanctioned the use not only of an unprecleared election plan but one for which Monterey County had stipulated it could not obtain preclearance.

We understand that appellants will fully address the district court's error in dissolving its injunction against Monterey County's implementation of the unprecleared plan and its violation of the standards set forth in Clark v. Roemer, supra. This brief of amici curiae focuses on another egregious error: the district court's unwarranted refusal to extend an interim plan, already in place, that includes two majority-Latino districts and remedies the County's violation of the Voting Rights Act.

The district court failed to meet its remedial obligation because of its fundamental misreading of this Court's decision in Miller v. Johnson,115 S. Ct. 2475 (1995). The district court read Miller to constrain a court's authority to remedy a Section 5 violation by implementing any plan that includes majority-minority districts, if race was a "significant factor" in the plan. As a result, the district court departed from well-settled federal law requiring that court-ordered plans be district-based and abdicated its obligation to devise an interim plan that would not cause the retrogression of Latino voting strength. Instead, the district court sanctioned the implementation of the unprecleared at-large plan that the County acknowledged it could not show to be non-retrogressive. (Motion to Dismiss or Affirm of Intervenor Stephen A. Sillman ("Sillman Motion") App. 4a; see J.A. I26)

Nothing in Miller justifies this perverse result. Race, of course, will be a "significant factor" in any plan designed to remedy a violation of Section 5 and to assure adequate protection of a minority group's voting rights. Miller held only that a districting plan based "predominantly" on race was subject to strictly, and even then, that it would be lawful if narrowly tailored to meet a compelling state interest. Moreover, under Miller, race will not be deemed the predominant purpose behind a plan absent proof at the plan disregards traditional redistricting principles. In refusing to extend the interim plan, the district court did not attempt to make findings on any of these matters. Indeed, even its conclusion that race was a "significant factor" in the design of the plan was reached without holding any evidentiary hearing.

These circumstances require reversal of the district court and make it imperative that this Court clarify that Miller is not an obstacle to a lower court's obligation, where it has found a violation of the Voting Rights Act, to implement a properly drawn, district-based remedial plan that protects minority voting rights.

Finally, the district court erroneously believed that a federal court was forbidden from fashioning an appropriate district-based remedial plan if it involved any departure from state law. This Court should re-affirm its decision in Conner v. Finch, 431 U.S. 407 (1977), that, while a court should be aware of and attempt to comply with-state law and policies to the extent possible in crafting a remedial plan, state law cannot be an absolute barrier to the effective enforcement of the Voting Rights Act.


McKENNA, et al, v. TWIN CITIES AREA NEW PARTY

No. 95-1608 (amicus in support of respondent)

INTRODUCTORY STATEMENT AND SUMMARY OF ARGUMENT

The body of the Constitution sets forth a sophisticated blueprint for complex democratic governance. The text is, however, virtually silent about how to elect the government. The critical task of defining, and preserving, the right to participate in democratic politics has fallen to the amendment process, and to this Court.

No fewer than twelve constitutional amendments describe the constitutional prerequisites for a vigorous, self governing republic of political equals. The structure of the First Amendment mirrors the life cycle of a democratic idea, uniting for the first time in a single document the substantive preconditions for a democratic polity -- freedom of thought, freedom of speech and press, freedom of assembly and association, and freedom to petition for redress of grievances. The Fourteenth Amendment assures membership in the democratic polity, guaranteeing state citizenship and equal protection of the laws to all "persons." Indeed, of the seventeen amendments since the adoption of the Bill of Rights, eleven have dealt with democratic governance. If one excludes the two Prohibition amendments, since 1791 the only amendments that have not dealt with implementing democratic ideals have been the Eleventh (reinstating state sovereign immunity); the Thirteenth (abolishing slavery); the Sixteenth (authorizing the income tax); and the Twenty-seventh (regulating congressional compensation). Moreover, the arc of the twelve "democracy" amendments could not be clearer -- a steady expansion of constitutional protection of the right to vote, the right to run for office, and the right to associate freely for the advancement of political ideals.

A similar dynamic underlies the democracy decisions of this Court. After an uncertain beginning caused, in part by the lack of an explicit provision protecting democracy in the text of the original Constitution itself, the Court has recognized that an amalgam of constitutional amendments, anchored in the First and Fourteenth, provide powerful support for five formidable lines of precedent that converge in this case to hold Minnesota's absolute ban on fusion candidacies unconstitutional.

First, the Court has provided effective protection for the right to vote. Beginning with decisions defending the right to vote against both overt and sophisticated racial discrimination, the Court has carefully mapped the substantive contours of the right to cast an equal, and effective, ballot. Most recently, in Burdick v. Takushi, 505 U.S. 428 (1992), the Court rejected attempts to analogize voting to a pure act of self-expression. Instead, the Court insisted on treating voting as a genuine exercise of power, enabling an individual to register a binding preference for a candidate, and to instruct the successful candidate about how to carry out the governmental function. Minnesota's absolute refusal to permit fusion candidacies impinges directly on the Burdick Court's insistence that voting be equated with a genuine exercise of political power.

Second, recognizing that organized political parties are integral to the exercise of political power, the Court has both protected the right to form new political parties, and has required that a political party wishing to participate formally in the electoral process demonstrate a minimum modicum of popular support. Under the Court's precedents, just as the Burdick Court equated the act of voting with an exercise of power, a political party seeking formal access to the ballot must do more than merely express an idea; it must demonstrate a minimal capacity to perform as the vehicle for the exercise of political power. Minnesota's absolute refusal to permit fusion candidacies severely restricts the ability of new political parties to develop such a power base, relegating third parties to marginal vehicles for the expression of protest.

Third, recognizing that formal political parties are vessels of power, the Court has sought to protect the integrity and internal stability of political parties from internal implosion and external subversion. Minnesota's absolute ban on fusion candidacies goes far beyond the protective devices approved by this Court, since it applies even when both parties, and the candidate, wish to mount a fusion candidacy.

Fourth, the Court has understood that a political party, as an organization dedicated to affecting the allocation of political power, must enjoy substantial autonomy to carry out a strategic agenda for action. Minnesota's absolute ban on fusion candidacies places obvious roadblocks to the strategic autonomy of both major and minor parties. Major parties cannot accept the ballot support of defined aspects of the electorate needed to enhance the potential for victory. Third parties cannot forge formal electoral alliances designed to open the road to power.

Fifth, when the legislature has imposed rules that act to insulate the major political parties from effective political competition, this Court has attempted to protect the market in political power from unfair restraints on free political trade. Minnesota's absolute ban on fusion candidacies is a classic technique to prevent third parties from evolving into genuine competitors for power.

Thus, viewed from the perspective of a voter wishing to support a fusion candidate; a major party wishing to expand its electoral base; a minor party wishing to forge an electoral alliance; or a candidate wishing to embrace an additional constituency, an absolute ban on fusion candidacies cannot withstand constitutional scrutiny.


M.L.B. v. S.L.J., et al

No. 95-853 (direct in support of petitioner)

M.L.B. v. S.L.J., et al Brief

SUMMARY OF ARGUMENT

One of the most fundamental rights that can be adjudicated in a court of law is the right inherent in a parent's relationship with his or her child. With a level of care that is appropriate given the stakes involved, Mississippi law provides not for an unreviewable decision by a single judge in parental termination cases, but for a two-tiered process of judicial decision-making. The initial decision is made by a single Chancery Court Judge, elected by the voters and sitting without a jury, but there is a right of appeal for those parents who are aggrieved by that decision and who wish it reviewed by an appellate court. Just as Mississippi could not, consistent with the Fourteenth Amendment, limit that appeal to those whose financial income exceeds some specific amount, it cannot limit it to those who can pay over $2,000 in advance, while denying it to those who cannot.

Unfortunately, the Mississippi Supreme Court has done that in this case. Whatever the constitutional propriety of that sort of practice in other types of civil cases, its imposition in this case -- involving the termination of the fundamental rights encompassed by the relationship between a parent and her child -- is clearly unconstitutional.

A significant line of precedent from this Court has applied the Fourteenth Amendment to protect the rights of citizens, no matter their financial condition, to pursue fundamental legal interests through existing avenues in state judicial systems. This initially was developed in the context of criminal appeals, beginning with Griffin v. Illinois, 351 U.S. 12 (1956), which held that a citizen could not be precluded from an appeal available to others simply because he or she could not afford to pay for a transcript of the trial. This line of precedent has since included not only felony cases such as Griffin, but also misdemeanor appeals such as that in Mayer v. City of Chicago, 404 U.S.193 (1971), which held that a transcript must be provided for an indigent defendant appealing a conviction punished by a $500 fine with no jail time. The rationale of these precedents also has been applied by this Court in a civil case, Boddie v. Connecticut, 401 U.S. 371 (1971), where fundamental rights were at issue, and has played a part in this Court's resolution of a civil appeal involving the interests of impoverished appellants. Lindsey v. Normet, 405 U.S. 56 (1972). In a separate line of precedent, this Court has held that fundamental rights are implicated when a parent's relationship with his or her children is threatened through a state court parental termination proceeding. Lassiter v. Department of Social Services, 452 U.S.18, 24 (1981); Santosky v. Kramer, 455 U.S. 745, 753 (1982).

The existing avenues in Mississippi's judicial system include the right of appeal in parental termination cases, but a transcript is required if a parent wishes -- as does the petitioner -- to challenge the termination on evidentiary grounds. If the petitioner could afford the appeal, including the transcript, it certainly would be a meaningful appeal. The Mississippi Supreme Court carefully reviews the findings in termination cases and has reversed a fairly high percentage of the termination decisions it has reviewed in reported cases.

The present case is a perfect example of the importance of this sort of review in Mississippi. The complaint did not allege any sort of abuse or criminal conduct by the petitioner and the evidence was subject to serious dispute. Yet the Chancery Judge's written opinion did not discuss or cite any of the evidence and did not give any reasons, other than reciting the statutory language, for the termination. Just as the appeal of right in Mississippi represents the best and last hope for wealthier parents whose parental rights have been terminated, the appeal would be the best and last hope for people like the petitioner, if only they had access to it.

Given the fundamental nature of parental rights, and given that Mississippi law authorizes an appeal from decisions of a Chancery Court judge in termination cases, it violates both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment to open this appeal only to those who have sufficient wealth to pay the amounts that were charged here, while closing it to those who do not.

By requiring over $2000 in advance for the appeal in this case and by refusing to consider the petitioner's contention that she cannot pay it, the Mississippi Supreme Court has acted in disregard of these principles.

While the interest of a parent in the relationship with his or her child is one of the most important that can be adjudicated in a court of law -- certainly more important than the interest involved in the misdemeanor cases in which this Court has required that poor people be granted access to existing appeals and given trial transcripts where necessary -the State's pecuniary interest in saving money by not permitting these appeals is negligible. The number of parental termination appeals in Mississippi is rather small, particularly when compared to the large number of in forma pauperis felony and misdemeanor appeals in the State. There will be little financial burden on the State if those who cannot now afford it are allowed to appeal parental terminations along with those who can. Moreover, a ruling in the petitioners favor by this Court will not open the floodgates to demands on state treasuries from impecunious appellants in other types of civil cases. There are few interests arising in civil litigation more important than the interest implicated in parental termination cases, and the petitioner can prevail here based on the importance of that interest without the need for any broad holding that in forma pauperis appeals are constitutionally required in all civil cases.

Thus, the Mississippi Supreme Court's decision is not supported by an interest sufficient to ,justify the refusal to consider in forma pauperis appeals in parental termination cases such as this one.


STATE OF OHIO v. ROBINETTE

No. 95-891 (amicus in support of respondent)

State of Ohio v. Robinette Brief

SUMMARY OF ARGUMENT

This Court's cases recognize that "[s]treet encounters between citizens and police officers are incredibly rich in diversity." Terry v. Ohio, 392 U.S. 1,13 (1968). Ignoring that diversity, the petitioner argues that this case should be treated no differently than an encounter between the police and a citizen walking down the street. Such an encounter is deemed to be an "arm's length" meeting. Absent some restraining action by the officer, the law presumes that the citizen is free to answer the officer's questions or walk away, and that the average person is aware of these options and thus has not been seized under the Fourth Amendment.

The court below correctly recognized that this constitutional paradigm is inapposite when the police stop a motorist on the highway. Under these circumstances, a seizure has unquestionably occurred. Moreover, once a seizure has occurred (as in respondent's case), the encounter between the police and citizen is no longer a balanced meeting. The nature of the confrontation not only may cause "substantial anxiety" for the motorist, Delaware v Prouse, 440 U.S. 648, 657 (1979), the officer's conduct and discretion also dictate the pace and resolution of the encounter. Unlike the pedestrian free to ignore an approaching officer, a motorist seized by the police is not positioned to know the lawful limits of the officer's authority, nor the existence of his own right to leave or terminate the seizure. Accordingly, the totality test of the consensual encounter cases is unsuited for judging the legality of an officer's continued questioning of a motorist subject to police seizure.

This Court's cases also reveal that bright-line rules are appropriate to delineate the constitutional boundaries of traffic stops. Many of the Court's affirmative rules in motorist seizure cases expand the power of the police to advance officer safety or to provide guidance to the officer in the field.

On the other hand, bright-line rules that restrict police authority are proper when there is the potential for the abuse of police discretion. The court below correctly announced a clear rule to check the substantial discretion afforded officers who execute traffic detentions.

The ruling below upholds a fundamental principle of this Court's investigative detention cases. The investigative practices used by officers during traffic stops must be strictly tied to the reasons which justify the detention. Once the purpose for the traffic stop has been satisfied, questioning a motorist. about matters unrelated to the stop, absent just cause, is unreasonable. Finally, the decision below will protect the liberty, privacy and security interests of thousands of innocent motorists who otherwise would be delayed in their travel plans and asked to surrender the privacy of their automobiles and luggage without good cause.


RENO, et al, v. BOSSIER PARISH SCHOOL BOARD

Nos. 95-1455 & 95-1508 (amicus in support of appellants)

SUMMARY OF ARGUMENT

The appeal of this declaratory judgment action under Section 5 of the Voting Rights Act presents two separate issues: (1) whether the district court erred in holding that the Bossier Parish School Board carried its burden of proving a lack of discriminatory purpose in enacting its redistricting plan, and (2) whether a violation of Section 2 of the Voting Rights Act provides an independent basis for denying preclearance under Section 5. Amici agree that, in this case, it is unnecessary for the Court to reach the second issue, because the district court majority clearly erred in applying the purpose prong of Section 5, and its decision must be reversed on that basis. In the event, however, that the Court reaches the second issue, this amici brief is submitted to describe the context and legislative history of amended Section 2 which clearly demonstrate Congress' intent to assure that a voting change violating Section 2 of the Act would not be required to receive preclearance under Section 5 of the Act. To avoid repetition of the arguments in the principal briefs, the amici brief is limited to this latter issue, as to which amici have a special interest based on their involvement as counsel in past Section 5 cases that have addressed this issue. See Georgia v. Reno, 881 F Supp. 7 (D.D.C. 1995) (three-judge court); Texas v. United States, 1995 WL 769160 (D.D.C.1995) (three-judge court).

The legislative history of the 1982 amendments and extension of the Voting Rights Act show that Congress intended for the results standard of Section 2 to apply to Section 5 preclearance. Congress was well aware of the limitations of the retrogression standard of Beer v. United States, 425 U.S. 130 (1976), when it extended and amended the Act in 1982. The Senate Report that accompanied the amendments provides that "[i]n light of the amendment to section 2, it is intended that a section 5 objection also follow if a new voting procedure so discriminates as to violate section 2." S. Rep. No. 417, 97th Cong., 2d Sess. 12 n.31 (1982).

The principal cosponsors of the 1982 amendments, Senator Kennedy and Representative Sensenbrenner, reiterated on the floors of the Senate and House during the legislative debates that "where there is a section 5 submission which is not retrogressive, it would be objected to only if the new practice itself violated the Constitution or amended section 2." 128 Cong. Rec. 57095 (daily ed. June 16,1982) (remarks of Sen. Kennedy);128 Cong. Rec. H3841 (daily ed. June 23, 1982) (remarks of Rep. Sensenbrenner). Representative Edwards, a sponsor of the final bill and chair of the House subcommittee with jurisdiction over the extension of the Act, concurred with Representative Sensenbrenner's interpretation of the bill. 128 Cong. Rec. H3840-41.

Congress also acted with knowledge of the Attorney General's then established practice of denying preclearance to changes which violated other provisions of the Act. When Congress reenacts a statute and voices its approval of an administrative or other interpretation of the statute, as it did in the Senate Report, Congress is treated as having adopted that interpretation, and the courts are bound by it.

The Senate Report is entitled to greater weight than any other of the legislative history This Court has described the Senate Report as being "the authoritative source" for construction of the 1982 amendments to the Act. Thornburg v. Gingles, 478 IF.S. 30, 43 n.7 (1986). It has been the established practice of the Court, moreover, to examine the applicable committee reports to determine congressional intent and the meaning of specific provisions of the Voting Rights Act, particularly Section 5, where the statute itself was silent or ambiguous.

While Congress did not amend Section 5, it did amend the Voting Rights Acts and provided that amended Section 2 was to apply to preclearance. It is common for Congress to add a provision to an act and apply it to a second provision of the same act without changing the language of the second provision.

Some voting changes are not amenable to analysis under a retrogression standard. A change from appointed to elected county commissioners, for example, would be covered by Section 5, but it might be difficult to determine the effect of such a change based upon a retrogression analysis. In other cases, there may be no practice or procedure at all that can be used as a benchmark for determining retrogression, e.g., where a newly incorporated college district or municipality selects for the first time a method of conducting elections. Under the circumstances, a voting plan which fairly reflects the strength of the minority community as it exists would furnish the logical and appropriate basis for comparison.

The application of Section 2 to preclearance would not cause a major or disruptive change in the administration of Section 5. The Attorney General has administered the statute in such a manner in the past. The purpose or effect standards would continue to apply and dispose of the vast majority of submitted voting changes. It would make very little sense from the standpoint of public policy and conserving judicial resources to allow violations of one section of the Voting Rights Act (Section 2) to be approved by another (Section 5). Such a result would undercut the enforcement mechanisms and the overall purpose of the Act. The evidence shows that Congress intended to correct the anomalies of Beer by applying Section 2 to Section 5 preclearance.


ROBINSON v. SHELL OIL COMPANY

No. 95-1376 (amicus in support of petitioner)

SUMMARY OF ARGUMENT

The language of Title VII requires an interpretation that covers retaliation against former employees. Section 704(a) requires only that an employment relationship be linked to the retaliatory conduct. The necessary link need not be that of current employment. Section 701(f) does not exclude former employees, although it does contain express exclusions as to certain groups.

The denial of benefits earned during covered employment, but taking effect after the end of such employment, violates the statute, as this Court held in Hishon v. King & Spalding, 467 U.S. 69 (1984).

The policy of Title VII precludes an interpretation that will render its anti-retaliation provisions meaningless. The Fourth Circuit's decision leaves the discriminating employer free to retaliate against any employee who has left its employment for nondiscriminatory reasons, whether voluntary or involuntary. The lack of protection against retaliation will cause current employees not to seek the protections of Title VII, and will cause them to refuse to provide truthful testimony in support of a Title VII claim, since doing so could result in, among other things, loss of post-employment benefits and the inability to obtain a decent job in the future. Leaving former employees without recourse against retaliation would profoundly frustrate the goals of Title VII.


SCHENCK, et al., v. PRO-CHOICE NETWORK OF WESTERN NEW YORK, et al

No. 95-1065 (amicus in support of respondents)

Schenck v. Pro-Choice Network Brief

SUMMARY OF ARGUMENT

There is no dispute in this case about the governing legal standard, which was announced by this Court only two years ago in Madsen, 114 S.Ct. 2516. It is also undisputed that the Second Circuit applied the Madsen standard when it concluded that the challenged provisions of the preliminary injunction "burden no more speech than necessary to serve a significant government interest," id. at 2525.

Petitioners purport to be applying the Madsen standard, as well, in challenging the preliminary injunction. Ultimately, however, their argument rests on the untenable proposition that any injunction in this case that goes beyond a ban on trespass and harassment automatically burdens "more speech than necessary." That argument is flawed for at least three reasons.

First, it is inconsistent with Madsen itself, where this Court upheld an injunction that contained anti-trespass and anti-harassment provisions along with a 36-foot buffer zone. Second, it ignores extensive findings by the district court of physical obstruction, intimidation, harassment, crowding, grabbing, and screaming; of a continuation of these problems even after entry of the more limited temporary restraining order; and of the inability of the police to assure access to the clinics without some back-off provisions and a prophylactic buffer zone. Third, it mischaracterizes the significant state interest in this case, which is not merely about protecting the property rights of clinic owners but, even more significantly, about ensuring safe and unimpeded access to reproductive health services that have a constitutional status of their own.

To be sure, the Madsen standard is a serious one and ought to be seriously applied. Any injunction that distances protestors from the object of their protest raises profound constitutional issues under the First Amendment for all the reasons that this Court articulated in Madsen. Indeed, the amici organizations that have joined in this brief are most often on the side of those challenging such restrictions. But it has never been the law that the First Amendment guarantees the right to protest in any manner one chooses, or to use the occasion of a protest to physically harass, intimidate or obstruct one's ideological opponents. To the contrary, this Court has repeatedly held that the First Amendment does not immunize unlawful conduct merely because the persons engaging in that conduct have an ideological motivation. Wisconsin v. Mitchell, 506 U.S., 113 S. Ct. 2194 (1993).

As petitioners correctly point out, even content-neutral injunctions against speech are disfavored. Petitioners also correctly note that any injunction impinging on speech, even indirectly, must be narrowly drawn and tailored to the particular circumstances. However, contrary to petitioners' argument, those principles cannot resolve this controversy unless they are grounded in the facts. Assessed in light of the facts, the preliminary injunction in this case burdens no more speech than necessary to achieve significant government interests.

It is important to remember that before this case began, plaintiffs were victimized by a series of mass blockades that severely disrupted reproductive health services in the area, and that even petitioners concede were clearly illegal. During the 18 months that the TRO was in place, clinic driveways and entrances continued to be blocked, and clinic patients and staff continued to be surrounded, followed, harassed, and obstructed.

Under these circumstances, the 15-foot buffer zone created by the preliminary injunction was a measured and incremental response to an ongoing problem that threatened the health, welfare and safety of patients, staff and demonstrators. Like the buffer zone in Madsen, it was directed at the conduct of the protestors, not their message. Unlike Madsen, it left the protestors on the same side of the street as the clinics they were picketing. Thus, even more than in Madsen, the protestors' chants could still easily be heard and their signs could still easily be read.

Petitioners' challenge to the cease and desist provision is similarly misguided. Amici fully acknowledge and have frequently advocated the importance of face-to-face communication. But the right to engage someone on the street in a political dialogue does not include the right to crowd, surround, badger, and obstruct, which is how the distinct court described the behavior of the defendants in this case.


VACCO v. QUILL and WASHINGTON v. GLUCKSBERG

Nos. 95-1858 and 96-110 (amicus in support of respondents)

Vacco v. Quill amicus brief

SUMMARY OF ARGUMENT

At issue in this case is no more and no less than (1) whether a mentally competent, terminally ill person has a liberty interest protected by the Fourteenth Amendment in choosing to end intolerable suffering by hastening the timing of an inevitable death, (2) whether a state's interests can justify a blanket prohibition on physicians providing assistance in the exercise of such a liberty interest, if it so exists, and (3) whether a state can justifiably grant certain persons the opportunity to make the choice to hasten death while denying to other, similarly situated persons the same opportunity.

The right of a competent, terminally ill person to avoid excruciating pain and embrace a timely and dignified death bears the sanction of history and is implicit in the concept of ordered liberty. The exercise of this right is as central to personal autonomy and bodily integrity as rights safeguarded by this Court's decisions relating to marriage, family relationships, procreation, contraception, child rearing and the refusal or termination of life-saving medical treatment. In particular, this Court's recent decisions concerning the right to refuse medical treatment and the right to abortion instruct that a mentally competent, terminally ill person has a protected liberty interest in choosing to end intolerable suffering by bringing about his or her own death.

A state's categorical ban on physician assistance to suicide -- as applied to competent, terminally ill patients who wish to avoid unendurable pain and hasten inevitable death -- substantially interferes with this protected liberty interest and cannot be sustained. Though a state has significant interests in ensuring that the right at issue here is not abused or misused, an absolute ban on physician assistance unduly burdens the proper exercise of the right of the terminally ill to seek freedom from pain through death, especially given the many less restrictive alternatives which are available to a state and that would in fact greater serve its claimed interests.

Indeed, states typically and successfully employ less restrictive alternatives than blanket prohibitions for terminally ill patients depending on life-sustaining treatment who wish to hasten death. States have recognized the right of this class of terminally ill patients to escape pain and hasten death through the termination or refusal of such life support and accompanying administrations of large and lethal doses of pain-suppressing medication. Accordingly, a state denies equal protection of its laws when it provides that one class of persons may exercise this right while others who are similarly situated for all relevant purposes are wholly denied the opportunity to exercise the same right for the same reason.


UNITED STATES OF AMERICA v. LANIER

No. 95-1717 (amicus in support of petitioner)

United States v. Lanier amicus brief

SUMMARY OF ARGUMENT

The majority below erred in holding that deprivations of the constitutional right to bodily integrity can never be prosecuted under 18 U.S.C. 242. Moreover, its interpretation of the legislative history of 242 was inconsistent with this Court's decision in Screws. The language of 242 on its face reaches all willful deprivations of constitutional rights if accomplished under color of law. As construed in Screws, this means any right "made definite by decision or other rule of law," 325 U.S. at 103. By 1989, the right to be free of coerced sexual assaults by government officers had been made definite through a series of Supreme Court and appellate decisions establishing the contours of sexual privacy and bodily integrity under the Fourteenth Amendment.

The substantive liberty protected by the Due Process Clause of the Fourteenth Amendment has long been understood to encompass bodily integrity and autonomous decision-making in the private sphere of family life. Central to the substantive due process concept has been the zone of intimate decision-making that encompasses choices about reproduction and sexuality. Accordingly, where the assault is sexual, and particularly where sexual favors are demanded by officers sufficiently powerful to coerce those under their control into submission, the right to bodily integrity is violated.

Here, as elsewhere, it is necessary to draw a line between the trivial and the nontrivial. As Judge Friendly said many years ago and, as this Court has repeated many times since, "[n]ot every push or shove" violates the Constitution. Johnson v. Glick, 481 F.2d 1028,1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973). However, the necessity of line drawing is not unique to this context -- juries are often asked to decide whether force is excessive or unreasonable -- and does not, by itself, render a statute unconstitutionally vague.

Once a defendant's conduct has been shown to be serious and substantial, however, the right to be free of sexual acts coerced by government officers should not depend upon whether the officer's conduct "shocks the conscience." Under these circumstances, sexual privacy and bodily integrity are necessarily invaded when a government official makes acquiescence to his grabbings, gropings, or rapes the price of employment or fair treatment in court. Thus, in this case the "shocks the conscience" language in the jury instructions, if anything, imposed an unduly rigorous burden on the prosecution, and helped the defendant. Although "conscience-shocking," standing alone as a legal test, would be troublesome in its vagueness and subjectivity, in this instance the instructions taken as a whole were both specific and accurate, informing the jury that the assaults must be "of a serious and substantial nature" for criminal liability to attach, and enumerating several objective factors for the jury to consider. Like the majority below, this brief focuses on the legal issues and does not take any position on the sufficiency of the evidence.

In addition to violating his victims' sexual privacy and bodily integrity, the defendant also deprived them of their rights under the Equal Protection Clause. That is, Lanier's crimes violated both due process and equal protection guarantees. Although the Justice Department chose to go forward only on a substantive due process theory, this Court should make clear that a pattern of coercive and physically abusive, quid pro quo sexual harassment by government officials violates equal protection rights under both 18 U.S.C. 242, if done with specific intent, and 42 U.S.C. § 1983.

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