OrCon Law

Summer Reading

Is there anything better for beach (con law) reading than a case involving the First Amendment, Sports Illustrated, Alabama football and dancing girls?  Thankfully, the Eleventh Circuit has provided us just such a case today in Price v. Time, Inc., in which the court addresses how much protection the First Amendment gives to a Sports Illustrated reporter who desires to withhold in litigation the name of the confidential source of his information regarding a visit by Mike Price, former head coach of the Crimson Tide football team, to a Pensacola establishment that is known as Artey's Angels despite the fact, as the court noted, that "the women who dance there are not angels in the religious sense and, when he went, Price was not following the better angels of his nature in any sense."

A consent search following an unlawful stop violates Article I, section 9 unless consent is "independent of, or only tenuously related to, the unlawful police conduct."

As it turns out, according to the Oregon Supreme Court in State v. Hall (Carson, J.), an officer who engages in this conduct conducts an unlawful stop in violation of ORS 131.615(1) and, thus, an unlawful seizure in violation of Article I, section 9.  Further, Article I, section 9 requires the suppression of any evidence obtained in a subsequent consent search of the stopped party unless the state proves that the consent was "independent of" or "tenuously related to" the unlawful stop/seizure:

After a defendant shows a minimal factual nexus between unlawful police conduct and the defendant's consent, then the state has the burden to prove that the defendant's consent was independent of, or only tenuously related to, the unlawful police conduct. Deciding whether the state has satisfied that burden requires a fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct and the defendant's consent. A causal connection requiring suppression may exist because the police sought the defendant's consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police conduct. A causal connection requiring suppression also may exist because the unlawful police conduct, even if not overcoming the defendant's free will, significantly affected the defendant's decision to consent. Although determining the existence of such a causal connection requires examination of the specific facts at issue in a particular case, we view several considerations to be relevant to that determination, including (1) the temporal proximity between the unlawful police conduct and the defendant's consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances -- such as, for example, a police officer informing the defendant of the right to refuse consent -- that mitigated the effect of the unlawful police conduct.

Dissenting, Justice Durham, joined by Justice Gillette, agreed that the officer's conduct constituted an unlawful stop/seizure but argued that the majority's approach is analytically flawed because it disregards a key fact:  the voluntariness of the defendant's consent:

The majority's approach is erroneous because it accords no analytical weight to the key fact of defendant's voluntary consent to the search. Instead, the majority's analysis turns on whether the fact that allowed the search to occur -- defendant's voluntary consent -- was the "product" of (that is, whether the consent is the causal result of) the unlawful stop. According to the majority, because that causal relationship exists (or, rather, because the state failed to prove that that relationship did not exist), the resulting search is unconstitutional notwithstanding the voluntariness of defendant's consent to the search. But that reasoning blurs the distinction between the circumstances of the stop that have a mere "but for" causal link with the search and the one fact that was the genuine cause of the search. Because its view of the causation inquiry is faulty, the majority simply fails to assess the significance of the fact that triggered the search of defendant's pocket: defendant voluntarily consented to the search. The majority's resulting conclusion -- that Deese's search of defendant's pocket was unreasonable and, thus, unlawful even though defendant voluntarily consented to the search -- is a difficult pill to swallow.

When does an encounter turn into a stop?

The Oregon Supreme Court may tell us tomorrow when it issues its decision on review of the Court of Appeals' decision in State v. Hall.  At issue in the case is whether the following acts constitute an unlawful stop in violation of Article I, section 9:

"(1) Deese's nonverbal gesture directing defendant to come toward him; (2) Deese's request for identification, his taking of defendant's identification card, and his use of it to run a record check; and (3) Deese's question to defendant about his possession of knives, weapons, or drugs."

Also at issue is whether the officer's subsequent consent search of the defendant "exploited" that potentially unlawful stop, requiring suppression of the evidence discovered through that search.

Does AEDPA violate Article III?

On its own initiative (over the objection of one panel member), a Ninth Circuit panel is considering whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEPDA) violates Article III.  AEDPA significantly restricts the scope of federal court review of state court decisions on federal habeas review.  In Irons v. Casey, Docket No. 05-15275, the court is considering whether those restrictions "unconstitutionally prescribe[] the sources of law that the Judicial Branch must use in exercising its jurisdiction" and whether AEDPA "unconstitutionally prescribes the substantive rules of decision by which federal courts must decide constitutional questions that arise in state habeas cases." 

For further commentary, including links to briefs filed by USDOJ and the California Attorney General's Office, see Lyle Denniston's commentary at SCOTUSblog here.

When the Ratio of Punitive to Compensatory Damages is 153:1

the punitive award is, not surprisingly, unconstitutionally excessive, according to the Ninth Circuit in Southern Union Co. v. Southwest Gas Corp., (Ninth Circuit July 13, 2005).  In so holding, the court rejected the district court's conclusion that the extraordinarily high ratio was justified because the case involved "reprehensible conduct" by a public official and held that the district court erred by relying on civil rights cases to set a benchmark for the damages ratio in a private tort action.

Oregon's Recreational Use Statute Does Not Violate Article I, Section 10

. . .at least insofar as it applies to bar a negligence claim against a city arising from an injury that the plaintiff sustained while walking her dog in a city park.  Affirming the dismissal of the complaint, the Court of Appeals (Deits, J.) held:

Because a negligence action against a city for injuries received in a public park was not recognized at common law, giving the city the benefit of the immunity provided by ORS 105.682 in this case does not deprive plaintiff of a remedy protected by Article I, section 10. Put another way, any "right" to recover from the city for injuries sustained in a public park is not an "absolute right" protected by Article I, section 10. Accordingly, giving the city the benefit of immunity under the recreational use statute does not violate the remedy clause.

See Schlesinger v. City of Portland, A121555 (July 13, 2005).

Eighth Circuit Holds Federal Ban on Partial Birth Abortions Unconstitutional

Locally, it's been a slow week in constitutional law.  However, that is not the case in Nebraska. In Carhart v. Gonzales, the Eighth Circuit held that the federal ban on partial birth abortions, 18 U.S.C. section 1531, is unconstitutional.  In a nutshell, the court reasoned:

"[W]hen 'substantial medical authority' supports the medical necessity of a procedure in some instances, a health exception is constitutionally required.  In effect, we believe when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women's health by including a health exception."

In so concluding, the court declined to address the government's argument that the court was required to defer to the congressional findings of fact that partial birth abortions were never medically necessary.  It reasoned that doing so was not required because the question of the medical necessity of partial birth abortions was one of "legislative fact" which the Supreme Court has resolved contrary to the findings by Congress. To overcome that finding of legislative fact in the future, the government (or states) bear the burden of proving that the "relevant evidentiary circumstances (such as the presence of a newfound medical consensus or medical studies) have in fact changed over time."

July 2005 Constitutional Law Newsletter

is now available online here.  Included in this issue are the following features:

History and Interpreting the Oregon Constitution: A Guide for the Perplexed, by Hon. Jack L. Landau 

Larry Kramer's Popular Constitutionalism Book Review by Les Swanson

Perilous Times Have Always Been With Us 

Book Review by Michael H. Simon

Prior editions of the newletter, dating back to 1999, are accessible online here.

Note: to access the articles in the July 2005 newsletter, click on the titles of those articles in the PDF document.

Justice O'Connor to Retire

In this letter to President Bush this morning, Justice O'Connor, the first woman justice on the U.S. Supreme Court, announced her retirement "upon the nomination and confirmation of [her] successor."  That could very well mean that she will still be working at the beginning of the next term.  To follow the appointment process from speculation to confirmation, check out SCOTUSblog's sister blog The Supreme Court Nomination Blog.