Round-Up
At Sentencing Law and Policy, Doug Berman wonders if Florida will execute Clarence Hill today.
Andrew Cohen has this column on WashingtonPost.com called “Chaos in Sentencing.”
The Seattle Post-Intelligencer has this article highlighting the pending cert. petition in Washington v. Washington Education Association (05-1657). That case is on Tom’s list of petitions with a reasonable chance of being granted, and its full-text can be downloaded here.
Linda Greenhouse at the New York Times covers the changes in the way that courts will identify judicial conflicts of interest announced at a conference led by Chief Justice Roberts. Lyle discussed these new regulations yesterday here.
Finally, Eugene Volokh has these thoughts on the Supreme Court’s previously defined “right to intimate association” in the wake of a lower court ruling which, citing to this right, forced the College of Staten Island to officially recognize the fraternity AEPi on its campus.
The Supreme Court ought to grant review in Washington v. Washington Education Association, No. 05-1657. The ruling under review was really quite astounding.
In it, the Washington Supreme Court turned the First Amendment on its head by ruling that the First Amendment creates not just a floor, but a ceiling, on the First Amendment rights of public employees over the use of their compelled union dues.
In essence, the state supreme court believed that everything not mandatory under U.S. Supreme Court precedent must be forbidden.
That is at odds with the fact that states are free to give individual citizens broader rights than the minimum conferred by the federal constitution.
The U.S. Supreme Court has ruled that the First Amendment gives employees who are compelled to pay dues to unions certain minimum protections, like not having to fund the unions’ political activities unrelated to collective bargaining on their behalf.
The U.S. Supreme Court has never said that states cannot give those employees additional safeguards, or that any additional safeguards would violate the union’s own rights.
Nor has it said that public employee unions are entitled to have the state give them the maximum amount of union dues they are not forbidden to collect under U.S. Supreme Court precedent.
Nor has it said that a public employee union has First Amendment rights to compel employees to pay it dues as long as those dues do not violate the employees’ own First Amendment rights.
The fact that the First Amendment itself does not give public employees very broad rights against the union they are forced to support does not mean that state law cannot give the employees additional protections.
Contrary to the Washington Supreme Court’s decision, it is well established that a state law can give citizens broader free speech rights than federal law gives them.
That is true even when the state-created free speech rights are at the expense of the interests of a competing private institution, as the Supreme Court’s decision in the PruneYard case demonstrates.
Moreover, in the Washington State case, the state law is not even being applied to a purely private institution, but rather to public employee unions who are already using state machinery to compel employees to pay them dues.
States frequently give individual citizens broader free-speech protections than they are accorded under the federal constitution.
For example, under the Washington State Constitution, and the Washington Supreme Court’s own precedents, a higher level of scrutiny applies to time/place/manner restrictions on speech than under the federal First Amendment.
The First Amendment thus creates a floor beneath which citizens’ free speech rights cannot be reduced, not a ceiling beyond which state law cannot further protect them.
Washington State properly relied on that principle by enacting a law giving dissenting employees more protection against political use of their dues by public employee unions than they enjoy under the First Amendment.
Many states give their citizens added free speech protection above and beyond that conferred by the First Amendment.
Under California law, students have free speech rights in what they say in a school-sponsored newspaper, although the federal First Amendment confers no such rights, leaving school officials free to dictate the content of such newspapers, according to the U.S. Supreme Court’s Hazelwood decision.
Similarly, under Massachusetts law, and the Massachusetts Supreme Court’s Pyle v. South Hadley School Committee decision, students have the right to use plainly offensive speech to express a political point of view, although the Supreme Court’s Bethel decision emphasizes that the federal First Amendment does not confer such rights.
And in the PruneYard case, the U.S. Supreme Court held that California could confer a state-created free-speech right on citizens to engage in speech in even a privately-owned shopping center.
To me, that’s a much harder case than the Washington State case, which involves a public employee union.
But the Supreme Court upheld the state law nonetheless, even though it trenched much more on private property rights than does the Washington law under review in Washington v. Washington Education Association.
Comment by Hans Bader — September 20, 2006 @ 11:34 am
Cohen’s article with respect to the Getsy case seems misinformed.
First, he speaks of a “middle of the road” Sixth Circuit. Of course, whether the court as a whole is middle of the road is not the issue, with respect to a particular case (unless decided en banc), the issue is the composition of the panel (particularly in a death case, where circuit (and sometimes Supreme Court) precedent is often less than faithfully followed). Gilbert Merritt, the author of the Getsy opinion is by no means a middle of the road judge–witness his late night stay (later overturned) of the execution of Sedley Alley.
The second problem with Cohen’s article is his lamentation over the fate of poor Getsy who got a death sentence when his partners in crime did not. Cohen is being disingenuous. Basically what he is saying is that if the justice system (for whatever reason, plea bargain, a jury with a lack of will) is relatively lenient with one of the killers, then all of those killers get lenience. What this means is that killers who act in concert have more opportunity to escape death than those who do not, and that is silly, given the fact that criminals who act in concert are, generally speaking, more of a threat to society than those who don’t.
Comment by federalist — September 20, 2006 @ 11:54 am
One cause of different verdicts for different members of a conspiracy is the many protections offered to defendants in our system. Convicting the head of a conspiracy is more difficult than convicting the triggerman because there is typically no physical evidence tying him no the crime, only the statements of people who are themselves criminals and conspirators. The requirement of proof beyond a reasonable doubt may make this burden insurmountable. Then there is the Confrontation Clause. Each defendant’s out-of-court statements are admissible only against him, not the others. If one defendant’s jury hears his statement spilling the whole conspiracy and the other jury hears none of that, it is no great surprise if the two juries come to different results. That is not a failure of the system; that is a protection for defendants working its natural consequence. Cohen’s smug article is oblivious to all this.
A petition for rehearing en banc in Getsy is pending.
Comment by Kent Scheidegger — September 20, 2006 @ 1:38 pm
And of course, while the end result of the crime is the same, i.e., the death of the target, the level of participation is not. Many states view being the actual “triggerman” as very important in the death selection process. And while we can disagree with the emphasis on the “triggerman status” of a particular state, it’s a reasonable outcome (and one, which was triggered by a Supreme Court decision).
Comment by federalist — September 20, 2006 @ 2:32 pm