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Copyright c 2005 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview IV. CIVIL RIGHTS

In This Section

New Case: 04-114 Ayotte v.

Synopsis and Question Presented p. 126

"Court to Tackle Again After Five Years" Linda Greenhouse p. 134

"Parental Notification Supporters Delighted" Tom Fahey p. 136

"Judge Puts Brakes on " Garry Rayno p. 138

"Kids, Sex and the Law" Shawne K. Wickham p. 140

"Parental Notification Sent to Benson" Garry Rayno p. 145

"Parental Consent or Notification for Abortion" L. Jeanne Kaufmann p. 147

New Case: 04-473 Garcetti v Ceballos

Synopsis and Question Presented p. 148

"Court Will Decide Whistle-Blower's Rights" David G. Savage p. 161

"Freedom to Speak in the Line of Duty" Gary Young p. 163

"Soft on Crime Fighters" Jim Crogan p. 165

New Case: 04-1084 Gonzales v. 0 Centro Espirita

Synopsis and Question Presented p. 169

"Supreme Court to Decide Whether Church Can Import Drug" Charles Lane p. 184

124 "Supreme Court to Hear Case of Dispute Over Religious Group's Use of Banned Drug" Linda Greenhouse p. 185

"The RFRA Hoasca Tea Case" Marty Lederman p. 187

"Court Affirms Church Tea OK" Scott Sandlin p. 189

"Santa Fe Church Gets Permit for Tea" Scott Sandlin p. 191

"Inmate Gets Second Chance for Religious Bias Suit" James G. Sotos p. 193

"Court: Congress Strikes Right Religious-Protection Balance" Tony Mauro p. 196

New Case: 04-0698 Schaffer v. Weast

Synopsis and Question Presented p. 198

"High Court to Hear Maryland Special Ed Case" Tim Craig and Miranda Spivack p. 207

"High Court to Decide Who Must Prove Case in Special Ed Dispute" Caroline Hendrie p. 209

"4th Circuit Puts Burden on Parents Under Individuals with Disabilities Education Act" Alisa Bralove p. 212

"Schaffer v. Weast" Nushin Huq p. 214

"Let's Talk: Individuals with Disabilities Education Act" Sue Ann Goldman p. 217

New Case: 04-52 Rice v. Collins

Synopsis and Question Presented p. 220

125 Ayotte v. Planned Parenthood

(04-1144)

Ruling Below: (PlannedParenthood v. Heed, 390 F.3d 53 (1st Cir. N.H., 2004), cert granted 73 USLW 3531, 73 USLW 3681, 73 USLW 3684 (2005)).

In 2003, enacted a law requiring parental notification at least 48 hours before an unemancipated could receive an abortion. Planned Parenthood, an abortion provider, sued the state attorney general (currently Kelly Ayotte), alleging the statute was an unconstitutional restriction on the right to have an abortion. The Court of Appeals for the First Circuit affirmed a New Hampshire federal district judge's ruling that under the Supreme Court's decisions in Planned Parenthood v. Casey and Stenberg v. Carhart,the Act was unconstitutional. The law lacked sufficiently broad and explicit exceptions to protect pregnant minors' health and therefore imposed an undue burden upon many pregnant minors. Also, inadequate confidentiality in the law's judicial bypass process might impose an additional undue burden upon many eligible pregnant minors.

Questions Presented: Whether the Act's judicial bypass mechanism sufficiently protects the pregnant minor's health, and whether the "undue burden" standard is the correct judicial standard.

PLANNED PARENTHOOD of Northern New England, et al., Plaintiffs, Appellees, V. Peter HEED, Attorney General of the State of New Hampshire, Defendant, Appellant

United States Court of Appeals for the First Circuit

Decided November 24, 2004

[Excerpt: some footnotes and citations omitted]

TORRUELLA, Circuit Judge: ("RSA") § 132:24-28 (2003).

Defendant-appellant Attorney General of the I. Background State of New Hampshire, Peter Heed, acting in his official capacity ("Attorney General"), In June 2003, the New Hampshire appeals the district court's order declaring legislature passed [the Act] . . . which states unconstitutional and enjoining the that: enforcement of the Parental Notification Prior to Abortion Act (the "Act"), 2003 N.H. No abortion shall be performed 173, codified at N.H. Rev. Stat. Ann. upon an unemancipated minor or

126 upon a female for whom a from the time the petition is filed." Id. guardian or conservator has been appointed . . . because of a If the minor's petition is denied, an finding of incompetency, until at "expedited confidential appeal shall be least 48 hours after written notice available," and the appellate court must rule of the pending abortion has been within seven calendar days of the docketing delivered. ... RSA 132:25, I. of the appeal. Access to the trial and appellate courts for the purposes of these The notice requirement is waived if petitions "shall be afforded such a pregnant minor 24 hours a day, 7 days a week." RSA (a) The attending abortion 132:26, 11(c). Violation of the Act can result provider certifies in the pregnant in criminal penalties and civil liability. . . . minor's medical record that the RSA 132:27. abortion is necessary to prevent the minor's death and there is ... The Act was to take effect on December 31, insufficient time to provide 2003. On November 17, 2003, plaintiffs- required notice; or appellees Planned Parenthood of Northern New England ... filed a complaint under 42 (b) The person or persons U.S.C. § 1983, seeking a declaratory who are entitled to notice certify judgment that the Act is unconstitutional and in writing that they have been a preliminary injunction to prevent its notified. RSA 132:26, I. enforcement once it became effective. The district court merged the preliminary and If a minor does not want her parent or permanent injunction proceedings and, on guardian notified, she may request a state December 29, 2003, issued an order holding judge, after a hearing, to "authorize an the Act unconstitutional and permanently abortion provider to perform the abortion if enjoining its enforcement. said judge determines that the pregnant minor is mature and capable of giving The district court found unconstitutional to the proposed abortion," both (1) the lack of an explicit exception to or if the judge determines that "the protect the health of the pregnant minor, and performance of an abortion upon her without (2) the narrowness of the Act's exception for notification of her parent, guardian, or necessary to prevent the minor's conservator would be in her best interests." death. Having found the Act fatally flawed RSA 132:26, II. In these proceedings, the in these respects, the district court declined pregnant minor may act on her own behalf to rule on the constitutionality of the Act's or be appointed a guardian ad litem, and she failure to provide specific protections for the must also be advised that she has a right to confidentiality of a minor seeking a judicial request court-appointed counsel. RSA waiver. 132:26, 11(a). The court proceedings "shall be confidential and shall be given such The Attorney General, acting in his official precedence over other pending matters so capacity, appeals. that the court may reach a decision promptly and without delay so as to serve the best II. Analysis interest of the pregnant minor." RSA 132:26, 11(b). Specifically, "in no case shall We review the district court's decision the court fail to rule within 7 calendar days regarding the constitutionality of a statute de

127 novo. United States v. Lewko, 269 F.3d 64, the issue, the district court followed the 67 (1st Cir. 2001). majority of circuits that apply the Casey and Stenberg standard to legislation regulating The Attorney General argues that in abortion. The Attorney General notes that deciding whether the Act is facially invalid the Supreme Court applied the Salerno we should apply the "no set of standard in the abortion context prior to circumstances" standard set forth in United Casey, see, e.g., Ohio v. Akron Ctr. for States v. Salerno, 481 U.S. 739, 95 L. Ed. 2d Reprod Health, 497 U.S. 502, 514, 111 L. 697, 107 S. Ct. 2095 (1987). This standard Ed. 2d 405, 110 S. Ct. 2972 (1990), and requires plaintiffs challenging a state law as urges us to follow the Fifth Circuit's facially invalid to show that "no set of decision in Barnes v. Moore, 970 F.2d 12, circumstances exists under which the Act 14 n.2 (5th Cir. 1992), that Casey does not would be valid." Id. at 745. The Attorney displace Salerno's "no set of circumstances" General's argument rests on the premise that test for facial challenges to abortion the Salerno standard is applicable to the Act regulation. despite the agreement of a plurality of Justices in Planned Parenthood of S.E. Pa. [See also Manning v. Hunt, 119 F.3d 254, v. Casey, 505 U.S. 833, 876-77, 120 L. Ed. 268 n.4 (4th Cir. 1997) (arguing that a court 2d 674, 112 S. Ct. 2791 (1992), that a law is bound to apply Salerno)]. . . . The which "has the purpose or effect of placing a overwhelming majority of circuits to address substantial obstacle in the path of a woman this issue, however, have disagreed with the seeking an abortion of a nonviable fetus" Fifth Circuit. See, e.g., PlannedParenthood places an unconstitutional "undue burden" of Cent. N.J v. Farmer, 220 F.3d 127, 142- on the exercise of her right to choose 43 (3d Cir. 2000) (holding undue burden abortion. A majority of the Casey Court standard, instead of Salerno standard, applied that standard to determine that an applies in abortion context after Casey); abortion regulation is facially invalid if "in a Planned Parenthood of S. Ariz. v. Lawall, large fraction of cases in which [the 180 F.3d 1022, 1025-26 (9th Cir. 1999) regulation] is relevant, it will operate as a (noting inconsistency between Casey and substantial obstacle to a woman's choice to Salerno, and following "great weight of undergo an abortion," thus imposing an circuit authority holding that Casey has "undue burden." Id. at 895.... The Court overruled Salerno in the context of facial has since confirmed that "'a law designed to challenges to abortion statutes") [further further the State's interest in fetal life which citations omitted]. . . . We agree with . . . imposes an undue burden on the woman's six circuit courts that the undue burden decision before ' is standard-proposed as a standard "of unconstitutional." Stenberg v. Carhart,530 general application" by the Casey plurality, U.S. 914, 921, 147 L. Ed. 2d 743, 120 S. Ct. Casey, 505 U.S. at 876, and twice applied to 2597 (2000).... abortion regulations by a majority of the Court, id. at 895; Stenberg, 530 U.S. at Despite the Supreme Court's clear 920-supersedes Salerno in the context of application of the undue burden standard in abortion regulation. Casey and Stenberg, it has never explicitly addressed the standard's tension with Complementing the general undue burden Salerno. In the instant case, while standard, the Supreme Court has also recognizing that this court has yet to address identified a specific and independent

128 constitutional requirement that an abortion burden on unemancipated minors who wish regulation must contain an exception for the to obtain an abortion. A state's decision to preservation of a pregnant woman's health. require parental notification for minors See Stenberg, 530 U.S. at 929-30. . . . The seeking an abortion is not constitutionally origin of the health requirement can be infirm per se. See Lambert v. Wicklund, 520 traced to Roe, which held that "the State, in U.S. 292, 137 L. Ed. 2d 464, 117 S. Ct. promoting its interest in the potentiality of 1169 (1997) (upholding parental notification human life, may . . . regulate . . . abortion statute against constitutional challenge to [after fetal viability] except where judicial bypass procedure). The district necessary, in appropriate medical judgment, court determined, however, that the New for the preservation of the life or health of Hampshire Act's lack of a health exception the mother." Roe v. Wade, 410 U.S. 113, and overly narrow death exception render it 164-65, 35 L. Ed. 2d 147, 93 S. Ct. 705 unconstitutional. Appellees argue that the (1973) (emphasis added), reaffd Casey, 505 Act also creates an undue burden by failing U.S. at 879 (plurality opinion). Later, the to adequately ensure the confidentiality of majority in Casey observed that, had the judicial bypass procedures. medical emergency exception to Pennsylvania's abortion restrictions-among A. Health Exception them a parental consent requirement- precluded "immediate abortion despite some The Attorney General and amici suggest that significant health risks," it would have been parental notification laws are shielded from unconstitutional since "the essential holding the health exception requirement reiterated of Roe forbids a State to interfere with a in Stenberg on account of the interests they woman's choice to undergo an abortion ... aim to protect. Parental notification laws are if continuing her pregnancy would constitute enacted not only in furtherance of the state's a threat to her health." Casey, 505 U.S. at "interest in the potentiality of human life," 880. Finally, in Stenberg, 530 U.S. at 930, Roe, 410 U.S. at 164, but also in the interest the Supreme Court clarified that "the law of protecting minors from undertaking the requires a health exception in order to risks of abortion without the advice and validate even a postviability abortion support of a parent. In considering an regulation, [and] it at a minimum requires abortion regulation based on interests other the same in respect to previability than the one identified in Roe, however, the regulations." Thus, a statute regulating Supreme Court has determined that it abortion must contain a health exception in "cannot see how the interest-related order to survive constitutional challenge. differences could make any difference to the Similarly, Roe requires that abortion . . . application of the 'health' requirement." regulations contain an adequate death Stenberg, 530 U.S. at 931; see also Casey, exception to permit abortion when it is 505 U.S. at 877 ("[A] statute which, while necessary to save the life of a pregnant furthering the interest in potential life or woman. Roe, 410 U.S. at 164-65. some other valid state interest, has the effect of placing a substantial obstacle in the path The instant case thus presents three of a woman's choice cannot be considered a questions: whether New Hampshire's Act permissible means of serving its legitimate contains an adequate health exception, ends."). . . . The Constitution requires a whether it contains an adequate death health exception even when the State's exception, and whether it places an undue interest in regulation is "compelling." See

129 Roe, 410 U.S. at 163; see also Stenberg, 530 Since Stenberg, at least two circuit courts U.S. at 931 ("[A] State may promote but not have applied the health exception endanger a woman's health when it regulates requirement to parental notice or consent the methods of abortion."). Thus, regardless laws. In Planned Parenthood of the Rocky of the interests served by New Hampshire's Mountains Services, Corp. v. Owens, 287 parental notice statute, it does not escape the F.3d 910, 915-16 (10th Cir. 2002), the Tenth Constitution's requirement of a health Circuit held that, because circumstances exception. existed in which a pregnancy complication could seriously threaten a pregnant minor's The Attorney General and amici also argue health, a Colorado parental notification law that our decision should be controlled by similar to the New Hampshire Act was Hodgson v. Minnesota, 497 U.S. 417, 111 L. facially invalid for lack of a health Ed. 2d 344, 110 S. Ct. 2926 (1990), in which exception. Similarly, the Ninth Circuit the Supreme Court upheld a parental recently struck down an parental notification statute that contained no health consent statute, finding that "[a] health exception. However, as noted by the district exception is as requisite in statutory or court, the Hodgson Court did not consider a regulatory provisions affecting only minors' challenge to that statute's lack of a health access to abortion as it is in regulations exception, and even if it had, the subsequent concerning adult women." Planned decisions in Casey and Stenberg would Parenthood of Idaho, Inc. v. Wasden, 376 nevertheless require a health exception in F.3d 908, 922-24 (9th Cir. 2004) (finding the instant case. The additional cases cited Idaho statute's health exception overly by the Attorney General and amici as narrow). We agree, and therefore affirm the examples of parental notification or consent district court's holding that the New statutes upheld without a health exception Hampshire Act is constitutionally invalid in are all similarly distinguishable. Only three the absence of a health exception. times since Roe has the Supreme Court addressed a clear challenge to an abortion Acknowledging that the Act contains no regulation's lack of a health exception. In all explicit health exception, the Attorney three, the Court has indicated that an General argues that other provisions of New exception must be provided when the Hampshire law provide a functional restriction would place a woman's health at equivalent. None of the proffered statutes, risk. See Stenberg, 530 U.S. at 930-38 however, is adequate. [The court explained (requiring health exception for "partial-birth how none of the statutes protect " ban); Casey, 505 U.S. at 879-80 personnel from legal action arising under the (reading medical emergency exception to notice provision of the Act, and that a include threat to health); Thornburgh v. Am. "competing harms" defense was no barrier Coll. of Obstetricians and Gynecologists, to civil liability and might theoretically 476 U.S. 747, 768-71, 90 L. Ed. 2d 779, 106 result in criminal liability.] S. Ct. 2169 (1986) (finding statute requiring presence of second physician for post- viability abortion facially invalid for lack of medical emergency exception), overruled on Even if these statutes could be cobbled other grounds, Casey, 505 U.S. at 882. together to preclude all civil and criminal liability for medical personnel who violate the Act's notice requirements in order to

130 preserve a minor's health, we would not minors who need an immediate abortion to view them as equivalent to the protect their health are at risk. Due to this constitutionally required health exception. delay, the Act's bypass provision does not The basic canons of statutory construction in stand in for the constitutionally required New Hampshire require us to look first to a health exception. See Thornburgh, 476 U.S. statute's plain meaning, and when it is clear at 768-71 (finding statute facially invalid for and unambiguous, to apply the statute as failing to provide health exception to delay written. See, e.g., Appeal of Astro caused by awaiting presence of second Spectacular, Inc., 138 N.H. 298, 639 A.2d physician). 249, 250 (N.H. 1996). The Act clearly states that "no abortion shall be performed The [Act] contains no explicit health upon an unemancipated minor . . . until at exception, and no health exception is least 48 hours after written notice" to a implied by other provisions of New parent. RSA 132:25. Three explicit Hampshire law or by the Act's judicial exceptions to this rule are provided: (1) bypass procedure. Thus, the Act is facially when abortion is necessary to prevent the unconstitutional. minor's death; (2) when a parent certifies in writing that he or she has been notified; and B. Death Exception (3) when a court grants a judicial bypass. RSA 132:26, I, II. The New Hampshire Just as it requires a health exception, the legislature's intent that abortions not in Constitution also requires an exception to compliance with the Act's notification abortion restrictions when the life of a provisions be prohibited in all but these pregnant woman is in danger. Stenberg, 530 three circumstances is clear. The earlier- U.S. at 931 ("The governing standard enacted statutory provisions cited by the requires an exception 'where it is necessary, Attorney General cannot be read to in appropriate medical judgment for the supercede this intent. preservation of the life or health of the mother."' (quoting Casey, 505 U.S. at 879)). Finally, the Attorney General argues that the Accordingly, the New Hampshire Act Act's judicial bypass mechanism allows waives its parental notice requirement when prompt authorization of a health-related a physician can certify that abortion is abortion without notice. The Act provides "necessary to prevent the minor's death and that such proceedings "shall be given such there is insufficient time to provide the precedence over other pending matters so required notice." RSA 132:26, I(a). that the court may reach a decision promptly Appellees argue that this death exception is and without delay," provides minors 24- unconstitutionally narrow because (1) it is hour, 7-day access to the courts, and not possible for a physician to determine provides for expedited appeal. RSA 132:26, with any certainty whether death will occur II(b)-(c). However, the Act allows courts before the notice provisions could be seven calendar days in which to rule on complied with; (2) it does not allow for minors' petitions, and another seven circumstances in which abortion is the best, calendar days on appeal. Delays of up to but not the only, option for saving a minor's two weeks can therefore occur, during life; and (3) it does not permit abortion which time a minor's health may be providers to rely on their own good faith adversely affected. Even when the courts judgment about whether an abortion is act as expeditiously as possible, those necessary. The Attorney General does not

131 refute these charges, but responds that the offense," RSA 626:2, I(a) requires "proof of Act is sufficiently specific to give notice of a culpable mental state which is appropriate prohibited conduct, and that a scienter in light of the nature of the offense and the requirement can be read into the Act from policy considerations for punishing the New Hampshire law. conduct in question." State v. Bergen, 141 N.H. 61, 677 A.2d 145, 146 (N.H. 1996)... A minimum of forty-eight hours is necessary . It is not clear, however, which of the four for compliance with the Act's notification scienter requirements would be imposed in requirement. RSA 132:25, I. Dr. Wayne this circumstance. The definition of Goldner, a named plaintiff in this case, negligence imposes an objective provided unopposed testimony that reasonableness standard, see RSA 626:2, II physicians cannot predict with adequate (d), thus, a physician who acts on a good precision what course medical complications faith belief that abortion is necessary to save will take, and thus cannot always determine a patient's life could nonetheless face whether death will occur within this time criminal or civil liability if a judge or jury window. Consequently, the time component later found that the physician's assessment of the Act's death exception forces was unreasonable. See Voinovich, 130 F.3d physicians either to gamble with their at 205 ("In this area [of medical necessity] patients' lives in hopes of complying with where there is such disagreement, it is the notice requirement before a minor's unlikely that the prosecution could not find a death becomes inevitable, or to risk criminal physician willing to testify that the physician and civil liability by providing an abortion did not act reasonably."). without parental notice. The threat of such sanctions will have a "profound chilling As the district court held, we cannot effect on the willingness of physicians to construe the Act to preclude liability for perform abortions" when a minor's life is at good faith judgments "unless such a risk. Colautti, 439 U.S. at 396. Thus, the construction is reasonable and readily Act's death exception is drawn too narrowly apparent." Planned Parenthood of N. New to protect minors in need of a life-saving Eng. v. Heed, 296 F. Supp. 2d 59, 66-67 abortion. (quoting Stenberg, 530 U.S. at 944). The Act gives no indication that the negligence The Attorney General apparently concedes standard set out in RSA 626:2, I should not that an abortion provider must be able to be applied. Thus, a physician cannot know rely on his or her good faith medical whether his or her determination that a judgment in determining whether her minor's life is at risk will be judged patient's life is in danger. The Attorney according to a standard (e.g., knowingly) General argues that RSA 626:2, I, which that respects her good-faith medical states that "[a] person is guilty of a . . . assessment, or by an objective standard misdemeanor only if he acts purposely, (negligently) that would leave the knowingly, recklessly or negligently, as the physician's judgment open to post hoc law may require, with respect to each second guessing. The resulting uncertainty element of the offense," can be read together would, again, impermissibly chill with the Act to provide the necessary physicians' willingness and ability to scienter requirement. According to the provide lifesaving abortions. See Voinovich, Supreme Court of New Hampshire, "where a 130 F.3d at 205 (finding medical emergency specific mental state is not provided for the exception unconstitutionally vague "because

132 physicians cannot know the standard under harassment of women who choose to which their conduct will ultimately be exercise their personal, intensely private, judged"). As Dr. Goldner explained, "the right, with their physician, to end a Act forces doctors to think about criminal pregnancy." Thornburgh, 476 U.S. at 767; prosecution at a time when we need to be see also Bellotti, 443 U.S. at 644, (finding concentrating on doing what is best for our that judicial bypass proceeding "must assure patients, thus creating unnecessary risk to that a resolution of the issue, and any patients' health and lives." That risk appeals that follow, will be completed with constitutes an undue burden for minors in anonymity"). In the instant case, a lack of need of life-saving abortions. confidentiality would also create a significant risk that a minor's parents could Because its time requirement is drawn too learn of her pregnancy and desire for an narrowly, and because it fails to safeguard a abortion, resulting in the very harms sought physician's good-faith medical judgment to be avoided by the bypass procedure. that a minor's life is at risk against criminal Alternatively, a minor might be compelled and civil liability, the Act's death exception to delay or decline to seek an abortion out of is unconstitutional. fear that her parents would find out. Thus, for a large fraction of minors eligible for C. Confidentiality judicial bypass, inadequate confidentiality would impose an undue burden. The Act provides for judicial bypass of its notice provisions if, after a hearing, a judge Confidentiality provisions must "take "determines that the pregnant minor is reasonable steps to prevent the public from mature and capable of giving informed learning of the minor's identity," but the consent to the proposed abortion," or, if she Supreme Court has "refused to base a is not capable of giving informed consent, decision on the facial validity of a statute on that "the performance of an abortion upon the mere possibility of unauthorized, illegal her without notification of her parent, disclosure by state employees." Akron Ctr., guardian, or conservator would be in her 497 U.S. at 513. Considerable grey area is best interests." RSA 132:26, II; cf. Bellotti left between these two standards. Because v. Baird, 443 U.S. 622, 643-44, 61 L. Ed. 2d we have already found the Act in its entirety 797, 99 S. Ct. 3035 (1979) (requiring unconstitutional on other grounds, however, parental consent laws to provide for judicial we find it unnecessary to delve further into bypass on same grounds). Appellees argue an evaluation of its confidentiality that the Act does not adequately provide for provisions, the confidentiality of these judicial bypass procedures. The Act indicates that Ill. Conclusion "proceedings in the court . . . shall be confidential," and "an expedited confidential For the reasons stated above, we affirm the appeal shall be available." RSA 132:26, district court's order declaring the Act II(b)-(c). unconstitutional and enjoining its enforcement. Inadequate confidentiality provisions "raise the specter of public exposure and AFFIRMED..

133 "Court to Tackle Abortion Again After 5 Years"

New York Times May 24, 2005 Linda Greenhouse

WASHINGTON, May 23-The Supreme Those cases are likely to reach the Supreme Court accepted its first abortion case in five Court in its next term, increasing the years on Monday, an unexpected visibility and volatility of the abortion issue development that despite the rather technical in what may be a transitional time for the questions that the case presents is likely to court in view of the likely retirement of add even more heat to the already Chief Justice William H. Rehnquist. He has, superheated atmosphere surrounding the however, been a consistent dissenter from court and its immediate future. the court's decisions upholding the right to abortion, so his replacement would not be The new case is an appeal by the State of likely to shift the balance on the court. New Hampshire of a federal appeals court ruling that struck down a parental- One question facing the court in the current notification requirement for minors seeking case is whether parental-notice laws, or by abortions. extension, any abortion regulations, must explicitly provide exceptions for those The Supreme Court has dealt with parental- women whose continued pregnancy is a notice statutes for many years and has threat to their health. Beginning with Roe v. upheld those that contain safeguards for Wade in 1973, and including the court's minors, including the option of bypassing most recent decision, which invalidated the notice requirement by going before a 's partial-birth abortion law in judge. This case does not require the court 2000, the court has held that the government to revisit those precedents. may not constitutionally ban an abortion necessary to preserve a pregnant woman's Rather, it presents two questions that the health. court has not previously addressed in the context of parental-notice laws: provisions The New Hampshire parental-notice law, for health concerns and what kind of enacted in 2003, provides an exception for challenges should be allowed to abortion minors whose pregnancy threatens their life, laws that have not yet taken effect. but does not include a more general health exception. It was in part on this basis that The court's answers could be important for the United States Court of Appeals for the its consideration of future abortion cases, First Circuit, which sits in Boston, declared including ones challenging the recent federal the law unconstitutional last November. law that prohibits the procedure that abortion opponents call partial-birth The other question in the case is what abortion. That law has been declared standard courts should use in evaluating a unconstitutional in federal district courts judicial challenge to abortion laws that like around the country, and appeals by the Bush the New Hampshire law have not yet taken administration are now pending in three effect. Typically, as in this case, abortion federal appeals courts. rights advocates challenge restrictions by

134 seeking injunctions as soon as a new law is conditions as eclampsia or premature enacted. membrane rupture. Consequently, the law was unconstitutional, the appeals court In striking down the New Hampshire law, ruled. the federal appeals court applied a standard derived from the Supreme Court's 1992 In the state's appeal, Ayotte v. Planned decision that reaffirmed the right to Parenthood of Northern New England, No. abortion. 04-1144, Attorney General Kelly A. Ayotte is arguing that the court should have applied That decision, Planned Parenthood v. a different test, under which courts are not to Casey, struck down a Pennsylvania issue injunctions against laws that have not requirement that married women notify their yet taken effect unless "no set of husbands before obtaining an abortion. The circumstances exists under which the act majority found that while many married would be valid." women do consult with their husbands, and therefore would not be affected by the This standard is derived from a 1987 requirement, the law did place an "undue Supreme Court decision in a criminal case, burden" on the category of married women United States v. Salerno, which was not who were in abusive relationships or who related to abortion. The court's own could not notify their husbands without precedents are unclear on this standard's adverse consequences. continued application to abortion cases. The First Circuit concluded that the court's 1992 Even if that category represented only I Casey decision overruled the Salerno test. percent of all women seeking abortions, the Other federal appeals courts have found majority concluded, it still created a otherwise. substantial obstacle for a "large fraction" of those women for whom the regulation was On the health question, the state is arguing directly relevant, and was therefore that a teenager with a health problem can go unconstitutional. before a judge, who can take health into account even though the statute itself does The First Circuit applied that analysis in the not mention it. The First Circuit found this New Hampshire case to rule that even if argument inadequate, noting that the judicial most pregnant teenagers do not have health process, even expedited as the statute problems requiring a termination of requires, can take up to two weeks. Other pregnancy, the law's requirements, which appeals courts have recently struck down include a 48-hour waiting period after parental-notice laws in Colorado and Idaho parental notice, pose an undue burden on a because the laws did not contain a health large fraction of those who suffer from such exception,

135 "Parental Notification Supporters Delighted"

Union Leader (New Hampshire) May 24, 2005 Tom Fahey

CONCORD-Supporters of parental She said the governor would support a notification in New Hampshire expressed repeal of the law if the court upholds it. The surprise and delight yesterday that the U.S. law passed the New Hampshire Senate, 21- Supreme Court will rule on constitutional 11, and got through the House by six votes issues in the state's law. before it was signed by former Gov. Craig Benson. "I am on cloud nine," Rep. Barbara Hagan, R-Manchester, said. "This makes it a whole Walsh said Lynch "believes families should new ballgame-this is a strong indication communicate about these matters, but you that makes me very hopeful." can't legislate communication and there are cases where it's not always possible." The 2003 law requires doctors to give notice 48 hours in advance to at least one parent of Legislators who filed a "friend of the court" any minor seeking an abortion. Notification brief supporting the appeal, Ayotte v. can be in person or by certified letter. Planned Parenthood, were elated yesterday. Doctors can act if a minor is at risk of death, but two lower federal courts have nullified Hagan noted that the state's law is different the law, saying it does not provide enough from others the court has considered in the of an exception for medical emergencies. past, including Idaho and Pennsylvania. New Hampshire's law requires notification The state's appeal is expected to be heard of parents, but not their consent. during the court's fall session. "I'm incredibly excited, very thankful and Through a spokesman, Gov. John Lynch very positive," Rep. Phyllis Woods, R- said he is disappointed with the court's Dover, said. "The fact they picked it, when action. the odds are so remote-that is incredibly encouraging." "Gov. Lynch disagrees with the policy and with the decision to use state resources to She said the language in the bill "was appeal a bad law that two federal courts specifically chosen so we knew it had the have already found unconstitutional," press very best chance of being upheld at the U.S. secretary Pamela Walsh said. Supreme Court."

Attorney General Kelly Ayotte filed an Rep. Fran Wendelboe, R-New Durham, said appeal of the lower courts' rulings in she expected the court to take on the case, February, after Gov. Lynch took office. but gave credit to Benson and Ayotte. Walsh said the independence of the state Benson fought for the bill, and Ayotte Attorney General's Office left Lynch pursued the appeal knowing Lynch opposed without the option to block the appeal. it, she said.

136 Dawn Touzin, public affairs director for the warrant . That ruling state's Planned Parenthood chapter, said she may have prompted the court to take a new is confident the court will uphold rulings at look at the issue of minors and abortion the district and appeals courts levels. decisions.

"As parents, we all want to know what is Clegg said he doesn't care what the appeal going on with our children, but we also costs. paramountly want them to be safe, and the fact there is no health exception in this law "You don't put a price tag on things like that. should be of concern to all parents," she There's a lot at stake," he said. "This is not a said. frivolous case."

Deputy Attorney General Daniel Mullen Roger Stenson, executive director of said the state will prepare a full brief this Citizens for Life, said the New Hampshire summer. law is a reasonable attempt to involve parents in important decisions about their Part of the state's defense of the law hinges children's health. on the fact it allows a minor to seek permission from a court to proceed with an "Our medical emergency provision says that abortion if she does not want to involve her if the girl's life is in danger, notice is not parents. required. But if it's a matter of a health complication, we're saying, 'Make the call.' The appeal also cites the fact that other state Get the parents involved," he said. laws allow doctors to perform medical procedures if they deem them necessary to Both he and Touzin said the case shows how the life or long-term health of a patient. important judicial appointments have become. Mullen said expense is not a major factor in the appeal. "It certainly will not be in the Touzin said, "Upcoming federal and hundreds of thousands of dollars. It's more a Supreme Court appointments are absolutely matter of time and resources," he said. He critical to protecting women's full estimated it cost about $3,000 for the constitutional rights to privacy." petition asking the court to take the case. Stenson said President Bush's judicial Senate Majority Leader Robert Clegg, R- nominees, now the subject of a battle-and Hudson, noted that the Supreme Court possible compromise-in the U.S. Senate, recently ruled that minors don't have the "have expressed respect of the integrity of emotional maturity to make decisions that the family and the safety of minors."

137 "Judge Puts Brakes on Abortion Law"

Union Leader (New Hampshire) December 30, 2003 Garry Rayno

CONCORD-A new law requiring parents choose must have an exception for her be notified before a minor could have an health," said Claire Ebel of the New abortion was ruled unconstitutional Hampshire Civil Liberties Union, another yesterday by a federal judge. plaintiff.

The law was to go into effect tomorrow, but Gov. Craig Benson, a strong advocate for the ruling by U.S. District Judge Joseph the legislation, said in a prepared statement, DiClerico prohibits that from happening "I am disillusioned by today's decision. I through a permanent injunction. The state believe it is the responsibility of parents, not has 30 days to decide whether to appeal the the government, to raise their children. I ruling, will work with the Legislature to construct a parental notification law that will withstand The law would have been the first restriction judicial scrutiny." New Hampshire lawmakers placed on abortion rights since the U.S. Supreme Later, he said he hopes the state ultimately Court's Roe v. Wade decision 30 years ago. decides to appeal the ruling, "but that said, we need an alternative in the Legislature too, DiClerico sided with a number of women's so if we lose, we're not shut out." health care providers who filed suit last month claiming the law was not Associate Attorney General Daniel Mullen constitutional for three reasons: (1) It didn't said the decision on whether to appeal include an exception to protect a young would be made with input from Benson and woman's health. (2) The exception when the legislative leaders. woman's life is in danger was too narrow. (3) It was too vague concerning One of the bill's sponsors, Rep. Kathleen confidentiality of court records. Souza, R-Manchester, said she is on the board of New Hampshire Right to Life and Jennifer Frizzell, public affairs director for as an organization, "We will look to the Planned Parenthood of Northern New governor and attorney general to challenge England, the lead plaintiff in the case, said, this in Boston." "We are delighted with the court's decision to protect the young women of New Souza said the provisions of the parental Hampshire. This law would have notification law may be added to one of the endangered the health and lives of young abortion bills to be taken up this session. women seeking abortions in New Bill sponsors will discuss that this week, she Hampshire." said.

"We are very gratified this court recognizes "This is the same court that thought it was the unbroken string of rulings dating back to fine for Planned Parenthood to come into a 1973 that any limit on a woman's right to residential neighborhood in Manchester last

138 year and set up shop. I'm not shocked, but hours before an abortion is performed. this will not dampen the enthusiasm of pro- lifers either," Souza said. Teenagers not wishing to tell their parents could go before a judge who would "New Hampshire has no real history of determine if the girl is mature enough to being morally conservative. We know the make the decision or if the abortion is in her battle we are facing, and we are prepared to best interest. keep going on," she said. No notification would be necessary if a Roger Stenson, Citizens for Life executive doctor determines a young women's life is in director, said, "Starting at the bottom line, danger. this language in this law has been upheld by the U.S. Supreme Court, which is supposed In his ruling, DiClerico wrote, '. . . the act to be arbitrator of what is constitutional and does not comply with the constitutional what is not." requirement that laws restricting a woman's access to abortion must provide a health He wants to see the state appeal the ruling. exception." "The only responsible action at this point is for the attorney general to appeal. Rewriting The Attorney General's Office had argued the law would make it so weak, it would be there were other provisions in state law that meaningless," he said protect the health of a pregnant young woman, but DiClerico rejected that Sen. Lou D'Allesandro, D-Manchester, said argument. DiClerico's ruling "was expected. You couldn't fulfill the requirements of the law." DiClerico also agreed the exception when a D'Allesandro voted against the bill in the patient's life is in danger was too narrow. If Senate, where it passed on a 12-11 vote, a young woman's life were in danger, her with Senate President Thomas Eaton doctor would have to assume if he acted in abstaining. good faith, he would not be prosecuted, DiClerico wrote. "(That assumption) is "I have two daughters. I spoke with them, neither reasonable nor readily apparent from and I believe strongly that good parents the context," he said. spend time with their children and if a situation like this arose, the child would talk DiClerico declined to rule on the issue of to their parents. That's where this decision confidential protections for court records. belongs, it belongs with the family," D'Allesandro said. Besides Planned Parenthood and the ACLU, the groups that filed the lawsuit are the Under the provisions of the law, parents of Concord Feminist Health Center, the young women under 18 must be notified if Feminist Health Center of Portsmouth and their daughter wants to have an abortion. At Dr. Wayne Goldner, a Manchester least one parent or guardian would have to obstetrician and gynecologist. be notified in person or by certified mail 48

139 "Kids, Sex and the Law"

Union Leader (New Hampshire) May 18, 2003 Shawne K. Wickham

Some New Hampshire teenagers say young teens "would either have safer sex or not people might think twice about having sex if have sex." they had to tell their parents before getting an abortion, And Pat, 17, of Goffstown, who did not want his last name used, suggested, "There The state Senate on Thursday will take up a might be less abortions because people "parental notification" bill, already passed might not want to deal with their parents." by the House, that would require abortion providers to notify her parent before "I don't think it would stop people from performing an abortion on a minor. The having sex. I think it'd just make people measure was amended in committee last have safe sex more," he said. "More people week to replace the notification requirement would be having sex with a condom or with mandated counseling for minors, but going on ." some senators have vowed to bring a vote on the original proposal instead. McClay said she wouldn't want to tell her parents if she got pregnant. "I think I'd That original version included a "judicial probably want them to know, just for their bypass" option, allowing a girl who does not support. But I don't think I'd have the guts want her parents notified to appear before a to tell them-and I don't think they'd be very judge to obtain a waiver instead. Courts happy with me at first." have ruled that such laws must have judicial bypass to be held constitutional. Impact on behavior

Proponents of parental notification contend Studies have conflicted on just how it will help teenagers, who they say need "parental involvement" (which can mean their parents the most at such stressful times consent or notice) laws affect teen behavior. as unwanted pregnancy. But opponents say it will subject some youngsters to dangerous A 1991 study published in the American situations: abusive homes, secret and unsafe .Journal of Public Health found teen abortions, or having to travel out of state for abortion rates dropped in Minnesota, abortions. Missouri and Indiana after those three states adopted such laws. And Texas has seen High school students interviewed at the Mall declines in both teen pregnancy and abortion of New Hampshire Friday disagreed about rates since it adopted parental notification in whether such a law is a good idea. But 2000. nearly all said it might change behavior and even lower teen pregnancy and Roger Stenson, executive director of abortion rates. Citizens for Life, the New Hampshire affiliate of the National Right to Life Mariah McClay of Manchester, 16, believes Committee, said having fewer teens getting

140 pregnant and having abortions is a goal example people on both sides of the should be able to embrace. And one of the earliest studies on the issue, published in the American Journal of Public "Even Planned Parenthood says they want Health in 1986, looked at the impact of the abortions to go down," he said. "This is Massachusetts parental consent law during something they can help us with, to get the 20 months after it took effect, in April, abortions to go down, because kids who 1981. know their parents are going to be involved are going to think twice about the kind of That study found that while the in-state behavior they participate in." abortion rate declined by 43 percent during that period, a total of 1,872 Massachusetts "Ifthe rate of pregnancy is going down, that minors went out of state for abortions. means that the girls are altering their sexual behavior because they know their parents It found 286 girls traveled to New are going to be involved. It has a very Hampshire in the last eight months of 1981. positive epidemiological effect because we The number of girls who traveled to New want sexual activity to decrease as well, all Hampshire for abortions also went up in of us, and that's what happens as one of the 1982-an average of 53 a month-and the positive side benefits of parental notice study's authors suggested that was because legislation." Rhode Island adopted a parental consent law that took effect in September of that year. Jennifer Frizzell, public affairs director for Planned Parenthood of Northern New That led them to conclude, "It is clear that England, said her organization does support the distribution of minor women in states the overall goal of reducing teen pregnancy other than their home state is dramatically and abortion-but not at any cost. and immediately affected by the presence of a parental consent law." "For example, if the number of abortions in New Hampshire is reduced because our Opponents of HB 763 say if the parental young women are feeling the only safe place notification law passes, New Hampshire they can go is Vermont, and so it means they girls would be forced to travel to Maine or have to travel further away to providers who Vermont to get abortions. are less familiar with them, that's an unacceptable way to reduce your abortion Reduction or shifting? rate," she said. Frizzell cited the Massachusetts study as Indeed, some studies have questioned evidence that parental involvement laws whether those declines are true reflections of don't lower teen abortion rates. teen behavioral changes. "I would question whether or not that's a The same 1991 study found that in Missouri, reasonable correlation . . . if trends in the out-of-state travel to obtain abortions other parts of the country are similar to what increased by 50 percent for minors after the we know they are here in New England, law took effect. which is that a good number of women in

141 states where there are parental notice laws since the law was passed. She said will travel across state lines in order to avoid neighboring Oklahoma is involved in a court either parental notice laws or judicial bypass challenge to its own law, which leaves it up requirements," she said. to abortion providers to decide parental involvement-but which also makes those Vermont has no parental involvement law; providers liable for the cost of medical Maine allows a minor to notify another adult complications if the parent is not involved. or health care professional instead and also includes a counseling option similar to the Pending resolution of that case in the 10th amended version of the measure proposed in Circuit Court of Appeals, she said, "The New Hampshire, Frizzell said. Oklahoma abortion providers will not do abortions now in Oklahoma under this law She said if the proposed law passes, New because they don't want the liability." Hampshire girls who don't want to involve their parents in their decision to terminate And as a result, she said, "Oklahoma girls pregnancy would have two options: "To go are coming to Texas because there's no to a judge or go to another state." bypass (in Oklahoma) and the providers won't do it." But Teresa Collett, a pro-life Texas law professor who testified in support of the She said she called the New Mexico New Hampshire measure, said her state has Department of Health and was told Texas not seen an increase in the number of girls girls are not going there for abortions. And who leave the state for abortions. What they she said, "They're not going to Louisiana have seen is a dramatic decrease in the teen because their law's stricter than ours." pregnancy and abortion rates, she said. Considering consequences In Texas, teen pregnancies dropped by five percent from 1999 to 2000, and another five If New Hampshire passed a parental percent the following year. Teen abortions notification law, Collett said the state would dropped 20 percent the first year the law see decreases in teen pregnancy and abortion took effect, and decreased slightly the year rates. after, Collett testified last week before the Senate Judiciary Committee in Concord. "When there are consequences that you really want to avoid, like having to inform Collett is a member of an advisory your parents that you're sexually active, then committee to the Texas Supreme Court that you're going to avoid the behavior that can is looking at how the judicial bypass aspect lead to those consequences," she said. of that state's parental notice law is working. She is an ardent supporter of parental However, Frizzell predicts other, less involvement laws, and has served as an desirable consequences. She said a recent expert witness or legal counsel in litigation study in the Journal of the American involving such laws in Alaska, Florida, Medical Association found that teenage girls Oklahoma and Texas. often mistakenly believe that parental notification for abortion means they cannot Collett said there is no evidence that Texas get any reproductive services without their teens have left the state to seek abortions parents' knowledge or consent-and that

142 could mean they forgo gynecological exams not an adult, you shouldn't be sexually or testing for sexually transmitted diseases. active or get pregnant."

She said after the parental notice bill passed If she did get pregnant, she said, "Iwouldn't the House, her organization heard from two want to, but I would tell my mom, and it New Hampshire physicians who said teen would be in my best interest to tell her." clients had voiced concern that the proposed law would mean they could no longer get Her friend, Shauna Palhete of Hooksett, 18, birth control or other reproductive health said the proposed judicial bypass is care without their parents' permission. appropriate for a teen with good reason to fear telling a parent: "If you're mature Frizzell said most New Hampshire teens enough to get pregnant, you should be already involve their parents in their mature enough to go before a judge." decisions about abortion. And Briana Stevens of Kingston, 17, said She said the Planned Parenthood clinic in currently, "You're making it too easy for West Lebanon, the only one of its eight girls to have sex. They're not thinking about clinics that offers abortions, performed 46 the consequences." abortions last year on girls under 18. Twenty-six of those were 17 years old, 16 "If she had to tell her parents, she might not were 16 years old, and four were 15. have sex," she said.

She said two-thirds of those girls had It's easy now involved their parents in their decisions. Palhete said if the law passes, "They're just What happens to the other third if the state not going to be able to go out and get an adopts a parental notification law? "Some abortion so easily. It will be a hard road. of them feel fearful to even come in for It's definitely so easy right now." health care at all, so they will delay or avoid getting the earliest possible treatment and Dragotta agreed; she knows one classmate diagnosis of an unintended pregnancy," who has had numerous abortions. "It's like Frizzell said. buying milk at the store: You get pregnant, terminate the baby and no one has to know Some teens said many of their peers talk about it." openly about having unprotected sex, and many have had pregnancy scares. Others Pat, the 17-year-old from Goffstown, would rely on the so-called "morning-after pill" to leave it up to a teen to decide whether to tell avoid pregnancy after unprotected sex, they her parents if she wanted an abortion. "I said. think if someone is old enough and mature enough to have an abortion, they're old And some believe the parental notification enough to talk to someone about it if they law might change some of that behavior. want to." But he could "live with" a parental notification law for minors under 16. Ashly Dragotta of Weare, 16, said she supports such a law. "I think it's totally Britni Sanders of Raymond, 16, agreed with reasonable you should have to tell your that age limit. "At 16, you're mature enough parents or go to court," she said. "If you're to drive and handle those situations. You

143 should be mature enough to handle this," she he would feel if his girlfriend had to tell her said. parents she was pregnant, he was resolute: "I shouldn't have done anything in the first But Greg Clauson of Raymond, 16, said he place if I didn't want to accept the supports the law for anyone under 17. responsibility."

When his friends challenged him about how

144 "Parental Notification Sent to Benson"

Union Leader (New Hampshire) May 30, 2003 Garry Rayno

CONCORD-For the first time since Roe said, "This gives parents back their legal versus Wade, New Hampshire has approved rights." legislation that places restrictions on abortions. Roger Stenson, executive director of Citizens for Life, said: "This bill is a vital The House yesterday voted 197-176 to send element in abortion reform. Our young to Gov. Craig Benson legislation that would daughters have just been given back to their require parents of girls under 18 to be families where they can get the loving notified if their daughters want to have an counsel they deserve when they need it abortion. The bill contains exceptions. most."

It states, "written notice shall be addressed He said when teens know their parents will to the parent at the usual place of abode of be involved, their sexual activity is altered. the parent and delivered personally to the parent by the physician or an agent." Last week, after nearly three hours of debate, the Senate voted 12-11 to approve Gov. Craig Benson said he would sign the the bill with Senate President Thomas bill, having pushed for the legislation. Eaton, R-Keene, abstaining.

Opponents of the bill raised the possibility The Senate changed the definition of of a legal challenge, noting it does not abortion by removing a section stating a provide an exemption for health issues. fetus is an individual human organism from They also said the state may not provide the fertilization until birth. necessary resources for the judicial bypass that allows a young women to go before a Yesterday the House spent about a half-hour judge if she does not want her parents debating the bill before voting 198-175 not informed before she has an abortion. to table it and then concurred the Senate's change in the bill. Last month, the House Jennifer Frizzell of Planned Parenthood of passed HB 763 by six votes. Northern New England said "the vote ends three decades of libertarian heritage that The bill would require that at least one respected reproductive freedom and medical parent or guardian be notified in person or privacy." by certified mail 48 hours before the abortion is performed. Daughters not But supporters said the bill would restore wishing to tell their parents could go before parental rights and involve them in one of a judge who would determine if the girl was the most important decisions a girl could mature enough to make the decision or if the make in her life. abortion was in her best interest.

Supporters of the bill praised Benson for his No notification would be necessary if a work on the bill. After the vote, Benson doctor determines the girl's life is in danger.

145 Although New Hampshire has never put any chief justice of this state for conducting the restrictions on abortion since the Roe versus court's business behind closed doors. If we Wade decision, three statutes from the 1800s do something like that, that would be prohibiting abortion and containing penalties hypocritical," he said. for performing such procedures remained on the state's books until 1997. The statutes Rep. Edward "Ted" Leach, R-Hancock, were never enforced. disagreed and noted the close vote in both the House and Senate. There have been numerous attempts to place restrictions on abortions, especially for "The core issue here today is exactly what it minors, as well as prohibit late-term has been in this very chamber for the last abortions, but none have ever been approved two decades. For almost 20 years, this by the Legislature since the Supreme Court House has clearly recognized what is at the decision until yesterday's vote. center of today's debate, and that is the unnecessary intrusion of government into After the vote, one of the bill's sponsors, the basic family unit." Rep. Phyllis Woods, R-Dover, said the bill was based on the Minnesota law that has "This is a 'big brother' bill, and it should be withstood numerous legal challenges. summarily rejected because this is just not "There is nothing in this bill that has not the New Hampshire way," he said. stood constitutional muster," she said. Frizzell said "The passage of this bill signals During the House debate, House Judiciary a first step in the erosion of all women's Committee chairman Henry Mock, R- access to reproductive health services here Jackson, urged lawmakers to take an up or in New Hampshire. We expect the down vote on the bill and not stoop to proponents of the parental notification bill to parliamentary maneuvers. pursue several additional anti-choice measures next year." "Three years ago this House impeached the

146 "Parental Consent or Notification for Abortion"

http://www.ncsl.org/programs/health/adolaborhtm February 2004 L. Jeanne Kaufmann

Approximately 900,000 teenagers become addressing parental consent or notification pregnant each year. Legislators deal with for minors seeking abortions. issues involving minors who decide to seek an abortion in various ways. These include Parental consent generally means that at laws prohibiting anyone from performing an least one of the minor's parent(s) or legal abortion on an unemancipated minor unless guardian must give written or verbal consent or notification of either the parent(s) permission to the physician in order to or the is obtained. Judicial perform the minor's abortion. bypass and exceptions may also be obtained. Parental notification generally means that Twenty-five states require a minor to obtain the physician must send a letter within a at least one of her parents' consent before specific time period to the parent(s) or legal receiving an abortion and 23 states require guardian of the minor seeking an abortion to parental notification. Ohio, Oklahoma, notify them of her intent. Virginia and Wyoming all specify requiring parental notification and/or knowledge and Forty states have judicial bypass procedures consent. allowing minors who cannot tell their parent(s) about their decision to have an There are six states-Connecticut, Hawaii, abortion to seek court orders to waive New York, Oregon, Vermont and parental involvement. A judge will decide Washington-that have no laws specifically whether to allow the abortion without parental consent or notification.

147 Garcetti v. Ceballos

(04-473)

Ruling Below: (Ceballos v. Garcetti, 361 F.3d 1168 (9th Cir. 2004), cert. granted, 125 S. Ct. 1395, 161 L.Ed. 2d 188, 73 U.S.L.W. 3513 (U.S. Feb. 28, 2005)(No. 04-473)).

Richard Ceballos, a deputy district attorney, sued the district attorney and others, alleging that retaliatory action was taken against him for engaging in speech protected by the First Amendment. The dispute involved job-related speech, as Ceballos sought to expose what he believed to be perjury by a officer. The United States District Court for the Central District of California granted summary judgment in favor of the individual defendants, finding they were protected by qualified immunity, and in favor of the county, finding it to be protected by the Eleventh Amendment. The Ninth Circuit reversed, finding that, for the purposes of summary judgment, plaintiffs speech was protected by the First Amendment and that none of the immunities claimed by defendants were applicable.

Question Presented: Should a public employee's purely job-related speech, expressed strictly pursuant to the duties of employment, be cloaked with First Amendment protection simply because it touches on a matter of public concern, or should First Amendment protection also require the speech to be engaged in "as a citizen," in accordance with this Court's holdings in Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983)?

Richard CEBALLOS, Plaintiff-Appellant, V. Gil GARCETTI; FRANK SUNDSTEDT; CAROL NAJERA; COUNTY OF LOS ANGELES, Defendants-Appellees.

United States Court of Appeals for the Ninth Circuit

Decided March 22, 2004

[Excerpt: Some citations and footnotes omitted]

OPINION: REINHARDT, Circuit Judge: fails to train, supervise, and discipline its district attorneys regarding such unlawful Richard Ceballos filed this action pursuant retaliation. to 42 U.S.C. § 1983 contending that he was subjected to adverse employment actions by The district court granted a motion for his supervisors at the Los Angeles County summary judgment in favor of the individual District Attorney's Office in retaliation for defendants-the District Attorney (in his engaging in speech protected by the First individual capacity), the then-Head Deputy Amendment. He also asserts that the county District Attorney, and Ceballos's immediate

148 supervisor-on the basis of qualified that he believed that one of the arresting immunity, and granted a separate motion for deputy sheriffs may have lied in a search summary adjudication in favor of the county warrant affidavit. He asked Ceballos to defendants-the county and the District investigate. Ceballos was supervising the Attorney (in his official capacity)-on the deputy district attorney assigned to the case, basis of Eleventh Amendment immunity. but he decided to investigate the allegations Given that the disputed facts must be himself. After reviewing the relevant resolved in Ceballos's favor and that all documents in the case and visiting the crime inferences that may reasonably be drawn scene, Ceballos determined that the affidavit must also be drawn in his favor, we reverse of the deputy sheriff had, at the least, grossly the district court's rulings. We hold that, for misrepresented the facts. purposes of summary judgment, qualified immunity was not available to the individual Ceballos discussed the problems arising defendants because the law was clearly from this investigation with others in the established that Ceballos's speech addressed Office, including his immediate supervisor, a matter of public concern and that his Carol Najera and the then-Head Deputy interest in the speech outweighed the public District Attorney, Frank Sundstedt. employer's interest in avoiding inefficiency Everyone agreed that the validity of the and disruption. Because the Eleventh warrant was questionable. On March 2, Amendment does not apply to political 2000, Ceballos sent Sundstedt a subdivisions of the state, the county could memorandum discussing his determination ordinarily not assert sovereign immunity, that the affidavit was falsified and although in this case it could do so if such recommending that the case be dismissed, immunity applied to the District Attorney. Sundstedt instructed Ceballos to revise the Whether the District Attorney, when acting memorandum to make it less accusatory of in his official capacity, is entitled to such the deputy sheriff. Ceballos rewrote the immunity depends on whether he was memorandum, and a meeting was held on performing a state or a county function March 9 with representatives from the when he took the alleged actions with Sheriffs Department, Sundstedt, Najera, respect to Ceballos. We hold that in most Ceballos, and another deputy district respects he was acting in the latter capacity. attorney. Thus, he is not entitled to Eleventh Amendment immunity, and neither is the Following the meeting with the Sheriffs County. Department, Sundstedt was not certain that Cusky should be dismissed and decided to BACKGROUND proceed with the case pending the outcome of a motion challenging the search warrant, Ceballos has been a deputy district attorney which had already been filed by the defense. since 1989. In 1997 or 1998 he was Ceballos informed defense counsel that he assigned to the District Attorney's Office's believed the affidavit contained false Pomona Branch and about a year later was statements, and defense counsel subpoenaed promoted to calendar deputy, with him to testify at the hearing. Ceballos told supervisory responsibilities over two to Najera that pursuant to Brady v. Maryland three deputy district attorneys. In late and other case law, he was obligated to turn February 2000, a defense attorney in People over to the defense the memoranda he had v. Cusky, a case then being prosecuted by prepared regarding his opinion of the the District Attorney's Office, told Ceballos legality of the search warrant. Ceballos

149 contends that Najera instructed him to edit Ceballos filed a complaint in the district the memorandum to include statements by court pursuant to § 1983 against Najera, only one detective and to limit his in-court Sundstedt, and then-District Attorney Gil testimony. When Ceballos testified at the Garcetti in their individual capacities, as hearing on the motion, the Cusky court well as against Garcetti in his official sustained the prosecution's objections to capacity and the County of Los Angeles. He several questions defense counsel asked sought lost wages and other compensatory him. Ceballos maintains that, as a result, he damages as well as injunctive relief. The was unable to tell the court certain of his county defendants moved for summary conclusions (and the reasons therefore) adjudication, which the district court granted regarding the accuracy of the warrant. The on the ground that the Eleventh Amendment defendant's motion was denied, and the barred the action. Ceballos amended his prosecution proceeded. Having testified for complaint, and the individual defendants the defense, Ceballos was removed from the moved for summary judgment, which was Cusky prosecution team. granted on the ground that they were protected by qualified immunity. The Ceballos alleges that Garcetti, Sundstedt, district court declined to exercise and Najera retaliated against him for jurisdiction over Ceballos's state law claim submitting the memorandum regarding the for intentional infliction of emotional Cusky warrant, for otherwise reporting to or distress. Ceballos appeals. discussing with other persons the allegations of misconduct by the deputy sheriff, and for ANALYSIS testifying truthfully at the court hearing. He alleges that the defendants took a number of I. Individual Defendants and Qualified retaliatory actions against him: (1) they Immunity demoted him from his position of calendar deputy to that of trial deputy; (2) Najera Ceballos argues that the district court erred "threatened" him when he told her that he in holding that the individual defendants would testify truthfully at the hearing; (3) at were entitled to qualified immunity. Public the hearing itself Najera was "rude and officials are entitled to qualified immunity hostile" to him; (4) Sundstedt "gave [him] for acts that do not violate "clearly the silent treatment"; (5) Najera informed established . . . constitutional rights of which him that he could either transfer to the El a reasonable person would have known." Monte Branch [described by Ceballos as an Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 act of "Freeway Therapy," a practice of L. Ed 2d 396, 102 S. Ct. 2727 (1982); punishing deputy district attorneys by Rivero v. City & County of San Francisco, assigning them to a branch requiring a long 316 F.3d 857, 863 (9th Cir. 2002). When commute to work], or, if he wanted to considering a defendant's motion for remain in the Pomona Branch, he would be summary judgment on the ground of re-assigned to filing misdemeanors, a qualified immunity, we must first determine position usually assigned to junior deputy whether, when the facts are taken in the light district attorneys; (6) the one murder case he most favorable to the plaintiff and the was handling at the time was reassigned to a inferences are drawn in his favor as well, deputy district attorney with no experience these facts and inferences establish that the trying murder cases; (7) he was barred from official's conduct violated a constitutional handling any further murder cases; and (8) right. Saucier v. Katz, 533 U.S. 194, 201, he was denied a promotion. 150 L. Ed 2d 272, 121 S. Ct. 2151 (2001).

150 If so, wc must next consider whether the Ceballos's interest in expressing himself right was clearly established at the time of outweighs the government's interests "in the alleged improper act. Id. If the right promoting workplace efficiency and was clearly established, we ask finally avoiding workplace disruption." Rivero, whether despite this fact, the official's 316 F 3d at 865 (quoting Hufford v. unconstitutional conduct constituted a McEnaney, 249 F.3d 1142, 1148 (9th Cir. reasonable mistake of fact or law. Id. at 2001)). 199. Then, unless the constitutional error is excused on that ground, summary judgment 1. Matter of Public Concern must be denied. Whether a public employee's speech A. Ceballos's Speech Was Protected By the addresses a matter of public concern is a FirstAmendment question of law. Connick 461 U.S. at 148 n. 7.... Ceballos contends that he exercised his First Amendment right to free speech in alleging A public employee addresses a matter of that a deputy sheriff included false public concern when his speech relates to an statements in the Cusky search warrant issue of 'political, social, or other concern affidavit. The parties appear to dispute to to the community."' Brewster, 149 F.3d at whom Ceballos spoke about the alleged 978 (quoting Connick, 461 US at 146); see misconduct. . . . For the reasons set forth also Johnson v. Multnomah County, 48 F. 3d below, we hold that, for purposes of 420, 422 (9th Cir 1995). "Speech that summary judgment, Ceballos's allegations of concerns issues about which information is wrongdoing in the memorandum constitute needed or appropriate to enable the members protected speech under the First of society to make informed decisions about Amendment; accordingly, we need not the operation of their government merits the determine here whether similar protection highest degree of first amendment should be afforded to his other protection." Coszalter, 320 F.3d at 973 communications. Those matters are best (internal quotation marks omitted). In explored at trial. contrast, "speech that deals with individual personnel disputes and grievances and that Although public employees do not would be of no relevance to the public's relinquish their right to free speech by virtue evaluation of the performance of of their employment, neither do they enjoy governmental agencies, is generally not of absolute First Amendment rights. To public concern." Id. determine whether Ceballos's speech is protected by the First Amendment, we apply In defining the scope of First Amendment a two-step test that stems from the Supreme protection accorded to public employees' Court's holdings in Connick v. Myers, 461 speech, the Supreme Court has distinguished US. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 between speech "as a citizen upon matters of (1983), and Pickering v. Bd of Educ., 391 public concern" at one end and speech "as U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 an employee upon matters only of personal (1968): (1) we ask whether the speech interest" at the other. Connick, 461 U.S. at addresses a matter of public concern, and, if 147. ... it does, (2) we engage in an inquiry, commonly known as the Pickering What is critical under Connick, as we balancing test, to determine whether explained in Roth v. Veteran's Admin. of

151 United States, is the "point of the speech in defendants' contention that a public question: was it the employee's point to employee's speech is deprived of First bring wrongdoing to light? Or to raise other Amendment protection whenever those issues of public concern, because they are of views are expressed, to government workers public concern? Or was the point to further or others, pursuant to an employment some purely private interest?" 856 F.2d responsibility. In Roth, the plaintiff was 1401, 1406 (9th Cir. 1988). Thus, "it is only fired from his position as "troubleshooter" at 'when it is clear that . . . the information the Veterans Administration after he would be of no relevance to the public's exposed corruption, mismanagement, and evaluation of the performance of other problems in written reports that were governmental agencies' that speech of prepared as part of his job responsibilities. government employees receives no 856 F.2d at 1406. Concluding that Roth's protection under the First Amendment." comments were not to further personal Ulrich v. City & County of San Francisco, grievances, but rather "for the express 308 F.3d 968, 978 (9th Cir. 2002) (quoting purpose of addressing . . . problems Pool v. Vanrheen, 297 F.3d 899, 907 (9th besetting the VA, at the wish of the Cir. 2002)). defendants and for the good of the institution, the Veterans it serves, and the The individual defendants concede that public," we held that Roth could not be Ceballos's allegations that an arresting denied First Amendment protection simply deputy sheriff may have lied in a search because his efforts to expose wrongdoing warrant affidavit constitutes whistleblowing. were included in reports written pursuant to . . . The defendants do not argue that his employment duties. Id. Ceballos's First Amendment interest is diminished because his purpose was primarily to further a personal personnel dispute. Instead, they contend that Although our cases are clear, our specially Ceballos's allegations of law enforcement concurring colleague contends that we perjury should not be protected because he should revisit en bane our holdings in Roth included them in a memorandum to his and its progeny and establish a per se rule supervisors that he prepared in fulfillment of that public employees are not protected by an employment responsibility, the First Amendment when their speech is uttered in the course of carrying out their Under Connick, speech that is protected by employment obligations. We disagree. The virtue of its content does not lose that right of public employees to speak freely on protection simply because the speech is matters of public concern is important to the directed to other employees of that orderly functioning of the democratic governmental employer rather than to process, because public employees, by members of the public. 461 US. at 147-49. virtue of their access to information and In particular, we have repeatedly held that experience regarding the operations, speech exposing official wrongdoing is no conduct, and policies of government less deserving of First Amendment agencies and officials, "are positioned protection because the public employee uniquely to contribute to the debate on reported the misconduct to his supervisors matters of public concern." Weeks v. Bayer, rather than to the news media. 246 F3d 1231, 1235 (9th Cir. 2001) (quoting Gilbrook v. City of Westminster, Nor do our cases provide any support for the 177 F.3d 839, 870 (9th Cir. 1999)).

152 Stripping them of that right when they report colleague may be suggesting the adoption of wrongdoing or other significant matters to a narrower per se rule-a rule that would their supervisors would seriously undermine deny First Amendment protection to speech our ability to maintain the integrity of our contained in routine reports or made in the governmental operations. performance of routine job functions-we strongly disagree. The mere fact that a The proposed per se rule would be public employee exposes individual particularly detrimental to whistleblowers, wrongdoing or government misdeeds when such as Ceballos, who report official making a regular as opposed to a special misconduct up the chain of command, report does not, by itself, result in the denial because all public employees have a duty to of First Amendment protection. Whether a notify their supervisors about any wrongful job duty is routine or non-routine is a far conduct of which they become aware. To less important factor for purposes of First deprive public employees of constitutional Amendment analysis than the content of the protection when they fulfill this employment public employee's speech. Regardless of the obligation, while affording them protection form in which a government worker makes if they bypass their supervisors and take charges of corruption, criminal misconduct, their tales, for profit or otherwise, directly to or public waste, such charges raise serious a scandal sheet or to an internet political public concerns that merit careful smut purveyor defies sound reason. assessment and justify full application of the Connick principles. Indeed, a report that Moreover, such a per se rule would violate would ordinarily be considered routine by the principles established by Connick. virtue of its form may well become non- Subject to the Pickering balancing test, First routine by virtue of its content, such as when Amendment protections are available to it contains serious charges of official public employees who suffer retaliation for wrongdoing. Finally, a per se rule stripping whistleblowing, regardless of whether the all First Amendment protection from speech act of whistleblowing consists of informing uttered in the performance of routine, as higher level public officials, Congressional opposed to non-routine, job functions would committees, or the media. The Supreme be inconsistent with the very nature of the Court in Connick made no distinction Connick test which contains a second step between internal and external that requires us to balance various factors, whistleblowing when it noted that speech including some of those that concern our that is "of public import in evaluating the concurring colleague. performance of the District Attorney" may include efforts by an employee "to bring to light actual or potential wrongdoing or breach of public trust." Connick, 461 US. 2. Balancing Test at 148. Even though Ceballos's speech constituted a Other circuits have also rejected any per se matter of public concern, it is not protected rule that a public employee does not receive by the First Amendment unless the court any First Amendment protection for speech also finds that his interest in the speech out- that occurs within the scope of his weighs the government's interests "in employment duties. promoting workplace efficiency and avoiding workplace disruption." Rivero, To the extent that the defendants or our 316 F.3d at 865; accord Pickering v. Bd of

153 Educ., 391 US. 563, 571, 20 L. Ed. 2d 811, The defendants next maintain that their 88 S. Ct. 1731 (1968). The employer bears interests outweigh those of Ceballos because the burden of proving that the balance of his charges of misconduct by the deputy interests weighs in its favor. Johnson, 48 sheriff were found to be erroneous by the F.3d at 426. The 'more tightly the First Cusky court. The falsity of a statement is a Amendment embraces the speech the more factor to be considered in the Pickering vigorous a showing of disruption must be balance. Moran v. Washington, 147 F.3d made.'' Id. (quoting Hyland v. Wonder, 972 839, 849-50 (9th Cir. 1998). We have F.2d 1129, 1139 (9th Cir. 1992)). recognized, however, that in order to encourage public employees to speak out on The defendants contend that under our matters of public concern, the First holding in Brewster, the Pickering balancing Amendment will ordinarily be held to protect test favors them because Ceballos spoke to even false statements, because other government employees and not to the public or the media. While in Brewster we while false statements are not stated that a "narrow, limited focus and a deserving, in themselves, of limited audience weigh against a claim of constitutional protection, protected speech," 149 F.3d at 981 (internal "erroneous statement is quotation marks omitted), we also inevitable in free debate, and . . recognized that "the private nature of the . it must be protected if the statement does not remove it from the realm freedoms of expression are to of 'public concern' altogether." Id. . . . have the 'breathing space' that [T]he decisive question is whether the they 'need . . . to survive."' employee spoke with the intention of bringing wrongdoing to light, because we Johnson, 48 F 3d at 424. In Johnson, we have held that "in a good-faith considered the weight to be accorded in a whistleblowing context, the breadth of one's Pickering balancing to false statements audience is irrelevant." Hufford, 249 F.3d made with reckless disregard for the truth. at 1150. Johnson, 48 F.3d at 421-26. While noting that recklessly false statements serve a "very Assuming, for the purposes of our analysis, limited" First Amendment interest, id. at 426 that the speech at issue is only the (citing Arnett v. Kennedy, 416 U.S. 134, memorandum Ceballos sent to Sundstedt, 162-63, 40 L. Ed. 2d 15, 94 S. C. 1633 there can be no disputing the fact that he (1974)), we nonetheless held that even such included the material charging misconduct statements "are not per se unprotected by the on the part of a law enforcement officer "to First Amendment when they substantially bring wrongdoing to light, not merely to relate to matters of public concern. Instead, further some purely private interest." the recklessness of the employee and the Ulrich, 308 F.3d at 979 (internal quotations falseness of the statements should be omitted). Even if Ceballos's audience was considered in light of the public employer's limited, this factor would provide little showing of actual injury to its legitimate support to the individual defendants' claim interests, as part of the Pickering balancing of disruption and inefficiency under test." Id. at 424. Pickering because the speech was uttered in a "good-faith whistleblowing context." Unlike in Johnson, there is no evidence here Hufford, 249 F 3d at 1150. that Ceballos spoke recklessly, or that he

154 acted in bad faith. At most, the evidence speech outweighed the defendants' suggests that his statements proved to be administrative interests. Thus, we hold that, erroneous. As the individual defendants for summary judgment purposes, his speech concede, prosecutors have a duty to disclose was protected by the FirstAmendment. information favorable to an accused, including information relating to a witness's * * * veracity and integrity. Good-faith statements made in pursuit of this [The court went on to note that the obligation, even if they may ultimately turn defendants would be entitled to qualified out to be incorrect, do not warrant retaliatory immunity if the constitutional right was not action. Accordingly, if Ceballos's clearly established at the time of the statements in the memorandum to his violation or if a mistake as to the supervisor are ultimately determined to be requirements of the law was objectively erroneous, the erroneous nature of the reasonable. The court held that the law was statements might lessen the weight of his clearly established and that, for purposes of interests under the Pickering balancing test, summary judgment, the allegedly retaliatory but that factor would in any event not be motive indicated that defendants' actions sufficient by itself to deprive Ceballos of all were not objectively reasonable. First Amendment protection. The court also addressed the question of Assuming arguendo that Ceballos's limited sovereign immunity. It concluded that the audience and purportedly erroneous retaliatory actions taken against Ceballos statements diminish the weight of his First were part of the administrative function of Amendment interests, the individual the District Attorney's Office (as opposed to defendants do not meet their burden under prosecutorial function) and were therefore Pickering because they offer no explanation performed on behalf of the county rather as to how Ceballos's memorandum to his than the state. Counties, unlike states, do supervisors resulted in inefficiency or office not enjoy sovereign immunity.] disruption. Ceballos tried to address the problem initially by reporting the matter to his supervisors, obviously an appropriate way of seeking a responsible solution. . . . It CONCLUSION is difficult to imagine how the performance of one's duties in this manner could be For the foregoing reasons, we reverse the disruptive or inefficient much less how district court and remand for further any such "disruption" or "inefficiency" proceedings. could outweigh the public's interest in the exposure of corrupt or unlawful practices in REVERSED and REMANDED. the Sheriffs Department. In any event, because the defendants have failed even to CONCUR: O'SCANNLAIN, Circuit Judge, suggest disruption or inefficiency in the specially concurring: workings of the District Attorney's Office, there is little for us to weigh in favor of the I write separately because although I concur individual defendants under Pickering. in the court's opinion that Roth v. Veteran's Administration of the United States, 856 In sum, Ceballos's speech addressed a matter F.2d 1401 (9th Cir 1988), controls the of public concern and his interest in the result, I believe that Roth was wrongly

155 decided and that it ought to be overruled, employee that touches upon matters of perhaps even by our court's rehearing the public importance, notwithstanding what present case en banc. might best be described as the "role" of its speaker-is at odds with the Supreme Court's instruction in Connick. Connick teaches us that the relevant constitutional II distinction is not merely between speech touching on matters of public significance . . . [l]n Roth, a three-judge panel of our and speech that does not, but between court held that when a public employee speech spoken "as a citizen upon matters of speaks on matters of public importance, his public concern [and that offered] cis an or her speech falls automatically within the employee upon matters only of personal protective ambit of the First Amendment. interest." Id. at 147 (emphasis added); Roth Yet in so holding, Roth minimized-indeed, thus collapses a critical dimension of it entirely ignored-the significance of Connicks two-pronged inquiry: By focusing Connick's distinction between speech only on Connick's public concern/purely offered by a public employee acting as an personal interest axis, Roth improperly employee in carrying out his or her ordinary quashes the controlling caselaw's employment duties and speech spoken by an accompanying distinction between an employee acting as a citizen expressing his employee's viewpoint-laden personal speech or her personal views on disputed matters of and his or her ordinary job-related speech. public import. Instead, Roth asserted that the relevant constitutional inquiry focuses III solely on the "point of the speech in question: Was it the employee's point to In fairness to the Roth court, Connick did bring wrongdoing to light? Or to raise other not fully rationalize the distinction it drew issues of public concern, because they are of between speech offered by a public public concern? Or was the point to further employee acting as an employee carrying some purely private interest?" Roth, 856 out his or her ordinary job duties and that F.2d at 1405 (quoting Callaway v. Hafeman, spoken by an employee acting as a citizen 832 F.2d 414, 417 (7th Cir. 1987) (quoting expressing his or her personal views on Linhart v. Glatfelter, 771 F.2d 1004, 1010 disputed matters of public import. Nor, for (7th Cir. 1985). As the majority today the most part, have the six other circuits reiterates, Roth's formulation led inexorably which-in contrast to this court-at various to the conclusion that "it is only when it is points reiterated the importance of Connick's clear that . . . the information would be of no citizen speech-employee speech distinction. relevance to the public's evaluation of the Notwithstanding the relative opacity of performance of governmental agencies that Connick's explanation for its differentiation speech of government employees receives between citizen and employee speech, no protection under the First Amendment." however, there is a strong First Amendment Maj. Op. at 3455 (quoting Ulrich v. City & basis for its having drawn such a distinction. County of San Francisco,308 F.3d 968, 978 (9th Cir. 2002)) (quotation omitted) A (emphasis in original). While it has rarely been stated explicitly by That conclusion-that the First Amendment the Supreme Court, the implicit premise encompasses any speech by a public underlying the First Amendment's hostility

156 toward viewpoint-driven rules abridging the fall within the protections of the First freedom of speech is that such constraints Amendment: impermissibly infringe upon individuals' freedom of choice to express their personal Pursuant to his duties as a opinions or to otherwise express themselves. prosecutor, [Ceballos] wrote a As the Court put the point in Rutan v. memo expressing his concerns Republican Party of Ill., 497 U.S. 62, 75-76, about the veracity of the Ill L. Ed. 2d 52, 110 S. Ct. 2729 (1990) officers in [People v. Cuskey]. (emphasis added) (internal citations He then informed his omitted): supervisors he intended to comply with his duties under There are deprivations less Brady v. Maryland, [373 U.S. harsh than dismissal that 83, 10 L. Ed. 2d 215, 83 S. Ct. nevertheless press state 1194 (1963)], which required employees and applicants to him to turn his memo over to conform their beliefs and defense counsel. associations to some state- selected orthodoxy. The First Plaintiffs Statement in Opposition to Amendment is not a tenure Defendants' Separate Statement of provision, protecting public Uncontroverted Facts and Conclusions of employees from actual or Law at 4. Counsel for plaintiff reiterated that constructive discharge. The description of the facts at oral argument[.] First Amendment prevents the government . . . from wielding As these statements indicate, Ceballos had its power to interfere with its no personal stake (other than in doing his employees' freedom to believe job well), and no cognizable First and associate, or to not believe Amendment interest, in the speech for which and not associate. he now seeks protection-his performance of the basic communicative duty Brady The problem is that when public employees imposes on "the prosecution." See Brady, speak in the course of carrying out their 373 U.S. at 87. Indeed, as the Supreme routine, required employment obligations, Court has explained, "the prosecutor's office they have no personal interest in the content is an entity and as such it is the spokesman of that speech that gives rise to a First for the Government. A [statement] made by Amendment right. Instead, their speech is, in one attorney must be attributed, for these actuality, the State's. I do not dispute the purposes, to the Government." Giglio v. court's characterization of the relevant facts United States, 405 U.S. 150, 154, 31 L. Ed of this case-which it presents, as it must, in 2d 104, 92 S. Ct. 763 (1972) (citing the light most favorable to Ceballos, see Restatement (Second) ofAgency § 272). Of Coszalter v. City of Salem, 320 F 3d 968, course, "the Government" has no First 973 (9th Cir. 2003)-but I believe that Amendment rights. Only individuals do. actually quoting Ceballos's own statement of the operative facts may be particularly B illustrative here. In his opposition to the defendants' motion for summary judgment Roth's extension of First Amendment below, Ceballos described as follows the protections to such routine, required job- basis for the speech that he now claims to related activity effectively has-no less than

157 an extension of such safeguards to the The repeated emphasis in personnel grievances at issue in Connick Pickering on the right of a would have-"planted the seed of a public employee 'as a citizen, in constitutional case" in every task that every commenting upon matters of public employee ever performs, every time public concern,' was not that any public employee merely does "what accidental. This language, he is supposed to do." Connick, 461 U.S. at reiterated in all of Pickering's 149. At bottom, after all, everything a progeny, reflects both the public employee does in the course of historical evolvement of the carrying out the requirements of his or her rights of public employees, and job ultimately is connected to the public the common sense realization interest and relevant to citizens' "making that government offices could informed decisions about the operation of not function if every their government," Coszalter, 320 F.3d at employment decision became a 973. Terrell, 792 F.2d at 1360[.] constitutional matter.

Indeed, with Roth as precedent and now Connick, 461 U.S. at 143. Ceballos on the books, what federal or state employment-based decision can possibly C evade intrusive federal constitutional review? Suppose that, instead of retaining Finally, holding as Roth did that the First private counsel as it has here, the County Amendment protects speech offered by a had provided its own staff attorney public employee in the course of carrying representation. Suppose further that the out his or her ordinary job responsibilities deputy county counsel assigned to defend "creates a fundamental and unnecessary this case had (just like the majority) quite schism" between the Supreme Court's mistakenly, but also quite sincerely, come to caselaw addressing speech by public the conclusion that Ceballos indeed has a employees and its caselaw addressing viable First Amendment retaliation claim speech that otherwise is government-funded and, consequently, went so far as to file a or state-sponsored. Urofsky, 216 F3d at brief in this court not only agreeing with the 408 n.6. . . . There simply is no plausible claims made by Ceballos's counsel, but- basis for Roth's holding that the government providing additional arguments to support may not exercise control over its employees' them. Could the County discipline its routine job-related speech, when it assuredly counsel without fear of being hauled into may exercise precisely such control over the federal court to defend itself against speech it subsidizes through its funding allegations of having committed a decisions. constitutional violation? Evidently not-for as the majority makes pellucid today, Roth D and its progeny would enable such counsel plausibly to claim some personal stake in the The majority's response is long on policy, message conveyed by that brief. This is but short on the law. Its argument is precisely the kind of absurd result that seductively simple: Because whistleblowers Connick sought to avoid by stressing the play an important role in rendering distinction between employee and citizen government accountable, the First speech: Amendment must protect their

158 whistleblowing activities. Maj. Op. at 3456- majority has not struck down an unwise 58. How can anyone disagree with that enactment; instead, it has rendered utterly general principle? Those who "blow the superfluous a bevy of wise ones. With such whistle" on government corruption or Platonic Guardians, who needs elected mismanagement do deserve reasonable legal representatives at all? protections, and such protections most certainly play an important role in E discouraging official misfeasance by facilitating wider public exposure of Properly understood, Connick teaches that improper conduct and the identities of although speech uttered by public those miscreants responsible for it. Indeed, employees must address an issue of public were I member of Congress [or a state import in order to come within the legislator] charged with making laws that protective shelter of the First Amendment, promote sound public policy-and not satisfaction of such a virtually necessary merely a federal judge charged with condition is not by itself sufficient to trigger interpreting the Constitution-I might well constitutional constraints on governmental have voted in favor of legislation [such as action. Instead, employee speech solicits the the federal Civil Service Reform Act or protection of the First Amendment only the California Whistleblower Protection when it also results from the employee's Act]. ... decision to express his or her personal opinions-that is, those views he or she holds as a citizen and not as a public employee. The First Amendment, in short, How strange it must now be for the does not protect public employees' routine hundreds, if not the thousands, of legislators and required speech on behalf of the throughout this country who have voted to government. enact or to retain such [whistleblower] laws now to discover that their votes were essentially meaningless-that the First Amendment already provided public ... [T]he Ninth Circuit now provides that a employees with protections co-extensive public employee's speech will be given with, and in many respects even greater than some degree of First Amendment protection those purportedly conferred by, the even when it is not based in some personal legislation they crafted and helped shepherd interest (as opposed to that of the through their state legislative processes. government itself) and even if it fails to touch upon matters of public import (as This case-and the doctrine it ratifies-thus opposed to those that are purely private). implicates more than the too-common With this lethal combination, the twin pillars tendency of well-intentioned jurists to of Pickering and Connick-that speech by squeeze a policy-oriented square peg into a public employees must stem both from some round constitutional hole. For despite the individual interest and address a matter of majority's paean "to the orderly functioning public import in order to merit constitutional of the democratic process," Maj. Op. at protection-have been felled. 3457, 1 fear that Roth and its progeny actually pose something of a challenge to While the court quite properly applies Roth the concept of representative as binding precedent in this case, the time itself. . . . In this case, of course, the has come for us to reappraise our

159 jurisprudence concerning the free speech employees, I believe that Roth should be rights of the publicly-employed and the overruled-if not by our court sitting en scope of legitimate governmental regulation banc, then, in due course, by the Supreme in its capacity as employer. Because Roth is Court, to steer this court's drifting First inconsistent with Connick's careful Amendment jurisprudence back to its proper differentiation between public employees' moorings. speech as citizens and speech in their role as

160 "Court Will Decide Whistle-Blowers' Rights"

Los Angeles Times March 1, 2005 David G. Savage

WASHINGTON-The Supreme Court said office to dismiss the pending case because, Monday that it would take up the case of a he said, the search warrant was invalid. Los Angeles County prosecutor to decide whether whistle-blowers in public agencies He also turned over his memo to the defense have a free-speech right to voice complaints lawyer in the case because the Constitution of wrongdoing without suffering retaliation. requires prosecutors to disclose evidence that might exonerate a crime suspect. The case, to be heard in the fall, could affect the rights of millions of public employees, Despite the questions that had been raised, a from police, prosecutors and teachers to judge allowed the prosecution to go forward, public hospital workers. and Ceballos said he was demoted and moved to another office in retaliation for his Managers of such public agencies in actions. In his complaint, he described his California said they were concerned that a transfer as a form of "freeway therapy." He ruling might result in turning every internal sued his supervisors, including Garcetti, gripe into a federal case. alleging that he had been punished for speaking out on a matter of public concern. In the past, the high court has said public employees have a First Amendment right to U.S. District Judge A. Howard Matz in Los speak out on "matters of public concern." In Angeles dismissed his claim, ruling that other decisions, they ruled that internal there was no First Amendment issue disputes within an agency should stay as involved in the dispute. internal matters. Last year, the 9th U.S. Circuit Court of The tension between those rulings has led to Appeals in San Francisco revived the case in conflicts in the lower courts, and the justices a 2-1 decision. Judge Stephen Reinhardt said they would hear the case of then- said it was crucial that public employees be District Attorney Gil Garcetti v. Richard able to disclose wrongdoing in public Ceballos to clarify the law. agencies.

Five years ago, Ceballos was a deputy "The right of public employees to speak district attorney in Pomona, Calif., when a freely on matters of public concern is defense lawyer told him that a deputy sheriff important to the orderly functioning of the might have lied about evidence to obtain a democratic process. . . . Stripping them of search warrant. Ceballos said he looked into that right . . . would be particularly the matter and went to the crime scene. detrimental to whistle-blowers, such as Ceballos, who report official misconduct up He concluded that the sheriff might well the chain of command," Reinhardt wrote. have exaggerated the evidence, and he complained about the situation in a memo to But lawyers for Garcetti and the California his supervisors. He advised the prosecutor's State Association of Counties urged the high

161 court to take up their appeal. They said it has represented Ceballos, who still works as would have a "crippling effect on the a deputy district attorney for the county. management" of all public agencies if every internal dispute could be turned into a major "This is a highly significant case. When free-speech battle in the courts. prosecutors encounter misconduct, they have a duty to disclose it. He (Ceballos) A top county prosecutor refused to was one of the few who was willing to speak comment. "We don't comment on pending out in the office against this public litigation," said Roger Granbo, a senior wrongdoing," Guizar said. county counsel. The case will be heard by the Supreme Humberto Guizar, a Montebello attorney, Court in the fall.

162 "Freedom to Speak in the Line of Duty"

National Law Journal April 19, 2004 Gary Young

When Los Angeles County Deputy District O'Scannlain argued that the Supreme Court's Attorney Richard Ceballos learned that a decision in Connick v. Myers, 461 U.S. 138 sheriffs deputy may have lied in an [1982], affords First Amendment protection application for a search warrant, he felt duty only when a public employee speaks "as a bound to inform the defendant's lawyer and citizen expressing his or her personal views to testify about his suspicions at a court on disputed matters of public import," not hearing. when "carrying out his or her ordinary employment duties." His reward for speaking out was a demotion, or so he claimed in a federal lawsuit A murky lineup accusing his superiors of violating his free- speech rights. O'Scannlain followed closely the reasoning of the en bane 4th Circuit in 2000's Urofsky When the case reached the 9th U.S. Circuit v. Gilmore, 216 F3d 401, which upheld a Court of Appeals, it sparked a debate Virginia statute prohibiting professors at between judges Stephen Reinhardt and state universities from viewing obscene Diarmuid F. O'Scannlain over an issue that materials on their office computers. has divided the circuits: whether public employees enjoy any First Amendment The position of the other circuits is a bit protection for statements made in the murkier. O'Scannlain pointed to panel ordinary course of carrying out their decisions by the 5th, 6th, 7th, 8th and 10th employment duties. The case is Ceballos v. circuits suggesting that speech in the course Garcetti, No. 02-55418, decided on March of employment is beyond the protection of 22. the First Amendment. But he conceded Reinhardt's point that subsequent panels in Writing for a 2-1 majority, Reinhardt those circuits have said that speech dictated reaffirmed the 9th Circuit's position, first by one's employment may be of sufficient enunciated in 1988, that as long as a public public interest to merit protection under employee's speech touches on a matter of Connick. public concern, it comes within the ambit of the First Amendment [although whether the Reinhardt counted the 2d, 3d, 5th, 6th, 7th, employee will actually be protected against 10th and 11th circuits in his camp. Notably, retaliation depends on an additional test that he did not claim the 8th Circuit, perhaps balances his interests against those of the because it gave little explanation for what employer]. appears to be a change of course in a 2003 decision. Being bound by that 1988 precedent, O'Scannlain concurred in the majority's O'Scannlain said that the citizen/employee result, but urged the en banc 9th Circuit-or, divide is justified by the fact that public if necessary, the U.S. Supreme Court-to re- employees like Ceballos are speaking not for examine the issue. themselves but for the government, and "the

163 Government has no First Amendment Supreme Court precedent, but also rested his rights." Also, he said that Reinhardt's argument on the incongruity between position is on a collision course with protecting someone like Ceballos if as a Supreme Court decisions giving the federal citizen he were to take his suspicions to the government authority to dictate the content press, while giving him no protection for of speech that it has affirmatively sponsored. being a good employee and trying to remedy the problem within the system. Reinhardt disputed his colleague's reading of

164 "Soft on Crime Fighters"

LA Weekly December 22, 2000 Jim Crogan

A relaxed but determined Richard Ceballos Ceballos said he was skeptical when he sips his java inside a Pasadena coffeehouse began his investigation. As calendar deputy and reflects on life as a whistle blower. for that office, his duties included supervision of all ongoing prosecutions. He An 11-year veteran of the L.A. County reviewed the file, talked with Detective District Attorney's Office, Ceballos has Wall, who has since been promoted to earned a reputation as a tough, ethical detective sergeant, and visited the scene of prosecutor. Now he is suing two of his the arrests. supervisors and former D.A. Gil Garcetti in federal court, claiming they retaliated Ceballos discovered that Sheriffs deputies against him after he alleged that L.A. had actually been looking for stolen auto County Sheriffs deputies made up parts and had ended up arresting the three information to obtain a search warrant in an men on weapons and auto-parts theft case. No trial date for charges. Ceballos also learned that deputies Ceballos' civil action has been set. had brought along a narcotics-sniffing dog to assist in their auto-parts search. The suit alleges a "historical custom and However, no auto parts were ever identified practice in the D.A.'s Office" to protect and as stolen. cover up police officers who engage in misconduct, and encourage law-enforcement Cuskey's property was a veritable auto agencies to "enforce the police officer code junkyard, and Ceballos learned that it had of silence." been targeted by a joint county-Sheriffs Department zoning/abatement team for "I believe my supervisors, Pomona Head cleanup. Deputies Simpkins and Spitulski, Deputy Frank Sundstedt and Assistant Head he discovered, had gone to the property Deputy Carol Najera, set aside their ethical several times, and Cuskey had responded to obligations to satisfy a request for the pressure by filing a federal lawsuit prosecution made by Sheriffs officers," charging harassment. The case was Ceballos said in an interview. eventually dismissed, but the battle lines between Cuskey and the deputies had been Ceballos' transformation into whistle blower drawn. began in late February, when a defense attorney claimed that Sheriffs deputies Ceballos told the Weekly that he found Daniel Spitulski, Murray Simpkins and factual discrepancies in the affidavit. Detective Keith Wall had lied on a search- Deputies claimed they followed truck-tire warrant affidavit. The warrant, signed by tracks to a "driveway" that led directly to Magistrate Thomas Falls, a former deputy Cuskey's house. However, Ceballos said, district attorney, led to the arrests of Randy the so-called "driveway" was actually an Longoria, Michael Cuskey and Douglas access road shared by all the residents on the Ojala in August 1999. street. The road, he continued, was a

165 mixture of asphalt, gravel and dirt, making it "The Sheriffs people verbally attacked me. impossible for anyone to follow tracks along They demanded I be removed from the case its surface. because I was acting like a defense attorney," he recalled. "And Captain Robert In addition, an abandoned truck was found Binkley said the department was concerned about 400 feet away from Cuskey's property, the arrestees would file a lawsuit if we not the 30 feet later claimed in court by dismissed the case." Ceballos had no these deputies during the hearing to dismiss intention of backing down, but almost the search warrant. immediately thereafter, his supervisors directed him to end all involvement with the They also got the address wrong on the case. search warrant. Wall wrote that the deputies found a stripped-down pickup parked across Ceballos said he accused Sundstedt and from "214 3rd Street in Bassett," an Najera of "kowtowing" to the Sheriffs unincorporated area of the county. The Department's fear of civil litigation. The correct address was 241 Third Street. only positive development, he said, was that Spitulski and Simpkins said they Sundstedt agreed to free Ojala before his inadvertently transposed the number. sentence was finished, Ojala had previously accepted a plea bargain of six months in "I believe the deputies' real purpose was County Jail, said Ceballos. always to look for narcotics, and they used the abandoned truck as a red herring to His problems, he said, intensified when the disguise their intention," Ceballos said. defense subpoenaed him as a witness at a hearing held to examine the legality of the In March, Ceballos gave Frank Sundstedt a search warrant. Ceballos said Najera tried to memo accusing the deputies of making "dissuade" him from testifying, a criminal statements or omissions of fact that were violation that she denies. They also argued, "deliberately false, or in reckless disregard he said, over his "factual conclusions" and of the truth." the D.A.'s "Brady obligation" to give his memo to the defense. (This refers to the Ceballos wanted to quash the search warrant 1963 federal case Brady vs. Maryland, in and dismiss the cases against Cuskey, which the U.S. Supreme Court ruled that Longoria and Ojala.' He then gave Sundstedt prosecutors must turn over exculpatory a second memo, charging that Wall had evidence to the defense.) asked him to change a word on the already served search warrant. Ceballos refused to "Carol ordered me to prepare a new memo, replace the word tracks with gouges. "That which would contain only the deputies' change would have created a more statements and omit my factual believable scenario," he said, since it was determinations," he said. "I told her that impossible to follow tracks on the driveway. would be unethical and refused to do it." Ultimately, a version with some information Ceballos added that his office problems crossed out was turned over. Pomona Judge began in March with a "confrontational" David Milton, another former deputy district meeting with his supervisors-Sundstedt attorney, eventually denied the defense's and Najera-and Sheriffs representatives. motion to dismiss the warrant. Cuskey was

166 ultimately convicted; then Longoria Cosper also denied that there was any accepted a plea bargain. Like Ojala, Cuskey conflict of interest in having the D.A.'s and Longoria got a six-month sentence with Office review this matter since Ceballos has the option of either doing Caltrans roadwork filed suit against the department. "That is or reporting to the county's tree farm, why SID is an isolated unit," he said. "Ihad Ceballos said. no idea that Ceballos had filed suit when the case was brought to me for review. Ceballos claims he was then demoted from However, Mr. Ceballos is certainly free to calendar deputy to trial deputy, had a murder ask the state Attorney General's Office to case pulled from him, was forcibly review the matter if that is a concern to transferred to El Monte, and was denied a him." promotion even though he had scored in the top rank of tested deputies and received a An angry Sundstedt called Ceballos a 100 percent evaluation from Sundstedt. "goddamn liar." (Ceballos also received glowing evaluations from Sundstedt in 1998 and 1999.) "His lawsuit is an assault on the integrity of this office, and that of the Sheriffs The D.A.'s Office and Captain Binkley Department," continued Sundstedt. "It's declined comment on Ceballos' federal nothing more than a thinly veiled, politically lawsuit. Sergeant Wall said he won't motivated attempt to affect the outcome of comment on the specifics of Ceballos' the election for D.A." allegations. Ceballos filed his lawsuit on October 18, a However, an L.A. County Sheriffs month before voters ousted Gil Garcetti. Department Media Relations spokesperson Newly elected D.A. Steve Cooley, the said, "Upon receiving information from alleged beneficiary of Ceballos' suit, told the DDA Ceballos, about the alleged L.A. Weekly, "Idon't know Ceballos. I have misconduct by personnel from the Industry never talked to him about anything, and he Station, a full investigation by Internal was not a contributor to my campaign." Affairs into the actions of these deputies and supervisors was initiated." Sundstedt adamantly denies that Ceballos was ever demoted, and claims that Ceballos The Sheriffs Department submitted a case sued only because he didn't get his involving Wall, the author of the search- promotion. warrant affidavit, to the D.A.'s Special Investigations Division (SID). The case was "Ceballos was never dissuaded from rejected for prosecution on November 3 testifying at the search-warrant hearing, or because of "insufficient evidence." Deputy threatened with retaliation. Nor did he ever District Attorney Jim Cosper, who rejected accuse me and Carol of 'kowtowing' to the the case, said he had no doubt that Ceballos Sheriffs Department. Those are just more was well-intentioned: "However, I reviewed of his lies," reiterated Sundstedt. the complete file and didn't find any evidence to suggest or prove beyond a When Ceballos gave him his first memo, reasonable doubt that criminal misconduct said Sundstedt, he told him that his concerns had occurred." would be investigated. "And that's what we

167 did. Ceballos was alleging these deputies former boss, claiming that deputies had committed crimes. But no one ever Simpkins and Spitulski had falsified elected him judge and jury." probable cause, conducted an illegal search and engaged in racial profiling in an April Najera said she was shocked and saddened arrest of his former client Annese Ramirez by Ceballos' charges. "It is totally untrue on a drug charge. Ramirez ultimately that I tried to dissuade Richard from accepted a plea-bargain agreement. testifying at the hearing. That is just ridiculous. I never told him he would be in Carrillo said Sundstedt never responded to trouble for testifying or expressing his his complaint. "Nor did I, or the court- opinions. He's just making things up appointed attorney who took over the case, because he didn't get promoted." ever receive Ceballos' memos, as required by federal case law," he said. Najera also insists she told Ceballos to write a second report only because she believed Sundstedt acknowledged receipt of Carrillo's his first memo included work product, letter, but contends that his office had no which the D.A.'s Office is not required to obligation to turn over Ceballos' memos. "A turn over to the defense. Although Najera judge had previously rejected defense acknowledged that Sheriffs personnel claims, in the Cuskey case, that these discussed the litigious nature of these deputies had falsified probable cause," defendants, "They never said, 'Please, Sundstedt said. please, file this case or we will get sued,"' she said. However, Gigi Gordon, chairwoman of the Indigent Criminal Defense Appointments Ceballos' federal lawsuit has fueled ongoing Panel of the L.A. County Bar Association charges from defense attorneys that the and court-appointed defense attorney in the D.A.'s Office regularly withholds Rampart investigation, emphatically exculpatory evidence, in violation of the disagrees. "Regardless of who is right or Brady decision. His misconduct allegations wrong, once Ceballos committed his against Sheriffs personnel have also focused conclusions of officer misconduct to paper, renewed attention on another criminal case it became Brady material. The D.A. was involving these same deputies. then required to turn it over." She added, "After that, it was up to the defense to Last June, defense attorney Luis Carrillo decide what to do with it." filed a complaint with Sundstedt, Ceballos'

168 Gonzales v. 0 Centro Espirita

(04-1084)

Ruling Below: (0 Centro Espiritav. Ashcroft, 389 F.3d 973 (10th Cir. 2004), cert. granted, 125 S. Ct. 1846, 161 L. Ed. 2d 723, 73 U.S.L.W. 3619 (U.S. Apr. 18, 2005) (No. 04-1084)).

Uniao do Vegetal is a religion incorporating a mix of Christian theology and indigineous South American beliefs. It was founded in Brazil in 1961. Hoasca is a tea made from plants found in the Amazon rainforest that is used as a sacrament at periodic church services. One of the plants used in hoasca contains a substance that creates a hallucinogenic effect. Church officials export the tea from Brazil to the United States. One of those shipments was seized in 1999 and the Government has threatened prosecution. The church and several members filed suit, claiming a violation of the Religious Freedom Restoration Act. The United States District Court for the District of New Mexico issued a preliminary injunction preventing the Government from prohibiting or penalizing the sacramental use by the church under either the Controlled Substances Act or the United Nations Convention on Psychotropic Substances. The Government appealed. A panel of the Tenth Circuit upheld the injunction. The government then sought this en banc review. The en banc court affirmed the injunction in this case. Even though a majority voted to maintain a heightened standard for granting a preliminary injunction cases that 1) alter the status quo, 2) are mandatory, or 3) provide the movant with all the relief that could be recovered at the conclusion of a trial on the merits, a different majority concluded that the church's claim merited the granting of a preliminary injunction.

Question Presented: Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq., requires the federal government to permit the importation, distribution, possession, and use of a Schedule I hallucinogenic controlled substance, where Congress has found that the substance has a high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate an international treaty.

0 CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, Plaintiffs-Appellees, V. JOHN ASHCROFT, Defendant-Appellant

United States Court of Appeals for the Tenth Circuit

Decided November 12, 2004

[Excerpt: Some footnotes and citations omitted]

169 ON REHEARING EN BANC majority of the court has voted to maintain a heightened standard for granting any of the PER CURIAM: three historically disfavored preliminary injunctions. A different majority has voted I. to affirm the district court's entry of a preliminary injunction in this case. This matter is before the en banc court to review issues emanating from the panel A. Standards for Granting Disfavored opinion in 0 Centro Espirita Beneficiente Preliminary Injunctions Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003). The panel affirmed a In SCFC ILC, Inc. v. Visa USA, Inc., this preliminary injunction, granted under the court identified the following three types of Religious Freedom Restoration Act specifically disfavored preliminary ("RFRA"), which enjoined the United States injunctions and concluded that a movant from relying on the Controlled Substances must "satisfy an even heavier burden of Act ("CSA") and the United Nations showing that the four [preliminary Convention on Psychotropic Substances injunction] factors . . . weigh heavily and ("Convention") to prohibit the sacramental compellingly in movant's favor before such use of hoasca by Uniao do Vegetal and its an injunction may be issued": (1) members (collectively "UDV"). This court preliminary injunctions that alter the status granted rehearing to review the different quo; (2) mandatory preliminary injunctions; standards by which we evaluate the grant of and (3) preliminary injunctions that afford preliminary injunctions, and to decide how the movant all the relief that it could recover those standards should be applied in this at the conclusion of a full trial on the merits. case. 936 F.2d 1096, 1098-99 (10th Cir. 1991). With one important alteration, a majority of II. the en banc court has voted to affirm the core holding of SCFC ILC. Thus, if a . . . UDV invoked RFRA, 42 U.S.C. § movant seeks a preliminary injunction that 2000bb-1, to obtain declaratory and falls into one of the three categories injunctive relief which would prevent the identified in SCFC ILC, the movant must government from prohibiting UDV's satisfy a heightened burden. The en banc importation, possession, and use of hoasca court does, however, jettison that part of for religious purposes and from attempting SCFC ILC which describes the showing the to seize the substance or prosecute movant must make in such situations as individual UDV members. After an "heavily and compellingly." SCFC ILC, 936 evidentiary hearing, the district court F.2d at 1098. Instead, the en banc court granted UDV's motion for a preliminary holds that courts in this Circuit must injunction pending a decision on the merits. recognize that any preliminary injunction The government appealed that decision, the fitting within one of the disfavored panel affirmed, and we granted the en banc categories must be more closely scrutinized petition. to assure that the exigencies of the case support the granting of a remedy that is II. extraordinary even in the normal course. Furthermore, because a historically The en banc court is divided over the disfavored preliminary injunction operates outcome of this case. Nevertheless. a outside of the normal parameters for interim

170 relief, movants seeking such an injunction injunction is not also mandatory. are not entitled to rely on this Circuit's modified likelihood-of-success-on-the- merits standard. Instead, a party seeking such an injunction must make a strong A. showing both with regard to the likelihood of success on the merits and with regard to We appear to be the only court which the balance of harms, and may not rely on has adopted the specific approach of carving our modified likelihood-of-success-on-the- out three distinct categories of disfavored merits standard. injunctions. Other courts have limited to two categories those preliminary injunctions B. Grant of Preliminary Injunction in this deserving special scrutiny: injunctions Case which are mandatory or which provide the moving party with all the relief it seeks from Although the reasons vary, a majority of the a full trial on the merits. . . . In order to en banc court is of the view that the district bring our jurisprudence in closer accord with court's entry of a preliminary injunction in these other circuits, and because I am this case should be affirmed. convinced it will cause less confusion to the parties and the district court, I would limit IV. our heightened standard to those two categories of preliminary injunctions. The decision of the United States District Court for the District of New Mexico to . . . Given the essential role prevention of grant UDV's request for a preliminary irreparable harm plays in the grant of injunction is hereby AFFIRMED. The preliminary injunctive relief, district courts temporary stay of the district court's should consider the question of altered status preliminary injunction issued by this court quo in light of how it impacts the balance of pending resolution of this appeal is vacated. harms between the parties and the public interest, as well as considering what CONCUR: SEYMOUR, Circuit Judge, attendant institutional costs may accompany concurring in part and dissenting in part, the grant of such relief. As the Fifth Circuit joined in full by TACHA, Chief Judge, has said, "if the currently existing status quo PORFILIO, HENRY, BRISCOE, and itself is causing one of the parties irreparable LUCERO, Circuit Judges, and in Part II by injury, it is necessary to alter the situation so McCONNELL and TYMKOVICH, as to prevent the injury." Canal Auth. Of the Circuit Judges. State of Florida v. Callaway, 489 F. 2d 567, 576 (5th Cir. 1974) (citations omitted).... Like a majority of my colleagues, I am persuaded that the district court did not abuse its discretion in granting the preliminary injunction in this case. I II respectfully dissent, however, from the majority's conclusion that the movant for a Turning to the question of whether the preliminary injunction must satisfy a district court properly granted the heightened burden when the proposed preliminary injunction to the UDV [pending injunction will alter the status quo but the a decision on the merits], our court reviews

171 the district court's grant of injunctive relief each. The court also decided the treaty does for abuse of discretion and "examines not cover hoasca. The court therefore whether the district court committed error of concluded the government had "failed to law\ or relied on clearly erroneous fact carry its heavy burden of showing a findings." Talmer v. US. Dep't of Defense, compelling interest in protecting the health 52 F 3d 851, 854 (10th Cir. 1995).... of the UDV members using hoasca or in preventing the diversion of hoasca to illicit The district court focused the majority of its use." 0 Centro EspiritaBeneficiente Uniao analysis on whether the UDV could satisfy Do Vegetal v. Ashcroft, 282 F Supp. 2d the likelihood of success on the merits prong 1236, 1269 (D.N.M 2002). Hence, the court of the preliminary injunction test. See ruled the UDV had demonstrated a Kikumura, 242 F.3d at 955 (listing elements substantial likelihood of success on the of preliminary injunction test). Because the merits. government did not dispute for the purpose of the injunctive proceeding that its The district court then turned to the enforcement of the CSA and the United remaining preliminary injunction factors and Nations Convention on Psychotropic determined the UDV satisfied each. The Substances (Convention or treaty) imposed a court found the UDV established irreparable substantial burden on the UDV's sincere injury because its right to the free exercise exercise of religion, the UDV established a of religion was being impaired. With prima facie case of a RFRA violation. See respect to harm to the government and the id. at 960. To undercut this showing of balance of harms, the court held that in likelihood of success, the government had balancing the government's concerns against the burden of establishing that "the the injury suffered by the Plaintiffs when challenged regulation furthers a compelling they are unable to consume hoasca in their interest in the least restrictive manner." See religious ceremonies, the Court concludes 42 U.S.C. § 2000bb-1(b); United States v. that, in light of the closeness of the parties' Meyers, 95 F.3d 1475, 1482 (10th Cir. evidence regarding the safety of hoasca use 1996). and its potential for diversion, the scale tips in the [church's] favor. The government proffered three compelling interests-risks to the health of the UDV members by the use of hoasca, risk of diversion of hoasca for non-religious The government contends that the purposes, and compliance with the preliminary injunction granted by the district Convention. "Believing the Government's court is mandatory and changes the status strongest arguments for prohibiting Uniao quo, and that the district court erred in do Vegetal's hoasca use to be health and failing to require the UDV to make a diversion risks, the district court did not ask stronger showing to succeed. I disagree.... the parties to present evidence on the Convention at the hearing." 0 Centro I am not persuaded the injunction here is Espirita Beneficiente Uniao Do Vegetal v. mandatory. Rather, it temporarily prohibits Ashcroft, 342 F.3d 1170, 1183 (10th Cir. the government from treating the UDV's 2003). After examining the parties' sacramental use of hoasca as unlawful under evidence on the first two issues, the court the CSA or the treaty. It also orders the found the evidence to be in equipoise for government not to intercept or cause to be

172 intercepted shipments of hoasca imported by parties before the dispute developed." 11 A the UDV for religious use, prosecute or WRIGHT & MILLER § 2948, at 136 n.14 threaten to prosecute the UDV, its members, (listing cases). . . . Here, however, we are or bona fide participants in UDV ceremonies faced with a conflict between two federal for religious use of hoasca, or otherwise statutes, RFRA and the CSA, plus an interfere with the religious use of hoasca by international treaty, which collectively the UDV, its members, or bona fide generate important competing status quos. participants in UDV ceremonies.... The status quo for the UDV was that it was The government contends the injunction is practicing its religion through its mandatory because it includes "36 separate importation and use of hoasca at religious provisions requiring specific affirmative ceremonies. . . . Status quo for the action by the government to facilitate the government immediately prior to this UDV's use of hoasca." Aplt. Supp. En Banc litigation was its enforcement of the drug br. at 20. In so arguing, the government laws against the UDV in accordance with fails to acknowledge that the additional the CSA and the Convention, which provisions were added to the injunction by occurred after the government discovered the district court in response to the the UDV was importing hoasca for religious government's insistence that the UDV be purposes and exercised its prosecutorial subject to some form of governmental discretion to stop that importation. oversight in its importation and use of hoasca. . . . We are thus presented with two plausible status quos, each of them important. Similarly, while some of the injunction's Moreover, since both parties contest the provisions mandate that the parties take validity of the other's actions, it is difficult specific actions, the order is nonetheless to describe either position as "the last properly characterized as prohibitory. Read peaceable, uncontested status existing as a whole, the additional terms in the order between the parties." . . . mandate that the UDV comply with specific drug importation laws, while the provisions Turning to the district court's review of the conversely permit the government to four preliminary injunction factors and perform its regulatory functions with respect giving due deference to its weighing of the to the importation of controlled substances, evidence, I am convinced for all of the up to but not including barring the UDV's reasons described by the district court, see use of hoasca for sacramental purposes. supra at 13-15, and set forth in the panel However, the overall effect of the injunction opinion, 0 Centro, 342 F.3d at 1179-87, is to prohibit the government from enforcing that the court did not abuse its discretion in the CSA and the treaty against the UDV. concluding the UDV has established the first preliminary injunction factor, a substantial There is no doubt that determining whether likelihood of success on the merits of the an injunction is mandatory as opposed to case. Id. at 1187. With respect to prohibitory can be vexing.... irreparable harm, the district court, acknowledging its jurisdiction was founded With respect to the question of status quo, it upon RFRA, correctly recognized that the is generally described as "the last peaceable violation of one's right to the free exercise of uncontested status existing between the religion necessarily constitutes irreparable

173 harm. The harm to the UDV from being the issues at a full trial on the merits. denied the right to the use of a sacrament in its religious services is indisputably As asserted by the government, the relevant irreparable. harms in this context are the risk of diversion of hoasca to non-religious uses The district court then balanced the and the health risks to the UDV members irreparable harm to the UDV against the who ingest the tea. As the panel opinion harm the government would suffer from a explained, however, the district court found preliminary injunction prohibiting its that the parties' evidence regarding health enforcement of the CSA against the risks to the UDV members from using church's religious use of a controlled hoasca as a sacrament in their religious substance, and from its compliance with the services was "in equipoise," and the Convention. . . . In RFRA, Congress evidence regarding the risk of diversion to determined that the balance of equities and non-ceremonial users was "virtually public interest should weigh in favor of the balanced" or "may even . . . tip the scale free exercise of religion and that this settled slightly in favor of Plaintiffs' position." See balance should only be disrupted when the O Centro, 342 F.3d at 1179-83 (citing government can prove, by specific evidence, district court and reviewing evidence). that its interests are compelling and its burdening of religious freedom is as limited I disagree with Judge Murphy's assertion as possible. See 42 US.C. § 2000bb-1(a)- that because plaintiffs have the burden of (b). proof on the preliminary injunction factors they necessarily lose if the evidence is in Certainly the interests of the government as equipoise on the question of harm to the well as the more general public are harmed government's asserted interests. See if the government is enjoined from enforcing Murphy, J., opin. at 39-40. As Judge the CSA against the general importation and Murphy recognizes, a plaintiff seeking a sale of street drugs, or from complying with preliminary injunction has the burden of the treaty in this regard. But this case is not showing that the harm to it outweighs any about enjoining enforcement of the criminal harm to the party to be enjoined or to the laws against the use and importation of public interest. See Kikumura, 242 F.3d at street drugs. Rather, it is about importing 955. Here the harm to the UDV from being and using small quantities of a controlled denied the right to freely exercise its substance in the structured atmosphere of a religion, which under anyone's measure bona fide religious ceremony. In short, this carries significant weight and is actually case is about RFRA and the free exercise of occurring, must be measured against the religion, a right protected by the First potential risks of diversion of hoasca to Amendment to our Constitution. In this non-religious uses and harm to the health of context, what must be assessed is not the church members consuming the hoasca. . . . more general harm which would arise if the government were enjoined from prosecuting Likewise, the harm resulting to the the importation and sale of street drugs, but government from a violation of the rather the harm resulting from a temporary Convention in this context is similar to the injunction against prohibiting the controlled harm suffered as a result of the government's use of hoasca by the UDV in its religious temporary inability to enforce the CSA ceremonies while the district court decides against the church. As with the CSA, the

174 treaty must be read in light of RFRA and the even where that interest may conflict with religious use of the controlled substance the CSA. here. While the general intent of the Convention was to prevent the illicit use and For all the reasons stated above, even under trafficking of psychotropic substances, it the heightened standard affirmed by a recognized that plants containing such majority of this court, the district court did substances were often used for legitimate not abuse its discretion in granting the religious purposes. It therefore permitted injunction to the church.... signatory nations to seek an exemption from the treaty for indigenous plants containing McCONNELL, J., joined by prohibited substances "traditionally used by TYMKOVICH, J., concurring, and joined certain small, clearly determined groups in by HARTZ, J., and O'BRIEN, J., as to Part magical or religious rites." See 1971 I [that heightened standard should apply to Convention on Psychotropic Substances, preliminary injunctions that disturb the Art. 32(4), 32 U.S.T. 543. Indeed, the status quo]. United States obtained such an exemption for peyote. See 0 Centro, 342 F.3d at ... I write separately to explain why [courts 1175-76. should disfavor preliminary injunctions that disturb the status quo and why a preliminary injunction should be issued against the possession and use of hoasca. With respect to harm to the public interest, there is an important public interest in both the enforcement of our criminal drug laws and in compliance with our treaty II. Does this Preliminary Injunction Satisfy commitments. But there is an equally strong the Heightened Standard? public interest in a citizen's free exercise of religion, a public interest clearly recognized by Congress when it enacted RFRA and by the signatories to the Convention when they In cases where federal law "substantially authorized exemptions for religious use of burdens" the exercise of religion, RFRA otherwise prohibited substances. It cannot requires courts to determine whether go without comment that Congress, in "application of the burden" to a specific response to the Supreme Court's ruling in "person" is in furtherance of a compelling Employment Division v. Smith, 494 U.S. governmental interest and is the least 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 restrictive means of furthering that interest. (1990), enacted RFRA to overturn the 42 US.C. § 2000bb-1(b) (emphasis added). holding in that case. As noted by the panel, That cannot be done without a case-by-case the Supreme Court held in Smith that the evaluation. "Thus, under RFRA, a court "Free Exercise Clause of the First does not consider the . . . regulation in its Amendment did not require the State of general application, but rather considers Oregon to exempt from its criminal drug whether there is a compelling government laws the sacramental ingestion of peyote by reason, advanced in the least restrictive members of the Native American Church." . means, to apply the . . . regulation to the . . Thus, pursuant to RFRA, there is a strong individual claimant." Kikumura v. Hurley, public interest in the free exercise of religion 242 F.3d 950, 962 (10th Cir. 2001)

175 (Murphy, J.). Accordingly, contrary to the If Congress or the executive branch had dissent, Congress's general conclusion that investigated the religious use of hoasca and DMT is dangerous in the abstract does not had come to an informed conclusion that the establish that the government has a health risks or possibility of diversion are compelling interest in prohibiting the sufficient to outweigh free exercise concerns consumption of hoasca under the conditions in this case, that conclusion would be presented in this case. entitled to great weight. But neither branch has done that. The two findings on which the dissent relies address the broad question of the dangers of all controlled substances, The dissent's notion that the drug laws are or all Schedule I substances, in the general impliedly exempt from RFRA scrutiny is run of cases. Such generalized statements especially surprising in light of the fact that are of very limited utility in evaluating the the impetus for enactment of RFRA was the specific dangers of this substance under Supreme Court's decision in a case these circumstances, because the dangers involving the sacramental use of a controlled associated with a substance may vary substance.... considerably from context to context.

Congress itself recognized this and gave the Attorney General authority to make Even assuming RFRA's compelling interest exemptions from many of the CSA's test applies, the dissent takes the position requirements: that "the government need turn only to express congressional findings concerning The Attorney General may, by Schedule I drugs" to satisfy RFRA scrutiny. regulation, waive the requirement Opinion of Murphy, J., at 18. The dissent for registration of certain cites no authority for such an approach, and manufacturers, distributors, or there is none. Congressional findings are dispensers if he finds it consistent entitled to respect, but they cannot be with the public health and safety. conclusive. RFRA requires the government to "demonstrate[]" that application of a 21 U.S.C. § 822(d) (emphasis added). challenged federal law to religious exercise Thus, the CSA itself recognizes that, despite satisfies strict scrutiny under RFRA. . . . Congress's general findings about Schedule I Obviously, Congress contemplated the substances, it may sometimes be "consistent introduction of "evidence" pertaining to the with the public health and safety" to exempt justification of "application" of the law in certain people from its requirements. the particular instance. If such a burden of Indeed, the government evidently believed proof could be satisfied by citing this to be true with respect to the Native congressional finding in the preambles to American Church's peyote use, since it statutes, without additional evidence, RFRA relied primarily on § 822(d) to authorize its challenges would rarely succeed; regulation exempting the Native American congressional findings invariably tout the Church from the CSA. See 21 C.F.R. § importance of the laws to which they are 1307.31 ... appended.

176 [With regard to hoasca,] there was some without flexibility when religious and other evidence at the hearing that the resulting constitutional countervailing interests are doses [when taken orally] are considerably implicated.... smaller than typical intravenous or inhaled doses, and there has been very little study of The Convention allows signatory states at the effects of orally ingested DMT. the time of signature, ratification, or Furthermore, the fact that hoasca is a accession to make a reservation for relatively uncommon substance used almost indigenous plants traditionally used by exclusively as part of a well-defined "small, clearly determined groups in magical religious service makes an exemption for or religious rites." Article 32(4). To bona fide religious purposes less subject to interpret the Convention rigidly, as having abuse than if the religion required its no possibility of accommodation for new constant consumption, or if the drug were a religious groups (or groups newly arriving in more widely used substance like marijuana the United States), for which no reservation or methamphetamine.... was sought at the time, raises troubling constitutional concerns of denominational . . . Of course it is true that in theory, at discrimination.... least, it is possible to have the same religious interest in shooting heroin as in In the case of peyote, as the district court drinking hoasca. But one's rights under pointed out, 282 F. Supp. 2d at 1268, the RFRA depend not only on the nature of the United States permits the exportation of the religious interest but also on the strength of substance to Native American Church the government's opposed interest. Here, groups in Canada, despite the fact that the government's professed interests include exportation of a Schedule I substance for avoiding diversion to nonreligious use and other than scientific or medical purposes ensuring that a multitude of spurious free would appear to violate the Convention. exercise claims do not hamstring its This suggests that, in practice, there is room enforcement efforts. Given those concerns, I for accommodation of the legitimate needs do not see why Judge Murphy finds it of religious minority groups. surprising that the extent of nonreligious use is relevant to the analysis. Indeed, it would be far more surprising if the differences between street drugs and more "esoteric" All told, this is the unusual case in which the ones were irrelevant. plaintiff not only prevails on each of the four preliminary injunction factors, but does so with sufficient clarity that a preliminary injunction is warranted even though it would [T]he government utterly failed to carry its disturb the status quo. statutory burden (42 US. C. § 2000bb- I(b)(2)) of demonstrating that complete HARTZ, Circuit Judge, dissenting: prohibition of hoasca is the "least restrictive means" of furthering its interest in [Opinion omitted] compliance with the [UN] Convention, even assuming the Convention applies. Contrary MURPHY, Circuit Judge, joined in full by to the dissent, neither the Convention's terms EBEL, KELLY, and O'BRIEN, Circuit nor the practice of its interpretation is Judges, and as to Part I by HARTZ,

177 McCONNELL, and TYMKOVICH, injunction "is merely to preserve the relative Circuit Judges, concurring in part and positions of the parties until a trial on the dissenting in part. merits can be held." Univ. of Tex. v. Camenisch, 451 US. 390, 395, 68 L Ed 2d I agree with the per curiam opinion that a 175, 101 S. Ct. 1830 (1981). Accordingly, movant for a preliminary injunction must courts should be hesitant to grant the make a heightened showing when the extraordinary interim relief of a preliminary requested injunction will alter the status quo. injunction in any particular case, but As set out more fully below, such an especially so when such an injunction would approach is completely consistent with the alter the status quo prior to a trial on the historic purpose of the preliminary merits. injunction. Accordingly, I join parts I, II, and III.A of the per curiam opinion. I must respectfully dissent, however, from the conclusion that 0 Centro Espirita Any injury resulting from a preliminary Beneficiente Uniao do Vegetal ("UDV") has injunction that merely preserves the status sufficiently shown its entitlement to a quo is not a judicially inflicted injury. preliminary injunction prohibiting the Instead, such injury occurs at the hands of a United States from enforcing the Controlled party or other extrajudicial influence. By Substances Act ("CSA"), 21 US.C. § 801 et contrast, an injury resulting from a seq. As a direct result of the preliminary preliminary injunction that disturbs the injunction embraced by the majority, the status quo by changing the relationship of United States is placed in violation of the the parties is a judicially inflicted injury. It United Nations Convention on Psychotropic is injury that would not have occurred but Substances, Feb. 21, 1971, 32 US.T. 543 for the court's intervention and one inflicted (hereinafter the "Convention"). I thus before a resolution of the merits. Because dissent from parts Ill.B and IV of the per the issuing court bears extra responsibility curiam opinion. should such injury occur, it should correspondingly be particularly hesitant to I. grant an injunction altering the status quo unless the movant makes an appropriate A. A Heightened Showing is Appropriate showing that the exigencies of the case When the Requested Preliminary Injunction require extraordinary interim relief. It may Would Alter the Status Quo be small consolation should the issuing court ultimately resolve the merits in favor of the The Supreme Court has observed "that a non-moving party; at that point the non- preliminary injunction is an extraordinary moving party has often incurred significant and drastic remedy, one that should not be costs as a result of abiding by the granted unless the movant, by a clear improvident preliminary injunction. A showing, carries the burden of persuasion." plaintiff who was willing to live with the Mazurek v. Armstrong, 520 US. 968, 972, status quo before filing its complaint should 138 L. Ed 2d 162, 117 S. Ct. 1865 (1997) meet a higher standard in order to have the (per curiam) (quotation omitted). . . . The court intervene with an injunction that alters Supreme Court has further indicated that the the status quo. Judge Seymour's approach, "limited purpose" of a preliminary which seeks to elevate the importance of

178 irreparable harm at the expense of the status enforcement of the CSA. quo, is inconsistent with the historic underpinnings of the preliminary injunction.

II.

B. The Status Quo in This Case is the Based heavily on the conclusion that UDV Enforcement of the CSA and Compliance has demonstrated a substantial likelihood of with the Convention success on the merits, a majority of the en banc court resolves that the district court did The status quo in fact in this case is the not err in granting UDV a preliminary enforcement of the CSA and compliance injunction. In contrast to the conclusions of with the Convention. The record is clear the majority, however, UDV has not that both UDV itself and the United States demonstrated a substantial likelihood of recognized that the importation and success on the merits. First, RFRA was consumption of hoasca violated the CSA. intended to restore the compelling interest UDV made a concerted effort to keep secret test that existed before Employment its importation and use of hoasa. Division v. Smith, 494 U.S. 872, 108 L. Ed. Accordingly, although UDV eventually 2d 876, 110 S. Ct. 1595 (1990). 42 U.S.C. § sought a preliminary injunction after the 2000bb(b)(1). Employing that test, courts seizure of the hoasca, at all times leading up routinely rejected religious exemptions from to that event the record reveals that the laws regulating controlled substances and status quo was the enforcement of the CSA. have continued to do so with RFRA. Where one party, here UDV, intentionally Second, one only need look to the precludes a contest by concealing material congressional findings set out in the CSA to information, the status quo must be see that the United States carried its burden determined as of the time all parties knew or of demonstrating that the prohibition against should have known all material information. importing or consuming hoasca furthers its compelling interests in protecting the health ... It simply cannot be the case that a party of UDV members and preventing diversion can establish the status quo in a given case of hoasca to non-religious uses. Finally, through secretive or clandestine activity. compliance with the Convention, which There is enough natural incentive to results in international cooperation in manipulation in events preceding litigation, curtailing illicit drug trafficking, is certainly and in litigation itself, without providing a compelling interest. The record further judicial endorsement of surreptitious indicates that absent strict compliance with conduct by wrapping it in a cloak of "status the Convention, the United States' efforts in quo." The "last peaceable uncontested this regard would be hampered. status existing between the parties before the dispute developed," 11 A Wright & Miller § Quite aside from the question of whether 2948, at 136, is most surely the open and UDV has demonstrated it is substantially notorious actions of the parties before the likely to prevail on the merits, UDV has not dispute. Here, it is uncontested that the open demonstrated its entitlement to a preliminary and notorious actions of UDV were a facade injunction. In connection with the risk to of compliance with the CSA. Thus, the the health of UDV members and the risk to status quo in this case is the government's the public from diversion of hoasca, the

179 district court found the evidence uniformity in administration given the respectively "in equipoise" and "virtually serious problem of drug abuse in the United balanced." The district court did not States. See Smith, 494 U.S. at 905 proceed to even address the harm to the (O'Connor, J., concurring); United States v. government and the public interest resulting Israel, 317 F.3d 768, 771 (7th Cir. 2003)... from violations of the Convention necessitated by its injunction. With the evidence in this state, UDV has not carried its burden of demonstrating that the third Judge McConnell's view of how RFRA and fourth preliminary injunction factors- operates seems to overlook events leading that the threatened injury to it outweighs the up to the passage of RFRA. . . . Judge injury to the United States under the McConnell is wrong to imply . . . that preliminary injunction and that the Congress intended to alter the ultimate injunction is not adverse to the public outcome of that case (states may, consistent interest--weigh in its favor thereby justifying with the constitution, prohibit all uses, both even a preliminary injunction that does not religious and non-religious, of peyote), as alter the status quo. Superimposing the opposed to altering the analytical model set more appropriate heightened scrutiny for a out in that case (no right in the Free disfavored injunction altering the status quo Exercise Clause to avoid neutral laws of upon the evidence in this case renders the general application). Opinion of preliminary injunction even more decidedly McConnell, J., at 21-23. A review of the erroneous. findings accompanying RFRA makes clear that Congress was concerned with the latter, A. Substantial Likelihood of Success on the not the former.... Merits Equally unconvincing is Judge McConnell's 1. ControlledSubstances Act attempt to minimize the government's interest in the uniform enforcement of the CSA. Unlike for an additional two years, the interest in To the extent that RFRA requires the enforcement of the nation's drug laws as government to prove a compelling prescribed by Congress is one of the highest governmental interest and least restrictive order.... means concerning the ban on DMT, see 42 US.C. § 2000bb-1(b), the government need Judge McConnell is likewise wrong to assert turn only to express congressional findings that the Attorney General has the raw power concerning Schedule I drugs. Congress to grant religious exemptions from the specifically found that these drugs have a Controlled Substances Act under the guise high potential for abuse, have no currently that it "is consistent with public health and accepted medical use, and are not safe for safety." .... use under any circumstances. As to the specific drug at issue here, DMT, Congress The CSA envisions careful scheduling of has found that it has high potential for abuse substances. It also envisions medical and and is not safe to consume even under the scientific uses of controlled substances in supervision of medical personnel. These the public interest and consistent with public congressional findings speak to a need for health and safety; "neither manufacturing,

180 distribution or dispensing contemplates the government's ability to present evidence on possession of controlled substances for other this particular question when it concluded than legitimate medical or research that the Convention did not apply to hoasca. purposes." Olsen, 878 F.2d at 1466 app. Under these circumstances, it seems strange (DEA Final Order). to punish the government for this purported evidentiary deficiency.... The careful approach of the CSA should be contrasted with that of this court. Although In response, Judge McConnell envisions an this court recognizes that "the interests of elaborate process whereby, to demonstrate the government as well as the more general narrow tailoring, the government is public are harmed if the government is obligated to request that DMT be removed enjoined from enforcing the CSA against the from the schedule of drugs covered by the general importation and sale of street drugs, Convention. Opinion of McConnell, J., at or from complying with the treaty," it then 30-31. That is, until the government seeks characterizes this case as one "about to have DMT removed from coverage by the importing and using small quantities of a Convention, it cannot demonstrate that controlled substance in the structured "strict" prohibitions against the import of atmosphere of a bona fide religious DMT are the least restrictive means of ceremony." Opinion of Seymour, J., at 22- advancing its interest in complying with the 23. Can the free exercise of religion under Convention. It is worth noting at the outset RFRA really turn on whether the adherent that this argument is not advanced on appeal has a religious affinity for street drugs or by UDV. In any event, Congress has more esoteric ones? specifically found that DMT is a highly dangerous and addictive substance. It is difficult to see how asking that DMT be removed from the schedule of drugs covered 2. United Nations Convention on by the Convention advances the Psychotropic Substances government's interests in any way. ...

The United States argues convincingly that a Judge Seymour does not endorse the district preliminary injunction requiring it to violate court's conclusion that the Convention does the Convention could seriously impede its not apply to hoasca. Instead, she asserts that abifity to gain the cooperation of other the availability of the exemption in Article nations in controlling the international flow 32 of the Convention demonstrates that no of illegal drugs. ... significant harm will flow to the government from the injunction. Opinion of Seymour, J., at 24-25. What Judges Seymour and McConnell fail to acknowledge, however, is [I]t [is] [in]appropriate to fault the that the exemption set out in Article 32(4) government for failing to demonstrate that allows signatory nations to make a strictly prohibiting the importation and reservation as to all of the provisions of consumption of DMT, in the form of Article 7, except for the provisions ofArticle hoasca, is the least restrictive way to further 7 prohibiting the internationaltrafficking of the government's interest in complying with psychotropic substances. ... the Convention. Opinion of McConnell, J., at 30. The problem, of course, is that the district court short-circuited the

181 B. Balance of Harms and Public Interest the public interest.

For those reasons set out above, UDV has 1. ControlledSubstances Act not demonstrated a substantial likelihood of success on the merits of its RFRA claim. First and foremost, as set out above, This is especially true in light of the Congress has specifically found that the heightened burden on UDV to demonstrate importation and consumption of controlled its entitlement to a preliminary injunction substances is adverse to the public interest. that upends the status quo. Independent of 21 US.C. § § 801(2), 801a(1). Congress the question of likelihood of success on the has specifically found that the drug at issue merits, however, UDV has not demonstrated here, DMT, has high potential for abuse and that its harm outweighs the harm flowing to is not safe to consume even under the the government as a result of the preliminary supervision of medical personnel. Id. § injunction or that the preliminary injunction 812(b)(1), (c), sched. I(c)(6). is not adverse to the public interest. . . . At these stages, it is UDV that must RFRA provides that once a person proves demonstrate the requested preliminary that a law substantially burdens the exercise injunction is not adverse to the public of religion, the government has the burden interest and its harm outweighs any harm to of going forward and of persuasion in the government. Furthermore, because the proving that the law furthers a compelling preliminary injunction UDV is requesting governmental interest and that the law as would upset the status quo, it must show that applied is the least restrictive means of the exigencies of the case entitle it to this furthering that compelling governmental extraordinary interim relief and that the interest. 42 US.C. § 2000bb-](a), balance of harms favors the issuance of an 2000bb-1(b)(1)-(2), 2000bb-2(3). Though otherwise disfavored interim remedy. In this is a demanding test, see City of Boerne light of the congressional findings noted v. Flores, 521 US. 507, 534, 138 L. Ed. 2d above and the equipoised nature of the 624, 117 S. Ct. 2157 (1997), it seems parties' evidentiary submissions, UDV has particularly appropriate to insist that a not met its burden. movant meet all elements of the preliminary injunction test because RFRA goes beyond The United States suffers irreparable injury the protections offered by the First when it is enjoined from enforcing its Amendment. In other words, RFRA is not criminal laws. This injury to the United the FirstAmendment and UDV has no valid States, which when coupled with UDV's claim that its First Amendment rights are failure of proof on the questions of diversion being violated given that the CSA is a and danger to UDV members prevents UDV neutral law of general applicability. See from meeting its burden under the third and Smith, 494 US. at 885; United States v. fourth preliminary injunction factors, is Meyers, 95 F.3d 1475, 1481 (10th Cir. exacerbated by the burdensome and constant 1996). Given evenly balanced evidence official supervision and oversight of UDV's concerning the health risks of DMT usage handling and use of hoasca affirmatively and its potential diversion, UDV cannot required by the injunction in this case. . .. satisfy its burden of showing that its injury outweighs any injury to the government and * * * that an injunction would not be adverse to

182 2. United Nations Convention on § 80]a(1).... Psychotropic Substances

As noted above, a preliminary injunction requiring the United States to violate the I would reverse the district court's entry of a Convention could seriously impede the preliminary injunction. Because a majority government's ability to gain the cooperation of the court concludes otherwise, I of other nations in controlling the respectfully dissent from parts III.B and IV international flow of illegal drugs. 21 US.C. of the per curiam opinion.

183 "Supreme Court to Decide Whether Church Can Import Drug"

Washington Post April 19, 2005 Charles Lane

The Supreme Court accepted a Bush Scalia -wrote in the opinion for the court in administration request to rule on a clash that case, between religious freedom and drug-control law yesterday, announcing that it will In enacting the RFRA, a bipartisan majority review a lower court's ruling that blocked in Congress expressed the view that this enforcement of a federal ban on a church's standard was too restrictive of religious importation of hallucinogens. practice.

The court said it will hear the government's But in 1997, the Supreme Court ruled that appeal of a 2002 injunction issued by a New the RFRA could not be applied to the states. Mexico federal judge giving an The case granted yesterday, Gonzales v. 0 Albuquerque group, 0 Centro Espirita Centro Espirita Beneficiente Uniao do Beneficiente Uniao do Vegetal (UDV), the Vegetal, No. 04-1084, arises in the context right to import hoasca, a psychedelic of federal law enforcement because UDV's substance brewed in herbal tea, for use in hoasca supply was intercepted at the border. certain rituals. Hoasca, which contains the hallucinogen dimethyltryptamine, comes from Brazil. The judge's ruling, which was upheld last year by a sharply divided Denver-based U.S. The Bush administration argues that Court of Appeals for the 10th Circuit, cited importing hoasca would defeat the purpose the 1993 Religious Freedom Restoration Act of drug-control laws and violate the 1971 (RFRA). The law says the government may U.N. Convention on Psychotropic not "substantially burden a person's exercise Substances, which binds the United States to of religion" unless it uses carefully limited battle international trafficking in means to achieve a "compelling goal." hallucinogens.

Congress enacted RFRA to counter The court, however, has denied a Bush Employment Division v. Smith, a 1990 administration request to restore the ban on Supreme Court ruling that upheld the denial imports pending the conclusion of this case. of employment benefits to two men fired for using peyote in a religious ritual. "The members of the UDV believe that hoasca is sacred, and that their sacramental "[A]n individual's religious beliefs [do not] use of hoasca connects them to God," the excuse him from compliance with an 150-member group's attorneys argued in otherwise valid law prohibiting conduct that their brief. the State is free to regulate," Justice Antonin

184 "Supreme Court to Hear Case of Dispute Over Religious Group's Use of Banned Drug"

New York Times April 19, 2005 Correction Appended Linda Greenhouse

The Supreme Court added an important new American branch in Santa Fe, N.M., in religion case to its docket on Monday, 1993. agreeing to decide whether the government can ban the importation of a hallucinogenic The Federal District Court in Albuquerque, tea that is central to the religious rituals of a ruling before trial, issued a preliminary small Brazil-based church. injunction against the government. The order was subsequently affirmed by a three- The case raises the broader question of how judge panel of the United States Court of the court will interpret, in the context of an Appeals for the 10th Circuit, in Denver, and illegal drug, a law that ordinarily requires last November was affirmed again by the the federal government to refrain to the full appeals court by a vote of 8 to 5. maximum extent possible from interfering with religious practices. A trial has still not taken place, a fact that would ordinarily pose an obstacle to The tea, known as hoasca, is made from Supreme Court review. In fact, on Dec. 10 plants that grow in the Amazon region and of last year, the justices denied the that produce a chemical listed by both the administration's request for a stay of the federal government and an international Court of Appeals order until the solicitor narcotics trafficking treaty as a controlled general's office could prepare a formal substance. The chemical, petition for Supreme Court review. The dimethyltryptamine, usually known as denial of a request for a stay in those DMT, can also be produced in a laboratory, circumstances is usually a strong signal that but followers of the Uniao Do Vegetal the Supreme Court will not consider the religion use only the naturally occurring eventual appeal to be worthy of its attention. version, which does not grow in the United States. But in this case, Gonzales v. 0 Centro Espirita Beneficiente Uniao Do Vegetal, The case is an appeal by the Bush No. 04-1084, the justices might have been administration of a federal court injunction persuaded, at least to let the administration won by the 130 members of the church's have its say, by the strongly worded appeal American branch, who brought a lawsuit filed by Paul D. Clement, the acting solicitor five years ago to prohibit the government general. from invoking the Controlled Substances Act to block the importation of their tea and Denouncing the lower courts' handling of from seizing the sacred drink. The church, the case as "contrary to all precedent," Mr. which combines elements of Christianity Clement said that "no court has ever ordered and indigenous Brazilian religion, opened its the United States to permit a religious

185 exemption to Schedule I of the Controlled violate a 1971 international treaty, the Substances Act." Schedule I, on which United Nations Convention on Psychotropic DMT is listed, along with marijuana and Substances, which obliges the 160 nations other illicit drugs, is reserved for substances that have signed it to combat international that the government considers to be traffic in illicit drugs. The question of particularly unsafe and to have no valid whether the convention applies to hoasca is medical use. disputed, because Brazil, an original signatory to the treaty, has exempted the tea, Both the executive branch and Congress, and a recent appellate court ruling in France however, have granted a religious exemption exempted its religious use. for another Schedule I drug, peyote, which is used in religious ceremonies by the Native The lower courts based their ruling on the American Church. Religious Freedom Restoration Act, a 1993 federal law that forbids the government to In an opinion concurring in the 10th enforce laws in a way that interferes with Circuit's decision to uphold the injunction, religious practice unless the interference is Judge Michael W. McConnell cited the justified by a "compelling interest." The peyote exemption as evidence that the Supreme Court ruled in 1997 that Congress government was free to exercise discretion lacked authority to apply the law to the in such matters. states, but the statute remains in effect for the federal government. Rejecting the argument that the district court should have deferred to the other two The hoasca tea case, which will be argued in branches, Judge McConnell said: "If the fall, is the third case on the Supreme Congress or the executive branch had Court docket that deals with federal drug investigated the religious use of hoasca and policy. The court is expected to announce a had come to an informed conclusion that the decision soon in a case argued in November health risks or possibility of diversion are on whether the federal government can sufficient to outweigh the free exercise block enforcement of California's medical concerns in this case, that conclusion would marijuana initiative. And the court recently be entitled to great weight. But neither agreed to hear the Bush administration's branch has done that." challenge to the Oregon law permitting doctors to prescribe lethal doses of federally Instead, he said, the government had simply regulated drugs to assist terminally ill invoked the general principle that controlled patients in committing suicide. substances are dangerous. Correction: An article on Tuesday about the Judge McConnell, a leading scholar on Supreme Court's agreement to decide questions concerning the free exercise of whether the government can ban the religion before he became a judge, is widely importing of a hallucinogenic tea that is seen as a possible Bush administration central to the rituals of a Brazil-based choice for a future Supreme Court vacancy. church misstated the number of nations that have signed a 1971 international treaty that In its Supreme Court appeal, the the Bush administration says obliges it to administration is also arguing that the combat international traffic in illicit drugs. injunction is forcing the government to It is 175 nations, not 160.

186 "The RFRA H1oasca Tea Case"

SCOTUS Blog April 18, 2005 Marty Lederman

[On November 12, 2004], the en banc U.S. instead that if the U.S. violates the Court of Appeals for the Tenth Circuit Convention in any respect, it will undermine upheld a preliminary injunction that would U.S. efforts to secure worldwide cooperation prevent the U.S. government from enforcing in the international fight to control the Controlled Substances Act with respect psychotropic substances. to the importation, possession and distribution of hoasca (a tea containing In his concurring opinion in the en bane dimethyltryptamine, or DMT, a substance proceeding, Tenth Circuit Judge Michael regulated under Schedule I of the Act) for McConnell identified what will probably be use in religious ceremonies of a church one of the principal issues in the case as it is known as 0 Centro Espirita Beneficients argued in the Supreme Court: Judge Uniao Do Vegetal, or "UDV." The court of McConnell contends that the U.S. will be appeals' mandate issued on Tuesday. hard-pressed to demonstrate that something is a "compelling interest" under RFRA if the The injunction is based upon the Religious government allows other exemptions that Freedom Restoration Act (RFRA), which also undermine that interest in analogous requires the United States to grant an ways. (The Bush Administration has exemption to one of its laws when the law generally agreed with this understanding of substantially burdens the exercise of the "compelling interest" test in RFRA and religion, unless denial of the religious related contexts. See, e.g., its explanation exemption would be a narrowly tailored way for why RFRA would dictate an exemption of advancing a compelling governmental for religious organizations to a statutory interest. (The Court in Boerne invalidated requirement that recipients of certain social- RFRA as applied to the States; but it service funds not discriminate on the basis remains constitutional as applied to the of religion in employment decisions: 67 Fed. federal government.) The Government Reg. 77,351-52 (Dec. 17, 2002).) Judge claims that there are two compelling McConnell points, in particular, to a statute interests that support denial of the RFRA that permits members of recognized Native exemption here: (i) preventing the risks of American tribes to use peyote, a Schedule I danger caused by ingestion of the tea and/or substance, in religious ceremonies. 42 its possible diversion to nonreligious uses; U.S.C. 1996a. He argues that this peyote and (ii) ensuring that the U.S. remains in exemption demonstrates that "concerns for strict compliance with the United Nations religious freedom can sometimes outweigh Convention on Psychotropic substances, risks that otherwise justify prohibiting which generally requires signatories Schedule I substances," shows that (including the U.S.) to prohibit almost all "[n]either Congress nor the Executive has use of certain psychotropic substances, treated the CSA's general findings about including DMT. The second argument is Schedule I substances as precluding a not that strict treaty compliance is a particularized assessment of the risks "compelling interest" in and of itself, but involved in a specific sacramental use," and

187 "indicates Congress's belief that at least permits the exportation of [peyote] to Native some use of substances controlled by the American Church groups in Canada, despite Act are 'consistent with the public health and the fact that exportation of a Schedule I safety,' despite the generalized congressional substance for other than scientific or medical finding that any Schedule I substance is not purposes would appear to violate the safe to consume even under the supervision Convention," and that "[t]his suggests that, of medical personnel." The Government, in in practice, there is room for response to such arguments, has argued that accommodation [under the Convention] of the health and diversion risks created by the the legitimate needs of religious minority plaintiffs' use of DMT would be greater than groups. . . . This case . . . raises the question the risks created when Native Americans use of why an accommodation analogous to that peyote. There are factual disputes on this extended to the Native American Church question between the parties. cannot be provided to other religious believers with similar needs. As the panel The plaintiffs and Judge McConnell also majority noted, the apparent workability of argue that the peyote exception the accommodation for Native American demonstrates either that the U.N. Church peyote use strongly suggests that a Convention permits limited religious similar exception would adequately protect exemptions, and/or that the U.S. does not the government's interests here." The suffer serious damage to its efforts to ensure United States contends, however, that it does international drug interdiction when it not "permit" the export of peyote to Canada. permits such minor exemptions, even if they might be technical violations of the treaty. DISCLOSURE: While I was employed at The U.S. has argued in response that DOJ (OLC), I worked on the case in 2000- whereas the congressionally sanctioned 2002, when the Government was peyote exemption does not violate the considering whether RFRA required an Convention (because the U.S. took a timely exemption and when the ensuing litigation reservation to the treaty that covered such an began in district court. Nothing in this or exemption), a RFRA exemption for hoasca other posts should be understood as would be a treaty violation, and would be necessarily representing the views of the understood as such by our treaty partners United States, or of OLC, either then or from whom we seek cooperation. Judge now. McConnell notes that "the United States

188 "Court Affirms Church Tea OK"

Albuquerque Journal November 16, 2004 Scott Sandlin

A federal court has ruled for the third time leader, and other members of the group in that the Santa Fe-based affiliate of a 2000. Brazilian religious sect should get back the hallucinogenic tea its practitioners take as a "Now we have won in two courts and in sacrament. three decisions," she said.

The U.S. 10th Circuit Court of Appeals in Hollander late Monday asked for emergency Denver ruled 8-5 for the small religious relief from Parker in light of the 10th Circuit group, 0 Centro Espirita Beneficiente Uniao ruling. Noting UDV members "have been do Vegetal, or UDV, which has waged a 4 effectively prohibited from practicing their 1/2-year legal battle for return of the tea. religion since May 1999," she said the court should require the government to issue a In a convoluted, lengthy and often esoteric permit for the importation and distribution discussion of legal issues, the appeals court of the tea. upheld the ruling two years ago by Senior U.S. District Judge James A. Parker. U.S. Attorney David Iglesias said he is consulting with attorneys in his office and Parker ordered federal authorities to permit with the regional solicitor to decide on the the group to import the tea and said they government's next step. could not bar bona fide church members from using the hallucinogen according to The government could seek review by the their own strict internal guidelines. U.S. Supreme Court, but that would require permission from the solicitor's office, But he delayed the effective date of the Iglesias said. order pending appeal-a situation in effect until the appeals court's decision was handed The U.S. Customs Service seized 30 gallons down late Friday. of the tea, known as ayahuasca or simply hoasca, from Bronfman's home in 1999. The 10th Circuit sat en banc-meaning all Bronfman, who was first exposed to the 13 judges-to reconsider a 2003 ruling by a religion during trips to Brazil for a nonprofit three-judge panel. board on which he sat, began importing the tea for ceremonies for a growing but small "The court of appeals has once again North American membership. The tea is a affirmed the right of the UDV and its blend of two Amazon rain-forest plants and practitioners to practice their religion. We is legal in Brazil. hope they will be able to do that as quickly as possible," said Nancy Hollander, who Government lawyers have taken the position filed suit on behalf of Jeffrey Bronfman of that hoasca is regulated by the Controlled Tesuque. the religion's North American Substances Act, from which the UDV is not

189 exempt. They also have said international clearly defined groups. And she noted treaties governing narcotics will be breached Congress reiterated the importance of the by permitting its use. free exercise of religion when it enacted the Religious Freedom Restoration Act. "This case is unique in many respects because it involves a clash between two In a separate, concurring opinion, Judge federal statutes, one based in the First Michael W. McConnell noted that the Amendment to the Constitution and district court's order worked as a protecting an individual's free exercise of compromise, permitting the government religion and the other serving the important some control over importation, storage and governmental and public interests of use of hoasca while permitting the UDV to protecting society against the importation continue its religious activity. and sale of illegal drugs," wrote 10th Circuit Judge Stephanie K. Seymour in one of the "This case . . . raises the question of why an majority opinions. accommodation analogous to that extended to the Native American Church cannot be Seymour said the government's claim of provided to other religious believers with harm if it can't enforce an international similar needs," he wrote. treaty on psychotropic drugs was undermined by exemptions permitted for The Native American Church is allowed to plants traditionally used by certain small use peyote as a sacrament.

190 "Santa Fe Church Gets Permit for Tea"

Albuquerque Journal December 11, 2004 Scott Sandlin

The Santa Fe-based affiliate of a South The UDV has found strange bedfellows in American religion late Friday got what it has its religious freedom battles. A coalition of been waging a court battle for five years to conservative Christian groups, including the obtain: A government permit to import Christian Legal Society and the National hoasca, the tea it uses as a sacrament. Association of Evangelicals, filed friend-of- the-court briefs when the case was argued The permit for the tea, a potent blend of before a three-judge panel of the 10th rainforest plants with hallucinogenic Circuit and again when it was argued before properties, was issued by the Drug 13 of the 19 appellate judges. Enforcement Administration after the U.S. Supreme Court rebuffed a temporary delay Banning the importation of hoasca and in implementing a lower court ruling, said threatening church members with criminal Nancy Hollander, who represents the group. prosecution is "tantamount to banning the wine served at a Roman Catholic mass," Jeffrey Bronfman of Santa Fe, the North their brief said. "The government should American president of 0 Centro Espirita have to make a very strong showing of Beneficiente Uniao do Vegetal, said he was public necessity before (the law) "delighted and grateful." countenances such a severe burden on religious practice." "We're going to look forward as soon as we can to be able realize our ceremonies, and The government has until mid-January to particularly to enjoy the Christmas season ask the Supreme Court for a review. with the right to practice our religion," he said in a phone interview. Bronfman hopes that doesn't happen.

U.S. Department of Justice spokesman "I would hope they would recognize the Charles Miller in Washington, D.C., seriousness of the harm they've already done declined comment on behalf of the and move forward in cooperation rather than government. The DOJ hasn't decided what with the harshness and intolerance we've the next step will be, he said. been dealing with for several years," Bronfman said. The DOJ has argued unsuccessfully at the district court level and twice before the U.S. He noted the group had been importing the 10th Circuit Court of Appeals the UDV tea for about 11 years without any issue of should not be able to import hoasca while diversion before U.S. Customs agents seized the issue is pending. It contends there is a shipment from his home in May 1999. potential harm to government interests from The seizure prompted Bronfman, a member illegal diversion of the tea and from the of the family that owns Seagram's, to file violation of an international drug suit in 2000 to recover the tea or the ability enforcement treaty. to import it.

191 After a hearing on the group's request for a "You're very aware that what you're preliminary injunction forcing the perceiving is natural," Bronfman said government to issue a permit, U.S. District Friday. "It's perhaps an insight into your Judge James A. Parker ruled in their favor own self. But it's not a hallucination in the and issued an order in 2001 specifying sense of your seeing something that isn't procedural safeguards to prevent diversion, there."

Because the tea is a sacrament, the UDV's Bronfman testified at the Santa Fe hearing adherents-about 140 total in North four years ago and said again Friday the America-have to make sure it gets used for government's action has harmed the its intended purpose, Bronfman said. congregation.

"In addition, there's now regulations and a "What I've seen is marriages that have come degree of supervision that DEA asked of us under great stress, health challenges that that are part of the order that we're going to have been very, very difficult and we comply with that will make it even less couldn't minister to them. And then just the likely that there would be any question of it sense of living in a country where we being used by anyone else," he said. couldn't exercise the most basic and fundamental rights," he said. "The harm has Practitioners ingest the tea in controlled been profound." settings that may bring on a dreamlike state, according to previous testimony.

192 "Inmate Gets Second Chance For Religious Bias Suit"

Chicago Daily Law Bulletin November 20, 2003 James G. Sotos

Religious Freedom Restoration Act requires O'Bryan v. Bureau of Prisons,et al., No. 02- federal prisons to reasonably accommodate 4012, (7th Cir., Nov. 10). prisoner's religious beliefs and practices. Kerry Devin O'Bryan, who is currently The First Amendment generally prohibits incarcerated in a federal prison, purports to the government from prohibiting the free believe in Wicca, a polytheistic faith based exercise of religion. For instance, in on beliefs that prevailed in both the Old Employment Division v. Smith, 494 US. 872 World and the New World before (1990), the Supreme Court held that the free Christianity. As part of his faith, O'Bryan exercise clause was not violated by the State claims that he is required to indulge in of Oregon's refusal to pay unemployment herbal magic and benign witchcraft. compensation to employees who were fired O'Bryan's religious activities have been because they ingested peyote for curtailed, however, by the Federal Bureau of sacramental purposes at a ceremony of their Prisons, which has a policy that forbids the Native American church. "casting of spells and curses."

The court reasoned that since peyote use O'Bryan sued the Bureau of Prisons in violated Oregon's criminal laws, the mere federal court, alleging that the policy's fact that compliance with that state law restrictions on the casting of spells and incidentally forbids the performance of an curses violated his rights under the RFRA, act that a person's religious belief requires which provides: does not violate the First Amendment so long as the law is not specifically directed at (a) Government shall not religious practice. substantially burden a person's exercise of religion even if the In response, Congress enacted the Religious burden results from a rule of Freedom Restoration Act, which generally general applicability, except as prohibits the government from interfering provided in subsection (b) of this with the free exercise of religion even if the section. interference results from a neutral rule of general applicability. Subsequently, in (b) Government may substantially Boerne v, Flores, 521 U.S. 507 (1997), the burden a person's exercise of Supreme Court held that Congress lacked religion only if it demonstrates that the power under the 14th Amendment to application of the burden to the apply the RFRA to the various states. person-(1) is in furtherance of a compelling governmental interest; Today's column reviews a recent 7th U.S. and (2) is the least restrictive Circuit Court of Appeals decision that means of furthering that considered whether the RFRA remains compelling governmental interest. viable as applied to federal agencies.

193 U.S. District Judge Michael J. Reagan of the make all laws which shall be Southern District of Illinois dismissed necessary and proper for carrying O'Bryan's lawsuit, citing Boerne v. Flores into execution . . . all other powers for the proposition that the RFRA has been vested by this Constitution in the struck down as unconstitutional. O'Bryan government of the United States, appealed. or in any department or officer thereof." This permits Congress to The 7th Circuit reversed. Writing for the determine how the national court, Judge Frank H. Easterbrook initially government will conduct its own explained that Boerne was not as broad as affairs. No one doubts that the the district judge believed: Bureau of Prisons itself could choose to accommodate religious The Boerne court did not say that practices. By and large, what the the RFRA violates any substantive executive branch may elect, the limitation. It held, rather, that the legislative branch may require. (It RFRA could not be deemed an would not be tenable to argue that exercise of the power granted by prison management is a subject section 5 of the 14th Amendment constitutionally committed to the to "enforce" that amendment's president to the exclusion of the other provisions. According to Congress.) Employment Division v. Smith, 494 U.S. 872 (1990), the First The 7th Circuit explained that its decision to Amendment, applied to the states apply the RFRA to the conduct of federal by section 1 of the 14th, does not officers and agencies was consistent with the require government to view expressed by other circuits: accommodate religious beliefs adversely affected by laws and Every appellate court that has practices that are neutral with squarely addressed the question respect to matters of faith. Boerne has held that the RFRA governs declined to overrule Smith; it the activities of federal officers and followed that the RFRA, which agencies. See Guam v. Guerrero, requires accommodation rather 290 F.3d 1210, 1221 (9th Cir. than neutrality, does not 'enforce' 2002); Henderson v. Kennedy, 265 the First Amendment. F.3d 1072, 1073 (D.C. Cir. 2001); Kikumura v. Hurley, 242 F.3d 950, Easterbrook explained that the federal 958 (10th Cir. 2001); Christians v. government independently possesses the Crystal Evangelical Free Church, constitutional power to apply the RFRA to 141 F.3d 854, 856 (8th Cir. 1998). federal, as opposed to state, agencies: Although Justice John Paul Stevens believes that Legislation affecting the internal accommodation of religious operations of the national practices offends the establishment government does not depend on clause of the First Amendment, see section 5; it rests securely on Boerne, 521 US. at 536-37 Article 1, section 8, clause 18, (concurring opinion), a view as which authorizes Congress "to applicable to federal agencies as it

194 is to states, none of the other fight or other serious disruption justices has questioned the could easily occur." This is not as constitutionality of statutory self-evident as the Bureau of accommodation requirements that Prisons may believe; relying on rest on provisions other than other inmates' reactions to a section 5 of the 14th Amendment. religious practice is a form of We have in the past left open the hecklers' veto. question whether the RFRA may be applied to the internal The RFRA does not allow operations of the national governments to defeat claims so government. . . . Today we join easily. A governmental body that the other circuits and hold that it imposes a "substantial" burden on may be so applied. a religious practice must demonstrate, and not just assert, Against that backdrop, the appeals court that the rule at issue is the least reversed the dismissal of O'Bryan's civil restrictive means of achieving a rights lawsuit but explained that the compelling governmental interest. government could prevail on remand by We cannot tell whether a limit on demonstrating that its prohibition on the casting spells would casting of spells and curses was the least "substantially" burden O'Bryan's restrictive means of achieving a compelling religious activities, nor can we tell government interest: on this empty record whether "spells" cast by Wiccans would Defendants concede that Wicca is a cause problems. Wicca follows the religion for purposes of the RFRA. principle that adherents must not Although the District Court did not harm others, which implies that evaluate O'Bryan's contentions (or they cast no curses or hex-like his religious practices) under the incantations "on" others that might RFRA, defendants contend that we frighten or offend them. need not remand for that purpose because it is "self-evident why PS Thus it is premature to apply the 5360.08 states that casting spells is RFRA's standard to O'Bryan's never authorized. If an inmate claims; that is a task for the District were to cast a spell on another Court in the first instance, and on a inmate, for example, and the other suitable record. inmate were to find out about it, a

195 "Court: Congress Strikes Right Religious-Protection Balance"

First Amendment Center June 1, 2005 Tony Mauro

WASHINGTON-A 15-year dialogue of neither compelled by the Free Exercise sorts between the Supreme Court and Clause nor prohibited by the Establishment Congress over how to protect religious Clause," wrote Ginsburg. "We hold that practices from excessive government Section 3 of RLUIPA fits within the corridor regulation culminated yesterday in a between the Religion Clauses: On its face, decision in which the justices said Congress the Act qualifies as a permissible legislative had finally struck the right balance. accommodation of religion that is not barred by the Establishment Clause." Ruling unanimously in Cutter v. Wilkinson, the Court upheld a section of the Religious Ginsburg said that if the high court adopted Land Use and Institutionalized Persons the 6th Circuit's hard line, "all manner of Act-or RLUIPA that bars prison officials religious accommodations would fall," from restricting inmates' exercise of religion including prison chaplains for mainstream unless they have a "compelling religions. governmental interest" to do so. The "corridor" between the two religion A group of Ohio inmates who belong to clauses that Ginsburg spoke of has been "cnon-mainstream" religions sued the state under construction, so to speak, for years in under the federal law, complaining that their the Court's jurisprudence. But its formal religions' dietary, dress and ceremonial recognition in the context of RLUIPA won requirements were being unfairly restricted, applause yesterday from religious and civil in violation of the First Amendment's free- liberties organizations, including some that exercise clause. The 6th U.S. Circuit Court are usually on opposite sides of church-state of Appeals rejected their claim and struck debates. down the law, ruling that it violated the First Amendment's establishment clause by "There's a strong argument to be made that giving primacy to religious rights over other the anti-accommodation reading of the rights. establishment clause has been dead for a long time, but today's unanimous decision But Justice Ruth Bader Ginsburg said that removes any lingering doubt," Anthony by accommodating the religious needs of Picarello, president of the Becket Fund for inmates while still deferring to the security Religious Liberty, said yesterday. "Cutter is concerns of prison officials, Congress had a win for religious exercise in prison, but navigated appropriately between the more importantly, it is a thumping victory sometimes conflicting demands of the for religion-only accommodations religion clauses. nationwide."

"Our decisions recognize that 'there is room "This is a sensible decision that affirms the for play in the joints' between the Clauses value of religious freedom while giving [and] some space for legislative action correctional institutions the ability to meet

196 their security needs," said the Rev. Barry inmates' religions is written as a condition Lynn, executive director of Americans for the receipt of federal funds (and all states United for Separation of Church and State. receive federal funds for their prisons). Another section-not ruled on yesterday- The inter-branch dialogue began in 1990 restricts governments' ability to burden when the Court ruled, in Employment religious institutions through land-use or Division v. Smith (II), that generally zoning regulations, and is based on the applicable laws-in that case anti-drug power of Congress to regulate interstate laws-may restrict religious practices commerce. without running afoul of the free-exercise clause. Congress responded in 1993 with The Court yesterday, while giving its passage of the Religious Freedom blessing to the law's fealty to the religion Restoration Act-or RFRA-which barred clauses, specifically avoided the question of government from burdening religions whether the spending or commerce without a compelling interest, and dictated rationales are valid. Other cases testing to the courts what standard to use in those theories are before the lower courts, reviewing government restrictions. and Ohio could still challenge RLUIPA on that basis. In his concurrence, Justice The high court made the next move, striking Clarence Thomas said the law "may well down RFRA as applied to the states on the exceed the spending power," though the grounds that Congress had overstepped its argument is "undercut" by the fact that Ohio authority and had developed no record to has accepted federal funds for its prisons. back up its legislation. In published comments after the decision, Congress went back to the drawing board Ohio Solicitor General Douglas Cole and passed RLUIPA in 2000, a more indicated Ohio would continue to challenge narrowly targeted law rooted in its spending- the validity of RLUIPA on other grounds, and commerce-clause powers. The and would still deny inmates' requests in spending-clause rationale governs the prison individual cases if their religious practices section of the law; in other words, the posed security risks. requirement that prisons accommodate

197 Schaffer v. Weast

(04-0698)

Ruling Below: (Weast v. Schaffer, 377 F.3d 449 (4th Cir. Md., 2004), cert granted 125 S. Ct. 1300; 161 L. Ed. 2d 104; 73 U.S.L.W. 3494).

The parents of a middle school student with learning disabilities challenged the adequacy of the individualized education program ("IEP") provided by their local public school under the federal Individuals with Disabilities Education Act ("IDEA"). The IDEA is silent on the question of whether the schools or the parents carry the burden of proof in arguing the adequacy of an IEP. The Fourth Circuit reversed a Maryland federal district judge's ruling that the school carried the burden. Although schools have a natural advantage in such proceedings due to their greater resources and institutional knowledge of special education programs, the Fourth Circuit held that Congress created adequate procedural safeguards in the IDEA to protect parents and ensure their full participation in the IEP process. Consequently, there is no reason for an exception to the general rule that the party seeking relief (here, the parents) should carry the burden of proof.

Question Presented: Under the Individuals with Disabilities Education Act, when parents of a disabled child and their local school reach an impasse over the child's individualized education program, either side has a right to bring the dispute to an administrative hearing officer for resolution. At the hearing, which side has the burden of proof-the parents or the school district?

Jerry WEAST, Superintendent of Montgomery County Public Schools, Plaintiff-Appellant, V. Brian SCHAFFER, a minor, by his parents and next friends, Jocelyn and Martin Schaffer, Defendants-Appellees.

United States Court of Appeals for the Fourth Circuit

Decided July 29, 2004

[Excerpt: some footnotes and citations omitted]

MICHAEL, Circuit Judge: enforce this right, the IDEA requires every public school system receiving federal funds The Individuals with Disabilities Education to develop and implement an Individualized Act (IDEA) gives every disabled child the Education Program (IEP) for each disabled right to a "free appropriate public education" child in its jurisdiction. When the parents tailored to meet his or her unique needs. To believe their disabled child's IEP is

198 inadequate, they may initiate an expressed concern about class size at administrative proceeding (called a due Herbert Hoover, the MCPS offered to process hearing) to challenge the IEP. The provide the same IEP services at the Robert parents of Brian Schaffer initiated a due Frost Middle School, a school ten minutes process hearing to challenge the IEP from Brian's home, where he could receive developed for him by Maryland's more of his instruction in smaller classes. Montgomery County Public School System Shortly thereafter, in May 1998, the parents (MCPS). The issue in this appeal is whether informed MCPS that the proposed IEP was the district court was correct in assigning the inadequate and that Brian would attend burden of proof to the school system in that private school. . . . At the same time, the proceeding. The IDEA is silent on burden parents requested a due process hearing of proof. Because we have no valid reason pursuant to the IDEA, claiming that the to depart from the general rule that the party proposed IEP denied Brian a free initiating a proceeding has the burden of appropriate education; they sought proof, we reverse and remand. reimbursement of the tuition and other expenses for Brian's private school I. attendance. (The IDEA requires the school system to arrange for an impartial due [The court discussed Brian Schaffer's process hearing, and the hearing cannot be history of educational troubles and diagnosis conducted by a system employee or an with Attention Deficit Hyperactivity employee of the state educational agency. Disorder and other learning disabilities.] In Maryland the due process hearing is conducted by an administrative law judge (ALJ) in the state's Office of Administrative Hearings. . .[I]n November 1997, Brian's mother contacted the Herbert Hoover Middle At the original due process hearing in School, an MCPS school, and requested that Brian's case, the ALJ assigned the burden of Brian be evaluated to determine his proof to the parents. The parents challenged eligibility for special education services for the substance of the IEP, not the process by the 1998-1999 school year.. .. On February which it was developed, and the ALJ 26, 1998, the MCPS . . . Admission, explained that deference is owed to Review, and Dismissal (ARD) Committee.. education professionals in the substantive . held its first meeting to discuss Brian's design of an IEP. The parents were educational needs with his parents, their therefore required to prove that the IEP was lawyer, and Herbert Hoover school officials. inadequate, specifically, that it was not . . . The ARD Committee held its second "reasonably calculated to enable the child to meeting in early April 1998, found Brian receive educational benefits." Hendrick eligible for special education, and offered an Hudson Bd of Educ. v. Rowley, 458 U.S. IEP for the next (1998-1999) school year. 176, 207 (1982). Both sides submitted extensive expert testimony, and the ALJ The proposed IEP specified that Brian considered the case to be close. He would receive 15.3 hours of special commented that the "assignment of the education and 45 minutes of speech therapy burden of proof [was] critical" to the each week at his "home" school, Herbert outcome. Ultimately, the ALJ concluded Hoover Middle School. After the parents that the parents had not met their burden.

199 The AL's order upheld the IEP proposed by the adequacy of an IEP. When a statute is the MCPS and denied the parents' request silent, the burden of proof is normally for reimbursement for Brian's private school allocated to the party initiating the expenses. proceeding and seeking relief. Although "the natural tendency is to place the burden Brian's parents sued the MCPS . . . in district on the party desiring change" or seeking court, claiming that the ALJ had erred in relief, other factors such as policy assigning the burden of proof to them. The considerations, convenience, and fairness district court, agreeing with the parents, may allow for a different allocation of the reallocated the burden of proof to the MCPS burden of proof. McCormick on Evidence § and remanded the case to the ALJ for further 337 (5th1 ed. 1999). proceedings. Brian S. v. Vance (Schaffer I), 86 F Supp. 2d 538 (D. Md. 2000). The Today our circuit must decide how to MCPS appealed the district court's . . . order allocate the burden of proof in one of these to our court, but before we heard argument IDEA-prescribed, state administrative the ALJ reconsidered the case pursuant to proceedings initiated by parents to challenge the district court's remand order. After an IEP. Other circuits are split-and reassigning the burden of proof to the splintered in reasoning-on this question. MCPS, the ALJ found that the MCPS had Three circuits assign the burden to the failed to prove the adequacy of the IEP. The parents, and four (perhaps five) assign it to AU ordered the MCPS to make partial the school system. The Sixth Circuit holds reimbursement to the parents for Brian's to "the traditional burden of proof' and tuition and expenses at private school for the requires the parents challenging an IEP to 1998-1999 year. The MCPS then filed an establish both its procedural and substantive action (Schaffer II) in district court to deficiencies. The Fifth and Tenth Circuits challenge the AL's reassignment of the also assign the burden of proof to the burden of proof. . . . [I]n Schaffer II the parents, but for a different reason. district court, after reaffirming that the According to these circuits, because the MCPS had the burden of proof, concluded statute relies on the expertise of education that the ALJ had decided correctly on professionals in local school systems, their reconsideration that the proposed IEP was decisions about the substantive terms of an inadequate. The district court then set aside IEP are owed deference; as a result, the the AL's decision on tuition and expenses, parents bear the burden of proving why an awarding full reimbursement to the parents. IEP is deficient. Weast v. Schaffer (Schaffer II), 240 F. Supp. 2d 396 (D. Md. 2002). The MCPS now On the other side the Third Circuit assigns appeals the district court's decision in the burden of proof to school systems when Schaffer 11. their IEPs are challenged by parents in administrative proceedings. . . . [It held II. that] when an administrative decision upholding an IEP is challenged in district A. court, the school district has the burden of proof because of its expertise and access to The IDEA is silent about which side bears information and witnesses. Three other the burden of proof in a state administrative circuits, the Second, Eighth, and Ninth, have proceeding brought by parents to challenge announced without explanation that the

200 school system has the burden of proving the greater expertise and resources, they should adequacy of the IEP at the administrative have the burden of proof, according to hearing. ... Brian's parents. Specifically, the argument goes, the school system understands the Because the decisions assigning the burden requirements of the IDEA, has greater of proof at the administrative hearing to the educational expertise than parents, and has school system offer little or no analysis, they better access to information and witnesses, do not persuade us to depart from the normal This persuaded the district court in Brian's rule of allocating the burden to the party case to assign the burden at the seeking relief. We will therefore proceed to administrative level to the school system consider the main arguments advanced by (the MCPS). Brian's parents for assigning the burden to the school system. We do not automatically assign the burden of proof to the side with the bigger guns. B. And "very often [a party] must plead and prove matters as to which his adversary has The parents argue that because the IDEA is superior access to the proof." McCormick a remedial statute that places the obligation on Evidence § 337. In IDEA administrative on a school system to provide a free disputes Congress has taken steps, short of appropriate public education for disabled allocating the burden of proof to school children, the school system should bear the systems, that level the playing field. As the burden of proving that its IEP meets that Supreme Court observed, Congress obligation. This brings to mind other recognized "that in any [IDEA] disputes the remedial federal statutes such as Title VII of school officials would have a natural the Civil Rights Act of 1964, the Americans advantage," so it therefore "incorporated an with Disabilities Act, and the Age elaborate set of what it labeled 'procedural Discrimination in Employment Act. These safeguards"to insure the full participation of statutes impose on employers (or others) the the parents and proper resolution of obligation not to discriminate against an substantive disagreements." School Comm. individual because of characteristics such as of Burlington v. Dep't of Educ. of Mass., 471 race, sex, disability, or age. Like the IDEA, U.S. 359, 368 (1985). these statutes are silent about burden of proof, yet we assign it to the plaintiff who These procedural safeguards and other seeks the statutory protection or benefit; the provisions in the IDEA are all designed to burden is not assigned to the party with the inform parents and to involve them in the statutory obligation. We do not believe, development of the IEP for their child. The then, that a school system should have the Act involves parents at all stages, making burden of proof in an IEP challenge just them members of their child's IEP team and because it has the statutory obligation to enabling them to advocate for their position propose an adequate educational program if a dispute arises. Parents have the right to for the disabled child.... examine all records, materials, assessments, and other information the school system C. uses to develop an IEP, and they have the right to participate fully in meetings relating Because school systems have a natural to the IEP and the evaluation of their child. advantage in IEP disputes by reason of their Parents have the right to request an

201 independent evaluation of their child at independent evaluation, available to parents. school system expense. The school system By the time the IEP is finally developed, must give parents written notice of their parents have been provided with substantial rights at key intervals: when their child is information about their child's educational initially referred for evaluation, when they situation and prospects. They have are notified about each IEP meeting, when continuing access to information and their child is reevaluated, and when they anticipated evidence once a hearing is register any complaint about the school requested. In sum, Congress has taken into system's effort to provide a free appropriate account the natural advantage a school public education for their child. The notice system might have in the IEP process, of the parents' rights must be written in "an including the administrative hearing, by easily understandable manner." Finally, the providing the explicit protections we have statute authorizes "parent training and outlined. As a result, the school system has information centers" . . . designed to "meet no unfair information or resource advantage the . . . needs of parents of children with that compels us to reassign the burden of disabilities" and to "assist parents to proof to the school system when the parents understand the availability of, and how to initiate the proceeding. effectively use" the protections of the IDEA. D. If the parents request an administrative hearing, additional services and protections Although Brian's parents recognize that the become available. Voluntary mediation IDEA is silent as to burden of proof, they conducted by an impartial mediator, with the argue that "inherent in the [Act] is the school system bearing the costs, must be principle that school systems bear the made available before the case proceeds to burden of proof." The parents refer to two hearing. The school system must also cases, Mills v. Board of Education of advise the parents "of any free or low-cost Washington, D.C., 348 F Supp. 866 (D.D.C. legal and other relevant services available in 1972), and Pennsylvania Association for the area." There are also discovery Retarded Children v. Commonwealth requirements that give parents advance (PARC), 343 F Supp. 279 (ED. Pa. 1972), notice of the evidence they will encounter at that Congress apparently used as the a hearing. A party may not introduce blueprint for the Education of the evidence that is not disclosed at least five Ilandicapped Act, now the IDEA. business days before the hearing. Likewise, at least five business days prior to the The Supreme Court in Rowley pointed out hearing, "each party shall disclose to all the similarities between PARC and Mills and other parties all evaluations completed by what is now the IDEA. ... that date and recommendations based on the offering party's evaluations that the party ... The parents argue that because the Act intends to use at the hearing." Finally, if the specifically incorporated a number of . parents prevail in their challenge, they may major principles from PARC and Mills, "it be awarded reasonable legal fees. stands to reason that Congress intended for the IDEA to echo their assignments of The IDEA and its implementing regulations burden of proof." The circumstances require an open process that makes relevant compel the opposite conclusion, we believe. information and special services, such as the Congress took a number of the procedural

202 safeguards from PARC and Mills and wrote the IDEA, it "protects individual children by them directly into the Act. Congress thus providing for parental involvement [and for knows how to borrow ideas and incorporate certain assistance to parents] . . . in the them into legislation. For the Act here, it formulation of [a] child's [IEP]." Rowley, borrowed some ideas and specifically 458 US. at 208. Under this statutory ignored others. We cannot conclude from arrangement, it is reasonable to require this that Congress intended to adopt the parents attacking the terms of an IEP to bear ideas that it failed to write into the text of the burden of showing why it is deficient. the statute. For whatever reason Congress did not assign the burden of proof, and The dissent would assign the burden of Congress has not signaled by its silence that proof to the school system because of its we should depart from the general rule. "distinct, inherent advantage" over parents when it comes to proposing and evaluating E. educational plans for disabled children. Parents, the dissent says, "lack the The dissent argues that in light of the comprehensive understanding . . . (and] affirmative (IDEA-mandated) obligation a means to assess the likely benefit of school system has to provide an appropriate available alternatives." Again, when educational program for each disabled child, Congress designed and passed the IDEA, it "the most reasonable, though by no means was keenly aware that school systems have irrebuttable presumption, is that the school professional expertise and . . . parents do [system] should bear the burden of proof in not. It was for this very reason that the due process hearings." As we have Congress imposed statutory safeguards to already pointed out, however, the general assist parents in becoming substantively rule is quite the opposite: a party who informed. If Congress considered burden of initiates a proceeding to obtain relief based proof at all, it no doubt recognized that on a statutory obligation bears the burden of allocating the burden to school systems is proof. The general rule is sometimes stated not the kind of help parents really need in in a slightly different way that is instructive challenging IEPs. For regardless of which here: the burden of proof is on the party who side has the burden of proof in an should lose if no evidence is offered by administrative hearing, parents will have to either side. We believe that when parents offer expert testimony to show that the challenge the* adequacy of an IEP, they proposed IEP is inadequate. Shifting the should lose if no evidence is presented. To burden of proof, in other words, will not say that the school system should lose is to enable parents by themselves to mount a say that every challenged IEP is serious, substantive challenge to an IEP. presumptively inadequate. A presumption Congress recognized that parents need of inadequacy would go against a basic professional assistance, and the IDEA policy of the IDEA, which is to rely upon therefore allows parents who prevail in due the professional expertise of local educators. process hearings to recover their fees for Congress enacted the IDEA with the clear hiring lawyers. If experience shows that intention of deferring to local school parents do not have sufficient access to authorities for the development of substantive expertise under the current educational plans for disabled children. And statutory scheme, Congress should be called while Congress "entrusts a [disabled] child's upon to take further remedial steps. As far education to state and local agencies" under as procedure is concerned, however, we

203 have no convincing reason to depart from obligation than the disabled student's parents the traditional burden of proof in IDEA due are in to show that the school district has process hearings. failed to do so. Accordingly, I would hold that the school district-and not the III. comparatively uninformed parents of the disabled child-must bear the burden of In sum, the IDEA does not allocate the proving that the disabled child has been burden of proof, and we see no reason to provided with the statutorily required depart from the general rule that a party appropriate educational resources. initiating a proceeding bears that burden. Congress was aware that school systems The majority concludes otherwise based on might have an advantage in administrative the "normal rule of allocating the burden to proceedings brought by parents to challenge the party seeking relief." As even it admits, IEPs. To avoid this problem, Congress however, this so-called "rule" is, in provided a number of procedural safeguards actuality, merely a presumption and not a for parents, but assignment of the burden of very strong one at that. Relying on proof to school systems was not one of McCormick on Evidence, the majority them. Because Congress took care in explains that, "although 'the natural specifying specific procedural protections tendency is to place the burden on the party necessary to implement the policy goals of desiring change' or seeking relief, other the Act, we decline to go further, at least factors such as policy considerations, insofar as the burden of proof is concerned. convenience, and fairness may allow for Accordingly, we hold that parents who different allocation of the burden of proof." challenge an IEP have the burden of proof in the administrative hearing. We reverse the Each of these "other factors"-policy, judgment of the district court and remand convenience and fairness-weigh against for further proceedings consistent with this the assignment of the burden of proof to the opinion. parents in this case. To begin with, the policies behind the IDEA indisputably argue Reversed and Remanded. in favor of placing the burden of proof with the school district. As the Supreme Court LUTTIG, Circuit Judge, dissenting: has explained,

I do not agree with the majority's holding the Act represents an ambitious that the burden of proof in due process federal effort to promote the hearings conducted pursuant to the education of handicapped Individuals with Disabilities Education Act children, and was passed in (IDEA) should be borne by a disabled response to Congress' child's parents, rather than by the school perception that a majority of district that is charged with providing that handicapped children in the child a "free appropriate public education." United States "were either have the Not only does the school district totally excluded from schools or the affirmative, statutory obligation under [were] sitting idly in regular IDEA to develop a suitable education classrooms awaiting the time program (IEP) for every disabled child, the when they were old enough to school district is also in a far better position 'drop out."' to demonstrate that it has fulfilled this

204 Bd. of Educ, of Hendrick Hudson Central possess. And, even more importantly, the Sch. Dist. v. Rowley, 458 US. 176, 179 parents lack the means to assess the likely (1983). In the service of this effort, the benefit of available alternatives. Parents IDEA obligates school districts to provide simply do not have, and cannot easily every disabled child with an educational acquire, the cumulative, institutional program that is reasonably responsive to that knowledge gained by representatives of the child's disability. The IDEA also requires school district from their experiences with school districts to involve the parents of the other, similarly disabled children. disabled child in the formulation of educational plans made in response to the The majority recites, at length, the services child's particular disability and to receive and protections provided to parents under and consider the suggestions of parents in the IDEA, but the mere recitation of these the development of those plans. In light of provisions does nothing more than highlight these affirmative obligations, the most Congress' awareness that parents of disabled reasonable, though by no means irrebuttable, children operate at a disadvantage when they presumption is that the school district should seek to contest the [IEP] developed by their bear the burden of proof in the due process school district. It certainly does not show hearings required by the Act as well. that Congress has "leveled the playing field" between the school district and the parents. . The majority suggests otherwise by . . [E]ven in the rosiest of scenarios, the comparing the obligation of school districts provision of such remedial protections and under the IDEA to that of defendants in civil services would not begin to impart to the rights claims. . . . The analogy is not apt. average parent the level of expertise or Unlike the civil rights statutes referenced by knowledge that the school district possesses the majority, the IDEA does not merely seek as a matter of course. to remedy discrimination against disabled students, it imposes an affirmative The majority may well be correct that the obligation on the nation's school systems to assignment of the burden of proof to the provide disabled students with an enhanced party with the "bigger guns" is not level of attention. . . . [I]t is this affirmative "automatic." However, with only a faint, obligation . . . that weighs most heavily in general presumption in favor of placing the favor of placing the burden of proof in due burden of proof on the complainant on the process hearings on the school district. other side of the equation, the fact that the party with the "bigger guns" also has better Turning next to the interests of convenience access to information, greater expertise, and and fairness, it is apparent that the school an affirmative obligation to provide the district possesses a distinct, inherent contested services can hardly be ignored. advantage over the parents of disabled Indeed, in my judgment, the collective children in assessing the feasibility and the weight of each of these considerations is likely benefit of alternative educational dispositive. arrangements. While individual parents may have insight into the educational I fear that, in reaching the contrary development of their own children, they lack conclusion, the majority has been unduly the comprehensive understanding of the influenced by the fact that the parents of the educational alternatives available to [their] disabled student in this case have proven to children . . . that [school] officials . . . be knowledgeable about the educational

205 resources available to their son and if not bewildering. By the same token, most sophisticated (if yet unsuccessful) in their of these parents will find the educational pursuit of these resources. If so, it is program proposed by the school district regrettable. These parents are not typical, resistant to challenge: the school district will and any choice regarding the burden of have better information about the resources proof should not be made in the belief that available to it, as well as the benefit of its they are. For the vast majority of parents experience with other disabled children. whose children require the benefits and With the full mix of parents in mind, I protections provided in the IDEA, the believe that the proper course is to assign the specialized language and technical burden of proof in due process hearings to educational analysis with which they must the school district. familiarize themselves as a consequence of their child's disability will likely be obscure, I respectfully dissent.

206 "High Court to Hear Maryland Special-Ed Case"

Washington Post February 23, 2005 Tim Craig and Miranda Spivack

The Supreme Court agreed yesterday to hear individualized program at Robert Frost the case of a Montgomery County couple Middle School, where classes were smaller. who contend that school officials, if The parents rejected both offers as challenged, must prove they are meeting inadequate and instead enrolled Brian in the their legal obligations to special education McLean School of Maryland, a private students. school in Potomac. They subsequently requested a due process hearing, available The justices will try to decide whether lower under the disabilities act, during which they courts should place the burden of proof on sought reimbursement for school tuition. schools or the plaintiff-presumably the parents-when a party sues under the An administrative law judge ruled that the Individuals with Disabilities Education Act. Schaffers had to prove that the school The law requires that public schools grant system's plan for their son was lacking. The every disabled child a "free appropriate parents then filed suit in U.S. District Court, special education" tailored to the child's which ruled that the burden of proof rested specific needs. with the schools. The case was returned to the administrative law judge, who ordered The case, which has taken a tortuous, seven- the school system to reimburse the parents year path through the educational and legal for part of their son's private school tuition. systems, could have a major impact on millions of parents and their children with The Montgomery County school system special needs. It involves Brian Schaffer, appealed to the U.S. Court of Appeals for who in 1997 was a seventh-grader with the 4th Circuit, which ruled that the burden attention deficit hyperactivity disorder and rests with whatever party is filing the suit, was attending a private school that offered effectively ruling against the Schaffers, who no special education programs. appealed to the Supreme Court.

When Jocelyn Schaffer, Brian's mother, The case is being closely watched by school sought to enroll him at Herbert Hoover systems and special education advocates. Middle School, the county offered a The Individuals with Disabilities Education specially designed curriculum for Brian Act offers no clear standard for how such called an Individual Education Program. It cases should be resolved. Various appellate called for 15.3 hours of special education courts have come down on different sides of and 45 minutes of speech therapy each the question. week. "We regard this as an important civil rights After the parents expressed concern about case," said William H. Hurd, the Schaffers's that school's fairly large classes, according attorney. "We believe the implications are to court filings, the system offered the same very large."

207 Jerry D. Weast, superintendent of the burden should not rest with the schools if Montgomery County schools, said the case a parent brings a suit. "demonstrates the overwhelming litigious nature that has evolved under special "The bottom line is that there are plenty of education in which school systems have protections in the law, and you should been presumed at fault until proven follow the general rule that the challenging otherwise." party has the burden of proof," said Naomi Gittins, a staff attorney for the association. Weast said most school districts settle similar cases to avoid litigation. Attorneys for the Schaffer family argue that Montgomery County, which has about it is the school system's responsibility to 15,000 students enrolled in Individual prove that it is adhering to federal law. Education Programs, is contesting the issue, he said, because "educational services "This is a case where the school district has should be decided in an appropriate way an affirmative obligation to develop a plan based on the educational needs of the for the child," Hurd said. "It ought to be student, not the whim of a lawyer." willing to step up to the plate and explain why it believes it has met its obligation." Last year, 26 Montgomery cases were sent to an administrative law judge for As the case was winding its way to the mediation, according to the State Supreme Court, the U.S. Department of Department of Education. Justice under the Clinton administration filed a brief supporting the Schaffers. Hurd The National School Boards Association, said he was hopeful that the Bush which represents the nation's 15,000 school administration would maintain that position systems, backs Montgomery's' position that at the high court....

208 "High Court to Decide Who Must Prove Case in Special Ed Disputes"

Education Week March 2, 2005 Caroline Hendrie

When it comes to the legal fight over special learning disabilities and attention deficit education that they have waged for the past hyperactivity disorder. seven years, Joceyln S. and Martin P. Schaffer and their Maryland school district "What this is about is providing a child who don't agree on much. has special needs with the services he needs. It's the principle." But the two sides do see eye to eye on this: With the U.S. Supreme Court's decision last Officials with the 139,000-student district week to review the Schaffers' case, the say they too are pursuing the case because of dispute suddenly has the potential to shape the principles at stake. the outcome of clashes over special education between parents and public "We have chosen to defend the public's schools across the nation for years to come. interest," Jerry D. Weast, the superintendent of the suburban Washington district, said in At issue before the high court in Schaffer v. a statement. "Educational services should Weast (Case No. 04-698) is which side bears be decided in an appropriate way based on the legal burden of proof when parents and the educational needs of the student, not the school districts disagree over the services or whim of a lawyer." placement that children with disabilities require. With the federal Individuals with Under the IDEA, parents and school Disabilities Education Act silent on that officials must be included on teams that question, judges in federal and state courts craft individualized education programs for repeatedly have come down on opposite children with disabilities. But the law does sides. not specify which side should bear the burden for proving its claims in an "I never imagined it would go this far," Ms. administrative hearing when they disagree Schaffer said after the Supreme Court over the specifics of those federally required agreed on Feb. 22 to consider the family's plans, known as IEPS. appeal of a lower-court decision in favor of the Montgomery County, Md., school All but a few of the federal appeals courts system. But she and her husband aim to see around the country have weighed in on the the case through even though the boy at the subject. For example, the appellate courts center of the case graduated from high based in New York City, Philadelphia, St. school in 2003. Louis, San Francisco, and the District of Columbia have held or recognized that "It really isn't about Brian right now," Ms. school districts bear the burden of proof. Schaffer said of her son, who was in 7th grade when the conflict began over what But the appeals courts based in New setting was appropriate to accommodate his Orleans, Cincinnati, Denver, and Richmond,

209 Va., have held that parents bear the burden "Instead, Congress elected to allow the of proof when they are the parties states to decide how the burden of proof challenging IEPs, which is the case in the should be allocated in administrative vast majority of such disputes. hearings," the district's brief to the Supreme Court says. "Accordingly, it would be The Schaffers appealed a ruling by that improper for this court to usurp the states' Richmond-based court, the U.S. Court of authority by imposing a blanket rule in this Appeals for the 4th Circuit. In a 2-1 matter." decision last July, a panel of the court held that the burden of proof fell on whichever But imposing a blanket rule is exactly what party challenged an IEP, which in this case 13 states asked the high court to do in a was the Schaffers. friend-of-the-court brief supporting the Schaffers' bid for Supreme Court review. In papers filed with the Supreme Court, the The states do hot express an opinion on how family says the 6.5 million children who the justices should resolve the confusion receive special education services under the among the courts, just that they should do IDEA deserve national uniformity. "Simply so. put, children and parents in some states have fewer or less effectual rights than their Arguing that the inconsistency "has counterparts in other states, even though all enormous practical consequences," the brief were intended to be beneficiaries of the says that complying with the IDEA, "both same national law," their brief argues. financially and otherwise," may be easier for states in some federal judicial circuits than William H. Hurd, a former state solicitor others. The issue affects not only the general for Virginia who now represents the estimated 3,000 administrative hearings held family as a private lawyer, said he hoped the each year under the IDEA, the states argue, high court would eliminate those disparities. but also the process of Grafting the IEPS that are at the center of those disputes. "We believe that the court took this case in order to establish a uniform national rule on "Knowledge that parents will bear the what we regard as an important civil rights burden of proof, if no agreement can be issue," he said. "When parents sit down and reached, gives school districts in some negotiate the terms of a child's educational circuits a more advantageous posture than plan, it is very important to know who will their counterparts in circuits where the have the burden of proof when they come to school districts must bear that burden," the an impasse." states' brief says. It was submitted by Virginia, along with the attorneys general of But the Montgomery County district takes , Arizona, , Maine, the stance that national uniformity is Massachusetts, Missouri, , Nevada, unnecessary. In court papers urging the high New Mexico, Ohio, Utah, and West court to let the 4th Circuit court's decision Virginia. stand, the district notes that Congress did not address the burden-of-proof issue when it In addition to discrepancies between federal reauthorized the IDEA late last year. That courts, the states say, the lack of national was the case even though that legislation uniformity means that state and federal included provisions aimed at reducing legal courts within the same states may take conflicts between parents and districts. opposite stances on which side bears the

210 burden of proof in conflicts over special based on race, sex, and age must bear the education. burden of proof, and it is reasonable for parents of children with disabilities to meet Going further than the states, the Clinton a similar legal standard. administration weighed in on the dispute in 2000 to urge a ruling that school districts "It is highly unlikely that a parent who bear the burden of proof. believes that his or her child is not receiving sufficient services will forgo a challenge That makes sense, the Department of merely because of an evidentiary rule that is Justice's friend-of-the-court brief argued, common to most litigants," the district's given that districts are assumed under the brief says. IDEA to take the lead in drafting educational plans for children with The Montgomery County district also rejects disabilities. Requiring districts to defend the family's arguments that low-income those plans gives school officials "an parents are especially harmed by having to additional incentive" to propose good plans, bear the legal burden of proof. Under the argued that brief, which was filed during the IDEA, the district says, school systems are first of the case's two stops before the 4th required to inform parents of any free or Circuit court. low-cost legal services available in their local areas. The executive branch has not participated in the case since President Bush took office in In its July ruling, the 4th Circuit panel 2001. But lawyers for the Schaffers said majority said Congress recognized that they have received no indication that the districts have advantages over parents in government's position has changed. resources and expertise. The majority said the IDEA contains many procedural In their own brief to the Supreme Court, the safeguards designed to offset those Schaffers say many parents find the process advantages. of pursuing administrative hearings "too daunting and simply capitulate." They cite a But the judge who dissented in the 4th 2003 report from the U.S. Government Circuit ruling argued that districts should Accountability Office, the audit arm of have to prove that the plans they propose are Congress, that said that more than 11,000 appropriate: "Parents simply do not have, hearings were requested in 2000, but that and cannot easily acquire, the cumulative, only 3,000 were held. institutional knowledge gained by representatives of the school district from "Placing the burden on the parents their experiences with other, similarly significantly strengthens the hand of often- disabled children." intransigent school district bureaucracies," the parents' brief says. The Supreme Court will hear arguments in the Montgomery County case in its 2005-06 But the district says people who sue under term, which begins in October. federal statutes that prohibit discrimination

211 "14 th Circuit Puts Burden on Parents Under Individuals with Disabilities Education Act"

Daily Record (Baltimore, MD) August 3, 2004 Alisa Bralove

A disabled child's parents, not the school much difference in Maryland," said Catriona system, have the burden of proof in due Johnson, director of public policy initiatives process hearings under the Individuals with for the Maryland Developmental Disabilities Disabilities Education Act, the 4th U.S. Council, noting that parents have little luck Circuit Court of Appeals has held. at due process hearings anyway. "If you look at due process hearings in Maryland, Reversing a federal judge in Greenbelt, the you will find that parents typically lose due decision is a matter of first impression on an process hearings much more often than issue that has divided other federal circuits. school systems do."

"Certainly this is a huge decision for the 4th At the center of the dispute is Brian Circuit because we never, prior to this Schaffer, who has attention deficit decision, had any guidance on the burden of hyperactivity disorder (ADHD) and, through proof in special education cases," said Zvi seventh grade, attended a private school Greismann, the attorney representing with no special education program. Montgomery County Public Schools in the case. "The court stating that this is akin to In 1997 his parents contacted Herbert any civil action was very groundbreaking." Hoover Middle School, part of the Montgomery County Public School system. But Selene Almazan, director of advocacy In the meantime, Brian attended another services for the Maryland Coalition for private school for his eighth grade year. Inclusive Education, said the decision will make it much more difficult for parents The school system's Admission, Review, trying to challenge the Individualized and Dismissal Committee found Brian Education Program, or IEP, designed for eligible for special education and offered an their disabled child. IEP at a local public school.

"The fact of the matter is the playing field is Soon thereafter, Brian's parents told the not level for families," she said. "Families school system that its plan was inadequate have to spend thousands of dollars to litigate and said Brian would continue to attend these issues and there are not many private school. They also requested a due attorneys who can do these hearings and do process hearing seeking reimbursement for them well." the cost of his tuition.

While disappointed with the court's At the first due process hearing, the decision, another advocate for children with administrative law judge said Brian's parents disabilities doubts its impact here. had the burden of proving that the IEP was inadequate and denied them reimbursement. "I'm not sure that it's going to make that They then sued the school board in the U.S.

212 District Court in Greenbelt, where Judge because the IDEA is a remedial statute and Peter J. Messitte remanded the case back to Montgomery County Public Schools have the ALJ, saying the school system had the greater resources than individual parents, the burden of proof. school system should bear the burden of proof. On remand, the ALJ said the school system had not proven the adequacy of Brian's But the court said it does not "automatically educational plan and ordered it to make assign the burden of proof to the side with partial reimbursement. the bigger guns," noting that the IEP process is open to parents and requires their input. The school system then filed its own action in federal court to challenge the burden "As a result, the school system has no unfair reassignment. information or resource advantage that compels us to reassign the burden of proof Meanwhile, the 4th Circuit vacated to the school system when the parents Messitte's order so the two actions could be initiate the proceeding," Judge M. Blane consolidated. Michael wrote for the 2-1 majority.

In the second case, the district court once But in a strong dissent, Judge J. Michael again held that the school system had the Luttig said that the school system should burden of proof and found the have the burden. accommodations to be insufficient, awarding Brian's parents full "Parents simply do not have, and cannot reimbursement. easily acquire, the cumulative, institutional knowledge gained by representatives of the The school board again appealed to the 4th school district," he wrote. Circuit. Michael J. Eig, who represented Brian's On appeal, Brian's parents argued that parents, could not be reached for comment.

213 "Schaffer v. Weast"

Medill News Service (Northwestern University) February 22, 2005 Nu shin Huq

Brian Schaffer attended the Green Acres from Hoover Middle School. Under the private school since pre-Kindergarten, but IDEA, parents are to be involved in every during the first semester of the seventh step of the process and all records are open grade the school informed his parents they to them. would have to look elsewhere for their son's education. A month later Schaffer was admitted to the McLean school and his parents paid the Schaffer has Attention Deficit Hyperactivity enrollment fee to reserve his spot for the Disorder and other learning disabilities. eighth grade. In April the committee met Green Acres did not have a special again and determined that Schaffer had a education program and he struggled special educational need and proposed an academically throughout his years at the IEP for him. school. When he began the seventh grade, the school placed him on probation and in The proposed IEP specified that Schaffer October told his mother to take him to would receive 15.3 hours of special another school that had the resources to education and 45 minutes a week of speech teach him properly. therapy at Hoover Middle School. When his parents expressed concern about the large In November 1997, Schaffer's parents class sizes, the district offered to provide the contacted Herbert Hoover Middle School, a same program at Robert Frost Middle part of the Maryland Montgomery County School, which was ten minutes away from Public School System, and requested they Schaffer's home and had smaller classes. perform an evaluation for eligibility for The IDEA allows parents to initiate an special education. In the meantime, they administration hearing called a due process submitted an application for their son to hearing if they are dissatisfied with the IEP. attend the McLean, a private school. In May, Schaffer's parents informed the The Individuals with Disabilities Education school system that the IEP was inadequate Act (IDEA) gives every disabled child the and Schaffer would attend McLean school in right to a "free appropriate public the fall. They requested a due process education." Every public school receiving hearing, claiming they were denied a free federal funds has to develop and implement appropriate IEP and requested a an individual educational program (IEP) for reimbursement for tuition and other private each child in its jurisdiction. school expenses.

In February 1998, a school system The IDEA requires that due partial hearings committee held its first meeting to discuss be impartial and cannot be conducted by a Schaffer's educational needs with his system or state education employee. In parents, their lawyer and school officials Maryland due process hearings are

214 conducted by an administrative law judge. they're given a retainer fee. Therefore, many parents represent themselves and are At the beginning of the hearing the judge at a disadvantage. placed the burden of proof on Schaffer's parents. They had to prove the school The Schaffers sued the Montgomery County system did not provide an adequate IEP. Board of Education in federal court in The parents challenged the substance of the Maryland, stating the judge had erred in IEP, not the process. Both sides submitted assigning them the burden of proof. The extensive expert testimony and the judge district court agreed and reallocated the considered the case to be close. Ultimately, burden of proof to the school system. It then he commented that "the assignment of the sent the case back to the judge for further burden of proof [was] critical" to the proceedings. After the reassignment, the outcome. The judge upheld the IEP and judge found the school district had failed to denied the parents' request for tuition prove the adequacy of the IEP and ordered a reimbursement. partial reimbursement of tuition costs.

"In my experience, it's rare for a case to be The school appealed to the district court, so close that burden of proof would which not only upheld the judge's decision determine who won the case," said Sue but also ordered a full, not partial, Young, a New York attorney who reimbursement of tuition costs for the 1998- exclusively represents parents in IDEA 1999 school year. cases. In New York, the burden of proof is on the school board. "I believe that all children should have access to appropriate education," said retired One importance of burden of proof, New Jersey State Judge Milton Gezler. "But according to Young, is it determines who there are limited funds the school board has presents their case first. So in New York, to spend on educating all the children in the for example, the school board presents its district. case first. Then the parents can put holes in their case. Sometimes this is enough to win, Gezler was a school board attorney for over but if not the parents then have an thirty years. He said, for example, one of opportunity to present their case. the local school districts in New York has about 2,000 children who have learning "This is important because in my disabilities. If the school district had to pay experience, parents don't have as many for a private school education (which he resources as the school districts," Young estimated at $40,000) for each child plus the said. "In fact, many parents unable to get a parents' legal cost, it would be a huge lawyer represent themselves. So meeting burden on the school system. that burden of proof would be impossible no matter how strong their case was." "It's important to give each child a good education, and IDEA works to do that," Young explained that though the IDEA Gezler said. "Is it fair for taxpayers to pay requires the school district to pay for the for the education of a small number of parents' legal fees if the parents win, cases children, and take money away from other can be drawn out. Most lawyers don't programs? Someone is always going to represent parents in IDEA cases unless lose."

215 The school system appealed. In July 2004, Judge J. Michael Luttig dissented. "The six years after Schaffer was in the eighth analogy is not apt. Unlike the civil rights grade, a divided 4th Circuit Court of statutes referenced by the majority, the Appeals panel reversed, holding that the IDEA does not merely seek to remedy burden of proof in IDEA cases should discrimination against disabled students; it follow the general rule that "a party imposes an affirmative obligation on the initiating a proceeding bears that burden." nation's school systems to provide disabled The majority conceded that the federal students with an enhanced level of attention circuits are divided on the issue with the and services." majority placing the burden of proof on the schools. But the majority reasoned that He also wrote that policy, fairness and Congress was aware that school systems convenience all weigh against assigning the might have the advantage, yet it did not burden to parents in IDEA cases. "The assign the burden to the schools. majority may well be correct that the assignment of the burden of proof to the Writing for the majority, Judge M. Blane party with the 'bigger guns' is not Michael pointed to other federal laws, such 'automatic."' Luttig retorted. However, as the Age Discrimination in Employment with only "a faint, general presumption" in Act, Title VII of the Civil Rights Act, and favor of dong it the other way, "the fact that the Americans with Disabilities Act, all of the party with the 'bigger guns' also has which place the burden of proof on the better access to information, greater individual trying to prove that someone, expertise, and an affirmative obligation to often an employer, discriminated. provide the contested services can hardly be ignored." "We do not automatically assign the burden of proof to the side with the bigger guns," On Feb. 22, 2005, the U.S. Supreme Court Michael added. accepted review in the case.

216 "Let's Talk: Individuals with Disabilities Education Act"

American Speech-Language-HearingAssociation 2002 (accessed June 24, 2005) Sue Ann Goldman

The Individuals with Disabilities Act and other functional measures to have a (IDEA) ensures that all eligible children disability, services cannot be denied. with disabilities have a right to a free, appropriate public education (FAPE) in the Although a student's disability must least restrictive environment (LRE), and that adversely affect educational performance, an the rights of these children and their parents eligible student may be performing at grade are protected. IDEA mandates the provision level. There are three domains in which of special education and related services for educational impact may be demonstrated: children from birth through age 21 and academic (ability to benefit from the ensures the effectiveness of these services. curriculum), social (ability to interact with peers and adults), and vocational (ability to IDEA is the landmark law that provides participate in career-related activities). A federal funding for all children with student with a speech deficit in the area of disabilities. articulation, voice, or fluency may manifest educational impact through hesitancy to IDEA provides minimum requirements that speak in front of peers, frustration when states must satisfy to receive federal funds. speaking, or unintelligible speech. States may exceed these requirements. For laws specific to a particular state, contact the Preschool children between the ages of 3 local state department of education, office of and 5 who present with disabilities and who special education programs. are in need of special education and related services also may be eligible for services Who is Eligible? under IDEA. Parents who feel that their preschool child may be at risk Students ages 5 to 21 with disabilities in the developmentally or because of a following areas and in need of special documented disorder should contact their education and related services are eligible local education agency to request a for services under IDEA: hearing preschool evaluation. Infants and toddlers impairment, deafness, speech or language under 3 years of age who would be at risk of impairments, mental retardation, visual experiencing a substantial delay may be impairments, blindness, serious emotional eligible for early intervention services under disturbance, orthopedic impairments, IDEA. autism, traumatic brain injury, other health impairments, specific learning disabilities, How Are Services Obtained? deaf-blindness, or multiple disabilities. An initial evaluation must be completed in No one criterion may be used to determine order to determine if a child is eligible for eligibility. If a student scores higher than a services under IDEA. A request for an particular state's mandated criterion for evaluation can be made by a parent or testing, but is shown through obsenation guardian by writing to the director of special

217 education services or the principal of the for mediation if they do not agree to local school. procedures followed by a school district. If mediation does not solve the problem, Whether to evaluate and, if so, the nature of parents may begin a due process hearing by the proposed evaluations, is determined at hiring an attorney. this pre-evaluation meeting. A team of professionals representing all areas relative Because no one test or procedure can be to a suspected disability attend the meeting used as a determination of eligibility or and determine, along with the parents, which ineligibility, parents who feel that a district evaluations should be completed. It is is following testing criteria too stringently, important for parents to voice their concerns to the extent of disregarding other findings, at this meeting and to provide any may challenge the team recommendations of information that may be pertinent to a ineligibility. This scenario could occur in student's education and ability to learn. In the case of a language disorder in states order for school personnel to evaluate a where mandated test scores are in place. If child, parents must give written, informed such considerations as teacher input, consent. If a parent refuses to allow a child observation in a classroom setting, and other to be evaluated, procedures are in place by informal measures show deficits in the area which a school district can challenge and of language, that individual could be found possibly override the parent's refusal in eligible for services. order to move forward with an evaluation. What is the IEP? What Happens After the Evaluation? Once a student is found eligible for services, After all elements of the evaluation are an Individualized Education Program (IEP) completed, a meeting is arranged with the is developed. The written IEP explicitly parents to discuss the results of the defines the educational program a school evaluation and to determine eligibility. The district will provide to address the individual team of professionals and the parents review needs of a student. It contains measurable the reports, which must be sent to the annual goals and objectives to help a student parents in advance of the meeting. If it is succeed in school. determined that a child has a disability that fits one of the eligibility categories due to All decisions concerning this document adverse effect on educational performance must be the determination of the IEP team, and need for special education and related which includes the parents, one or more services, that child is designated as eligible. professionals who evaluated the child, a Parents who do not agree with the results of regular education teacher, a special an evaluation retain the right to have education teacher, the related service independent evaluations completed. Results provider, and other professionals at the of such evaluations must be considered by discretion of the parent. Decisions may not the team, but the district officials may be made by district administrators who are decide that the district evaluation is more not familiar with the child and who do not appropriate. attend the meeting. Services that the IEP team finds to be necessary cannot be denied At any point in the process, parents may ask because of cost or lack of resources.

218 Once goals and objectives are written, students' individual needs, including the placement should be discussed. Students related services of audiology, speech- must be placed in the least restrictive language pathology, physical or environment. occupational services, and counseling are provided to children with disabilities. The A statement of transition services for purpose of related services is to help a child students over the age of 14 must be included benefit from special education services. in the IEP. Such services can include Decisions on related services and their vocational training, post-secondary frequency and duration must be made by the education, continuing and adult education, IEP team and must be based solely on the and independent community living. needs of the child.

The IEP must be reviewed annually, A parent can question decisions that seem to although changes at the request of the parent be based on availability of staff or or district may be considered at any time. administrative convenience. For example, it is against the tenets of IDEA for a district to What Is Provided? have uniform group sizes and time duration. Decisions must be made on an individual Special education services designed to meet basis.

219 Rice v. Collins

(No. 04-52)

Case Below: (Collins v. Rice, 365 F.3d 667 (9th Cir. 2003), cert. granted 125 S. Ct. 2989, 73 U.S.L.W. 3753 (U.S. June 28, 2005) (No. 04-52)).

Petitioner was convicted of possession of a controlled substance and sentenced to 25 years to life under California's three strikes law. He challenges the prosecutor's peremptory strike against an African-American woman during jury selection for his trial. The trial court rejected the challenge and the appeals court affirmed, concluding that the prosecutor had offered acceptable race-neutral explanations. The United States District Court for the Central District of California dismissed an application for a writ of habeas corpus. The Ninth Circuit reversed, finding that the state appellate court's determination that the prosecutor did not engage in purposeful discrimination was unreasonable in light of the evidence.

Question Presented: Does 28 U.S.C. § 2254 allow a federal habeas corpus court to reject the presumption of correctness for state fact-finding, and condemn a state-court adjudication as an unreasonable determination of the facts, where a rational fact-finder could have determined the facts as did the state court?

Steven Martell COLLINS, Petitioner-Appellant, V. Bertram RICE; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellees.

United States Court of Appeals for the Ninth Circuit

Decided November 7, 2003

[Excerpt: Some citations and footnotes omitted]

OPINION: that race motivated the prosecutor's peremptory strikes against two African- AMENDED OPINION American women in the jury venire in violation of People v. Wheeler, but the state PAEZ, Circuit Judge: trial court rejected Collins' Wheeler motion. The jury found him guilty of the possession Steven Collins appeals the district court's charge and also found that Collins had been order denying his 28 U.S.C. 2254 petition convicted of robbery and forcible rape in for a writ of habeas corpus. During jury 1982. Accordingly, with three felony selection prior to his state court trial for convictions, the court sentenced him to a possession of a controlled substance, three strikes term of twenty-five years to life Collins, an African-American male, alleged in state prison. The California Court of

220 Appeal affirmed his conviction and "yes." Juror 016 also told the court that sentence, and the California Supreme Court there was nothing about the nature of the denied both Collins' petition for review and charge of possession of rock cocaine that his petition for a writ of habeas corpus. might make it difficult for her to sit on a case involving drug charges. The prosecutor We have jurisdiction pursuant to 28 U.S. C. exercised a peremptory challenge to excuse 2253, and we conclude that the California Juror 016. Court of Appeal's decision that the prosecutor did not engage in purposeful Juror 019, the other African-American discrimination during jury selection woman in the venire, told the court that she represents (1) an unreasonable determination lived in Inglewood, California, was single of the facts in light of the evidence presented with seven grown children, and was at trial, and (2) an objectively unreasonable currently a retired nurse. She also stated application of clearly established law. that she had no relatives or close friends in Accordingly, we reverse with instructions to law enforcement and had never had an grant the petition. experience with a police officer that was "particularly positive or particularly BACKGROUND negative." At one time, her youngest daughter had a problem with drugs. Juror After Collins was discovered in possession 019 had no idea what kind of drugs but of 0.10 grams of powder cocaine in March thought that it might have been cocaine. 1996, the State of California charged him Juror 019 stated that she "was involved in" with possession of a controlled substance in her daughter's struggle with addiction and violation of California Health and Safety "had to help her," but that she did not think Code section 11350(a). When jury selection that anything about her relationship with her began, the trial court excused ten of the daughter or the daughter's cocaine problem original thirty-three members of the venire. would affect her ability to be fair and Of the remaining twenty-three, three impartial in Collins' case. appeared to be African-American. After the prosecutor exercised another During voir dire, Juror 016, one of two peremptory challenge to excuse Juror 019, African-American women in the venire, defense counsel made a motion pursuant to stated that she lived in Inglewood, People v. Wheeler, 22 Cal.3d 258, 148 Cal. California, was single, had no children, no Rptr. 890, 583 P.2d 748, 22 Cal. 3d 258, prior jury experience, no prior employment 148 Cal. Rptr. 890, 583 P.2d 748 alleging experience in law enforcement, and worked that the prosecutor had improperly as an automations clerk for the Federal dismissed Jurors 016 and 019 on the basis of Aviation Administration. She also stated race. [The court noted: Wheeler is the that no one close to her had ever been "California analogue" to Batson v. Kentucky, accused of a drug-related offense, nor had 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. anyone close to her had a problem with 1712 (1986). Although aspects of Wheeler alcohol or drugs, and that she had no reason differ from Batson, notably the requirements to believe that drug dealers operated in her for establishing a prima facie case of neighborhood. When asked whether she discrimination, see Cooperwood v. Cambra, thought that possession of rock cocaine 245 F.3d 1042, 1046-47 (9th Cir. 2001), the ought to be against the law, she answered state trial court's finding that Collins

221 established a prima facie case is not in defendant is a male and there is a dispute. Because the relevant aspects of the male African-American on the jury two cases are the same, and because we are that has been on it since the reviewing Collins' petition for a writ of beginning, I believe, of this case, habeas corpus under 28 U.S.C. 2254, we of the jury panel that were seated, refer to Batson in analyzing his claims.] And there is a second female juror that is of African-American color, The trial court determined that Collins had black color, on the jury, still established a prima facie case of racial seated. That is it, your honor, at discrimination and thus asked the prosecutor this point. Does the court need to justify her peremptory challenges. The cases for those types of reasons as prosecutor responded: being upheld in other courts, age and gender and inexperience with a Ms. 016 as well as Ms. 019 were certain subject area? both young and I was concerned with them being too tolerant of this The Court: I'll let you know. type of case. Also, Ms. 016 made a [Defense counsel], would you like remark when the judge made a to be heard? response to her comment "uh-huh," she turned away and rolled her [Defense counsel]: Yes. eyes. I don't think you asked her [Prosecutor] has talked about specifically to give a yes or no, but looking for more male/female she went "yes," and rolled her eyes balance. I thought the court was and turned away from the court. asking each of these potential She and Mr. 006 were both single, jurors if they could be fair. ... no ties.

. . . 019, she also had a daughter having a drug problem and she [Prosecutor]: I don't have exact talked about not knowing much citations here for the court, but about what drug it was, things like People v. Ortega, which also talks that. She was not sufficiently about the jury being balanced educated in some areas to decide a between young and old and men case like this. But it is beyond any and women. of her experience. The Court: I recall the United The judge, outside the presence of the States Supreme Court saying the prospective jurors, asked the prosecutor if use of peremptory challenges she had any additional justifications to offer based on gender is improper. I for striking the two African-American don't see, [Prosecutor], that you are female jurors. The following colloquoy seeking to justify excusing people took place: of one ethnicity based on their gender. I don't think that is going [Prosecutor]: I was the one to bring to cut it. to the court's attention that the two African-American jurors that were [Prosecutor]: I think I tied that into excused were both female and the a lack of ties in the community

222 with both of them; that that was rights were violated under Batson v. one factor that I considered, that is, Kentucky . . . where the prosecution the manner in which I stated that exercised a peremptory challenge against an they could-that their youth was African-American juror ostensibly on the important. It was not that I don't ground of the juror's age and demeanor." want any young people on the jury. There are, I believe, other young I. people on the jury. Because the California Supreme Court After considering these arguments, the court denied Collins' petition for review without denied the Wheeler motion. With regard to comment, our analysis begins with the Juror 019, the court stated that it was decision of the California Court of Appeal, "satisfied that at least one race and gender an unpublished disposition. In affirming the neutral explanation was offered for the trial court's ruling, the state appellate court exercise of that peremptory challenge, that adopted the reasons cited by the trial court; being Ms. 019's experiences with a family thus, our analysis "will necessarily include member who had a drug problem." As to discussion of the trial court's decision as Juror 016, the court stated that it, "frankly, well." Lewis, 321 F 3d at 829. did not observe the demeanor of Ms. 016 that was complained of by the district The California Court of Appeal determined attorney. However, Ms. 016 was a youthful that "because the trial court did not observe person, as was 006. And one or more other the prospective juror's demeanor, the trial prospective jurors also. The court is court permitted the prosecutor to exclude prepared to give the district attorney the prospective Juror No. 016 based solely on benefit of the doubt as to Ms. 016." her age." Citing both Wheeler and Batson, the state appellate court further rejected After sentencing, Collins appealed his Collins' contention that age was an improper conviction and properly exhausted his basis upon which to justify a peremptory remedies in both the California Court of challenge, noting that age groups are not a Appeal and the California Supreme Court. cognizable class and that peremptory Collins challenged the trial court's denial of challenges to "youthful and/or immature his Wheeler motion only with respect to prospective jurors repeatedly have been Juror 016. On November 19, 1998, Collins upheld as proper." Even assuming that the filed a petition for writ of habeas corpus in prosecutor's reliance on Juror 016's young federal district court pursuant to 28 U.S.C. age was improper, the appellate court 2254. Ultimately, the district court alternatively concluded that the trial court dismissed his petition. Noting that the trial had engaged in a sincere and reasoned court had not observed Juror 016's attempt to evaluate the prosecutor's demeanor, the district court concluded that it justification, as "jurors may be excused on had to respect the trial court's decision to 'hunches' and even 'arbitrary' exclusion is give the prosecutor the benefit of the doubt permissible, so long as the reasons are not because Collins had not rebutted this based on impermissible group bias." Noting decision with "clear and convincing that "nothing in the present record, including evidence." The district court subsequently the trial court's decision to give the granted Collins' request for a certificate of prosecutor the benefit of the doubt as to appealability as to "whether the petitioner's prospective Juror No. 016's demeanor,

223 indicates that the trial court did not approach II. its task appropriately," the appellate court determined that the trial court's decision was The Equal Protection Clause forbids entitled to deference. prosecutors from exercising peremptory challenges on the basis of race. Batson, 476 We review Collins' petition according to the U.S. at 89. Where a defendant asserts that a standards set forth in the Antiterrorism and prosecutor's peremptory challenges were Effective Death Penalty Act ("AEDPA"), racially-motivated, a court must apply a Pub. L. No. 104-132, 110 Stat. 1214 (Apr. three-step process for evaluating a Batson 24, 1996), as Collins filed his petition after claim. Hernandez, 500 U.S. at 358-60. April 24, 1996. We may only reverse a First, the defendant must make a prima facie judgment of the state that was adjudicated showing that the prosecutor exercised a on the merits if the state's decision was peremptory challenge on the basis of race. based on an objectively unreasonable Id. Once a prima facie case is established, determination of the facts in light of the the burden shifts to the state to articulate a evidence presented in the state court race-neutral explanation for the challenge. proceeding, 28 US.C. 2254(d)(2); Miller-El If the first two steps are satisfied, the court v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, must then determine whether the defendant 1041, 154 L. Ed. 2d 931 (2003), or if the has carried his ultimate burden of proving state court's decision was "contrary to, or purposeful discrimination. involves an unreasonable application of, clearly established Federal law" as A. determined by "the governing legal principle or principles set forth by the Supreme Court Because the trial court determined that at the time the state court renders its Collins had established a prima facie case, decision," Lockyer v. Andrade, 538 U.S. 63, the prosecutor was required to articulate a 155 L. Ed. 2d 144, 123 S. Ct. 1166, 1172 race-neutral explanation--an explanation (citations omitted). We further note that the "based on something other than the race of ultimate determination of whether the the juror." Hernandez, 500 U.S. at 360. . . . prosecutor evidenced an intent to At this step, "the issue is the facial validity discriminate in dismissing Juror 016 is a of the prosecutor's explanation. Unless a question of fact, see Hernandez v. New York, discriminatory intent is inherent in the 500 U.S. 352, 367, 114 L. Ed 2d 395, 111 S. prosecutor's explanation, the reason offered Ct. 1859 (1991), and that under section will be deemed race-neutral." Stubbs v. 2254, "a determination of a factual issue Gomez, 189 F.3d 1099, 1105 (9th Cir. 1999) made by a State court shall be presumed to (internal quotation marks omitted). be correct. The applicant shall have the Although the prosecutor must give a " 'clear burden of rebutting the presumption of and reasonably specific' explanation of his correctness by clear and convincing 'legitimate' reasons" and "the reason must be evidence." 28 US.C. 2254(e)(1). Collins 'related to the particular case to be tried,' " therefore must prove that the state court's Purkett, 514 U.S. at 768-69 (quoting Batson, decision was " 'objectively unreasonable' in 476 U.S. at 98 & n.20), "it is not until the light of the record before the court." Miller- third step that the persuasiveness of the El, 537 US. 322, 123 S. Ct. at 1045. justifications becomes relevant." Id.at 768.

224 For purposes of step 2, the prosecutor's established law. Alternatively, if the explanation need not be "persuasive, or even prosecutor had excluded Juror 016 because plausible." Id. of her demeanor, this justification would not constitute a denial of equal protection, as The prosecutor offered five reasons for discriminatory intent is not inherent in the excluding Juror 016: (1) her youth and the prosecutor's explanation. Hernandez, 500 possibility that she might be "too tolerant for U.S. at 360. Because we find no error in the this type of case," (2) her demeanor, (3) her California Court of Appeal's analysis at step marital status-"single" with "no ties, " (4) 2, we proceed to step 3. her lack of ties to the community, and (5) her gender. The trial court rejected the B. prosecutor's attempt to justify her strike on the basis of Juror 016's gender, but appeared In the third step of a Batson challenge, the to credit the prosecutor's discussion of Juror trial court has "the duty to determine 016's youthful age and her alleged demeanor whether the defendant has established as race-neutral justifications. The California purposeful discrimination," Batson, 476 US. Court of Appeal concluded that the trial at 98, and therefore must evaluate the court properly accepted the prosecutor's ''persuasiveness" of the prosecutor's youthful age and demeanor justifications as proffered reasons, see Purkett, 514 US. at race-neutral. 768. In determining whether the defendant has carried this burden, the Supreme Court Although Collins concedes that the provides that "a court must undertake 'a prosecutor's explanations for striking Juror sensitive inquiry into such circumstantial 016 "may appear to be race-neutral on their and direct evidence of intent as may be face," citing United States v. Bishop, 959 available.' " Batson, 476 U.S. at 93 (quoting F.2d 820, 825 (9th Cir. 1992), he contends Arlington Heights v. Metro. Hous. Dev. that rolling of the eyes, lack of ties in the Corp., 429 US. 252, 266, 50 L. Ed. 2d 450, community, and youthful age are not 97S. Ct. 555 (1977))[.] characteristics that would affect a juror's approach to a specific trial and therefore the prosecutor's explanations were "transparent proxies for racism." However, as Collins In assessing the prosecutor's proffered acknowledges, "at this step of the inquiry, justifications for excluding Juror 016, the the issue is the facial validity of the state trial and appellate courts made prosecutor's explanation[.]". . . Further, unreasonable factual determinations in light neither the Supreme Court nor any circuit of the evidence presented in the state court has held that the Equal Protection Clause proceeding and unreasonably applied clearly prohibits a prosecutor from striking potential established federal law as determined by the jurors on account of age. United States v. Supreme Court. With a careful eye towards Pichay, 986 F.2d 1259, 1260 (9th Cir. "such circumstantial and direct evidence of 1993); United States v. Jackson, 983 F.2d intent as [was] available" to the appellate 757, 762 (7th Cir. 1993). Thus, the court, Batson, 476 U.S. at 93 (internal California Court of Appeal's determination quotation marks omitted), we address each that age was a race-neutral justification for of the justifications relied upon by the excusing Juror 016 is not contrary to, or an California courts. unreasonable application of, clearly

225 1. Age trying to exclude all young jurors from the jury, the prosecutor clarified that her reason The state court of appeal determined that the for excluding Juror 016 was not her youthful prosecutor had dismissed Juror 016 solely age at all. Instead, her reason for excluding on the basis of her age. The court explained Juror 016 related to particular characteristics that because youth was not a cognizable that the prosecutor associated with her class for purposes of the cross-section rule youth-namely, the prosecutor's beliefs that and because youth had been recognized as a Juror 016 might be sympathetic to an permissible justification for dismissal in the individual charged with drug possession and past, Collins had failed to demonstrate that she lacked ties to the community. purposeful discrimination. However, the appellate court's conclusion is troubling in The state court of appeal, however, glossed several respects. over the prosecutor's clarification and found that the sole basis upon which the trial court First, although age has been upheld as a had permitted the prosecutor to exclude proper basis for excusing a potential juror, Juror 016 was her age. . . [But], the see Pichay, 986 F.2d at 1259, here, the evidence in the trial record is clear and prosecution explained that Juror 016's convincing that the prosecutor's proffered youthful age might make her "too tolerant justifications for striking Juror 016 on the for this type of case." Thus, the prosecutor basis of her youthful age-possible attempted to equate her youthful age with a tolerance of drug use and lack of ties to the possible bias favoring criminal defendants community-were pretexts for purposeful facing drug charges. The prosecutor also discrimination. later explained that Juror 016's youthful age was "important" because of her "lack of ties With regard to Juror 016's possible in the community," stating, "I think I tied tolerance, during voir dire, Juror 016 that into a lack of ties in the community with answered "yes" to the court's question both [Juror 016 and 019]; that was one regarding whether she believed that factor that I considered, that is, the manner possession of cocaine should be against the in which I stated that they could-that their law, and she also told the court that there youth was important." was nothing about the nature of the charge of possession of rock cocaine that might According to the Supreme Court, Juror 016's make it difficult for her to sit on Collins' age must be "related to the particular case to case. There is no other evidence in the be tried," Batson, 476 U.S. at 98, and must record that remotely suggests that Juror 016 have some relevance to Juror 016's "possible was otherwise sympathetic to or tolerant of approach to a specific trial," Bishop, 959 individuals involved with drug use or F.2d at 825. Indeed, although the possession. Juror 016 told the court that prosecutor claimed that Juror 016's youthful neither she nor her family members or any age was of concern, she later explained that of her close friends had ever had a problem it was not the general presence of young with drugs or alcohol; nor had they ever jurors on the jury that concerned her. been accused of committing a crime Rather, in referring to Jurors 016 and 019, involving illegal drugs. No other the prosecutor stated "it was not that I don't information regarding drug use, drug laws, want any young people on the jury. There or criminal enforcement of drug laws was are, I believe, other young people on the solicited by the court or counsel, and Juror jury." Thus, in explaining that she was not 016 never gave the court any information

226 regarding her age. The prosecutor's for discrimination, evidence that the state clarification that Juror 016 might be "too appellate court did not address in tolerant for this type of case" as a basis for unreasonably concluding that the prosecutor striking Juror 016 is therefore contrary to the had dismissed Juror 016 on the basis of her evidence in the record. age. . . . However, because the appellate court offered Juror 016's demeanor as an The prosecutor later attempted to explain alternative explanation, we must assess that Juror 016 was "single, no ties," whether the court unreasonably determined presumably indicating that she was not that the trial court had properly accepted that married and possibly had no children. justification as nondiscriminatory before However, as we have already explained, determining the ultimate significance of the Batson is clear that the prosecutor's appellate court's conclusion regarding Juror proffered justifications must be reasonably 016's age. "related to the particular case to be tried." 476 U.S. at 98; see also Bishop, 959 F.2d at 2. Demeanor 825. The trial court record fails to establish how Juror 016's marital or parental status The state court of appeal also concluded that would have had any bearing on her ability to even if the prosecutor's reliance on Juror serve as a juror in a case involving 016's youthful age had been improper, the prosecution for crack cocaine possession, ''prosecutor reasonably could have and the prosecutor failed to offer any such interpreted prospective [Juror 016's] body explanation. Further, the record shows that language as indicative of hostility or the prosecutor did not strike Juror 015, a disrespect" and properly dismissed her on white juror who possessed the same that basis. . . . As the record reflects, the objective characteristics as Juror 016: both state appellate court reasonably determined were single, employed females with no that the trial court had not observed Juror children who responded to the court's 016's demeanor but nonetheless accepted questions in the same manner, thereby this alternate reason for striking Juror 016 revealing the pretextual nature of this on the basis of the prosecutor's credibility. justification. Because the trial court did not observe Juror 016's demeanor, the critical question here is The prosecutor also claimed that Juror 016's whether the appellate court's determination youth was "important" because of her "lack that the trial court properly credited the of ties in the community[.]". . . Not only is prosecutor's representation was the prosecutor's statement that Juror 016 had unreasonable. Notably, the basis for the a "lack of ties in the community" not state appellate court's determination was its sufficiently "clear and reasonably specific," conclusion that there was "nothing in the Batson, 476 US. at 98 n.20, but it is also not present record" to indicate that the trial court supported by the record and does not appear did not conduct a searching inquiry in giving to have any relation to Juror 016's ability to the prosecutor the benefit of the doubt or serve as a juror in a criminal trial involving should have questioned the prosecutor's possession of crack cocaine. credibility. We conclude that this determination was an unreasonable In sum, there was clear and convincing determination of the facts because the evidence that the prosecutor's stated concern prosecutor failed to offer any credible over Juror 016's youthful age was a pretext justification for striking Juror 016.

227 First, we note that the prosecutor C. consistently identified Jurors 016 and 019 as "both young." However, the record reveals The state court of appeal held that Collins that Juror 019 was at least a middle-aged had failed to establish purposeful grandmother. Indeed, Juror 019 informed discrimination on the basis of its objectively the court that she was a retired nurse with unreasonable determination that the seven grown children, the youngest of which prosecutor properly dismissed Juror 016 had five children of her own. A prosecutor because of her age. The appellate court's supplied with this information could not alternative ruling-that the trial court credibly identify Juror 019 as young. This properly credited the prosecutor's assertion incorrect factual statement supports Collins' that Juror 016 had rolled her eyes and turned argument that the prosecutor was not away from the court when asked a question credible. during voir dire, and that her dismissal based on Juror 016's demeanor did not provide any In addition, the trial court judge rejected the evidence of purposeful discrimination-is prosecutor's justification for striking Jurors also unsupported by the record. Thus, clear 016 and 019 on the basis of gender. This and convincing evidence demonstrates that too supports the argument that the there was no credible basis for dismissing prosecutor dismissed Juror 016 on the basis Juror 016 on the basis of her age or of her race.... demeanor.

The prosecutor's objectively unreasonable There is, however, substantial evidence statements regarding Juror 019's age, and supporting Collins' contention that the her attempt to use gender as a race-neutral prosecutor dismissed Juror 016 because of basis for excluding Jurors 016 and 019, her race-evidence that the appellate court combined with her pretextual justifications failed to address. The trial record for dismissing Juror 016 on the basis of her demonstrates that the prosecutor's alleged lack of community ties, her marital justifications for dismissing Juror 016 on the status, and her purported tolerance, and the basis of her age were contrary to the record fact that nothing in the record corroborated (likely tolerance of drug offenders), were her allegations regarding Juror 016's unrelated to her ability to serve as a juror in demeanor, provide "clear and convincing Collins' case (lack of community ties), and evidence" that the prosecutor did not dismiss were not applied equally to white jurors Juror 016 on the basis of her demeanor. In (single with no children). The record also light of the evidence in the record, the shows that one of her justifications was appellate court's determination that the patently discriminatory (gender), while one prosecutor dismissed Juror 016 because of of her justifications for dismissing Juror 019 her demeanor was an unreasonable was contrary to the record (age). In sum, the determination of the facts. Because this record demonstrates that the prosecutor's determination provided the basis for the proffered reasons for dismissing Juror 016 appellate court's conclusion that the trial were wholly implausible, unpersuasive, and court had not clearly erred in accepting the a pretext for discrimination on the basis of prosecutor's justification as race-neutral, this her race. determination also was objectively unreasonable. In order to secure habeas relief, however,

228 Collins "must demonstrate that [the] state the benefit of the doubt or should have court's finding of the absence of purposeful questioned the prosecutor's credibility." In discrimination was incorrect by clear and point of fact, the Court of Appeal held only convincing evidence, 28 US.C. 2254(e)(1), that the trial court's ultimate decision to and that the corresponding factual credit the prosecutor was not clearly determination was 'objectively unreasonable' erroneous, thereby adhering to the well- in light of the record before the court." established principle that "where there are Miller-El, 537 US. 322, 123 S. Ct. at 1045. two permissible views of the evidence, the We conclude that Collins has met this heavy fact-finder's choice between them cannot be burden. clearly erroneous." Hernandez, 500 Us. at 369.

Having manufactured a reason to disregard IV. the California Court of Appeal's decision, the majority essentially reviews the issue of Because the basis for the appellate court's the prosecutor's credibility de novo, decision was its unreasonable determination concluding that the writ should issue of the facts in light of the evidence presented because, under the majority's view, "the at the trial, and because it also unreasonably record belies" the conclusion that the trial applied clearly established federal law as court assessed evidence which ostensibly determined by the Supreme Court, we undermined the prosecutor's credibility. In conclude that the state trial appellate court doing do, the majority disregards the committed constitutional error that warrants canonical rule that evaluation of a the grant of a writ of habeas corpus under prosecutor's credibility "lies peculiarly section 2254. We therefore reverse the within a trial judge's province," and is district court's judgment and remand with entitled to "great deference." Id. at 366. instructions to grant the petition on conditions it deems appropriate. Viewing the record in its entirety, I am firmly convinced that the California Court of DISSENT: HALL, Circuit Judge, dissenting: Appeal's decision was reasonable. I respectfully dissent. The state trial court determined that the prosecutor's proffered race-neutral The majority identifies four considerations justifications for striking Juror 016 were potentially relevant to the prosecutor's credible. This conclusion is entitled to credibility. In order to reject the California "great deference," and may not be disturbed Court of Appeal's decision, we would have on appeal unless clearly erroneous.... to conclude that the Court of Appeal unreasonably determined that, given these The majority does not defer to the California four considerations, the trial court did not Court of Appeal. According to the majority, clearly err by crediting the prosecutor's deference is unwarranted because the Court race-neutral explanation. As the following of Appeal's decision rests upon the discussion illustrates, the majority falls far "unreasonable factual determination" that short of making this requisite demonstration. "there was 'nothing in the present record' to indicate that the trial court did not conduct a The majority argues that the trial court searching inquiry in giving the prosecutor should have questioned the prosecutor's

229 credibility because she referred to another prosecutor's gender-balance justification, but prospective juror, Juror 019, as "young" nonetheless chose to credit the prosecutor's even though Juror 019 was a grandmother of other race-neutral justifications for the five. As the majority suggests, the challenge. The majority highlights nothing prosecutor may have either been entirely in the record to indicate that the California incapable of judging a person's age or may Court of Appeal should have deemed this have intentionally misrepresented Juror decision clearly erroneous. 0 19's age to the court. A far more plausible explanation, on the other hand, is that the The third credibility issue raised by the reference to Juror 019 as "young" was majority also relates to Juror 019 rather than purely accidental. . . . Indeed, defense Juror 016. Making an argument not counsel also seemed confused about the presented by Collins either before this court numerical designations, once mistakenly or before the California Court of Appeal, the referring to Juror 016 as "Ms. 019." Both majority contends that the prosecution's the trial judge and defense counsel clearly explanation that Juror 019 had a daughter indicated that they understood the recently treated for cocaine addiction was prosecutor's justification for striking Juror pretextual because a white juror passed by 019 to be her daughter's drug problem, and the prosecution, Juror 030, also had a child the prosecutor's justification for striking with a cocaine problem. There are several Juror 016 to be that, like Juror 006, she was fundamental problems with the majority's young, single, and potentially tolerant. analysis of this issue. The issue was not Under these circumstances, the majority's briefed by the parties or discussed at oral focus on the prosecutor's misstatement, an argument, and the record itself certainly issue that was not briefed by the parties, is does not contain clear and convincing nothing short of absurd. evidence that Juror 019 and Juror 030 were, as the majority terms them, The majority also argues that the trial judge "indistinguishably similar." Moreover, even should have questioned the prosecutor's if one accepts the majority's shaky premise credibility because the prosecutor cited a that Jurors 019 and 030 were desire to have "more male-female balance" "indistinguishably similar," there is no in the jury as a race-neutral basis for Supreme Court precedent indicating that a excluding Juror 016. The majority places race-neutral justification is necessarily undue emphasis on the prosecutor's arguably pretextual merely because it applies to improper reference to gender. The another member of the venire. Similarly, prosecutor cited a variety of other race- there is a complete dearth of Supreme Court neutral justifications, including Juror 016's precedent indicating that a trial judge may demeanor, youth, marital status, and not credit a prosecutor's race-neutral possible tolerance. There is no indication in justification if there is reason to believe that Supreme Court precedent, or in cases from the race-neutral justification given for our circuit for that matter, that a trial judge's another juror was pretextual. For these decision to reject one of the prosecutor's reasons, the prosecutor's conduct vis-a-vis race-neutral justifications compels the trial Juror 019 lends very little, if any, support to judge to reject all of the other race-neutral the majority's conclusion that the trial judge justifications offered by that prosecutor. In should have questioned the prosecutor's the instant case, the trial judge rejected the explanation for striking Juror 016.

230 Finally, the majority contends that the which not only undermines the prosecutor's prosecutor's explanation that Juror 016 was credibility, but makes clear that the a youthful single person, and therefore prosecutor's articulated rationales for her potentially too tolerant, was not credible. peremptories were "wholly implausible." Noting that Juror 016 "believed possession Viewing the majority's credibility argument of crack cocaine should be illegal," the generously, however, their conclusion is majority concludes that the prosecutor's merely that the trial court had several concern that Juror 016 might be too tolerant potential reasons to question the prosecutor's for this three strikes case was "patently credibility. Presumably, the trial court also frivolous." The majority's conclusion is had a variety of potential reasons to believe simply untenable-the theory that young that the prosecutor was credible, including persons, even those who believe crack the prosecutor's ostensibly truthful cocaine should be illegal and don't expressly comparison between Juror 016 and Juror indicate any heightened tolerance for drug 006. Significantly, the trial judge also had offenders, may be less willing to impose the ability to observe the prosecutor's harsh sentences for drug possession than demeanor to determine whether she their older counterparts in the venire can appeared to be telling the truth, evidence hardly be considered unreasonable, much which would not be evident in the record, less "implausible or fantastic." Both the majority opinion and the record are devoid of any basis for concluding that the Indeed, the majority's own analysis prosecutor's statements and demeanor left demonstrates precisely why the Court of the trial judge with no permissible Appeal properly deferred to the trial court's alternative but to reject the prosecutor's judgment. The majority strains to find that race-neutral justifications. the credibility issues discussed above constitute "clear and convincing" evidence For the foregoing reasons, I would affirm.

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