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Miscellaneous Cases of Note

Chen v. Ashcroft, 381 F.3d 221 (3rd Cir. 2004)

Facts: Alien, a citizen of China, petitioned for review of an order of the Board of Immigration Appeals (BIA) affirming denial of his application for asylum and withholding of his removal.

Issues: (1) Whether BIA's determination not to extend the statutory asylum protection afforded to women undergoing forced abortions to an unmarried partner was reasonable; and (2) whether alien's allegations, that but for China's allegedly inflated age requirements for marriage alien would have married pregnant fiancee and avoided forced abortion, sufficiently established “persecution.”

Summary: Petition denied. Alito held that BIA's determination was reasonable, and that Chen did not sufficiently establish “persecution.”

This case is important as an example of Alito’s judicial philosophy. Even in such a morally repugnant situation, he wrote, “Here, there is no dispute that ‘the BIA should be accorded Chevron [v.Natural Resources Defense Council] deference for its interpretations of the immigration laws.” At 224. Alito also concluded that “the BIA might reasonably have decided that, in general, forced abortions and sterilization procedures tend to have a more severe impact on spouses than on unmarried partners.” At. 228.

Saxe v. State College Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001)

Facts: Parent brought facial challenge to school district’s “anti-harassment” policy, which prohibits, among other things, verbal conduct that has the purpose or effect of substantially interfering with a student’s educational performance. The District Court dismissed the case, claiming that the policy merely replicated existing law.

Issues: Whether the anti-harassment policy, on its face, violates students’ free speech rights?

Summary: Judge Alito, writing for a unanimous court (with one concurrence), first explained that contrary to the District Court’s holding, the Supreme Court has never said that harassment, when it takes the form of pure speech, is not constitutionally protected. He then identified two fatal flaws in the policy: (1) it banned harassment on personal characteristics that are not protected under federal law, such as clothing, appearance, hobbies, and social skills; and (2) it targets both the purpose and effect of speech, where federal law only imposes liability based on the effect. Finally, Judge Alito found that the policy was substantially overbroad under Tinker, because it ignored the requirement that the school reasonably believe that the speech will cause actual and material disruption, and instead targets a much broader class of speech.

American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler, 168 F.3d 92 (3rd Cir. 1999)

Facts: From at least 1965 until 1995, the City of Jersey City commemorated the winter holiday season by displaying a crèche and a menorah on city property in front of City Hall. The crèche and menorah were owned, maintained, and stored by the City. Because the date of Chanukah generally falls near that of Christmas, the crèche and menorah were usually displayed simultaneously, but in 1994, when the plaintiffs commenced this suit, Chanukah began unusually early, on November 28, and therefore the menorah was taken down shortly before the crèche went up. After the lawsuit was filed and a preliminary injunction issued, the City put up a modified display that included, in addition to the elements in the previous display, Santa Claus, Frosty the Snowman, Kwanzaa symbols on the tree, and two signs stating: “Through this display and others throughout the year, the City of Jersey City is pleased to celebrate the diverse cultural and ethnic heritages of its peoples.”

Issues: Did the modified display violate the Establishment Clause?

Summary: No. The Court held that the Establishment Clause was not violated by modified display, to which city had added Kwanzaa symbols, sled, figures of Frosty the Snowman and Santa Claus, and two signs referring to cultural and ethnic diversity. The Court stated, “We find this modified display to be indistinguishable in any constitutionally significant respect from the displays upheld by the Supreme Court in Lynch v. Donnelly, 465 U.S. 668 (1984), and County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573 (1989).”

Blackhawk v. Pennsylvania, 381 F.3d 202 (3rd Cir. 2004)

ANALYSIS OF CASE/OPINION

In a free exercise/permit fee case, an appeal was filed by officials of the Pennsylvania Game Commission from an order permanently enjoining them from enforcing a permit fee provision of the state Game and Wildlife Code against Dennis Blackhawk on the ground that the Commission’s current waiver policy violates his right to the free exercise of religion. Blackhawk purchased two black bear cubs. He moved to Pennsylvania and began conducting religious ceremonies with the bears on his property. Members of various American Indian tribes visit Blackhawk from across the country to participate in these rituals.

The Pennsylvania Game and Wildlife Code requires permits in order to engage in a variety of different activities, including maintaining a “menagerie” and either dealing in or possessing “exotic wildlife.” Annual fees ranging from $25 to $300 are collected for these permits. Although persons wishing to keep wildlife in captivity must generally obtain a menagerie or exotic wildlife possession permit and pay the requisite fee, the Code excludes from these requirements most zoos and all nationally recognized circuses. In addition, the director of the Game Commission was authorized to waive a permit fee where hardship or extraordinary circumstance warrants, so long as the waiver is consistent with sound game or wildlife management activities or the intent of the Game and Wildlife Code. Blackhawk filed an action under 42 U. S. C. § 1983, seeking to enjoin the Game Commission from assessing the fee.

POSSIBLE CONCERNS/JUDICIAL PHILOSOPHY:

The fee scheme violated the free exercise clause because it has (1) individualized, and (2) categorical secular exemptions thus requiring strict scrutiny analysis. Referring to Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999), Judge Alito held that a system that permits individualized, discretionary exemptions provides an opportunity for the decision maker to decide that secular motivations are more important than religious motivations, and thus to give disparate treatment to cases that are otherwise comparable.

Rompilla v. Horn, 359 F.3d 310 (3rd Cir. 2004), rev’d, 125 S.Ct. 2456 (2005)

ANALYSIS OF CASE/OPINION

This is a very important habeas death penalty case that will likely be discussed during confirmation. It has received press. It is a very long and painstaking opinion (100 pages with the dissent). The facts are straightforward, though the legal analysis is very detailed.

Rompilla was convicted of murder. He killed the owner of a bar. He was sentenced to death. His guilt is not in question. The three issues in the case were: (1) effective assistance of counsel during sentencing for failure to investigate and present mitigating evidence,(2) whether the trial court committed constitutional error in giving an accomplice liability instruction, and 3) whether the trial court erred in failing to instruct the jury that ‘life imprisonment” under PA law meant life without the possibility of parole.

The bulk of the opinion was on the issue of effective assistance of counsel regarding sentencing. Pertinent facts regarding sentencing : The defendant had 5 siblings. Three were interviewed by defense counsel. Two were not. Those three stated that, in general, that there was not family discord. Post trial the remaining two siblings who were not interviewed by defense counsel had a different story, a story of horrid abuse. Also, defense counsel did not investigate or present evidence of Rompilla’s past records from a prior conviction that showed he may have been mentally impaired, and did not share the records with mental health experts.

POSSIBLE CONCERNS/JUDICIAL PHILOSOPHY:

Alito relied on Strickland v. Washington, 466 U.S. 668 (1984), a bedrock of Supreme Court precedent on this issue, where the Supreme Court stated “Defense counsel was permitted to rely on statements made by their client in deciding on the extent of the investigation that should be conducted in particular areas.” Judge Alito’s decision affirmed the sentence and conviction, but allowed the defendant to file a writ of habeas to claim that he may not be executed because of mental retardation under Atkins v. Virginia, 536, U.S. 304 (2002). Alito’s holding was based on the fact that the defendant and his siblings that were interviewed did not, at any time, claim abuse, and must have been aware of the lurid conditions in the family home, but they never mentioned anything about such matters to trial counsel despite being interviewed in a detailed manner, again indicating Judge Alito’s willingness to apply the law fairly in a precise manner, without being swayed by factors other than the rule of law.

[Note: Case was subsequently reversed by Supreme Court in a 5-4 decision. Justice Kennedy authored a strong dissent, joined by the Chief Justice and Justices Scalia and Thomas, agreeing with Judge Alito.]

ACLU-NJ v. Township of Wall, 246 F.3d 258 (3rd Cir. 2001)

ANALYSIS OF CASE/OPINION

This is a Holiday display/”pocketbook action” case. Since at least 1997, Wall Township has exhibited a holiday display near the entrance to the municipal building 2, housing much of the Township' s government. Plaintiffs were taxpayers, residents, members of the ACLU.

In December 1999, the Township again exhibited a holiday display. In addition to a creche, the 1999 display included a donated menorah, candy cane banners, a large evergreen tree, and two signs reading: (1) "Through this and other displays and events through the year , Wall Township is pleased to celebrate our American cultural traditions, as well as our legacy of diversity and freedom" and (2) "Merry Christmas Happy Hanukkah." On appeal, the Township asserted that plaintiffs lacked standing to challenge the constitutionality of the holiday display.

The ACLU rested its standing on the interests of its members, the Millers, and its ability to sue was strictly dependent on that of the Millers. The Millers claimed standing based on their status as municipal taxpayers or on non-economic injuries resulting from the display. In this case, plaintiffs provided testimony that they pay property taxes to the Township. Plaintiffs failed to establish that the Township spent any money, much less money obtained through property taxes, on the religious elements of the 1999 display. Plaintiffs did allege, "on information and belief,” that the 1998 Nativity display was erected and maintained with public funds including tax revenues collected by the Township. However, the Township denied this allegation and plaintiffs presented no evidence on the issue.

Moreover, the record established that both the Nativity display and the menorah were donated to the Township. While the Township thus owned the Nativity display, and the menorah, and the overall display is set up with defendant’s support, direction and/or approval, the Township denied that it "maintains" the display. Plaintiffs thus failed to establish an expenditure on the challenged elements of the display.

POSSIBLE CONCERNS/JUDICIAL PHILOSOPHY

Alito applies Doremus v. Board of Ed. Of Hawthorne, 342 U. S. 429 (1952), holding that the plaintiffs lacked standing under Article III to challenge the display. Alito held that the Millers failed to establish standing in either capacity, as they were simply municipal taxpayers and under many cases of this circuit and other circuits "in order to establish . . . municipal taxpayer standing . . ., a plaintiff must not only show that he pays taxes to the relevant entity, he must also show that tax revenues are expended on the disputed practice."

Leveto v. Lapina, 258 F.3d 156 (3rd Cir. 2001)

A taxpayer and his wife brought a Bivens action against Internal Revenue Service agents, alleging Fourth Amendment violations during agents' execution of search warrants at taxpayer's business and at couple's home. The district court dismissed the action and the plaintiffs appealed. Judge Alito held that the alleged pat-downs of taxpayer and his wife violated the Fourth Amendment, and that the alleged lengthy detentions of taxpayer and his wife while search warrants were executed also violated the Fourth Amendment. He also ruled that the alleged closure of taxpayer's business for eight hours during the execution of the search warrant violated Fourth Amendment; but IRS agents enjoyed qualified immunity as to all claims.

This case shows Judge Alito’s willingness to ensure that constitutional rights are protected against governmental overreaching in circumstances involving a criminal investigations. Judge Alito is thus seen not as a mere “government man” as can be said of many so-called conservatives on the bench, but instead a defender of freedom and the rule of law regardless of who the wrongdoer is.

Edwards v. California University of Pennsylvania, 156 F.3d 488, (3rd Cir. 1998)

In this case before Judge Alito, Mr. Dilawar Edwards, Ph.D., a tenured professor in the education department, brought an action against the California University of Pennsylvania alleging violation of his constitutional rights of free speech, due process, equal protection, and retaliation. These claims arose out of the university restricting his choice of classroom materials and directing him to cease and desist from using “doctrinaire materials of a religious nature.” Before trial, the district court dismissed Edwards’s equal protection claim, and granted summary judgment in favor of the University on Edwards’s due process claim. At trial the jury returned a verdict in favor of the University on Edwards’s First Amendment and retaliation claims. Judge Alito, writing for a unanimous panel, affirmed, finding among other things, that Edwards did not have a constitutional right to choose curriculum materials in contravention of the University’s dictates, relying heavily on Regents of Univ. of California v. Bakke.

Waterman v. Farmer, 183 F.3d 208 (N.J. 1999)

I. Overview of the Case

Two convicted pedophiles filed suit claiming a First Amendment right to obtain pornographic magazines during their incarceration in an alternative facility intended to rehabilitate them. A state statute prohibited “sexually oriented and obscene materials” in the facility. The lower court granted summary judgment for the pedophiles on the basis that the statute was vague and overbroad.

II. Summary of Opinion

Two prisoners at a facility for sex offenders who had exhibited "repetitive and compulsive" behavior filed a § 1983 action, alleging that a New Jersey statute violated their constitutional rights by restricting their access to pornographic materials. The district court held that the statute was unconstitutional and enjoined the defendants from enforcing it. The Court of Appeals reversed the judgment. The Court held that the statute was constitutional because it had a rational connection to a legitimate and neutral objective. Defendants had a legitimate penological interest, the Court determined, in rehabilitating compulsive sex offenders, and the purpose of the statute was neutral because it was unrelated to the suppression of expression. Further, the Court found that there was a logical connection between the statute and the goal of rehabilitating compulsive sex offenders. The statute also provided alternative means for exercising plaintiffs' constitutional rights because it was not so broad as to prohibit plaintiffs from reading non-pornographic materials. There were also no reasonable alternatives available because accommodating plaintiffs' asserted rights would place an undue burden on the defendants.

III. Judicial Philosophy

This case is important because it again demonstrates Judge Alito’s commitment to the rule of law. It would have been very easy for Judge Alito to manipulate the means to achieve the desirable end that prisoners do not have a constitutionally protected right to view pornography. Rather, Judge Alito set out a four part rational basis test that is used for determining the constitutionality of a challenged statute. By denying the plaintiffs’ claim based upon the rational basis test, Judge Alito assures consistency, but more importantly, his decision insures that he will hold true to the rule of law even in emotionally charged cases.

Judge Alito strictly adheres to the notion that a court’s authority is limited, citing “a time-honored principle of constitutional law reminds us that judicial second-guessing of a legislature's motives is ‘generally unwarranted’ ‘absent some reason to infer antipathy.’” He correctly ruled in favor of the state, acknowledging the legitimate penological interests in prohibiting access to pornographic materials to convicted pedophiles.