SEVENTH CIRCUIT REVIEW

SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009

CONTENTS

Masthead iii About the SEVENTH CIRCUIT REVIEW iv

Civil Procedure

Should They Stay or Should They Go: Applying the Forum Non Conveniens Doctrine to Foreign Plaintiffs Injured Abroad in Abad v. Bayer Corporation Leah B. Moon 1

Constitutional Law

Raising the Bar: How the Seventh Circuit Nearly Struck Down the Diploma Privilege Under the Dormant Commerce Clause Paul C. Huddle 38

Criminal Law

Finding Intent Without Mens Rea: A Modified Categorical Approach to Sentencing Under the United States Sentencing Guidelines Amanda J. Schackart 71

Employment Discrimination

True to the Fable?: Examining the Appropriate Reach of Cat’s Paw Liability Emily M. Kepner 108

i

First Amendment

Prisoners and Public Employees: Bridges to a New Future in Prisoners’ Free Speech Retaliation Claims Matthew D. Rose 159

Labor Law

The Seventh Circuit Giveth, and the District of Columbia Circuit Taketh Away: The National Labor Relations Board’s Authority to Act Under Section 3(b) of the National Labor Relations Act Tyler T. Murphy 221

Prisoners’ Rights

Dobbey v. Illinois Department of Corrections: A Small Piece of a Growing Policy Puzzle Ashley M. Belich 272

ii SEVENTH CIRCUIT REVIEW

SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009

Chicago-Kent College of Law Illinois Institute of Technology 565 West Adams Street, Chicago, Illinois 60661

Hal R. Morris Professor

Paul Forster Executive Editor – Teaching Assistant

Editorial Staff Ashley M. Belich Leah B. Moon Paul C. Huddle Tyler T. Murphy Emily M. Kepner Matthew D. Rose Amanda J. Schackart

© 2009 Chicago-Kent College of Law, Illinois Institute of Technology.

iii SEVENTH CIRCUIT REVIEW

SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009

ABOUT THE SEVENTH CIRCUIT REVIEW

Purpose

The SEVENTH CIRCUIT REVIEW is a semiannual, online journal dedicated to the analysis of recent opinions published by the United States Court of Appeals for the Seventh Circuit. The SEVENTH CIRCUIT REVIEW seeks to keep the legal community abreast of developments and trends within the Seventh Circuit and their impact on contemporary jurisprudence. The articles appearing within the SEVENTH CIRCUIT REVIEW are written and edited by Chicago-Kent College of Law students enrolled in the SEVENTH CIRCUIT REVIEW Honors Seminar.

The SEVENTH CIRCUIT REVIEW Honors Seminar

In this seminar, students author, edit, and publish the SEVENTH CIRCUIT REVIEW. The REVIEW is entirely student written and edited. During each semester, students identify cases recently decided by the Seventh Circuit to be included in the REVIEW, prepare initial drafts of case comments or case notes based on in-depth analysis of the identified cases and background research, edit these drafts, prepare final, publishable articles, integrate the individual articles into the online journal, and "defend" their case analysis at a semester-end roundtable. Each seminar student is an editor of the REVIEW and responsible for extensive editing of other articles. Substantial assistance is provided by the seminar teaching assistant, who acts as the executive editor.

iv The areas of case law that will be covered in each journal issue will vary, depending on those areas of law represented in the court's recently published opinions, and may include:

• Americans with Disabilities Act • antitrust • bankruptcy • civil procedure • civil rights • constitutional law • copyright • corporations • criminal law and procedure • environmental • ERISA • employment law • evidence • immigration • insurance • products liability • public welfare • securities

This is an honors seminar. To enroll, students must meet one of the following criteria: (1) cumulative GPA in previous legal writing courses of 3.5 and class rank at the time of registration within top 50% of class, (2) recommendation of Legal Writing 1 and 2 professor and/or Legal Writing 4 professor, (3) Law Review membership, (4) Moot Court Honor Society membership, or (5) approval of the course instructor.

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SHOULD THEY STAY OR SHOULD THEY GO: APPLYING THE FORUM NON CONVENIENS DOCTRINE TO FOREIGN PLAINTIFFS INJURED ABROAD IN ABAD V. BAYER CORPORATION

∗ LEAH B. MOON

Cite as: Leah B. Moon, Comment, Should They Stay or Should They Go: Applying the Forum Non Conveniens Doctrine to Foreign Plaintiffs Injured Abroad in Abad v. Bayer Corporation, 5 SEVENTH CIRCUIT REV. 1 (2009), http://www.kentlaw.edu/ 7cr/v5-1/moon.pdf.

INTRODUCTION

As globalization continues to make it easier for U.S. companies to export their products abroad, a defective product can cause life- threatening harm to consumers throughout the world. For example, when U.S. drug companies exported defective blood clotting products to hemophiliacs worldwide, reports of hemophiliacs infected with Human Immunodeficiency Virus (“HIV”) arose in France, Japan, Iran, Canada, and Portugal, among other countries.1 When the product of a U.S. company injures a consumer outside of U.S. borders, the foreign plaintiff2 must choose the forum in which to bring suit. Historically, U.S. courts have been an attractive forum for foreign plaintiffs,

∗J.D. candidate, May 2010, Chicago-Kent College of Law, Illinois Institute of Technology; B.A., University of Pennsylvania. 1 Aids Scandal Around the World, BBC NEWS, Aug. 9, 2001, http://news.bbc.co.uk/2/hi/europe/1482021.stm. 2 For purposes of this discussion, a “foreign plaintiff” refers to a party who is not a U.S. citizen or resident.

1 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 leading some to sue U.S. companies in a U.S. court rather than in the plaintiff’s home country. 3 The doctrine of forum non conveniens permits U.S. courts to dismiss the foreign plaintiff’s case under certain circumstances.4 Even if the plaintiff has satisfied jurisdiction and venue requirements, this common law doctrine permits trial courts to dismiss a suit over which it would normally have jurisdiction if both the parties’ convenience and the ends of justice are best served through dismissal.5 The Supreme Court of the United States has, through Gulf Oil Corporation v. Gilbert6 and Piper Aircraft Company v. Reyno, 7 announced how the doctrine should be applied, as well as the level of deference that should be given to a plaintiff’s choice of forum. As in other circuit courts of appeal, in the Seventh Circuit the nature of the doctrine of forum non conveniens and the lenient standard of review together confer district courts with nearly free reign to determine whether to apply the doctrine. As Justice Scalia has noted, “[t]he discretionary nature of the doctrine, combined with the multifariousness of the factors relevant to its application, make uniformity and predictability of outcome almost impossible.”8 This unbridled discretion is starkly illustrated in Abad v. Bayer Corporation (“Abad II”), in which the Seventh Circuit upheld dismissal on forum non conveniens grounds of two cases involving Argentinean plaintiffs who brought product liability claims against U.S. companies in federal district courts.9

3 Helen E. Mardirosian, Developments in the Law: Federal Jurisdiction and Forum Selection, 37 LOY. L.A. L. REV. 1643, 1667 (2004). 4 Id. at 1643. 5 See Alan Reed, To Be or Not to Be: The Forum Non Conveniens Performance Acted Out on Anglo-American Courtroom Stages, 29 GA. J. INT’L & COMP. L. 31, 36 (2000). This note does not discuss the analysis of whether the adjudications of whether the foreign forum is adequate or available, and assumes that the foreign plaintiff can satisfy both jurisdiction and venue rules in the U.S. forum. 6 330 U.S. 501 (1947). 7 454 U.S. 235 (1981). 8 Am. Dredging Co. v. Miller, 510 U.S. 443, 455 (1994) (citations omitted). 9 563 F.3d 663, 673 (7th Cir. 2009).

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An analysis of the district court and Seventh Circuit’s opinions in Abad II highlights the inconsistent approaches that district courts use when applying the private and public interest factors set forth in Gilbert. Part I of this note summarizes the development of the forum non conveniens doctrine in the Supreme Court of the United States. Part II discusses the district court and Seventh Circuit opinions in Abad II. Finally, Part III proposes modest solutions that the Seventh Circuit should adopt to ensure that district courts apply the Gilbert factors consistently and make forum non conveniens decisions more uniform and predictable.

I. BACKGROUND

A. Forum Non Conveniens Generally

The Fifth Circuit has noted aptly that just as “a moth is drawn to the light, so is a litigant drawn to the United States.”10 Foreign plaintiffs that can satisfy U.S. jurisdiction and venue rules have a plethora of incentives to bring suit in the United States.11 In contrast to other jurisdictions, U.S. courts offer plaintiffs the potential availability of class actions, strict liability as a cause of action, and a broader scope of evidence through more extensive discovery rules.12 Furthermore, litigation in the United States can be more affordable for plaintiffs because of the availability of contingent fee arrangements and the absence of monetary penalties in the form of attorney’s fees on the losing party.13 Even if the case does not reach trial, having the case proceed through a U.S. court can influence claim settlement because U.S. cases tend to settle for higher amounts than in European countries.14 Most importantly, U.S. forums offer foreign plaintiffs in

10 Teng v. Skaarup Shipping Corp., 743 F.2d 1140, 1146 (5th Cir. 1984). 11 Mardirosian, supra note 3, at 1667. 12 Id. 13 Id. 14 Russell J. Weintraub, International Litigation and Forum Non Conveniens, 29 TEX. INT’L L.J. 321, 323 (1994).

3 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 civil suits the right to trial by jury, which raises the possibility of larger damage awards.15 Of course, a foreign plaintiff who opts to bring suit in a U.S. court also faces potential disadvantages. Foreign plaintiffs can encounter discrimination in U.S. courts simply because they are not American.16 Moreover, as willing as juries may be to award large amounts of damages, juries may be equally unwilling to award such damages to foreign plaintiffs. Despite these potential disadvantages, foreign plaintiffs often seek to have their cases heard in U.S. courts rather than their home country. In light of these incentives, the doctrine of forum non conveniens serves important practical purposes. By allowing courts to dismiss a case, the doctrine protects against forum shopping plaintiffs.17 Through dismissal, the court can prevent these foreign plaintiffs from imposing undue inconvenience on the defendant and the court.18 Second, the doctrine also can be used to correct those cases that fall through the cracks – in other words, those cases in which venue and jurisdiction rules “fail” such that a foreign plaintiff successfully obtains jurisdiction in a federal court that is not a proper forum to hear the case.19 However, because the consequences of a forum non conveniens dismissal are severe, courts weigh the considerations of convenience to the defendant and the court against the plaintiff’s interest in justice.20

15 Id. 16 See Kevin M. Clermont & Theodore Eisenberg, Commentary, Xenophilia in American Courts, 109 HARV. L. REV. 1120, 1133–35 (1996). 17 See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981). 18 Id. 19 Michael M. Karayanni, The Myth and Reality of a Controversy: “Public Factors” and the Forum Non Conveniens Doctrine, 21 WIS. INT’L L.J. 327, 341–43 (2003). 20 Mardirosian, supra note 3, at 1645–46.

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B. Historical Development of the Forum Non Conveniens Doctrine in the Supreme Court

The doctrine of forum non conveniens appeared in the opinions of U.S. courts in the early nineteenth century, but the Supreme Court did not explicitly adopt the doctrine until 1947.21 That year, the Court applied the doctrine of forum non conveniens for the first time in Gilbert and its companion case, Koster v. Lumbermens Mutual Casualty Co.22 In both cases, the Court voted 5–4 in favor of applying the forum non conveniens doctrine.23 Gilbert was a “classic case of domestic forum shopping”24 involving a Virginia plaintiff who brought suit in New York federal district court against a Pennsylvania corporation qualified to do business in New York.25 The plaintiff alleged that the defendant’s negligent delivery of gasoline caused fire damage to the plaintiff’s warehouse in Virginia.26 The defendant moved for a forum non conveniens dismissal, and the Court upheld the New York district court’s decision to grant the dismissal.27 The Gilbert decision marked the Court’s official approval for federal courts to dismiss civil cases on forum non conveniens grounds.28 Aside from generally referring to plaintiffs’ misuse of venue, the Court did not explain its need to adopt the doctrine.29 However, legal commentary at the time suggested that the Court’s

21 Warren Freedman, FOREIGN PLAINTIFFS IN PRODUCTS LIABILITY ACTIONS: THE DEFENSE OF FORUM NON CONVENIENS 4 (1988). 22 See generally Gulf Oil Corp. v. Gilbert, 330 U.S. 501(1947); Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518 (1947). 23 Gilbert, 330 U.S. at 501; Koster, 330 U.S. at 123. 24 Elizabeth T. Lear, National Interests, Foreign Injuries, and Federal Forum Non Conveniens, 41 U.C. DAVIS L. REV. 559, 564 (2007). 25 Gilbert, 330 U.S. at 502–03. 26 Id. 27 Id. at 503, 512. 28 Lear, supra note 24, at 564. 29 David W. Robertson, Forum Non Conveniens in America and England: “A Rather Fantastic Fiction”, 103 L. Q. REV. 398, 401 (1987).

5 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 main concern was personal injury plaintiffs engaged in forum shopping.30 In the opinion, the Court repeatedly emphasized that courts should grant forum non conveniens dismissals only in exceptional cases.31 The Court explained that a court’s power to dismiss a case on forum non conveniens grounds is founded on the idea that plaintiffs sometimes can be tempted to bring suit in a forum that is inconvenient for their adversaries, even if the choice inconveniences the plaintiff.32 The Court announced that a judge should grant a forum non conveniens dismissal only in “rare” circumstances when litigation in the plaintiff’s chosen forum would be highly inconvenient for the parties or the court.33 Thus, a plaintiff’s choice of forum should rarely be disturbed, unless the choice of forum vexes, harasses, or oppresses the defendant.34 To guide lower courts, the Court set forth a number of private and public interest factors that a court must balance to determine whether a forum non conveniens dismissal is warranted.35 The Gilbert private interest factors include:

(i) the relative ease of access to sources of proof; (ii) the availability of compulsory process for attendance of unwilling witnesses; (iii) the cost of obtaining attendance of willing witnesses; (iv) the possibility of viewing premises if such view is appropriate to the action; and (v) all other practical problems that make trial of a case easy, expeditious, and inexpensive.36

30 Id. 31 Gilbert, 330 U.S. at 507–08. 32 Id. at 507. 33 Id. 34 Id. at 508. 35 See Gilbert, 330 U.S. at 508. 36 Id.

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The Court also provided a number of public interest factors that courts should consider:

(i) the administrative difficulties following for courts when litigation is piled up in congested centers instead of being handled at its origin; (ii) the imposition of the burden of jury duty on the people of a community that has no relation to the litigation; (iii) the local interest in having localized controversies decided at home; (iv) the appropriateness in having the trial of a diversity case in a forum that familiar with the state law that must govern the case; and (v) the avoidance of having a court in some other forum untangle problems in conflicts of law and foreign law.37

Together, the factors assess whether it is more convenient for the parties to adjudicate the case in the current federal forum or the alternative foreign forum.38 In dissent, Justice Black vigorously opposed the Court’s decision to grant judges the discretion to dismiss cases on forum non conveniens grounds.39 He criticized the relative ease with which defendants would be able to obtain a forum non conveniens dismissal.40 Foreshadowing the development of multistate corporations and globalization, Justice Black noted that defendants could use the doctrine often because a defendant who does business in states other than the one in which he is sued can almost invariably claim that he has been put to some inconvenience to defend himself in that state.41 Justice Black believed that only poorly represented defendants would fail to produce substantial evidence illustrating that

37 Id. at 508–09. 38 See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981). 39 Gilbert, 330 U.S. at 515–16 (Black, J., dissenting). 40 Id. at 515. 41 Id. at 515–16.

7 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 the plaintiff’s chosen forum is inconvenient enough to satisfy the majority’s test.42 Justice Black also suggested that the doctrine would clutter courts with an inquiry that would create uncertainty, confusion, and hardship for plaintiffs.43 He warned that “[t]he broad and indefinite discretion left to federal courts to decide the question of convenience from the welter of factors . . . will inevitably produce a complex of close and indistinguishable decisions from which accurate prediction of the proper forum will become difficult, if not impossible."44 Justice Black pointed out that, despite the unpredictability of this case law, plaintiffs nonetheless would be expected to navigate through the haze of inconsistent decisions to determine the proper forum to bring suit.45 He also warned that plaintiffs could endure substantial financial loss through the delay and expense of litigation, only to discover that the statute of limitations in the proper forum barred the plaintiff’s claim while pursuing the claim elsewhere.46 In conclusion, Justice Black believed that the decision whether to adopt the forum non conveniens was best left to Congress.47 Decided the same day as Gilbert, in Koster the Court upheld another dismissal on forum non conveniens grounds.48 The plaintiff, a citizen of New York, was a policyholder of a mutual insurance company domiciled in Illinois, and brought suit in New York federal district court alleging breach of fiduciary duties.49 In the majority opinion, Justice Jackson focused on the application of the forum non conveniens doctrine in a derivative action, and emphasized that a plaintiff’s choice to bring suit in his or her home forum is entitled to

42 Id. at 516. 43 Id. 44 Id. 45 Id. 46 Id. 47 Id. 48 Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 532 (1947). 49 Id. at 518–19.

8 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 significant deference.50 A plaintiff who brings suit in his or her home forum should not be deprived of the presumed advantages of the home forum except upon a clear showing of facts establishing that (1) the forum causes such oppressiveness and vexation to the defendant as to be out of all proportion to the plaintiff’s convenience, or (2) trial in the chosen forum is inappropriate because of facts affecting the court’s administrative and legal problems.51 The Court stated that when balancing the private and public interest factors, a plaintiff’s showing that the home forum is convenient will normally outweigh any inconvenience to the defendant.52 Applying this test, the Court held that dismissal of the plaintiff’s suit was proper because the plaintiff was “utterly silent” as to why hearing the case in New York would be of convenience to himself or his witnesses.53 At the same time that the Gilbert and Koster cases worked their way to the Supreme Court, Congress contemplated legislation that would in effect nullify the application of the forum non conveniens doctrine as to domestic plaintiffs. About one year after Gilbert, Congress passed legislation that made forum non conveniens dismissals unavailable to defendants when the dispute was a wholly domestic one as in Gilbert.54 Today, 28 U.S.C. § 1404(a) provides that, “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”55 Thus, if a federal court decides that a domestic case is better off being heard in another federal court, the case is transferred pursuant to Section 1404(a) to the more appropriate federal court rather than dismissed under the forum non conveniens doctrine.56 As a consequence, federal

50 Id. at 521, 524. 51 Id. 52 Id. 53 Id. at 531. 54 See Robertson, supra note 29, at 402 (stating that Gilbert soon became almost completely obsolete). 55 28 U.S.C. § 1404(a) (2006). 56 See Robertson, supra note 29, at 402 (explaining Section 1404(a)).

9 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 courts no longer apply Gilbert to domestic cases; instead, forum non conveniens dismissals in federal courts occur only in cases in which the alternative forum is foreign.57 In 1981, the Supreme Court provided the second landmark decision regarding forum non conveniens dismissals in Piper.58 The plaintiff, the representative of the estates of several Scottish citizens killed in a plane crash, brought a wrongful death suit in federal district court against a Pennsylvania aircraft manufacturer and Ohio propeller manufacturer.59 The issue in Piper was whether a motion to dismiss on grounds of forum non conveniens should be denied when the law of the alternate forum is less favorable to recovery than that which would be applied by the district court.60 Although the Gilbert case involved domestic plaintiffs, the Piper Court applied Gilbert to a suit involving foreign plaintiffs.61 The Court upheld the district court’s forum non conveniens dismissal using a two-prong test.62 The Court announced that, when analyzing a motion to dismiss on forum non conveniens grounds, a court first must determine whether an adequate alternate forum is available to hear the suit.63 Generally, an alternate forum is adequate when the defendant is amenable to process in the other jurisdiction.64 In rare circumstances, the other forum may not be an adequate alternative if it offers a remedy that is clearly unsatisfactory. 65 If an adequate alternate forum is not available, dismissal on forum non conveniens grounds is improper.66 Second, if an adequate alternative forum exists, the court must balance the Gilbert public and private

57 Lear, supra note 24, at 565. 58 See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 235 (1981). 59 Id. at 238–39. 60 Id. at 246 n.12. 61 Id. at 238. 62 Id. 63 Id. at 255 n.22. 64 Id. 65 Id. at 255. 66 Id.

10 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 factors to determine whether the balance of the factors favors litigation in the alternate forum.67 The Piper Court also set forth the standard of review for a trial court’s decision regarding a forum non conveniens motion.68 The Court stated that the forum non conveniens determination is left to the sound discretion of the trial court, and should be reversed only when a clear abuse of discretion has occurred.69 Absent such abuse, the court’s decision deserves substantial deference if the court has considered all relevant public and private interest factors, and the balancing of these factors is reasonable.70 Piper made it easier for domestic defendants to obtain a forum non conveniens dismissal. Until the 1970s, lower courts generally declined to dismiss transnational cases on the basis of forum non conveniens unless the defendant could show that it would be unfairly prejudiced or that an injustice would occur by hearing the case in the United States.71 In practice, only a handful of reported federal decisions resulted in forum non conveniens dismissals.72 Yet, Piper instituted three important changes in the federal forum non conveniens doctrine that made forum non conveniens dismissal more readily accessible for defendants. First, the Piper Court altered the presumption of convenience to which a foreign plaintiff’s choice of forum is entitled.73 The Court generally adhered to the principles announced in Gilbert, stating that “there is ordinarily a strong presumption in favor of the plaintiff’s choice of forum, which may be overcome only when the private and public factors clearly point towards trial in the alternative forum.”74

67 Id. at 257. 68 Id. at 257. 69 Id. 70 Id. 71 See Robertson, supra note 29, at 403. 72 See id. at 403 (italics omitted); see, e.g., Founding Church of Scientology v. Vertag, 536 F.2d, 429 (D.C. Cir. 1976). 73 Lear, supra note 24, at 566. 74 Piper, 454 U.S. at 255.

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However, in Part III of the opinion, Justice Marshall stated that a foreign plaintiff’s choice of forum deserves less deference than that of a plaintiff bringing suit in his or her home forum.75 He declared that when a plaintiff chooses his or her home forum, it is reasonable to assume that the choice is convenient, but this presumption is much less reasonable when a foreign plaintiff is involved.76 Notably, three Justices declined to join in Part III of the opinion, and in total Part III represented the views of only four Justices.77 Nonetheless, following Piper, foreign plaintiffs bringing suit in the United States face an uphill battle when trying to survive a defendant’s motion to dismiss on forum non conveniens grounds. Second, Piper indirectly altered the defendant’s burden of proof. Under Gilbert, the presumption that a plaintiff’s choice of home forum was convenient became relevant only when a plaintiff sought to rebut and overcome a defendant’s showing of serious hardship.78 However, unlike the Court in Gilbert, the Piper Court changed forum non conveniens analysis of the Gilbert factors into a true balancing test.79 Rather than require the defendant to demonstrate that the plaintiff’s choice of forum constituted an overwhelming hardship, the Piper court simply evaluated the evidence as a whole.80 The Court’s definition of “inconvenience” to the defendant evolved from harassment or vexation in Gilbert to the broader notion of a merely inappropriate forum choice.81 Thus, even though the burden remains on the defendant to show that a forum non conveniens dismissal should be granted, the post-Piper defendant faces a lower hurdle to do so. Finally, defendants can obtain a forum non conveniens dismissal more easily after Piper because the opinion reflects a presumption that the U.S. public interest in having a foreign plaintiff’s suit heard in a

75 Id. at 255–56. 76 Id. 77 Id. 78 Lear, supra note 24, at 566. 79 Id. 80 Id. 81 Id.

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U.S. court is minimal.82 In Piper, Justice Marshall’s analysis of the public interest factors focused on the local interest in having localized controversies decided at home, the “catch-all” Gilbert factor.83 Rejecting the plaintiff’s assertion that U.S. citizens have an interest in deterring U.S. manufacturers from producing defective products that injure consumers abroad, Justice Marshall stated that the incremental deterrence gained if the case was heard in a U.S. court likely was insignificant.84 He stated that the United States’ minimal interest in the accident was “not sufficient to justify the enormous commitment of judicial time and resources” that the Piper case would require if tried in the United States.85 Thus, Justice Marshall introduced the notion that the United States does not have a strong deterrence interest in hearing a foreign plaintiff’s suit in a U.S. court.

II. FORUM NON CONVENIENS IN THE 7TH CIRCUIT

A. Current Doctrine

The Seventh Circuit test for forum non conveniens dismissals applies Piper and Gilbert virtually unchanged. A dismissal on forum non conveniens grounds is appropriate if a trial in the chosen forum would result in vexation or oppression to the defendant that would far outweigh the plaintiff’s convenience, or when the chosen forum would generate administrative and legal problems for the trial court.86 To determine whether to dismiss the case, the court must first determine whether an adequate alternative forum is available to hear the case.87

82 Id. at 567. 83 Id. Lear notes that had Justice Marshall addressed Gilbert’s “jury duty” and local law factors, the analysis should have supported the exercise of jurisdiction because “[a] Pennsylvania jury could hardly be said to be uninterested in a dispute involving a resident corporation to which Pennsylvania law would apply.” Id. at 566–67. 84 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260–61 (1981). 85 Id. 86 Kamel v. Hill-Rom Co., 108 F.3d 799, 802 (7th Cir. 1997). 87 In re Ford Motor Co., 344 F.3d 648, 651–52 (7th Cir. 2002).

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In the Seventh Circuit, an alternative forum is adequate when the parties will not be deprived of all remedies or treated unfairly.88 If an adequate alternative forum exists, the court then must decide whether various private and public and private interest factors clearly indicate that the suggested alternative forum is superior.89 This analysis includes the public and private interest factors set forth in Gilbert, but the list is non-exhaustive.90 As a consequence, parties are free to suggest any reason why the case should be litigated in one court or another.91 Furthermore, as in both Gilbert and Piper, the defendant carries the burden of persuading the court that dismissal on forum non conveniens grounds is warranted.92 The Seventh Circuit has adopted the “less deference rule” from Piper in whole. Accordingly, in the Seventh Circuit, a plaintiff who sues in his or her home forum normally receives the benefit of the presumption that it is a convenient forum, and a defendant opposing that choice has a heavy burden of persuasion.93 However, if the plaintiff brings suit in a forum far from home, it is less reasonable to assume that the forum is a convenient one.94 The presumption regarding the plaintiff’s choice of forum applies with less force, and the choice is accorded less deference.95 The Seventh Circuit has upheld the application of the forum non conveniens doctrine in several products liability cases involving foreign plaintiffs, most recently in Abad II.

88 Kamel, 108 F.3d at 803. 89 Id. 90 Abad v. Bayer Corp. (Abad II), 563 F.3d 663, 668 (7th Cir. 2009) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). 91 Id. 92 See id. 93 See Clerides v. Boeing Co., 534 F.3d 623, 628 (7th Cir. 2008). 94 Id. 95 Id.

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B. The Abad II Case

In Abad II, the Seventh Circuit applied the forum non conveniens doctrine to affirm the dismissal of two suits brought by foreign plaintiffs injured outside of the United States.96 Abad II consolidated two cases that represented two different, but widespread, products liability scandals: defective Firestone tires on Ford Explorers causing rollover accidents, and blood-clotting medicines infected with HIV or Hepatitis.97 The Seventh Circuit’s affirmation of these cases illustrates the vast discretion that trial courts can exercise when analyzing the Gilbert factors.

1. The Abad I Case

Abad I, a class action suit partly composed of Argentine plaintiffs, involved hemophiliacs and their spouses who alleged that the hemophiliac contracted either HIV or Hepatitis through the defendants’ blood clotting products.98 The four defendants, each a U.S. corporation, produced all or virtually all of the blood clotting products used in the United States.99 Abad I was considered part of the “second generation” of litigation arising out of the blood clotting products because the plaintiffs were residents of foreign countries.100 The defendants moved to dismiss on forum non conveniens grounds

96 Abad II, 563 F.3d at 673. 97 Id. at 668, 671. 98 In re Factor VIII or IX Concentrate Blood Prods. Litig. (Abad v. Bayer Corp.) (Abad I), 531 F. Supp. 2d 957, 958–59 (N.D. Ill. 2008). 99 Id. 100 Id. at 959. Generally, second-generation plaintiffs claimed that the defendant negligently failed to sterilize their products, failed to screen and adequately test blood plasma donors, failed to warn users once the defendants became aware of the risk, and failed to withdraw the products from the market once the danger of infection was known. Gullone v. Bayer Corp., 408 F. Supp. 2d 569, 571 (N.D. Ill. 2006). The foreign plaintiffs also claimed that the defendants, after being aware of the risk of viral contamination, fraudulently concealed the risk and dumped the untreated products on unsuspecting foreign markets. Id. at 573.

15 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 the claims of 619 plaintiffs infected in Argentina whose cases the Judicial Panel on Multidistrict Litigation (“MDL”) transferred to the Northern District of Illinois.101 Although two of the cases were originally filed in the Northern District of Illinois, the remaining cases originated in the Southern District of Florida and Northern District of California.102 After an extensive discussion involving a battle of the experts, the district court concluded that Argentina was both an available and adequate alternative forum.103 Before addressing the Gilbert factors, the court addressed whether the plaintiffs’ choice of forum was entitled to any deference. Adhering to Piper, the court stated when plaintiffs sue in their home forums, they are entitled to the benefit of the presumption that their choice of forum is convenient.104 The court determined that this presumption applied with less force because the plaintiffs brought suit in the United States, not in their home country Argentina.105 Accordingly, the court stated that it would apply the Gilbert factors with this in mind.106 Despite this pronouncement, it is unclear in the court’s application of the Gilbert factors how the presumption of convenience applied with less force. Instead, the court appeared to balance the factors without taking into consideration the presumption at all.107 The court held that the private interest factors strongly favored dismissal because none of the factors favored the plaintiffs.108 The defendants’ inability to join third parties if the cases were tried in U.S. courts favored dismissal.109 Similarly, the defendants’ need for compulsory process of witnesses warranted dismissal because most of the witnesses who could testify about the injuries resided in Argentina

101 Abad I, 531 F. Supp. 2d at 959. 102 Id. 103 Id. at 960–72. 104 Id. at 972. 105 Id. 106 Id. 107 See id. at 972–82. 108 Id. at 977. 109 Id. at 972–73.

16 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 and could not be required to testify in the United States.110 The relative ease of access to evidence also favored the defendants because the plaintiffs would not suffer any substantial detriment if the cases were litigated in Argentina.111 The plaintiffs already concluded their core discovery in the MDL, and the remaining discovery consisted of the case-specific medical histories of the plaintiffs located in Argentina.112 Thus, the defendants had stronger argument for dismissal on forum non conveniens grounds solely because the plaintiffs completed their discovery first. Lastly, the court declined to determine which party the costs of translating evidence favored because both parties provided hyperbolic arguments that translation into either English or Spanish would involve millions of pages and exorbitant amounts of money.113 Turning to the public interest factors, the court held that all of the factors were neutral except for the Argentina’s overriding interest in adjudicating the claims, which favored dismissal.114 Importantly, the court announced that when comparing the public interest factors, the court would compare the interest of Argentina to the interest of the state in which the federal district where the case was filed.115 Applying this principle, the court compared the interests of Argentina to Florida, Illinois, and California.116 The court determined that both Florida and Illinois had relatively small interests in the litigation.117 Strangely, the court also concluded that California’s interest was minimal, even though the blood-clotting products were manufactured there, because there was no indication that the defendants’ alleged misconduct was ongoing.118 Because California lacked a present interest in stopping an

110 Id. at 975. 111 Id. at 975. 112 Id. at 973. 113 Id. at 976–77. 114 Id. at 982. 115 Id. at 978. 116 Id. 117 Id. 118 Id.

17 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 ongoing harm, the court concluded that the state had less interest in adjudicating the case than Argentina.119 Ultimately, the court concluded that Argentina, the plaintiff’s residence, would endure the greatest impact.120 The court held that the remaining public interest factors were neutral.121 Neither a potential conflict of law nor the problems of applying foreign law favored dismissal because, regardless of where the case was heard, U.S. law probably would apply.122 As for burdening citizens with jury duty, the court stated that this factor weighed in favor of dismissal for both the Florida and Illinois claims, but not the California claims.123 California, as the state in which the defective products were manufactured, had an interest that justified imposing the burden of jury duty on its citizens. 124 Finally, the court held that alleged corruption in Argentine courts did not favor dismissal, and deemed the court congestion factor neutral because of the difficulty in predicting how quickly the cases could be resolved.125 In Abad II, the Seventh Circuit affirmed the forum non conveniens dismissal, engaging in a cursory review of the trial court’s decision.126 The court first noted that had the plaintiffs provided a realistic estimate of the costs of translating the discovery materials, the court would have given the estimate substantial weight.127 In the absence of such evidence, the factor remained neutral.128 As for potential conflict of law or application of foreign law problems, the court reasoned that the district court erroneously determined that U.S.

119 Id. at 978–79. 120 Id. 121 Id. at 978–92. 122 Id. at 979. 123 Id. at 979–80. 124 Id. 125 Id. at 980–82. The court also stated that another factor that affects the speed with which a case can come to trial is the diligence of plaintiffs’ attorneys. Id. 126 Abad v. Bayer Corp. (Abad II), 563 F.3d 663, 669–71, 673 (7th Cir. 2009). 127 Id. at 669. 128 Id.

18 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 law would apply; rather, the choice of law approaches of most U.S. jurisdictions and Argentina suggested that Argentine law would apply.129 Because it was unclear whether Argentine courts would accept the plaintiffs’ market share liability argument, the Seventh Circuit stated that this uncertainty was a compelling reason why an Argentine, not U.S., court should hear the case.130 As a result, correcting the district court’s error in conflict of laws analysis further supported dismissal of the case.131

2. The Pastor Case

In Abad II, the Seventh Circuit also affirmed the district court’s decision in Pastor to grant the defendants’ motion to dismiss two cases involving Argentine citizens on forum non conveniens grounds.132 In Pastor, Argentine citizens brought suit against Ford Motor Company and Bridgestone/Firestone North American Tire, LLC for injuries sustained in two separate car accidents in Argentina.133 In both cases, the plaintiffs alleged that the Bridgestone/Firestone tires on their Ford Explorers failed and caused the automobile to roll over.134 One case was originally brought in a Florida state court and subsequently removed to federal court.135 The other case was brought in a federal district court in North Carolina.136 The Judicial Panel on MDL to

129 Id. at 670–71. 130 Id. at 671. It was unclear whether Argentine courts would apply the theory of market share liability or joint and several liability. Id. at 670–71. 131 Id. at 670. 132 In Re: Bridge Stone/Firestone, Inc. Tire Products Liability Litigation [sic] (Pastor), No. IP-04-C-5796-B/S, slip op. at 2 (S.D. Ind. Jan. 31, 2007), aff’d sub nom. Abad v. Bayer Corp. (Abad II), 563 F.3d 663 (7th Cir. 2009), available at http://www.insd.uscourts.gov/Firestone/bf_docs/93743722.pdf. 133 Id. 134 Id. at 5–7. 135 Id. at 3. 136 Id.

19 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 transferred both cases to the Southern District of Indiana.137 After determining that Argentina was an adequate alternative forum, the court proceeded to analyze both the Gilbert private and public interest factors.138 The district court first addressed whether the plaintiffs were entitled to a presumption in favor of their choice of forum.139 As in Abad I, the court adhered to the less deference rule for foreign plaintiffs set forth in Piper.140 However, in stark contrast with the district court in Abad I, the Pastor court announced that non-U.S. resident treaty nationals from a country that ratified the International Covenant on Civil and Political Rights were entitled to the same deference regarding their choice of forum as resident U.S. nationals.141 As a consequence, the court stated that it would apply a “neutral rule” when comparing the relative convenience of the parties.142 Significantly, the court noted that it would compare the interests of Argentina to those of the United States, not the interest of the respective states from which the cases were transferred as in Abad I.143 Applying this “neutral rule,” the court held that the plaintiffs’ foreign residence in Argentina was more convenient than Florida, North Carolina, or any other U.S. forum and weighed in favor of dismissal.144

137 Id. Forum non conveniens analysis does not change when a case is part of an MDL proceeding, except that the transferee court will compare the relative conveniences of the foreign forum and the transferor court, not the MDL transferee court. See, e.g., Abad II, 563 F.3d at 668–72. 138 Pastor, slip op. at 15–18. 139 Id. at 19. 140 Id. 141 Id. Argentina ratified the International Covenant on Civil and Political Rights on August 8, 1986. International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171, available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 4&chapter=4&lang=en. 142 Pastor, slip op. at 19. 143 Id. at 20 n.20. 144 Id. at 19–20.

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Analyzing the private interest factors, the court held that the factors clearly pointed to dismissal of the two cases.145 Noticeably, the defendants reacted to any of the plaintiffs’ reasons why the cases should remain in the U.S. courts by making a concession.146 As a consequence, the private interest factors that, absent the defendants’ concessions, would have favored the plaintiffs instead favored the defendants’ motion for dismissal. For example, the court determined that the ease of access to evidence factor favored dismissal because the defendants agreed that as a condition of dismissal they would provide the plaintiffs with access to all materials discovered through the MDL proceedings.147 The defendants’ willingness to make concessions also affected the court’s analysis of other private interest factors, including the location of evidence and the enforceability of judgment. The location of the defendants’ evidence regarding case-specific liability and damages weighed heavily in favor of dismissal because the majority of the non- party witnesses and documents were in Argentina and beyond the subpoena power of the U.S. court.148 Notably, the court was swayed by the defendants’ assurance that, if dismissal was granted, they would ensure that all U.S. witnesses affiliated with the defendants would be willing to testify in Argentina.149 Absent the defendants’ concession, the fact that an Argentine court could not compel these witnesses to testify in Argentina should have supported the plaintiffs’ argument to deny the motion for dismissal. Similarly, because the defendants agreed to comply with the judgment of an Argentine court if the motion was granted, the court stated that this concession equalized the two forums because any judgment rendered by a U.S. court could also be enforced.150

145 Id. at 28. 146 See id. at 21–22, 26–28. 147 Id. at 21. 148 Id. 149 Id. 150 Id. at 27.

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The court held that the remaining private interest factors—the costs of translating the evidence and the ability to view the accident scene—did not favor retaining the case.151 The court acknowledged that translating the evidence related to the design and testing of the defendants’ products to Spanish would be a significant and costly task that favored the plaintiffs.152 However, the court rejected that this factor weighed against dismissal because the court expected similar translation issues inevitably to arise if the case was heard in the United States.153 As a consequence, the court concluded that the burden of translation did not outweigh the benefit of easier access to proof in Argentine courts.154 Lastly, the court held that the ability to view the accident scene favored dismissal.155 Although accident scene factor was of less importance because photographs of the accidents could be viewed in both North Carolina and Florida courts, the court indicated that this factor supported dismissal because an Argentine court would be familiar with the local topography.156 In sum, the court held that the private interest factors clearly pointed towards dismissal of both cases.157 The court then addressed the public interest factors, and held that none of the factors favored the plaintiffs.158 First, the court concluded that the court congestion factor was neutral because the parties failed to provide sufficiently detailed information regarding which court would suffer the greater burden from adding this particular trial to its workload.159 Next, the court considered the local interests of the forums, and determined that Argentina’s greater interest in the case

151 Id. at 21–22, 26–28. 152 Id. at 21–22. 153 Id. 154 Id. at 27–28. 155 Id. at 26. 156 Id. 157 Id. at 28. 158 Id. at 31. 159 Id. at 28.

22 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 favored dismissal.160 According to the court, Argentina had an interest in regulating potentially dangerous products used within its borders, and the United States had an interest in regulating the conduct of global businesses headquarters in the United States.161 The court reasoned that the United States’ interest was less significant because the plaintiffs were foreign citizens and the defendants were American corporations with extensive foreign business dealings.162 The remaining public interest factors also favored dismissal. Accordingly, the court held that potential burdening of juries in North Carolina and Florida supported dismissal.163 Although both states had an interest in protecting the lives of their residents, neither state had an interest in the case because the plaintiffs were not foreign, not state residents.164 Finally, the court held that the parties’ interest in having foreign law issues determined by a court familiar with the law, clearly favored a forum non conveniens dismissal.165 As in Abad I, the Pastor court reasoned that the substantive law of Argentina likely applied to this c ase.166 Even if U.S. law did apply, any difficulty that an Argentine court might have in applying U.S. state law did not clearly point towards retaining the cases.167

3. The Seventh Circuit’s Opinion in Abad II

In Abad II, the Seventh Circuit affirmed the district court’s dismissal of the two cases.168 The court first addressed whether the

160 Id. at 29–30. 161 Id. at 29. 162 Id. (stating that “[d]omestic public policy concerns regarding consumer safety are insufficient to establish a local interest on the part of American courts sufficient to t ip the second public interest factor in favor of retaining jurisdiction”). 163 Id. 164 Id. at 29–30. 165 Id. at 30. 166 Id. at 31. 167 Id. 168 Abad v. Bayer Corp. (Abad II), 563 F.3d 663, 673 (7th Cir. 2009).

23 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 district court judge failed to apply the presumption in favor of the plaintiffs’ choice of forum properly because the judge applied a “neutral rule” to the plaintiffs’ choice of forum. 169 The Seventh Circuit interpreted this “neutral rule” simply to mean that “[w]hen the plaintiff wants to sue on the defendant’s home turf, and the defendant wants to be sued on the plaintiff’s home turf . . . . there is no reason to place a thumb on the scale . . . .”170 The court ignored the district court’s line of reasoning that resulted in the neutral rule, and notably did not address its recognition of the treaty between the U.S. and Argentina.171 The court concluded that “[w]hen application of the doctrine would send the plaintiffs to their home court, the presumption in favor of giving plaintiffs their choice of court is little more than a tie breaker.”172 Thus, the court diminished the Piper concept of giving less deference to a foreign plaintiff’s choice of forum than that of a domestic plaintiff into nothing more than an afterthought. The court then analyzed the Gilbert factors, but not without giving a scathing commentary on how parties manipulate these factors. Although the list of Gilbert factors is not exclusive, the court noted that parties inevitably try to make their arguments correspond to the list of factors, regardless of how “violent a dislocation of reality results.”173 Despite the parties’ incentive to manipulate the Gilbert factors, the court held that the district court in Pastor did not abuse its discretion in analyzing the public interest factors.174 The court noted that the district court correctly determined that Argentine law would apply to the cases.175 As a consequence, Argentina was a more proper forum because Argentine courts are more competent at applying Argentine law.176 Furthermore, the Seventh Circuit held that the

169 Id. at 667. 170 Id. at 667. 171 See id. 172 Id. at 667. 173 Id. at 668. 174 Id. at 671–73. 175 Id. at 671. 176 Id.

24 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 location of the evidence also favored dismissal because the plaintiffs had already conducted the bulk of their discovery regarding their negligence claim, and a significant amount of discovery still needed to be conducted in Argentina.177 Thus, as in Abad I, the fact that the plaintiffs completed their discovery first ultimately strengthened the defendants’ argument in favor of dismissal. Turning to the public interest factors, the Seventh Circuit stated that in both Abad I and Pastor, neither the United States nor Argentina had any interest in having the litigation tried in its courts rather than in the courts of the other country.178 Rejecting the district court’s analysis of the national interests at stake, the court highlighted that the governments of both nations failed to intervene and express a desire to have the lawsuits litigated in their courts.179 As a consequence, the court concluded that both cases consisted of ordinary private tort litigation that failed to implicate any national interests.180 The court also rejected the plaintiffs’ arguments that costs of translation, which the plaintiffs failed to specify, favored hearing the case in the United States.181 Similarly, the court rejected the plaintiffs’ argument that court congestion was worse in Argentina than in the United States, because the plaintiffs relied on dated statistics that did not reflect the current condition of Argentine courts.182 Ultimately, the only public interest that the Seventh Circuit acknowledged that favored dismissal was the defendants’ need to collect evidence from third parties in Argentina that could not be compelled to testify in the United States.183

177 Id. at 672. 178 Id. 179 Id. 180 Id. 181 Id. 182 Id. 183 Id.

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III. PROPOSED SOLUTIONS

Abad II illustrates how district court judges retain nearly unbridled discretion when applying the flexible Gilbert factors.184 As a consequence, parties have an incentive to engage in a free-for-all and create a wide variety of arguments in hopes that at least some will resonate with the judge. In the absence of a Court decision augmenting the forum non conveniens test, the doctrine as it stands will continue to lack both uniformity and predictability. The Seventh Circuit should adjust the doctrine to ensure that district courts apply a consistent framework by requiring district courts to: (1) return to the original conception of the doctrine set forth in Gilbert, (2) use a nation-to- nation analysis of the relative public interests, (3) adopt the Second Circuit’s sliding scale approach to the less deference rule, and (4) refuse to consider parties’ willingness to make concessions.

A. Return to the Original Conception of the Doctrine Set Forth in Gilbert

The Seventh Circuit should instruct district courts to apply the forum non conveniens doctrine in a way that properly reflects its original purpose as expressed in Gilbert—to grant dismissal in those rare instances when plaintiff’s choice of a U.S. forum is an abuse of process or harasses the defendant.185 In Abad II, both district courts engaged in an analysis of which forum was more convenient.186 Yet, the corporate defendants and the courts would have endured some logistical difficulties regardless of whether the cases were litigated in a U.S. or Argentine court. These difficulties stem from the transnational nature of the cases, not because of the plaintiff’s choice of forum, and

184 See id. at 666–73. 185 See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947). 186 In re Factor VIII or IX Concentrate Blood Prods. Litig. (Abad v. Bayer Corp.) (Abad I), 408 F. Supp. 2d 957, 982 (N.D. Ill. 2008); In Re: Bridge Stone/Firestone, Inc. Tire Products Liability Litigation [sic] (Pastor), No. IP-04-C- 5796-B/S, slip op. at 32 (S.D. Ind. Jan. 31, 2007), available at http://www.insd.uscourts.gov/Firestone/bf_docs/93743722.pdf.

26 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 inevitably arise anytime that the parties involved originate from different countries. In both Abad I and Pastor, the plaintiffs’ choice to bring suit in the United States cannot be said undoubtedly to have vexed, harassed, or oppressed the corporate defendants. Under the formulation of the doctrine as expressed in Gilbert, the plaintiffs’ choice of the United States as a forum arguably did not impose a sufficiently heavy burden on the defendants to justify dismissal. Even on the international level, there is a growing consensus that a forum non conveniens dismissal is not warranted merely because the plaintiff’s choice of forum inconveniences the defendant. For example, in 2001, the Hague Conference on Private International Law attempted to resolve the civil law and common law approaches to forum selection.187 In civil law countries like Argentina, once a court determines that it has jurisdiction over a case, it is assumed that the jurisdiction should be exercised.188 The civil law approach differs starkly from the common law approach, which focuses on determining which forum is the most proper.189 To unify these approaches, the Conference proposed that

In exceptional circumstances . . . the court may, on application by a party, suspend its proceedings in that case if it is clearly inappropriate for that court to exercise jurisdiction and if a court of another State has jurisdiction and is clearly more appropriate to resolve the dispute . . . .

The court shall take into account, in particular – a) any inconvenience to the parties in view of their habitual residence;

187 Ronald A. Brand & Scott R. Jablonski, FORUM NON CONVENIENS: HISTORY, GLOBAL PRACTICE, AND FUTURE UNDER THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTS 148–49 (2007). 188 Id. 189 Id.

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b) the nature and location of the evidence, including documents and witnesses, and the procedures for obtaining such evidence; c) applicable limitation or prescription periods; d) the possibility of obtaining recognition and enforcement of any decision on the merits. []In deciding whether to suspend the proceedings, a court shall not discriminate on the basis of the nationality or habitual residence of the parties.190

Like the Gilbert Court, the Hague Convention envisioned the forum non conveniens doctrine to apply only in those rare or “exceptional” cases in which trying the case in the plaintiff’s chosen forum would be “clearly inappropriate.”191 The Convention’s proposed rule even goes so far as to prohibit courts from giving more deference to a local plaintiff’s choice of forum than a foreign plaintiff.192 The Convention’s approach aligns with Gilbert because it places a greater burden on the defendant than currently is applied under Supreme Court precedent.193 Although the distinction is subtle, the proper inquiry, as expressed in both Gilbert and the Hague Convention, should be whether the U.S. forum is so clearly inconvenient for the defendant or court that dismissal is warranted.194 If the foreign plaintiff can satisfy venue and

190 HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, COMMISSION II ON JURISDICTION & FOREIGN JUDGMENTS IN CIVIL & COMMERCIAL MATTERS, SUMMARY OF THE OUTCOME OF THE DISCUSSION IN COMMISSION II OF THE FIRST PART OF THE DIPLOMATIC CONFERENCE 6–20 JUNE 2001: INTERIM TEXT 20 (2001) (numbering omitted), available at http://www.hcch.net/upload/wop/jdgm2001draft_e.pdf (last visited Dec. 2, 2009), reprinted in Hague Conference on Private International Law Commission II, 77 CHI.-KENT L. REV. 1015, 1040 (2002). 191 Id. 192 Id. 193 Brand, supra note 187, at 157. 194 See HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, supra note 190, at 20; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947).

28 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 jurisdiction requirements, the U.S. court should retain its jurisdiction and hear the case unless the plaintiff’s choice of forum imposes a threshold level of hardship on the defendant or court. Defendants’ abuse of the forum non conveniens doctrine serves as evidence that the doctrine has strayed from Gilbert. In practice, defendants have a relatively easy time obtaining a forum non conveniens dismissal of cases that have significant contacts with the United States, just as Justice Black foretold in his Gilbert dissent.195 The doctrine has become a powerful tool for defendants, and is criticized for providing defendants with the opportunity to engage in reverse forum shopping.196 One commentator asserts that U.S. corporations have “bastardized” the doctrine by increasingly trying to remove a foreign plaintiff’s case to a foreign jurisdiction where U.S products liability laws, which favor plaintiffs, do not extend.197 Another problem with abandoning the Gilbert articulation of the doctrine is that U.S. courts improperly assume that a foreign plaintiff can bring a subsequent suit in the foreign forum after the U.S. case is dismissed on forum non conveniens grounds. However, in reality a forum non conveniens dismissal often operates as a kiss of death. One commentator, David Robertson, has studied the subsequent history of foreign plaintiffs’ cases that were dismissed from U.S. courts on forum non conveniens grounds.198 His research revealed that the vast majority of these dismissed cases were not pursued further, or were settled for a fraction of the value that an American jury could have awarded.199 Robertson argued that in most cases the application of the forum non conveniens doctrine is outcome-determinative, even if the judge attaches many conditions to the dismissal.200 As a consequence, a forum non conveniens dismissal plausibly can leave foreign plaintiffs with no adequate redress for their injury. In light of

195 See Gilbert, 330 U.S. at 515–16 (Black, J., dissenting). 196 Freedman, supra note 21, at 28. 197 Id. 198 Robertson, supra note 29, at 418–19. 199 Id. at 419–20. 200 Id. at 408–09.

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Robertson’s research, the Seventh Circuit’s framework of analysis that permits dismissal if the foreign forum is merely more convenient than the U.S. court seems flawed.

B. Use a Nation-to-Nation Analysis of the Relative Interests

The Seventh Circuit also can promote uniformity and predictability amongst district courts applying the Gilbert public interest factors to a foreign plaintiff’s case by ensuring that courts consistently adopt a nation-to-nation approach when analyzing local interests. One of the starkest differences between the district courts’ analyses in Abad I and Pastor arose during each court’s comparison of the local interests in hearing the cases.201 While the Pastor court specifically noted that its inquiry would compare the national interests of Argentina to the United States, the Abad I court compared Argentina’s interests to that of states where the plaintiffs originally filed suit.202 Predictably, this distinction created two very different frameworks for the courts’ analysis. A state-to-nation analysis of the Gilbert factors improperly narrows the scope of the court’s analysis. This method fails to consider the larger public interests that support hearing a foreign plaintiffs’ case in a U.S. federal court. As Professor Elizabeth T. Lear notes, “[a] forum non conveniens decision pits a foreign forum against an American forum. State interests should be irrelevant here; the alternative forum is foreign. Our national interests in adjudicating the dispute are at stake.”203 In mass tort cases such as those addressed in Abad II, the United States has a strong interest in safeguarding the health of its citizens, which in aggregate is much stronger than that of

201 See In re Factor VIII or IX Concentrate Blood Prods. Litig. (Abad v. Bayer Corp.) (Abad I), 408 F. Supp. 2d 957, 978 (N.D. Ill. 2008); In Re: Bridge Stone/Firestone, Inc. Tire Products Liability Litigation [sic] (Pastor), No. IP-04-C- 5796-B/S, slip op. at 20 n.16 (S.D. Ind. Jan. 31, 2007), available at http://www.insd.uscourts.gov/Firestone/bf_docs/93743722.pdf. 202 Abad I, 408 F. Supp. 2d at 978; Pastor, slip op. at 20 n.16. 203 Lear, supra note 24, at 569–70.

30 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 an individual state. Narrowly taking into account only the states’ interest fails to account for such interests. In addition to engaging in a nation-to-nation comparison, the Seventh Circuit also should ensure that districts courts consider the deterrence effect that litigating a foreign plaintiff’s claim can have on U.S. corporations. Ignoring this interest, both district courts in Abad II focused only on the state or national interest in regulating U.S. corporations and did not consider this broader national interest at stake.204 Rather shockingly, in Abad II the Seventh Circuit declined to consider whether national interests were implicated because neither the U.S. nor Argentine government intervened in the case and announced that it had an interest in hearing the case.205 Despite Justice Marshall’s position in Piper that U.S. citizens’ interest in having a foreign plaintiff’s case litigated in a U.S. court only minimally deters U.S. corporations from producing defective products,206 prior mass tort situations indicate otherwise. For example, the Bridgestone/Firestone and Ford rollover controversy illustrates how a nation-to-nation comparison that recognizes a U.S. interest in a foreign plaintiff’s product liability claim could have prevented countless injuries in the United States. Professor Lear posits that multinational corporations like Bridgestone/Firestone and Ford seem to evade liability for a large proportion of foreign accidents, which allows them to absorb the costs of many U.S. injuries before having to fix a defective product.207 In the rollover controversy, Bridgestone/Firestone and Ford apparently were aware of the tire and rollover problem seven years before a recall occurred in the United States, and the recall was initiated only after a large number of lawsuits were filed.208 However, Ford recalled and offered to repair or

204 Abad I, 408 F. Supp. 2d at 978; Pastor, slip op. at 29. 205 Abad v. Bayer Corp. (Abad II), 563 F.3d 663, 668 (7th Cir. 2009). 206 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260–61 (1981). 207 See Lear, supra note 24, at 574. 208 Id. at 576.

31 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 replace the tires in all Ford Explorers in Venezuela, Ecuador, and Colombia three years before the U.S. recall.209 Permitting foreign plaintiffs to litigate their claims in the United States could have shed light on the defects years earlier. One look at a newspaper proves that litigation attracts the attention of the U.S. press, and raises the awareness of U.S. consumers.210 Such attention could have pushed the defendants to recall the cars in the United States years earlier. This example illustrates that refusing to hear a foreign plaintiff’s claim can cause indirect harm to U.S. consumers. By adopting a nation-to-nation approach, the Seventh Circuit can ensure that district courts consistently apply this public interest factor and consider all relevant national interests.

C. Adopt the Sliding Scale Approach to the Less Deference Rule

By also adopting the Second Circuit’s sliding scale approach to the less deference rule, the Seventh Circuit can ensure that district courts apply the Gilbert factors consistently. The vastly different approaches in Abad I and Pastor illustrate the difficulty that district courts have in determining how much deference to give a foreign plaintiff’s choice of forum under Piper.211 In both cases, the district court stated that, according to Piper, a foreign plaintiff’s choice of forum is entitled to less of a presumption of convenience, or less deference, if the plaintiff does not sue in his or her home forum.212 The Abad I court adopted this rule virtually unchanged, stating that the court’s deference to the Argentine plaintiffs’ choice of forum applied with less force.213 In contrast, the Pastor court determined that, as a consequence of Argentina’s ratification of the International Covenant on Civil and Political Rights, the Argentine plaintiffs were entitled to the same deference regarding their choice of forum as U.S. citizens

209 Id. 210 Id. at 578. 211 See Abad I, 408 F. Supp. 2d at 972; Pastor, slip op. at 19. 212 Abad I, 408 F. Supp. 2d at 972; Pastor, slip op. at 19. 213 Abad I, 408 F. Supp. 2d at 972.

32 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 and residents.214 Accordingly, the court stated that it would apply a “neutral rule” when comparing the relative convenience of the parties.215 Notably, both Argentina and the United States ratified the International Covenant on Civil and Political Rights years before both Abad I and Pastor arose, yet the treaty’s effect on forum non conveniens analysis is discussed only in Pastor.216 By affirming both cases, the Seventh Circuit endorsed two conflicting approaches, while simultaneously degrading the presumption into merely a tiebreaker.217 Rather than continue to carve out exceptions to the default rule that a domestic plaintiffs’ choice of forum is entitled to substantial deference, the Seventh Circuit should adopt the Second Circuit’s “sliding scale” approach. In Iragorri v. United Technologies Corp., the Second Circuit rejected the notion that whether a plaintiff’s choice of forum is entitled to deference depends upon the plaintiff’s status as foreigner or U.S. citizen or resident alone.218 Rather, the court stated that

the greater the plaintiff’s or the lawsuit’s bona fide connection to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be for the defendant to gain dismissal for forum non conveniens. . . . On the other hand, the more it

214 Pastor, slip op. at 19. The Pastor court’s use of a “treaty exception” to the less deference rule is nothing new. The Second Circuit endorsed the use of such an exception if a treaty guarantees equal court access in Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880 (2d Cir. 1978). The court stated that the less deference rule should not apply when “a treaty between the United States and the foreign plaintiff’s country allows nationals of both countries access to each country’s courts on terms no less favorable than those applicable to nationals of the court’s country.” Id. at 882. 215 Pastor, slip op. at 19. 216 See International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171, available at http://www2.ohchr.org/English/law/ccpr.htm. 217 Abad v. Bayer Corp. (Abad II), 563 F.3d 663, 667 (7th Cir. 2009). 218 274 F.3d 65, 71–72 (2d Cir. 2001).

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appears that the plaintiff’s choice of forum was motivated by forum-shopping reasons . . . the less deference the plaintiff’s choice commands and, consequently, the easier it becomes for the defendant to succeed on a forum non conveniens motion . . . .219

After determining whether the plaintiff’s choice of forum is entitled to more or less deference, the Second Circuit still requires district courts to conduct the required forum non conveniens analysis under Gilbert, Koster, and Piper.220 The Second Circuit’s sliding scale approach provides a flexible alternative to the less deference rule. The approach does not disadvantage foreign plaintiffs merely because of their status as foreigners; instead, the Second Circuit requires district courts to view the plaintiff’s choice of forum in light of all of the surrounding circumstances.221 This approach furthers the purpose of the forum non conveniens doctrine because it eliminates categorical discrimination against foreign plaintiffs, yet trial courts still retain the discretion to raise an eyebrow at suspicious and perhaps forum shopping plaintiffs. The Second Circuit is not the only court to express disapproval of the rigid less deference rule. For example, in Myers v. Boeing Co., the Supreme Court of the state of Washington declined to adopt the less deference rule.222 The court reasoned that the rule from Piper reflected the views of only four Justices and “consist[ed] of a few conclusory sentences with no supportive analysis or reasoning.”223 Aside from questioning the rule’s support in Piper, the Myers court also raised substantive objections to the less deference rule.224 The court stated that the less deference rule purported to give less deference to a

219 Id. at 72 (footnotes and italics omitted). 220 Id. at 73. 221 See id. at 73 (stating that a district court “must consider a plaintiff’s likely motivations in light of all of the relevant indications”). 222 794 P.2d 1272, 1280 (Wash. 1990). 223 Id. 224 See id. at 1280–81.

34 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 foreign plaintiffs’ choice of forum, but in practice gives less deference to foreign plaintiffs themselves solely because of their status as foreigners.225 As a consequence, the less deference rule raised xenophobia concerns.226 Finally, the court explained that it declined to adopt the less deference rule because it simply was not necessary.227 The court reasoned that the Gilbert factors could lead to fair and equitable results that balance the conveniences based on the foreign plaintiff’s choice of forum, without relying on his or her status as a foreigner.228 Like the Myers court, the Seventh Circuit has also expressed its disdain for discriminating against foreign plaintiffs based on their status alone. For example, in Abad II, the court stated that it agreed with the Argentine plaintiffs that foreign plaintiffs have the same rights in an American court as an American citizen.229 Yet the Seventh Circuit’s current application of the Piper less deference rule unchanged maintains such discrimination in practice. So long as a plaintiff is foreign, the choice of a forum that is not the plaintiff’s home forum automatically receives less deference. The Seventh Circuit should adopt the Second Circuit’s sliding scale approach because it permits district courts to take into account the totality of the circumstances, such as existing treaty relations, when determining whether a plaintiff’s choice of forum is entitled to a presumption of convenience. The desire to promote consistent application of U.S. justice should be a valid reason to retain jurisdiction over a foreign plaintiff’s case.230 Applying the Second Circuit’s approach, which would not discriminate against foreign plaintiffs, ensures that courts in the Seventh Circuit reach fair and just results.

225 Id. at 1281. 226 Id. 227 Id. 228 Id. 229 Abad v. Bayer Corp. (Abad II), 563 F.3d 663, 666 (7th Cir. 2009). 230 Freedman, supra note 21, at 84.

35 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009

D. Ignore Defendants’ Willingness to Make Concessions

Lastly, the Seventh Circuit should instruct district courts that the defendants’ willingness to make concessions should not influence the courts’ decision whether or not to grant the forum non conveniens dismissal. The district court’s decision in Pastor illustrates the extent to which such concessions can help defendants tip the scale in favor of dismissal.231 In Pastor, the district court repeatedly noted the defendants’ willingness to make the alternative forum, Argentina, more convenient.232 The court’s analysis was influenced by the defendants’ agreement that, as a condition of dismissal, they would provide the plaintiffs with access to all materials discovered through the MDL proceedings, ensure that all witnesses affiliated with the defendants would be willing to testify in Argentina, and comply with the judgment of an Argentine court. 233 Two problems arise when courts give weight to defendants’ concessions towards granting the forum non conveniens dismissal. First, this approach gives defendants an incentive to concede on issues that the defendant does not have the authority to concede. For instance, in Pastor the defendants promised that if the forum non conveniens dismissal was granted, it would make critical evidence and witnesses available to the plaintiffs in an Argentine court.234 This concession implicitly acknowledged that dismissal on forum non conveniens grounds would disadvantage the plaintiffs’ access to certain evidence in an Argentine court. However, whether this evidence would be admissible in an Argentine court is a matter of Argentine law, not the defendants’ discretion. Even if a defendant agrees to concede on certain issues, a foreign court is not bound to honor those concessions. Moreover, for some evidence this created an

231 See In Re: Bridge Stone/Firestone, Inc. Tire Products Liability Litigation [sic] (Pastor), No. IP-04-C-5796-B/S, slip op. at 21, 25, 27 (S.D. Ind. Jan. 31, 2007), available at http://www.insd.uscourts.gov/Firestone/bf_docs/93743722.pdf. 232 Id. 233 Id. 234 Id.

36 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 appearance of a concession, without actually making one, because the evidence would have been admitted into an Argentine court anyway. Thus defendants can use such concessions to create an appearance of helpful participation and perhaps appeal to the sympathies of the court without necessarily disadvantaging their own position. Second, this approach can give wealthy defendants an advantage, particularly in products liability cases like Abad I and Pastor. As Pastor illustrated, a defendant who is willing to pay the costs of transporting witnesses to Argentina can make such a concession, while a defendant who is an individual or small company cannot.235 Thus, the Seventh Circuit should ensure that district courts do not take defendants’ willingness to make concessions into account when weighing the Gilbert factors.

CONCLUSION

Absent a ruling from the Supreme Court, federal courts addressing the forum non conveniens doctrine will continue to apply the Gilbert factors haphazardly. Through the relatively modest changes proposed in this note, the Seventh Circuit can ensure that district courts apply the factors consistently and reach more uniform results.

235 Id. at 25 (stating that the defendants assured the court that all U.S. witnesses affiliated with the defendants would be available to testify in an Argentine court).

37 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009

RAISING THE BAR: HOW THE SEVENTH CIRCUIT NEARLY STRUCK DOWN THE DIPLOMA PRIVILEGE UNDER THE DORMANT COMMERCE CLAUSE

* PAUL C. HUDDLE

Cite as: Paul C. Huddle, Comment, Raising the Bar: How the Seventh Circuit Nearly Struck Down the Diploma Privilege Under the Dormant Commerce Clause, 5 SEVENTH CIRCUIT REV. 38 (2009), http://www.kentlaw.edu/7cr/v5-1/huddle.pdf.

INTRODUCTION

The dormant Commerce Clause and state bar admission rules are in conflict. On the one hand, the dormant Commerce Clause prohibits states from engaging in economic protectionism.1 On the other hand, states design bar admission rules in large part to promote the economic interests of in-state lawyers.2 Courts have nonetheless deferred to state licensing restrictions on the practice of law.3 One common licensing restriction is the bar examination—a form of economic protectionism.4 Most states require prospective lawyers to take and pass their bar examination.5 Wisconsin, however, allows certain law school

* J.D. candidate, May 2010, Chicago-Kent College of Law, Illinois Institute of Technology; B.S., 2007, Iowa State University. 1 New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273 (1988). 2 Andrew M. Perlman, A Bar Against Competition: The Unconstitutionality of Admission Rules For Out-of-State Lawyers, 18 GEO. J. LEGAL ETHICS 135, 146–50 (2004). 3 See Leis v. Flynt, 439 U.S. 438, 442 (1979) (per curiam). 4 Michael J. Thomas, The American Lawyer’s Next Hurdle: The State-Based Bar Examination System, 24 J. LEGAL PROF. 235, 249 (2000). 5 See NATIONAL CONFERENCE OF BAR EXAMINERS & AMERICAN BAR ASSOCIATION SECTION OF LEGAL EDUCATION & ADMISSIONS TO THE BAR, COMPREHENSIVE GUIDE TO BAR ADMISSION REQUIREMENTS 2009,

38 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 graduates admission to the Wisconsin bar by virtue of the diploma privilege.6 Put simply, the Wisconsin diploma privilege grants graduates of both the University of Wisconsin Law School and Marquette University Law School admission to the Wisconsin bar without examination.7 Not only do recipients of the diploma privilege avoid the bar examination, but they also incur fewer expenses compared to bar exam applicants who prudently enroll in a bar review course. Unlike graduates of the two Wisconsin law schools, graduates of other ABA-accredited law schools who desire to practice in Wisconsin must take and pass the Wisconsin bar examination.8 In Wiesmueller v. Kosobucki, a law student at a non-Wisconsin law school challenged the Wisconsin diploma privilege under the Commerce Clause of the United States Constitution.9 Because the activities of lawyers play an important part in commercial intercourse,10 the diploma privilege must comply with the constraints of the Commerce Clause.11 This comment considers whether the Wisconsin diploma privilege impermissibly constrains the mobility of lawyers in violation of the Commerce Clause.12 Part I sketches the contextual background of both the diploma privilege and the dormant Commerce Clause. Part II reviews the facts, procedural history, and reasoning of the Seventh http://www.ncbex.org/fileadmin/mediafiles/downloads/Comp_Guide/CompGuide_2 009.pdf. 6 See WIS. SUP. CT. R. 40.03. 7 See WIS. SUP. CT. R. 40.03. 8 See WIS. SUP. CT. R. 40.04. 9 571 F.3d 699, 701 (7th Cir. 2009). 10 Supreme Court of N.H. v. Piper, 470 U.S. 274, 281 (1985) (quoting Goldfarb v. Va. State Bar, 421 U.S. 773, 788 (1975)). 11 See Scariano v. Justices of Supreme Court of State of Ind., 38 F.3d 920, 923 (7th Cir. 1994). 12 Recent law graduates can gain admission to the Wisconsin bar by virtue of the diploma privilege or through the Wisconsin bar examination. WIS. SUP. CT. R. 40.03–04. Also, licensed attorneys who satisfy the proof of practice elsewhere requirement can gain admission to the Wisconsin bar without examination. WIS. SUP. CT. R. 40.05. This comment focuses on the admission procedures available to recent law graduates.

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Circuit’s opinion in Wiesmueller v. Kosobucki. Part III discusses the effects of the diploma privilege on Wisconsin and argues that the state does not arbitrarily discriminate between beneficiaries and non- beneficiaries of the diploma privilege. Finally, Part III subjects the diploma privilege to the Pike balancing test and argues that adversely affected in-state interests guarantee that the diploma privilege is no more burdensome than is necessary to achieve its intended purpose.

I. GENERAL CONTEXT: THE DIPLOMA PRIVILEGE AND THE DORMANT COMMERCE CLAUSE

A. The Diploma Privilege

In 1842, Virginia enacted the first diploma privilege statute that allowed graduates of two Virginia law schools—William and Mary College and the University of Virginia—admission to the Virginia bar without examination.13 Initially, many law schools favored the diploma privilege as a means to entice prospective students to obtain a formal legal education.14 Since 1842, thirty-two states and the District of Columbia have granted one of three variations of the diploma privilege: a universal diploma privilege, in which the state admits graduates from any United States law school; a state university diploma privilege, in which the state admits only graduates of the state’s law school; or a statewide diploma privilege, in which the state admits graduates of any law school within the state.15 In 1870, shortly after the University of Wisconsin established a law school, the Wisconsin state legislature enacted a provision conferring the diploma privilege on graduates of the state university.16 Two different theories have been advanced for this enactment. One

13 Thomas W. Goldman, Use of the Diploma Privilege in the United States, 10 TULSA L.J. 36, 39 (1974) [hereinafter Thomas Goldman]. 14 Id. 15 Beverly Moran, The Wisconsin Diploma Privilege: Try It, You’ll Like It, 2000 WIS. L. REV. 645, 646 (2000). 16 Richard A. Stack, Jr., Commentary, Admission upon Diploma to the Wisconsin Bar, 58 MARQ. L. REV. 109, 118 (1975).

40 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 theory proposes that Wisconsin sought to attract students to the University of Wisconsin who were flocking to Michigan.17 Another plausible explanation rests on Wisconsin’s preference for formal training over the minimal amount required to satisfy the in-court oral examination then in existence.18 In 1897, the Wisconsin state legislature abandoned the state university diploma privilege and enacted a universal diploma privilege.19 This provision was short-lived and, in 1903, the Wisconsin state legislature returned to a state university privilege.20 Following the repeal of a nationwide privilege, law school graduates could gain admission to the Wisconsin bar in one of three ways: (1) by virtue of a diploma from the law school at the University of Wisconsin; (2) through the state bar examination; or (3) by proof of practice elsewhere for five of the prior eight years in another jurisdiction.21 In 1933, despite opposition from the faculty at Marquette University Law School,22 the Wisconsin state legislature extended the diploma privilege to Marquette graduates.23 As bar associations mobilized in the early and mid-1900s, state interest in the diploma privilege steadily declined.24 In 1921, the American Bar Association formally denounced the diploma privilege, stating: “[t]he American Bar Association is of the opinion that graduation from a law school should not confer the right of admission to the bar, and that every candidate should be subjected to an

17 John McDill Fox, Preface to Carl Zollman, Diploma Privilege in Wisconsin, 11 MARQ. L. REV. 73, 73 (1927). 18 See Moran, supra note 15, at 646; Stack, supra note 16, at 118 n.28. 19 Stack, supra note 16, at 119. 20 Id. 21 In re Admission of Certain Persons to the Bar, 247 N.W. 877, 877 (Wis. 1933) (per curiam). 22 Carl Zollman, Diploma Privilege in Wisconsin, 11 MARQ. L. REV. 73, 78 (1927). 23 Stack, supra note 16, at 118 n.28. 24 In 1917, twenty-two schools honored the diploma privilege. Thomas Goldman, supra note 13, at 41. By 1948, only thirteen schools honored the diploma privilege. Id. at 42.

41 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 examination by public authority to determine his fitness.”25 Presumably, many states ceased honoring the diploma privilege out of a fear of losing ABA-accreditation.26 Despite opposition from the American Bar Association, the Wisconsin Supreme Court maintained confidence in the state’s two law schools and retained the diploma privilege.27 In 1954, the Legal Education and Bar Admissions Committee of the Wisconsin Bar Association conducted a thorough study to determine whether the Wisconsin diploma privilege was detrimental to the training and education of lawyers at the two Wisconsin law schools.28 The committee voted in favor of retaining the diploma privilege.29 Most notably, the committee determined that law school faculty were in a better position to test and evaluate an applicant’s qualifications for the practice of law than an examining board; that a change in the diploma privilege would lower present teaching standards by requiring an undue emphasis on bar examination preparation; and that education in Wisconsin ranked high nationally, both in terms of legal education and professional competency.30 Like other states, regulating admission to the practice of law in Wisconsin vests exclusively in the state supreme court.31 Wisconsin’s diploma privilege remained virtually unchanged until the Wisconsin Supreme Court proposed stricter graduation requirements for the two Wisconsin law schools in 1971.32 Before the proposal, graduates of the two Wisconsin law schools gained admission to the Wisconsin bar

25 Id. at 41. The American Bar Association and the National Conference of Bar Examiners reaffirmed this position in 1971. Daniel R. Hansen, Note, Do We Need the Bar Examination? A Critical Evaluation of the Justifications for the Bar Examination and Proposed Alternatives, 45 CASE W. RES. L. REV. 1191, 1201 (1995). 26 See In re Yanni, 697 N.W.2d 394, 400 n.7 (S.D. 2005). 27 Stack, supra note 16, at 123. 28 Id. at 123–24. 29 Id. at 124. 30 Id. at 124–125. 31 State ex rel. State Bar of Wis. v. Keller, 114 N.W.2d 796, 801 (Wis. 1962), vacated, 374 U.S. 102 (1963); see also WIS. CONST. art. VII, § 3. 32 Moran, supra note 15, at 649.

42 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 simply by earning a diploma.33 In 1971, the Wisconsin Supreme Court repealed and recreated the diploma privilege rule.34 After additions to the rule by the Wisconsin Supreme Court in 1973,35 applicants seeking admission to the Wisconsin bar by virtue of the diploma privilege were now required to complete the thirty-credit and sixty-credit rules,36 for a minimum of eighty-four credits.37 The thirty-credit and sixty-credit rules ensure that students seeking admission to the practice of law in Wisconsin by virtue of the diploma privilege take certain courses that prepare them to be competent attorneys.38 Under the sixty-credit rule, applicants must complete a minimum of sixty semester credits in an enumerated list of about thirty subjects.39 Further, applicants must satisfy the thirty-credit rule, which requires completion of at least thirty of the sixty semester credits in ten subject matter areas.40 Diploma privilege applicants must complete the mandatory and elective credits in “law school courses having as their primary and direct purpose the study of rules and principles of substantive and procedural law as they may arise in the

33 See WIS. STAT. § 256.28 (1969) (repealed 1971). 34 See WIS. STAT. § 256.28 (1971). 35 Peter K. Rofes, Mandatory Obsolescence: The Thirty Credit Rule and the Wisconsin Supreme Court, 82 MARQ. L. REV. 787, 806 n.57 (1999). 36 See WIS. SUP. CT. R. 40.03. 37 See WIS. SUP. CT. R. 40.03(1). 38 Lorenzo A. Trujillo, The Relationship Between Law School and the Bar Exam: A Look at Assessment and Student Success, 78 U. COLO. L. REV. 69, 95 (2007). 39 WIS. SUP. CT. R. 40.03(2)(a). The subjects are administrative law, appellate practice and procedure, commercial transactions, conflict of laws, constitutional law, contracts, corporations, creditors’ rights, criminal law and procedure, damages, domestic relations, equity, evidence, future interests, insurance, jurisdiction of courts, legislation, labor law, ethics and legal responsibilities of the profession, partnership, personal property, pleading and practice, public utilities, quasi-contracts, real property, taxation, torts, trade regulation, trusts, and wills and estates. Id. 40 WIS. SUP. CT. R. 40.03(2)(b). The subjects are constitutional law, contracts, criminal law and procedure, evidence, jurisdiction of courts, ethics and legal responsibilities of the legal profession, pleading and practice, real property, torts, and wills and estates. Id.

43 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 courts and administrative agencies of the United States and this state.”41 The thirty-credit and sixty-credit rules represented a major shift in the diploma privilege. In 1971, three other states—Mississippi, Montana, and West Virginia—honored the diploma privilege.42 Admission to the practice of law in these states by virtue of the diploma privilege merely required the production of a diploma.43 By contrast, the Wisconsin Supreme Court imposed mandatory and elective curriculum requirements on diploma privilege applicants.44 Quite simply, “Wisconsin has the most restrictive diploma privilege [rule] ever written.”45 Today, Wisconsin remains the only state to honor the diploma privilege.46 Wisconsin also grants licensure to applicants who demonstrate legal competency through the bar examination or proof of practice elsewhere.47 The proof of practice elsewhere rule requires applicants to have practiced law for three of the prior five years in another jurisdiction which has reciprocity with Wisconsin.48 Applicants seeking admission to the Wisconsin bar through the state bar examination or proof of practice elsewhere are not subject to the thirty-credit and sixty credit rules.49

41 WIS. SUP. CT. R. 40.03(2). 42 Thomas Goldman, supra note 13, at 42. 43 Id. 44 See WIS. SUP. CT. R. 40.03. 45 Thomas Goldman, supra note 13, at 42. 46 Trujillo, supra note 38, at 94. In 2006, Franklin Pierce Law Center in New Hampshire implemented an alternative licensure program similar to the Wisconsin diploma privilege. Id. Students who complete this program may gain admission to the practice of law in New Hampshire without taking the full bar examination. Id. 47 See WIS. SUP. CT. R. 40.04–05. 48 WIS. SUP. CT. R. 40.05. 49 See WIS. SUP. CT. R. 40.04–05.

44 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009

B. The Dormant Commerce Clause

The Commerce Clause of the United States Constitution empowers Congress “[t]o regulate Commerce . . . among the several States.”50 By its terms, the Commerce Clause is a grant of authority to Congress, not an explicit limitation on the power of the States.51 However, the United States Supreme Court has recognized that the Commerce Clause also contains an implied limitation on the power of the States to interfere with or impose burdens on interstate commerce.52 This negative implication is known as the dormant Commerce Clause.53 Despite the lack of explicit textual justification for the dormant Commerce Clause in the Constitution, the decisions of the United States Supreme Court on this point reflect “a course of adjudication unbroken though the Nation’s history.”54 The fundamental objective of the dormant Commerce Clause is to preserve a national market for competition undisturbed by state regulatory measures that benefit in-state economic interests by burdening out-of-state competitors.55 In short, the dormant Commerce Clause prohibits economic protectionism.56 Justice Jackson’s famous words illustrate the central importance of federal control over interstate and foreign commerce:

Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his

50 U.S. CONST. art. I, § 8, cl. 3. 51 United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338 (2007). 52 See, e.g., Welton v. State of Mo., 91 U.S. 275, 280–82 (1875); Cooley v. Board of Wardens, 53 U.S. 299, 318–19 (1851). 53 United Haulers Ass’n, Inc., 550 U.S. at 338. 54 Freeman v. Hewit, 329 U.S. 249, 252 (1946). 55 Gen. Motors Corp. v. Tracy, 519 U.S. 278, 298 (1997). 56 New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273 (1988).

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exports, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality.57

Still, the dormant Commerce Clause does not invalidate all state restrictions on commerce relating to the health, life, and safety of their citizens, even though the legislation might incidentally affect national commerce.58 Consistent with these principles, the United States Supreme Court has adopted a two-tiered approach to analyzing state economic regulation under the dormant Commerce Clause.59 When a state statute directly regulates or discriminates60 against interstate commerce, or when the statute’s effect favors in-state economic interests over out-of-state interests, the Court generally strikes down the statute under a virtual per se rule of invalidity.61 The burden to show discrimination62 rests on the party challenging the validity of the statute.63 Once this burden is met, the state must demonstrate that a

57 H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 537, 539 (1949). 58 Gen. Motors Corp., 519 U.S. at 306. 59 Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 578–79 (1986). 60 The term “discrimination” means “differential treatment of in-state and out- of-state economic interests that benefits the former and burdens the latter.” Or.Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99 (1994). 61 See, e.g., Hughes v. Oklahoma, 441 U.S. 322, 338 (1979); City of Philadelphia v. New Jersey, 437 U.S. 617, 629 (1978). But see Maine v. Taylor, 477 U.S. 131, 151–52 (1986) (upholding Maine’s ban on the importation of live baitfish because the regulation, despite discriminating on its face against interstate trade, served legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives). 62 A state statute can constitute economic protectionism on proof of either discriminatory effect or discriminatory purpose. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471 n.15 (1981). 63 Hughes, 441 U.S. at 336.

46 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 legitimate local purpose cannot be adequately served by reasonable nondiscriminatory means.64 In effect, the Court applies strict scrutiny.65 In contrast, the Court applies less scrutiny when a state advances legitimate objectives for a nondiscriminatory regulation.66 The Court in Pike v. Bruce Church, Inc. articulated the general contours of the nondiscrimination standard:

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.67

For purposes of constitutional inquiry, courts treat judiciary-approved bar admission rules as legislation.68 The bifurcated approach to analyzing bar admission rules under the dormant Commerce Clause poses significant challenges to the judiciary because no clear line

64 Id. 65 See Or. Waste Sys., Inc., 511 U.S. at 101 (describing the first tier standard as the “strictest scrutiny”); C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 392 (1994) (describing the first tier standard as “rigorous scrutiny”); Taylor, 477 U.S. at 144 (describing the first tier standard as “the strictest scrutiny”). 66 See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 583 n.16 (1997) (referring to the Pike test as a more deferential standard); City of Philadelphia, 437 U.S. at 624 (referring to the Pike test as a much more flexible approach); Catherine Gage O’Grady, Targeting State Protectionism Instead of Interstate Discrimination Under the Dormant Commerce Clause, 34 SAN DIEGO L. REV. 571, 574 (1997) (describing the Pike test as a relaxed standard). 67 397 U.S. 137, 142 (1970) (citation omitted). 68 Scariano v. Justices of Supreme Court of State of Ind., 38 F.3d 920, 923 (7th Cir. 1994).

47 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 separates the category subject to the virtual per se invalid test and the category subject to the Pike balancing test.69 Applying the appropriate test ultimately requires consideration of the overall effect of the rule on both local and interstate activity.70

II. WIESMUELLER V. KOSOBUCKI

Christopher Wiesmueller attended Oklahoma City University School of Law, an ABA-accredited law school in Oklahoma City, Oklahoma.71 Unlike graduates of the two Wisconsin law schools, graduates of Oklahoma City University School of Law who desire to practice in Wisconsin must take and pass the Wisconsin bar examination.72 Prior to graduation, Wiesmueller commenced a civil action against the Director of the Wisconsin Board of Bar Examiners, John Kosobucki.73 He alleged that the Wisconsin diploma privilege, available to graduates of Wisconsin’s ABA-accredited law schools but not to graduates of other ABA-accredited law schools, deprived him of his rights secured under the Commerce Clause.74

A. The First District Court Opinion

In the district court, Wiesmueller filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, claiming that the diploma privilege discriminated against interstate commerce.75 Judge Shabaz of the United States District Court for the Western District of Wisconsin first analyzed whether Wisconsin’s diploma

69 Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986). 70 Id. 71 Wiesmueller v. Kosubucki [sic], 492 F. Supp. 2d 1036, 1037 (W.D. Wis. 2007). 72 Id. at 1038. 73 Id. Wiesmueller also named as defendants members of both the Wisconsin Board of Bar Examiners and the Wisconsin Supreme Court. Id. at 1037–38. 74 Id. at 1037. 75 Id.

48 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 privilege discriminated against interstate commerce or regulated evenhandedly with only incidental effects on interstate commerce.76 He reasoned that the rule treated residents and non-residents alike and did not discriminate against interstate commerce.77 Having found an even-handed regulation, Judge Shabaz then considered whether the burden imposed on interstate commerce was clearly excessive in relation to the putative local benefits.78 He reasoned that requiring graduates of law schools not in Wisconsin to show their familiarity with Wisconsin law was reasonable in light of Wisconsin’s interest in regulating the legal profession.79 Further, without any discussion, Judge Shabaz concluded that, based on the reasoning in Sestric v. Clark80 and Scariano v. Justices of Supreme Court of State of Indiana,81 requiring graduates of all law schools to take the state bar examination except graduates of the two Wisconsin law schools did not violate the Commerce Clause.82 The district court denied Wiesmueller’s motion for summary judgment.83 About one week later, Judge Shabaz entertained the defendants’ motion to dismiss Wiesmueller’s complaint on the pleadings.84 Having found that the Wisconsin bar admission rules did not violate the Commerce Clause, Judge Shabaz determined that the defendants were entitled to judgment as a matter of law and granted their motion to dismiss.85 Additionally, Judge Shabaz denied as moot Wiesmueller’s

76 Id. at 1038. 77 Id. 78 Id. at 1039 (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). 79 Id. 80 765 F.2d 655 (7th Cir. 1985). 81 38 F.3d 920 (7th Cir. 1994). 82 Wiesmueller, 492 F. Supp. 2d at 1039. 83 Id. 84 Weismueller [sic] v. Kosubucki [sic], No. 07-C-211-S, 2007 WL 4882649, at *1 (W.D. Wis. June 28, 2007). 85 Id.

49 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 pending motion to certify a class action.86 Wiesmueller appealed the district court’s judgment.87

B. The First Seventh Circuit Opinion

Shortly after filing his notice of appeal, Wiesmueller passed the Wisconsin bar examination; consequently, the Seventh Circuit dismissed his claims as moot because the object of his suit—licensure in Wisconsin—was now attained.88 Nonetheless, the Seventh Circuit held that Wiesmueller could appeal the district court’s denial of class certification, which was not moot because “if a class is certified, its members (unless they opt out of the class), and not just the named plaintiff, are bound by the judgment.”89 The Seventh Circuit determined that the district court failed to consider whether the proposed class met the criteria set forth in Federal Rule of Civil Procedure 23.90 According to the Seventh Circuit, the district court never ruled on the merits of the motion for class certification because it erroneously assumed that ruling on the merits of the suit rendered the motion moot.91 The Seventh Circuit reversed the district court’s denial of class certification and remanded the case for further proceedings.92

C. The Second District Court Opinion

Following the first decision in the Seventh Circuit, Corrine Wiesmueller and Heather Devan, two Wisconsin residents who recently graduated from Oklahoma City University School of Law,

86 Id. 87 Wiesmueller v. Kosobucki, 513 F.3d 784, 785 (7th Cir. 2008). 88 Id. 89 Id. at 786. 90 Id. at 787. Federal Rule of Civil Procedure 23 governs class action law suits. See FED. R. CIV. P. 23. 91 Wiesmueller, 513 F.3d at 787. 92 Id.

50 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 intervened as plaintiffs.93 Christopher Wiesmueller withdrew as a plaintiff and appeared as attorney for the newly substituted plaintiffs.94 On remand, Judge Crabb of the United States District Court for the Western District of Wisconsin confined the court’s review to whether a class should be certified for purposes of pursuing an appeal of the prior district court’s order dismissing the plaintiffs’ claims.95 She determined that the plaintiffs satisfied the requirements for class certification under Federal Rule of Civil Procedure 23; thus, Judge Crabb certified the plaintiffs’ proposed class.96 Judge Crabb also dismissed the plaintiffs’ Commerce Clause challenge on the basis of the first district court’s opinion.97 The plaintiffs appealed.98

D. The Second Seventh Circuit Opinion

Writing for the panel, Judge Posner first considered whether the plaintiffs lacked standing to sue.99 The defendants argued that the plaintiffs lacked standing to sue because any judicial relief would not make them better off.100 According to the defendants, the plaintiffs would still be subject to the Wisconsin bar examination because they had not completed sufficient credit hours in the specified types of courses in law school classes that included Wisconsin law.101 The

93 Wiesmueller v. Kosubucki [sic], 251 F.R.D. 365, 367 (W.D. Wis. 2008). 94 Id. 95 Id. 96 Id. at 367–68. The certified class consisted of all persons who (1) graduated or will graduate with a professional degree in law from any law school outside Wisconsin accredited by the American Bar Association, (2) apply to the Wisconsin Board of Bar Examiners for a character and fitness evaluation to practice law in Wisconsin before their law school graduation or within thirty days of their graduation, and (3) have not yet been admitted to the Wisconsin bar. Id. at 368. 97 Id. at 367. 98 Wiesmueller v. Kosobucki, 571 F.3d 699, 701 (7th Cir. 2009). 99 Id. 100 See id. 101 Brief of Defendants-Appellees at 21–22, Wiesmueller v. Kosobucki, 571 F.3d 699 (7th Cir. 2009) (No. 08-2527).

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Seventh Circuit rejected the defendants’ argument, noting that unequal treatment can be eliminated without conferring any benefit on those challenging the rule.102 The Seventh Circuit further determined that, if the court invalidated the diploma privilege, Wisconsin might instead require all applicants to take a continuing legal education course in lieu of a bar examination, which would give the plaintiffs most of the relief they seek.103 Finding the redressability requirement met, the Seventh Circuit next addressed the merits.104 According to Judge Posner, “[g]raduates of accredited law schools in states other than Wisconsin who would like to practice law in that state are at a disadvantage vis-à-vis graduates of Wisconsin’s two law schools.”105 Unlike graduates of Wisconsin’s two law schools, graduates of other ABA-accredited law schools seeking admission to the Wisconsin bar must either have practiced law for five years in another state or have passed the Wisconsin bar examination.106 For applicants seeking admission through the bar examination, the amount of preparation time and costs were significant.107 Judge Posner concluded that the diploma privilege rule implicated the dormant Commerce Clause since it influenced an aspiring lawyer’s decision where to attend law school.108 The Seventh Circuit discussed the Supreme Court’s two-tiered approach to analyzing state economic regulation under the dormant Commerce Clause and suggested that the diploma privilege rule implicated the Pike balancing test.109 According to Judge Posner, the diploma privilege favored the economic interests of the Wisconsin law schools; nonetheless, the diploma privilege only indirectly affected interstate commerce and regulated evenhandedly because both the

102 Wiesmueller, 571 F.3d at 702. 103 Id. at 702–03. 104 Id. at 703. 105 Id. at 701. 106 Id. 107 Id. 108 Id. at 705. 109 Id. at 703.

52 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 diploma privilege and admission to Wisconsin law schools were not limited to state residents.110 But, the court found itself in an “evidentiary vacuum created by the early termination of the case by the grant of a motion to dismiss.”111 If Wisconsin law was no greater part of the curriculum of the two Wisconsin law schools than other ABA-accredited law schools, then the diploma privilege “create[d] an arbitrary distinction between graduates of the two Wisconsin law schools and graduates of other accredited law schools.”112 This distinction, according to Judge Posner, burdened interstate commerce.113 Because the plaintiffs had no opportunity to justify this distinction, the Seventh Circuit remanded the case to allow the plaintiffs to build an evidentiary record.114 Despite the court’s reluctance to issue a ruling, Judge Posner suggested that Wisconsin law did not occupy a larger place in the curriculum at the two Wisconsin law schools than at other ABA- accredited law schools.115 He noted that Wisconsin law schools used the same casebooks and other teaching materials as other ABA- accredited law schools.116 Moreover, because no graduates of the Wisconsin law schools took the state bar examination, Judge Posner concluded that the faculty had less incentive to test them on Wisconsin law.117 Citing portions of the diploma privilege rule, the defendants argued that the rule expressly mandated that the curriculum of the Wisconsin law schools include Wisconsin law.118 The Seventh Circuit rejected this assertion, finding no provisions in the rule to support a curriculum saturated in Wisconsin law.119 Judge Posner reasoned that

110 Id. at 703–04. 111 Id. at 704. 112 Id. 113 Id. 114 Id. at 707. 115 Id. at 704. 116 Id. at 705. 117 Id. 118 Id. 119 Id.

53 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 this interpretation of the rule was consistent with Wisconsin’s proof of practice elsewhere procedure, which did not require any knowledge of Wisconsin law, and the Wisconsin bar examination, which included the Multistate Professional Responsibility Examination and the Multistate Essay Examination.120 Judge Posner also rejected the defendants’ argument that the diploma privilege rule gave the Wisconsin Supreme Court a supervisory role so that it could assure a curriculum oriented toward Wisconsin law.121 Judge Posner found no evidence in the record or the diploma privilege rule to support this role.122 He also refuted the argument that the Wisconsin Supreme Court, by virtue of creating the diploma privilege, entrusted only the two local law schools to prepare its students for the practice of law in Wisconsin.123 Finally, the court rejected the defendants’ argument that the market participant doctrine exempted the Wisconsin bar admission rules from Commerce Clause scrutiny.124 The market participant doctrine allows states to engage in otherwise discriminatory practices so long as the state acts as a market participant rather than a market regulator.125 A state acting as a market participant is not subject to the restraints of the Commerce Clause.126 The Seventh Circuit rejected the defendants’ argument because the diploma privilege applied equally to Marquette University Law School, a private institution.127 In short, even in the face of Judge Posner’s skepticism, the Seventh Circuit remanded the case to allow the plaintiffs the opportunity to show that

120 Id. at 706. 121 Id. 122 Id. 123 Id. 124 Id. 125 South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 93 (1984). 126 White v. Mass. Council of Constr. Employers, Inc., 460 U.S. 204, 208 (1983). 127 Wiesmueller, 571 F.3d at 707.

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Wisconsin law made up a greater part of the curriculum at the two Wisconsin law schools than at other ABA-accredited law schools.128

III. ANALYSIS

The Seventh Circuit’s analysis in Wiesmueller v. Kosobucki is important in many respects. Most significantly, Judge Posner suggested that the diploma privilege burdened interstate commerce in violation of the dormant Commerce Clause.129 Subjecting the diploma privilege to the appropriate level of review under the dormant Commerce Clause doctrine reveals that it survives constitutional scrutiny. Part A of this section justifies the diploma privilege. Part B of this section subjects the diploma privilege to the Supreme Court’s two- tiered test and argues that adversely affected in-state interests result in a permissible burden under the Pike balancing test.

A. The Diploma Privilege and Its Putative Local Benefits

The American legal profession considers competency as one of its core values.130 Each state has a compelling interest in guaranteeing that lawyers practicing within their borders possess a minimum level of competence.131 States can ensure a minimum level of competence by subjecting prospective lawyers to high standards so long as the standards comply with certain constitutional mandates.132 By guaranteeing a minimum level of competence, states can protect its citizens from subpar legal representation, as many citizens may be unable to adequately assess the competence of lawyers on their

128 Id. 129 Id. at 704. 130 Sara J. Lewis, Note, Charting the “Middle” Way: Liberalizing Multijurisdictional Practice Rules for Lawyers Representing Sophisticated Clients, 22 GEO. J. LEGAL ETHICS 631, 646 (2009). 131 Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975). 132 Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 239 (1957).

55 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 own.133 The power to prescribe qualifications for admission to the practice of law has traditionally been left exclusively to the states.134 In Wisconsin, the power to regulate the practice of law vests exclusively in the Wisconsin Supreme Court.135 The diploma privilege is an exercise of this judicial ruling-making authority.136 The Wisconsin Supreme Court did not expressly address the benefits of the diploma privilege when proposing and implementing it. One commentator argues that the absence of an express purpose behind the diploma privilege’s creation contributes to the rule’s shortcomings.137 Others, however, believe the diploma privilege furthers Wisconsin’s interest in licensing lawyers—that is, guaranteeing that only competent lawyers practice within its border.138 Defendants in Wiesmueller argued that the diploma privilege was designed to ensure competency in the practice of law, including familiarity in Wisconsin’s rules and statutes.139 This view is consistent with the undisputed fact that only Wisconsin law schools systematically instruct in Wisconsin law. Even though the University of Wisconsin and Marquette University are law schools of national stature,140 the curriculum at both schools includes Wisconsin law, not simply the rules and principles of substantive and procedural law common across American states.141 Indeed, the thirty-credit and sixty-credit rules mandate a

133 Lewis, supra note 130, at 647; see also In re Griffiths, 413 U.S. 717, 731 (1973) (Burger, C.J., dissenting) (lawyers enjoy a “broad monopoly . . . to do things other citizens may not lawfully do”). 134 See Leis v. Flynt, 439 U.S. 438, 442 (1979) (per curiam). 135 In re Bar Admission of Anderson, 715 N.W.2d 586, 587 (Wis. 2006) (per curiam); see also WIS. CONST. art. VII, § 3–4. 136 See WIS. SUP. CT. R. 40.03. 137 Rofes, supra note 35, at 807–12. 138 See Trujillo, supra note 38, at 95–97; Moran, supra note 15, at 649–51; Stack, supra note 16, at 21. 139 Brief of Defendants-Appellees, supra note 101, at 36. 140 See Wiesmueller v. Kosobucki, 571 F.3d 699, 705 (7th Cir. 2009). 141 Gene R. Rankin, No. Other States Should Catch up to Wisconsin, WISCONSIN LAWYER, Dec. 2002, available at

56 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 curriculum oriented in both national and Wisconsin law.142 In addition to doctrinal courses, students at the two Wisconsin law schools take clinical and other skills training courses that incorporate Wisconsin law.143 The diploma privilege also encourages knowledge in a wide range of legal subjects under the thirty-credit and sixty-credit rules rather than the limited number of courses traditionally tested on the bar examination.144 Significantly, the Wisconsin Supreme Court deems these subject matter areas fundamental to practicing law.145 http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin_Lawyer&template=/ CM/ContentDisplay.cfm&CONTENTID=48646#con (arguing that certain areas of the law are unique to Wisconsin, which both in-state law schools emphasis); Eric Goldman, Wisconsin Diploma Privilege Ruling Comments–Wiesmueller v. Kosobucki, GOLDMAN’S OBSERVATIONS, July 29, 2009, http://blog.ericgoldman.org/personal/archives/2009/07/wisconsin_diplo.html [hereinafter Eric Goldman] (noting that Wisconsin’s law schools emphasize both national and Wisconsin law). 142 WIS. SUP. CT. R. 40.03(2) (“All semester credits so certified shall have been earned in regular law school courses having as their primary and direct purpose the study of rules and principles of substantive and procedural law as they may arise in the courts and administrative agencies of the United States and this state.” (emphasis added)). 143 See MARQUETTE UNIVERSITY LAW SCHOOL, COURSE DESCRIPTIONS 2007– 2008, http://law.marquette.edu/s3/site/images/current/courseDescriptions06.pdf; University of Wisconsin Law School, Clinical Education & Skills Training, http://www.law.wisc.edu/academics/clinics/clinicaleducationskillstraining.html (last visited Nov. 15, 2009). 144 Moran, supra note 15, at 652. 145 One member of the Wisconsin Supreme Court noted:

The diploma privilege makes good sense for Wisconsin. The Wisconsin Supreme Court (in charge of attorney admissions) is very familiar with the two excellent A.B.A. accredited schools in Wisconsin. . . . Both schools have high standards for admission and graduation. To qualify for the diploma privilege, students must take certain courses (determined by our court as being fundamental) and achieve a certain average score for those courses. In short, we have confidence in the quality of graduates from these two schools. . . . Wisconsin should not be viewed as the last to retain the diploma privilege; I like to think of Wisconsin as the leader on this issue, not the holdout.

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Judge Posner’s narrow view of the curriculum at the two Wisconsin law schools derived in part from the admission without examination procedure. According to Judge Posner, the faculty has less incentive to teach Wisconsin law since no graduates of these law schools take the bar examination.146 However, legal educators prepare students to not only pass a bar examination but also practice law.147 Because graduates of the two Wisconsin law schools often practice in Wisconsin, the faculty has an incentive to prepare students for actual practice in the state and teach them Wisconsin law.148 Also, a number of faculty members at the University of Wisconsin Law School and Marquette University Law School formerly practiced or currently practice in Wisconsin, and these faculty members likely emphasis local statutes and rules applicable to the subject matter covered.149 Beyond producing competent graduates knowledgeable in both national and local law, the diploma privilege also indirectly benefits Wisconsin. For example, the diploma privilege increases contact between the Wisconsin Supreme Court and the two Wisconsin law schools, thereby promoting relationships between the judiciary and law school graduates.150 These relationships allow the Wisconsin Supreme Court to determine whether the breadth of legal education at the two Wisconsin law schools measures up to the court’s expectations and whether graduates in fact possess the requisite competency and

Howard Bashman, 20 Questions for Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin, HOW APPEALING, Sept. 13, 2004, http://howappealing.law.com/20q/2004_09_01_20q-appellateblog_archive.html. 146 Wiesmueller v. Kosobucki, 571 F.3d 699, 705 (7th Cir. 2009). 147 Denise Riebe, A Bar Review for Law Schools: Getting Students on Board to Pass Their Bar Exams, 45 BRANDEIS L.J. 269, 271 (2007). 148 See Moran, supra note 15, at 651; Eric Goldman, supra note 141. 149 See Marquette University Law School, Faculty & Staff, http://law.marquette.edu/cgi-bin/site.pl?10927 (last visited Nov. 15, 2009); University of Wisconsin Law School, Faculty & Staff, http://www.law.wisc.edu/faculty/ (last visited Nov. 15, 2009); see also Shenfield v. Prather, 387 F. Supp. 676, 687 (N.D. Miss. 1974) (three-judge panel). 150 Moran, supra note 15, at 654.

58 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 moral character to practice law.151 Moreover, the diploma privilege benefits consumers by increasing the number of practicing attorneys in Wisconsin.152 Increasing the number of lawyers in Wisconsin lowers prices for legal services and provides consumers the freedom to choose their own lawyer.153

B. The Diploma Privilege and a Deferential Standard of Review

In addition to determining the putative local benefits of a challenged rule, the dormant Commerce Clause doctrine instructs a reviewing court to apply the appropriate standard of review.154 A heightened level of review applies when a rule directly regulates or discriminates against interstate commerce.155 This level of review is known as the virtual per se rule of invalidity test.156 In contrast, when a rule regulates even-handedly, a relaxed standard, commonly referred to as the Pike balancing test, applies.157 Applying the appropriate level of review is critical since these two tests produce disparate results.158 The Pike balancing test is the appropriate level of review when assessing the constitutionality of the diploma privilege under the dormant Commerce Clause.

151 See id.; Bashman, supra note 145. 152 See Moran, supra note 15, at 655 (noting that Wisconsin has a relatively small practicing bar); Eric Goldman, supra note 141 (arguing that the diploma privilege encourages graduates of the two Wisconsin law schools to practice in Wisconsin). 153 Lewis, supra note 130, at 649–50; see Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975) (“lawyers are essential to the primary governmental function of administering justice”). 154 See Scariano v. Justices of Supreme Court of State of Ind., 38 F.3d 920, 926 (7th Cir. 1994). 155 Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986). 156 City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). 157 Pike v. Bruce Church, Inc. 397 U.S. 137, 142 (1970). 158 See Scariano, 38 F.3d at 926.

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1. The Diploma Privilege Lacks a Discriminatory Purpose or Effect

Underlying the virtual per se rule of invalidity test is the assumption that the challenged regulation has a discriminatory purpose or effect.159 Of course, the notion of “discrimination” under the dormant Commerce Clause rests on a comparison of in-state benefits and burdens with out-of-state benefits and burdens.160 The diploma privilege neither facially nor effectually discriminates against commerce because the purported burden and corresponding benefit under the rule—requiring graduates of other ABA-accredited law schools to sit for the Wisconsin bar examination while exempting graduates of the two Wisconsin law schools from it—applies to both residents and nonresidents alike.161 As the Seventh Circuit recognized in Wiesmueller,162 nonresidents may attend one of the Wisconsin law schools and receive admission to the Wisconsin bar by virtue of the diploma privilege.163 Conversely, residents of Wisconsin who attend an out-of-state law school and desire admission to the Wisconsin bar must take and pass the Wisconsin bar examination.164 In short, the diploma privilege affords no preference to in-state interests over out- of-state interests. More significantly, the diploma privilege lacks any differential treatment between similarly situated persons.165 Prior to Wiesmueller, no litigant has ever challenged the diploma privilege under the Commerce Clause. Instead, litigants relied on the Equal Protection Clause and argued that the diploma privilege created an arbitrary distinction between eligible and ineligible recipients of the diploma

159 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471 n.15 (1981). 160 O’Grady, supra note 66, at 583. 161 See Tolchin v. Supreme Court of the State of N.J., 111 F.3d 1099, 1107–08 (3d Cir. 1997) (holding that New Jersey’s bar admission rules were not subject to the heightened level of dormant Commerce Clause review because the rules affected both residents and nonresidents equally). 162 571 F.3d 699, 703–04 (7th Cir. 2009). 163 See WIS. SUP. CT. R. 40.03. 164 See WIS. SUP. CT. R. 40.04. 165 See Gen. Motors Corp. v. Tracy, 519 U.S. 278, 298 (1997).

60 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 privilege by excusing only the former from the bar examination.166 Like prior challenges to the diploma privilege, the plaintiffs in Wiesmueller appeared to complain not about the burdens of having to take the bar examination, but about a purported unfair advantage that graduates of the two Wisconsin law schools had over graduates of other ABA-accredited law schools.167 Consistent with the plaintiffs’ contention, Judge Posner suggested that the diploma privilege created an arbitrary distinction between graduates of the two Wisconsin law schools and graduates of other ABA-accredited law schools.168 Generally, this claim is most naturally assessed under the Equal Protection Clause of the Fourteenth Amendment.169 Nonetheless, similar to the Equal Protection doctrine,170 any notion of discrimination under the dormant Commerce Clause assumes a comparison of substantially similar entities.171 This central assumption has often remained ignored in the Commerce Clause jurisprudence of the Supreme Court.172 Under Wisconsin’s diploma privilege rule, graduates of the two Wisconsin law schools and graduates of other ABA-accredited law schools are unequally situated.

166 See, e.g., Shenfield v. Prather, 387 F. Supp. 676, 679 (N.D. Miss. 1974) (three-judge panel); Huffman v. Mont. Supreme Court, 372 F. Supp. 1175, 1176 (D. Mont. 1974) (three-judge panel), aff’d mem., 419 U.S. 955 (1974); Goetz v. Harrison, 462 P.2d 891, 893 (Mont. 1969). 167 See Brief of Plaintiff-Appellants at 10, Wiesmueller v. Kosobucki, 571 F.3d 699 (7th Cir. 2009) (No. 08-2527). 168 Wiesmueller v. Kosobucki, 571 F.3d 699, 704 (7th Cir. 2009). 169 See Sestric v. Clark, 765 F.2d 655, 661 (7th Cir. 1985) (explaining that the plaintiff’s real objection to the Illinois bar admission rule is “that it creates an arbitrary distinction between experienced new residents and equally experienced nonresidents by excusing the former from the bar exam required of the latter,” which “is a claim most naturally assessed under the Equal Protection Clause of the Fourteenth Amendment”). 170 Lawrence v. Texas, 539 U.S. 558, 579 (2003) (O’Connor, J., concurring) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (noting that the Equal Protection Clause of the Fourteenth Amendment means that all persons similarly situated should be treated alike)). 171 Gen. Motors Corp. v. Tracy, 519 U.S. 278, 298 (1997). 172 Gen. Motors Corp., 519 U.S. at 298–99.

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Underlying the arbitrary distinction theory advanced by Judge Posner is the assumption that graduates of the two Wisconsin law schools and graduates of other ABA-accredited law schools receive an equal legal education. However, unlike the Wisconsin Supreme Court, which imposes the thirty-credit and sixty-credit rules on diploma privilege applicants,173 the American Bar Association does not dictate curriculum requirements for purposes of accreditation.174 Instead, the American Bar Association merely requires substantial instruction in:

(1) the substantive law generally regarded as necessary to effective and responsible participation in the legal profession; (2) legal analysis and reasoning, legal research, problem solving, and oral communication; (3) writing in a legal context, including at least one rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year; (4) other professional skills generally regarded as necessary for effective responsible participation in the legal profession; and (5) the history, goals, structure, values, rules and responsibilities of the legal profession and its members.175

The differences in curriculum requirements renders graduates of the two Wisconsin law schools and graduates of other ABA-accredited law schools unequally situated for purposes of the dormant Commerce Clause.176 Absent a comparison of similarly-situated objects, the

173 See WIS. SUP. CT. R. 40.03. 174 See Stack, supra note 16, at 128. 175 AMERICAN BAR ASSOCIATION, 2009–2010 ABA STANDARDS FOR APPROVAL OF LAW SCHOOLS, http://www.abanet.org/legaled/standards/2009- 2010%20StandardsWebContent/Chapter3.pdf. 176 See Gen. Motors Corp., 519 U.S. at 310 (rejecting the claim that the state’s differential treatment between sales of gas by domestic utilities and sales of gas by other entities violated the Commerce Clause because the enterprises were not similarly situated); Shenfield v. Prather, 387 F. Supp. 676, 686–87 (N.D. Miss. 1974) (three-judge panel) (holding that differences in curriculum requirements and content at the University of Mississippi School of Law and other law schools

62 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 heightened level of review under the dormant Commerce Clause doctrine does not apply.177 While Wisconsin limits the diploma privilege to graduates of Wisconsin’s two law schools,178 an out-of-state law school could conceivably comply with the requirements of the thirty-credit and sixty-credit rules and incorporate Wisconsin law into its curriculum.179 Under these circumstances, graduates of the out-of-state law school and graduates of Wisconsin’s two law schools would appear similarly situated. Still, Wisconsin could deny the out-of-state graduate admission to the Wisconsin bar by virtue of the diploma privilege without discriminating against interstate commerce.180 Courts have continuously upheld state licensing restrictions limiting admission to the state bar to graduates of ABA-accredited law schools.181 The basis of these decisions rests on administrative efficiency.182 Similarly, the provided a rational basis to exempt only graduates of the former from the Mississippi bar examination). 177 See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 601 (1997) (Scalia, J., dissenting) (“Disparate treatment constitutes discrimination only if the objects of the disparate treatment are, for the relevant purposes, similarly situated.”). 178 See WIS. SUP. CT. R. 40.03. 179 See Stack, supra note 16, at 128 n.63. 180 See id. 181 See, e.g., Hackin v. Lockwood, 361 F.2d 499, 504 (9th Cir. 1966) (holding that the Arizona bar admission rule restricting bar admission to graduates of an accredited law school was not arbitrary, capricious, or unreasonable); Nordgren v. Hafter, 616 F. Supp. 742, 755 (S.D. Miss. 1985) (holding that the unequal treatment or classification between graduates of ABA-accredited law schools and graduates of non-ABA-accredited law schools is justified under the rational basis test since it serves the interest of the state in arriving at an objective measure of the quality of legal training of its prospective lawyers). 182 Seeking uniform and measurable admission standards, the Florida Supreme Court discussed the rationale underlying the ABA-accreditation requirement:

We were persuaded to follow the American Bar Association standards relating to accreditation of law schools because we sought to provide an objective method of determining the quality of the educational environment of prospective attorneys. This was deemed especially

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Wisconsin Supreme Court cannot ensure that the curricula at other ABA-accredited law schools meet the requirements of Wisconsin Supreme Court Rule 40.03.183 The inability of the Wisconsin Supreme Court to determine whether out-of-state law schools comply with the thirty-credit and sixty-credit rules and incorporate Wisconsin law into their curricula would provide a constitutionally sufficient basis for limiting the diploma privilege to graduates of Wisconsin’s law schools,184 especially in light of Wisconsin’s compelling interest in regulating its bar.185

2. Under the Pike Balancing Test, Adverse Effects upon Wisconsin Residents Mean a Permissible Burden on Commerce

Since the diploma privilege does not purposefully or effectually discriminate against interstate commerce, the appropriate level of review under the dormant Commerce Clause doctrine is the Pike balancing test.186 The Pike balancing test has become the proverbial constitutional rule for nondiscriminatory analysis, despite criticism in approach and uncertainty in application.187 Both Justice Scalia and Justice Thomas describe the Pike balancing inquiry as a policy-laden,

necessary because of the rapid growth in the number of educational institutions awarding law degrees. We wished to be certain that each of these many law schools provided applicants with a quality legal education, but we were unequipped to make such a determination ourselves because of financial limitations and the press of judicial business.

LaBossiere v. Fla. Bd. of Bar Exam’rs, 279 So. 2d 288, 289 (Fla. 1973). 183 See Rankin, supra note 141 (extending the diploma privilege to other law schools “may sound easy on the surface, but operationally the process would be terribly difficult”). 184 See Stack, supra note 16, at 128 n.63. 185 See Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975). 186 See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). 187 David S. Day, Revisiting Pike: The Origins of the Nondiscrimination Tier of the Dormant Commerce Clause Doctrine, 27 HAMLINE L. REV. 45, 60 (2004).

64 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 legislative function, which the courts are ill-suited to perform.188 In essence, the ad hoc balancing approach requires courts to act as “super-legislatures.”189 The Supreme Court in Department of Revenue of Kentucky v. Davis declined to apply the Pike inquiry altogether, noting that the judiciary is institutionally unsuited to draw reliable conclusions necessary for the Pike standard.190 Likewise, some lower courts echo a similar reluctance to apply the Pike balancing test.191 Judge Posner in Wiesmueller noted that “[t]he judiciary lacks the time and the knowledge to be able to strike a fine balance between the burden that a particular state regulation lays on interstate commerce and the benefit of that regulation to the state’s legitimate interests.”192 Pike nonetheless identified three different components of the nondiscrimination standard: (1) the burden imposed on interstate commerce; (2) the putative local benefits; and (3) and available nondiscriminatory alternatives.193 The purported burden under the diploma privilege rule is the bar examination.194 Unlike diploma privilege recipients, graduates of non- Wisconsin law schools who desire to practice law in Wisconsin must

188 United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 348–49 (2007) (Scalia, J., concurring in part); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 619 (1997) (Thomas, J., dissenting). 189 Julian N. Eule, Laying the Dormant Commerce Clause to Rest, 91 YALE L.J. 425, 441–42 (1981). 190 128 S. Ct. 1801, 1818 (2008); see also Gen. Motors Corp. v. Tracy, 519 U.S. 278, 308–10 (1997) (recognizing that “the Court is institutionally unsuited to gather facts upon which economic predictions can be made, and professionally untrained to make them”); CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 92 (1987) (declining to second-guess the empirical judgments of lawmakers concerning the utility of the challenged legislation). 191 See, e.g., Pac. Nw. Venison Producers v. Smitch, 20 F.3d 1008, 1016 (9th Cir. 1994); N.Y. State Trawlers Ass’n. v. Jorling, 16 F.3d 1303, 1308 (2d Cir. 1994). 192 571 F.3d 699, 704 (7th Cir. 2009) (citing Amanda Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496, 505 (7th Cir. 1989)). 193 397 U.S. 137, 142 (1970). 194 See Supreme Court of Va. v. Friedman, 487 U.S. 59, 68 (1988) (taking judicial notice that the bar exam “is not a casual or lighthearted exercise”).

65 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 take and pass the Wisconsin bar examination.195 In addition to preparing for the bar examination,196 bar exam applicants incur greater costs, especially for those who prudently enroll in a bar review course.197 But, does the Wisconsin bar examination actually restrict the mobility of lawyers?198 Put differently, does the diploma privilege influence an aspiring lawyer’s decision where to attend law school?199 The Seventh Circuit previously answered these questions in the negative.200 Whether prospective lawyers would attend one of the two Wisconsin law schools simply because of the diploma privilege is pure speculation.201 Likewise, whether the requirement of taking and passing the Wisconsin bar examination would actually exclude many out-of-state graduates having a serious desire to practice in Wisconsin is a matter of conjecture.202

195 See WIS. SUP. CT. R. 40.04. 196 See Riebe, supra note 147, at 307 (noting that “[m]ost students study six days a week, eight to ten hours a day, for at least ten weeks—a total of approximately six hundred hours”). 197 See Association of American Law Schools, Society of American Law Teachers Statement on the Bar Exam, 52 J. LEGAL EDUC. 446, 448 (2002) (noting that bar review courses may cost as much as $3,000). 198 See Sestric v. Clark, 765 F.2d 655, 661 (7th Cir. 1985) (“[a]s we cannot say that [the Illinois bar admission rule] is more likely to impede than to increase the interstate mobility of lawyers, it is apparent that Illinois has not violated the commerce clause”). 199 See Wiesmueller v. Kosobucki, 571 F.3d 699, 705 (7th Cir. 2009) (“[i]t is enough that an aspiring lawyer’s decision about where to study, and therefore about where to live as a student, can be influenced by the diploma privilege to bring this case within at least the outer bounds of the commerce clause”). In essence, the burden in Wiesmueller was the adverse constraint on a law applicant’s decision- making, not simply the increased costs and delays of the bar examination. See id. 200 See Scariano v. Justices of Supreme Court of State of Ind., 38 F.3d 920, 927 (7th Cir. 1994). 201 See id. 202 See id.; Scariano v. Justices of Supreme Court of State of Ind., 47 F.3d 173, 174 (7th Cir. 1995) (Posner, J., dissenting from denial of rehearing en banc) (noting that the burden imposed by the bar examination is small).

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The second component of the Pike balancing test is the putative local benefits of the diploma privilege.203 As discussed, the Wisconsin Supreme Court presumably designed the diploma privilege rule to ensure competency in the practice of law, including familiarity in Wisconsin law.204 The Seventh Circuit has identified these interests as legitimate.205 Despite the deference generally afforded to states in regulating their bars,206 Judge Posner effectively placed the burden on Wisconsin to substantiate the putative local benefits, noting that “there may be nothing at all to justify [the diploma privilege].”207 Only when the burdens of a particular bar admission rule fall predominantly on out-of-state interests should the court place the burden of persuasion on the state.208

203 397 U.S. 137, 142 (1970). 204 See supra Part III.A. 205 See Scariano, 38 F.3d at 924. 206 See Leis v. Flynt, 439 U.S. 438, 442 (1979) (per curiam); Yamaha Motor Corp., U.S.A. v. Jim’s Motorcycle, Inc., 401 F.3d 560, 569 (4th Cir. 2005) (when assessing whether a statute has “a legitimate local purpose” and “putative local benefits” under Pike, a court must proceed with deference to the state legislature). 207 Wiesmueller v. Kosobucki, 571 F.3d 699, 705 (7th Cir. 2009). 208 Compare Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 472–73 (1981) (implying that the state legislature considered the national interest in the free flow of commerce in determining the appropriate extent of the statutory restrictions at issue since the restrictions directly affected some in-state retailers and producers), and S.C. State Highway Dep’t v. Barnwell Bros., 303 U.S. 177, 187 (1938) (upholding state restrictions on trucks since “[t]he fact that they affect alike shippers in interstate and intrastate commerce in large number within as well as without the state is a safeguard against their abuse”), with Hunt v. Wash. State Apple Adver. Comm’ n, 432 U.S. 333, 353 (1977) (requiring the state to justify the regulation at issue both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake since the regulation had the effect of burdening out-of-state interests while leaving in-state interests unaffected), and Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 446–47 (1978) (finding state regulation governing the length and configuration of trucks unconstitutional under the dormant commerce clause in part because the regulatory scheme provided for a number of exceptions, primarily for the benefit of in-state interests, and thus undermined the assumption that the State’s own political process will act as a check on local regulations that unduly burden interstate commerce).

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The United States Supreme Court often justifies judicial review under the dormant Commerce Clause, even in the absence of textual support,209 on grounds that it compensates for a defect in the political process.210 Under the inner political process theory, when a legislative body enacts legislation with corresponding burdens falling solely or predominantly on a group represented in the legislature, a presumption arises that the enactment is rationally based, efficacious, and no more burdensome than is necessary to achieve its proffered purpose.211 However, when a legislative body enacts legislation with corresponding burdens falling predominantly on nonresidents unrepresented in the legislative body, the presumption of validity ceases to exist and the need for judicial intervention is greater to protect unrepresented interests from protectionist statutes.212 The political process theory not only solidifies the putative local benefits of the diploma privilege, but also guarantees a procedure no more burdensome than is necessary to achieve them. As discussed, the diploma privilege affords no preference to in-state residents over out- of-state residents.213 Thus, represented and unrepresented interests equally share any burden under the diploma privilege rule.214 Represented interests—those who graduate from non-Wisconsin law schools and desire to practice law in Wisconsin—serve as a check

209 Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569, 617 (1987) (“[t]he dormant commerce clause lacks a foundation or justification in either the Constitution’s text or history”). 210 Mark Tushnet, Rethinking the Dormant Commerce Clause, 1979 WIS. L. REV. 125, 164–65 (1979). 211 Eule, supra note 189, at 445; see Clover Leaf Creamery Co., 449 U.S. at 473 n.17 (“[t]he existence of major in-state interests adversely affected by the [legislation] is a powerful safeguard against legislative abuse”). 212 Eule, supra note 189, at 445; see S.C. State Highway Dep’t, 303 U.S. at 185 n.2 (“when the regulation is of such a character that its burden falls principally upon those without the state, legislative action is not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state”). 213 See supra Part III.B.1. 214 See WIS. SUP. CT. R. 40.03.

68 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 against protectionist impulses and assure that Wisconsin sufficiently realizes the benefits of the diploma privilege rule, namely, competent attorneys in both national and local law.215 Though not a legislative enactment, the political process theory also applies to the diploma privilege. Enactors of the diploma privilege—members of the Wisconsin Supreme Court—are elected officials; consequently, they are responsive to Wisconsin residents.216 In short, adversely affected in-state interests under the diploma privilege rule avoids a distortion in the political process, and judicial intervention on grounds of an unreasonable burden is unnecessary.217 The final component of the Pike test is a “means” prong analysis.218 This analysis requires courts to consider whether the stated legitimate purpose could be promoted as well with a lesser impact on interstate commerce.219 When assessing the constitutionality of a statute, some courts have searched for nondiscriminatory alternatives.220 In the context of bar admission rules, however, courts have been reluctant to invoke a “means” analysis in light of state interest in regulating admission standards.221 Significantly, courts cannot readily identify an alternative less restrictive than the bar examination.222 Wisconsin could, for example, require all applicants seeking admission to the Wisconsin bar to take a continuing legal education course in Wisconsin law in lieu of a bar examination.223 But

215 See Eule, supra note 189, at 445–46. 216 See WIS. CONST. art. VII, § 4; Sestric v. Clark, 765 F.2d 655, 659 (7th Cir. 1985) (recognizing that the bar admission rule burdened residents and nonresidents equally, which provided some assurance that the burden was a moderate and reasonable, rather than arbitrary and prohibitive, burden) 217 See Tushnet, supra note 210, at 140. 218 397 U.S. 137, 142 (1970). 219 Id. 220 See, e.g., Hunt v. Wash. State Apple Adver. Comm’ n, 432 U.S. 333, 355 (1977); Dean Milk Co. v. City of Madison, 340 U.S. 349, 354–55 (1951). 221 See Goldfarb v. Supreme Court of Va., 766 F.2d 859, 863 (4th Cir. 1985). 222 Sestric v. Clark, 765 F.2d 655, 663 (7th Cir. 1985). 223 Judge Posner raised this alternative in Wiesmueller. See 571 F.3d 699, 702– 03 (7th Cir. 2009).

69 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 as the Seventh Circuit recognized in Sestric v. Clark, this alternative could easily be more burdensome and exclusionary than the bar examination.224 Constant judicial intervention would be necessary not only to weigh the relative impact of all available nondiscriminatory alternatives of the diploma privilege,225 but also to ensure that they were less restrictive.226 The fact that Wisconsin remains the only state to honor the diploma privilege does not render its admission procedure unconstitutional.227 Wisconsin is free to exercise its own judgment and is not bound by the decisions of other states.228

CONCLUSION

In Wiesmueller v. Kosobucki, the Seventh Circuit suggested that the diploma privilege restricted the mobility of lawyers in violation of the dormant Commerce Clause.229 In guaranteeing that only competent lawyers practice within its borders, Wisconsin could require all lawyers to take and pass the Wisconsin bar examination. Wisconsin elected to provide the diploma privilege in lieu of the bar examination for those lawyers—residents and non-residents alike—who satisfy the thirty-credit and sixty-credit rules. This approach may not gain any support from economists. But, a bar admission rule “can be both economic folly and constitutional.”230

224 See 765 F.2d at 663; see also Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation, 33 ARIZ. ST. L.J. 429, 449 (2001) (noting that continuing legal education programs hardly guarantee any level of competence). 225 See Goldfarb, 766 F.2d at 863. 226 See Sestric, 765 F.2d at 664. 227 See S.C. State Highway Dep’t v. Barnwell Bros., 303 U.S. 177, 195–96 (1938). 228 See id. 229 571 F.3d 699, 704 (7th Cir. 2009). 230 CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 96–97 (1987) (Scalia, J., concurring).

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FINDING INTENT WITHOUT MENS REA: A MODIFIED CATEGORICAL APPROACH TO SENTENCING UNDER THE UNITED STATES SENTENCING GUIDELINES

AMANDA J. SCHACKART*

Cite as: Amanda J. Schackart, Comment, Finding Intent Without Mens Rea: A Modified Categorical Approach to Sentencing Under the United States Sentencing Guidelines, 5 SEVENTH CIRCUIT REV. 71 (2009), http://www.kentlaw.edu/7cr/ v5-1/schackart.pdf.

INTRODUCTION

On March 18, 1999, Vernon Woods placed a 911 call after his five-week-old son, who suffered from cerebral palsy, became unresponsive.1 The infant died six months later.2 One possible explanation for the infant’s death, which the deputy medical examiner would have testified to at trial, was that he died from water on the brain as a result of blunt force head trauma.3 Woods claimed, however, that he accidentally dropped the baby and shook him “in an effort to revive him.”4 Woods pled guilty to involuntary manslaughter in 2001.5 Woods already had a 1993 conviction for possession of cocaine with intent to distribute.6 On November 16, 2007, Woods was again before the court for two counts of distributing ecstasy and one count of possession of a weapon by a felon.7 The district court found Woods to be a career

*J.D. Candidate, May 2010, Chicago-Kent College of Law, Illinois Institute of Technology; B.A., 2007, Loyola University Chicago. 1 United States v. Woods, 576 F.3d 400, 402 (7th Cir. 2009). 2 Id. 3 Id. 4 Id. 5 Id. at 401. 6 Id. 7 Id.

71 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 offender, and sentenced him to 192 months of imprisonment.8 On appeal, Woods challenged his sentence, claiming that the involuntary manslaughter conviction was not a “crime of violence” within the meaning of the United States Sentencing Guidelines (“USSG” or “the Guidelines”).9 In a surprising result, the Seventh Circuit agreed.10 Accordingly, the court found that Woods was not a career offender under the Guidelines, and reduced his 192-month sentence to a mere 84 months.11 How can such a result make sense? In other words, as the dissent in Woods argued, how can homicide not be a violent felony?12 As this article will demonstrate, the answer lies in the line of sentencing cases the United States Supreme Court has recently decided.13 In particular, the Supreme Court stated in United States v. Begay that a predicate offense has to be “purposeful, violent, and aggressive” in order to be considered for sentence enhancement (the “Begay test”).14 While each of the elements in the Begay test requires its own analysis, such considerations are beyond the scope of this article. Instead, this article will focus on the first requirement, purposefulness. In looking at the mens rea of Illinois’s involuntary manslaughter statute, the Seventh Circuit came to the conclusion that Woods had not acted purposefully when he caused the death of his son.15 In other words, the court held that, because Woods was convicted under a statute that only required a mens rea of recklessness, his conduct was not purposeful.16 The question then becomes whether a defendant who acts under a mens rea of recklessness can ever be considered to have acted

8 Id. at 402. 9 Id. 10 Id. at 413. 11 Id. at 401. 12 Id. at 414 (Easterbrook, C.J., dissenting). 13 See generally Chambers v. United States, 129 S. Ct. 687 (2009); Begay v. United States, 128 S. Ct. 1581 (2008); James v. United States, 550 U.S. 192 (2007); Shepard v. United States, 544 U.S. 13 (2005). 14 128 S. Ct. at 1586. 15 Woods, 576 F.3d at 411. 16 Id. at 412–413.

72 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 purposefully. While the answer may seem obvious at first glance, a review of the existing case law reveals that the question is much more convoluted than one might first surmise.17 This article explores different approaches courts have taken when analyzing whether a prior conviction was purposeful under the Begay test. Ultimately, it concludes that the Seventh Circuit’s approach to purposefulness, while grounded in solid legal reasoning, is incompatible with the goals of the Guidelines and should be abandoned.18 Part I of this article provides the necessary background on sentencing enhancements. First, it considers the legislative history of the Armed Career Criminal Act (the “ACCA”) and the USSG to determine the goals of the two provisions.19 Then, the article reviews the Court’s decisions that have interpreted the “violent felony” or “crime of violence” phrase of the ACCA and USSG. Next, it provides an in-depth examination of the Seventh Circuit’s decision in U.S. v. Woods. Part II compares the Seventh Circuit’s approach to analyzing purposefulness to the approaches adopted by the other federal circuits. Finally, Part III argues that a mens rea approach to purposefulness defeats Congress’s goals of neutralizing violent, repeat offenders and enhancing uniformity in sentencing. This article concludes that judges should have more discretion to consult the record of conviction during

17 See discussion infra Part II. 18 See discussion infra Part III. 19 While there are differences between the USSG and the ACCA, the similarity in language between the two provisions led courts to hold that an interpretation of one is also applicable to the other. See, e.g., James v. United States, 550 U.S. 192, 206 (2007) (noting that “definition of a predicate ‘crime of violence’ closely tracks ACCA’s definition of ‘violent felony.’”); United States v. Daye, 571 F.3d 225, 236 (2d Cir. 2009) (court used case law interpreting § 4B.1 to support its interpretation of ACCA); United States v. Harrison, 558 F.3d 1280, 1291–92 (11th Cir. 2009) (court used prior decision interpreting a crime of violence under the Guidelines to support interpretation of ACCA); United States v. Johnson, 417 F.3d 990, 996–97 (8th Cir. 2005), abrogated on other grounds by Begay, 128 S. Ct. 1581 (“The statutory definition of ‘violent felony’ is viewed as interchangeable with the guidelines definition of ‘crime of violence.’ Therefore, in determining whether a defendant qualifies as an armed career criminal under the ACCA, we are also bound by case law defining a crime of violence under § 4B1.2.”).

73 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 sentencing so that they can determine whether the defendant acted purposefully.

I. BACKGROUND

A. The History of the ACCA and USSG

Although this article treats the USSG and the ACCA as one and the same for the purposes of statutory interpretation, it is important to note the differences between the two with regard to their creation, functions, and overall purpose. Understanding the goals behind the creation of the USSG and the ACCA will help when determining whether the Seventh Circuit reached the right decision in Woods.

1. The Armed Career Criminal Act

The ACCA is a federal statute that requires an automatic 15 year minimum sentence for anyone who violates 18 U.S.C. 922(g)20 and has three prior convictions for violent felonies or serious drug offenses.21 As opposed to the Guidelines, the ACCA is specifically concerned with the “special danger” posed by career criminals carrying guns.22 Congress passed the ACCA in 1984 as part of an overall revamp of federal criminal legislation during the Reagan administration.23 This movement was inspired by research that had come out of the 1970s and 1980s that demonstrated that a large number of crimes were

20 18 U.S.C. § 922(g) is the statute that prohibits certain individuals such as convicted felons, illegal aliens, and military personnel discharged under dishonorable conditions from transporting or possessing firearms. 18 U.S.C. § 922(g) (2006). 21 18 U.S.C. § 924(e)(1) (2006). 22 United States v. Sylvester, 620 F. Supp. 2d 642, 649 n.3 (M.D. Pa. 2009) (citing Begay v. United States, 128 S. Ct. 1581, 1587 (2008)). 23 See Tracey A. Basler, Note, Does “Any” Mean “All” or Does “Any” Mean “Some”? An Analysis of the “Any Court” Ambiguity of the Armed Career Criminal Act and Whether Foreign Convictions Count as Predicate Convictions, 37 NEW ENG. L. REV. 147, 173–74 (2002).

74 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 committed by a small group of repeat offenders.24 Thus, the goal behind the ACCA was “[to] incapacitate the truly dangerous criminal.”25 Senator Specter originally introduced the Career Criminal Life Sentence Act, the predecessor to the ACCA, in 1981.26 In its original form, the Career Criminal Life Sentence Act authorized the federal prosecution of a criminal defendant accused of committing a robbery or burglary who had already been convicted twice for robbery or burglary under state law.27 The Career Criminal Life Sentence Act was vetoed in 1983 due to federalism concerns.28 The bill was reintroduced in 1984 and Congressman William Hughes, then-Chairman of the Subcommittee on Crime, proposed an amendment that would allow the bill to be approved:

Congressman Hughes’s amendment significantly changed the legislation. To address the federalism concerns, it eliminated the creation of federal jurisdiction over local robberies and burglaries by repeat offenders. Instead of expanding federal jurisdiction, the amendment created a sentence enhancement for repeat offenders convicted of violating a preexisting federal law. More specifically, the amendment created a mandatory minimum sentence of fifteen years or imprisonment for offenders previously convicted three of more times of robbery or burglary who violate the federal law prohibiting felons from possessing, receiving, or transporting firearms. The subcommittee accepted this amendment, and the amended bill was passed into law as the Armed Career Criminal Act of 1984.29

24 James G. Levine, Note, The Armed Career Criminal Act and the U.S. Sentencing Guidelines: Moving Toward Consistency, 46 HARV. J. ON LEGIS. 537, 545 (2009). 25 134 CONG. REC. 15, 806–07 (1988) (statement of Sen. Specter). 26 Levine, supra note 24, at 546. 27 Id. 28 Id. 29 Id. at 546–47.

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Thus, in 1984 the primary concern of Congress was to “incapacitate career criminals” which was done by targeting those individuals who frequently robbed or burglarized.30 The violent felony provision was not added until 1986, which “allowed for incapacitating a wider variety of career criminals than just robbers and burglars” by adding more crimes that would qualify as predicate offenses.31 Ultimately, then, it can be concluded that one of the primary purposes behind the ACCA was to keep violent, repeat offenders off the streets.

2. The United States Sentencing Guidelines

The Guidelines are standards set forth by the United States Sentencing Commission (“the Commission”) that district courts use when sentencing offenders.32 Although the Guidelines are advisory, a sentencing court must properly apply the Guidelines before imposing a sentence on the defendant.33 Under USSG §4B1.1, a defendant can be deemed a career offender if (1) he was 18 at the time he committed the offense for which he is being sentenced (2) the offense for which he is being sentenced is either a crime of violence or a controlled substances offense and (3) he or she has two prior convictions for crimes of violence or controlled substances offenses.34 Thus, the Guidelines differ from the ACCA in that only two prior convictions are needed for sentence enhancement and the crime before the court must be either a crime of violence or a controlled substance offense, as opposed to a violation of the firearm statute.35

30 Id. at 547. 31 Id. 32 See U.S. SENTENCING GUIDELINES MANUAL ch. 1, pt. A, subpt. 2 (2009). 33 See id.; United States v. Booker, 543 U.S. 220, 264 (2005). 34 U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 (2009). 35 Compare id. with 18 U.S.C. § 924(e)(1) (2006).

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Prior to the adoption of the Guidelines, judges had wide discretion with regard to sentencing.36 This was, in part, because sentencing was based on a “medical” model where sentences were supposed to be “individualized,” like medical treatment, so that a criminal defendant’s particular social disability could be treated.37 However, this individualized model fell out of favor as a result of “rising crime, mounting evidence that prisoners were not being rehabilitated, and increasing concern that indeterminate sentencing produced unjust disparities between similarly situated offenders.”38 As opposed to the ACCA, which Congress created, the Commission creates and updates the Guidelines.39 The Commission was created pursuant to the Sentencing Reform Act of 1984 (“the SRA”).40 Congress decided to create this agency because “(1) the previously unfettered sentencing discretion accorded federal trial judges needed to be structured; (2) the administration of punishment needed to be more certain; and (3) specific offenders (e.g. white collar and violent, repeat offenders) needed to be targeted for more serious penalties.”41 The Commission is “an independent agency in the judicial branch of government.”42 It is charged with:

(1) establish[ing] sentencing policies and practices for the Federal criminal justice system that— (A) assure the meeting of the purposes of sentencing. . .43

36 See Stanley A. Weigel, The Sentencing Reform Act of 1984: A Practical Appraisal, 36 UCLA L. REV. 83, 89 (1988). 37 Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 COLUM. L. REV. 1315, 1321 (2005). 38 Id. at 1322. 39 See UNITED STATES SENTENCING COMMISSION, AN OVERVIEW OF THE UNITED STATES SENTENCING COMMISSION, 2–3 http://www.ussc.gov/general/USSCoverview.pdf (last visited Oct. 7, 2009). 40 Id. at 1. 41 Id. at 1–2. 42 Id. at 1. 43 The goals of sentencing are just punishment, deterrence, incapacitation, and rehabilitation. 18 U.S.C.A. § 3553(a)(2) (2006).

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(B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and (C) reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.44

The first set of sentencing guidelines went into effect November 1, 1987.45 The most recent amendments to the guidelines went into effect November 1, 2009.46 Overall, then, the purpose of the Guidelines was to increase uniformity in sentencing and, like the ACCA, increase the punishment for repeat offenders. However, in sentencing defendants under the Guidelines, federal courts must also be mindful of the Supreme Court’s interpretation of “violent felony” or “crime of violence.”

B. The Supreme Court’s Interpretation of the “Violent Felony” or “Crime of Violence” Definition

Both the ACCA and the USSG define a “violent felony” or a “crime of violence” as one that “(1) has as an element the use, attempted use, or threatened use of force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious

44 28 U.S.C.A. § 991(b) (West 2008). 45 UNITED STATES SENTENCING COMMISSION, AN OVERVIEW OF THE UNITED STATES SENTENCING COMMISSION 2, http://www.ussc.gov/general/USSCoverview.pdf (last visited Oct. 7, 2009). 46 United States Sentencing Commission, Federal Sentencing Guidelines Manuals, http://www.ussc.gov/guidelin.htm (last visited Dec. 1, 2009).

78 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 potential risk of physical injury to another.”47 Because the language of 18 U.S.C. § 924(e)(2)(B) and § 4B1.2(a) is identical, courts have considered case law interpreting one statutory provision to be a persuasive, if not binding, interpretation of the other.48 In United States v. Taylor, the Court confronted the problem of defining burglary for purposes of sentence enhancement under the ACCA.49 In Taylor, the Supreme Court held that courts should adopt a “categorical approach” when sentencing a defendant, meaning that courts should not consider the individual facts of a defendant’s crime but should only look at the fact that a conviction occurred and the elements of the offense.50 However, the Taylor Court modified this categorical approach by recognizing that, in certain cases, a sentencing court would be permitted to consult the record of conviction for purposes of sentence enhancement.51 Shepard v. United States refined this analysis by limiting the modified categorical approach.52 In Shepard, the issue was whether a sentencing court could consult police reports and complaint applications for purposes of applying the sentence enhancement under the ACCA.53 The Court held that the sentencing court may only consult “the terms of the charging document, the terms of a plea agreement or transcript of a colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”54 The Court reasoned that to hold otherwise would undermine Taylor and would lead collateral trials taking place during the sentencing phase of a trial.55

47 18 U.S.C § 924(e)(2)(B) (2006); U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (2009). 48 See supra note 19 and accompanying text. 49 See 495 U.S. 575, 578 (1990). 50 Id. at 602. 51 See id. 52 544 U.S. 13, 26 (2005). 53 Id. at 16. 54 Id. at 26. 55 Id. at 23.

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In James v. United States, the Court specifically focused on the “residual clause” of the ACCA and USSG.56 In James, the question before the Court was whether attempted burglary presented enough of a serious potential risk of physical injury to qualify as a violent felony under the ACCA.57 Using the categorical approach, the Court reasoned that the risk present in a burglary “arises not from the completion of the burglary, but from the possibility that an innocent person might appear while the crime is in progress.”58 Thus, attempted burglary presented the same degree of risk as that of a completed burglary.59 The defendant in James responded by arguing that under the categorical approach, attempted burglary should not count as a predicate offense “unless all cases [of attempted burglary] present such a risk.”60 While the Court acknowledged that some instances of attempted burglary did not present a risk of physical harm to the innocent victim, such as the burglary of an abandoned building, the Court stressed the “ACCA does not require metaphysical certainty. Rather, §924(e)(2)(B)(ii)’s residual provision speaks in terms of a ‘potential risk.’ These are inherently probabilistic concepts.”61 Consequently, James stood for the proposition that a crime can qualify as a predicate offense under the ACCA’s residual clause if “by its nature” the crime involved serious potential risk to another.62 One year later, the Court decided Begay v. United States, where it again considered whether an offense was a violent felony under the residual clause of the ACCA.63 Specifically, the Court determined whether a felony offense for driving under the influence of alcohol

56 550 U.S. 192, 197 (2007). The residual clause is that part of the ACCA and USSG that punishes crimes that “otherwise involves conduct that presents a serious potential risk of physical injury or harm.” Id. 57 Id. 58 Id. at 203. 59 Id. at 203–04. 60 Id. at 207 (emphasis in original). 61 Id. 62 Id. at 209. 63 128 S. Ct. 1581, 1584–85 (2008).

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(DUI) posed the same degree of physical risk to an individual as burglary, arson, extortion, or the use of explosives.64 In reaching its conclusion that a DUI was not a violent felony under the ACCA, the Court acknowledged that there was no doubt that driving under the influence presented a serious physical risk to another.65 However, the Court reasoned that the enumerated list of crimes in the statute meant that Congress only intended to include similar crimes in the provision and not every crime that threatened to injure another.66 The Court then determined that a conviction for a DUI differed from burglary, arson, etc. because the latter crimes exhibited “purposeful, ‘violent, ‘and ‘aggressive’” behavior while the former did not.67 Specifically with regard to the purposeful requirement, the Court emphasized:

In this respect . . . crimes involving intentional or purposeful conduct (as in burglary and arson) are different than DUI, a strict liability crime. In both instances, the offender’s prior crimes reveal a degree of callousness toward risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist.68

Most recently, the Court decided United States v. Chambers in which the Justices considered whether a defendant’s failure to report to a penal institution was a violent felony under the ACCA.69 In Chambers, the Court dealt with an Illinois statute that criminalized several different behaviors in one statute.70 Specifically, the Illinois

64 Id. 65 Id. at 1584. 66 Id. at 1584–85. 67 Id. at 1586 (citations omitted). 68 Id. at 1587. 69 129 S. Ct. 687, 690 (2009). 70 Id. at 691.

81 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 statute penalized (1) escape from a penal institution; (2) escape from the custody of an employee of a penal institution; (3) failing to report to a penal institution; (4) failing to report for periodic imprisonment; (5) failing to return from furlough; (6) failing to return from work and day release; and (7) failing to abide by the terms of home confinement.71 Noting that the categorical approach was not easy to apply in such a situation,72 the Court acknowledged that failure to report, as identified in parts 3–6 of the statute, was different than the violent behavior that usually accompanies an escape attempt.73 Consequently, the Justices decided to “treat the statute for ACCA purposes as containing at least two separate crimes, namely escape from custody on the one hand, and a failure to report on the other.”74 Once the Court was able to split the statute, it was fairly easy to decide that simply failing to report for confinement was not the type of purposeful, aggressive, and violent behavior that Congress intended to target with the ACCA.75 Since Begay, lower courts have struggled to define what is “purposeful” under the ACCA or USSG. The easiest cases have been when the predicate offense required a mens rea of either purpose or knowledge. For example, in United State. v. Smith, the Third Circuit held that holding a person in involuntary servitude met the Begay test because the statute of conviction criminalized “knowingly . . . hold[ing] another in a condition of involuntary servitude.”76 Similarly, in United States v. Billups, the Seventh Circuit found that false imprisonment was a crime of violence because the Wisconsin statute criminalized “intentionally confin[ing] or restrain[ing] another . . .

71 Id. (citing 720 ILL. COMP. STAT. ANN. 5/31–6(a) (West 2009)). 72 Id. at 690. 73 Id. at 691. 74 Id. 75 See id. at 691–92. 76 284 Fed. App’x 943, 945 (3d Cir. 2008) (emphasis added) (citation omitted).

82 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 without the person’s consent and with knowledge that he or she had no lawful authority to do so.”77 The more problematic cases have been when there was a mens rea of recklessness or the statute made no mention of mens rea, making the crime one of strict liability.78 While these cases are discussed in more detail below, for now it will suffice to state that courts have either inferred that there was purposeful conduct,79 held that there was not purposeful conduct,80 or remanded back to the lower court so that the defendant’s conduct could be determined.81

C. The Seventh Circuit’s Interpretation of “Purposeful” in Woods

In Woods, the defendant was convicted of two counts of distributing ecstasy and one count of unlawful possession of a weapon, which were all violations of federal law.82 Woods pled guilty, and the Probation Service recommended an enhanced sentence due to (1) Wood’s 1993 conviction for possession of cocaine and (2) a 2001 conviction for involuntary manslaughter.83 In his appeal, Woods successfully argued that the involuntary manslaughter conviction was not a crime of violence under the Guidelines.84 Importantly, because the opinion departed from the Seventh Circuit’s previous approaches to the ACCA and USSG, it was circulated to the full court for approval before being released.85

77 536 F.3d 574, 577 (7th Cir. 2008) (citing WIS. STAT. ANN. § 940.30 (West 2008)) (emphasis added). 78 See discussion infra Part II. 79 See, e.g., United States v. Dates, No. 06-0083, 2008 WL 2620162, at *5–6 (W.D. Pa. Jun. 30, 2008) (holding that simple assault was a crime of violence because it was similar to the enumerated offenses and “necessarily” involved purposeful conduct). 80 See, e.g., United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) (holding that because the statute of conviction did not specify a mens rea, purposefulness could not be shown). 81 See, e.g., United States v. Roseboro, 551 F.3d 226, 243 (4th Cir. 2009). 82 United States v. Woods, 576 F.3d 400, 401 (7th Cir. 2009). 83 Id. 84 See id. at 412–13. 85 See id. at 407.

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Judge Diane Wood, who authored the opinion, began her analysis by stating that, under the categorical approach, the court was precluded from looking into the details of the defendant’s guilty plea to determine whether the crime of conviction was a crime of violence under the Guidelines.86 Judge Wood emphasized that, while courts were permitted to consult additional materials under Shephard, these materials could “be used only to determine which crime within a statute the defendant committed, not how he committed that crime.”87 The court then had to determine whether a conviction under Illinois’s involuntary manslaughter statute constituted sufficiently purposeful, aggressive, and violent behavior that posed a serious risk of physical harm to another.88 Illinois’s involuntary manslaughter statute read:

A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.89

In addition, “recklessness” was defined as:

A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.90

86 Id. at 403–06. 87 Id. at 405. 88 Id. at 410. 89 720 ILL. COMP. STAT. ANN. 5/9–3(a) (West 2008) (amended 2009). 90 720 ILL. COMP. STAT. ANN. 5/4–6 (West 2009).

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Furthermore, the Seventh Circuit had decided United States v. Smith only a year before.91 In Smith, the defendant had two convictions for criminal recklessness.92 In considering whether a mens rea of recklessness could qualify as a violent felony under Begay, the Seventh Circuit focused on the examples the Court used of crimes that were not committed by career criminals.93 Specifically, the Seventh Circuit noted that the Court used reckless tampering of consumer products as an example on an unintentional act.94 Looking at this example, the Smith court followed Begay’s reasoning that while reckless tampering with consumer products was “unquestionably dangerous,” it “was ‘far removed’ from the ‘deliberate kind of behavior associated with violent criminal use of firearms.”95 The Seventh Circuit also focused on the fact that the Court said all of the enumerated offenses (i.e. burglary, arson, etc.) were intentional.96 Thus, the Seventh Circuit concluded in Smith that crimes requiring only a mens rea of recklessness cannot be considered violent felonies under the ACCA.97 In response to Smith, the Government in Woods argued that Begay did not require that all crimes of recklessness be considered non-violent.98 The Government stated that Woods’s involuntary manslaughter conviction should count as a crime of violence because Woods had to consciously disregard the substantial harm that would occur.99 The Seventh Circuit explicitly rejected this argument by responding that every reckless act begins with intentional behavior.100 The court added “when pressed at oral argument to provide an example of a situation where a defendant would be reckless with

91 Woods, 576 F.3d at 411; United States v. Smith, 544 F.3d 781, 782 (7th Cir. 2008). 92 Smith, 544 F.3d at 782. 93 Id. at 785. 94 Id. 95 Id. (citing Begay v. United States, 128 S. Ct. 1581, 1587 (7th Cir. 2008)). 96 Id. 97 Id. at 787. 98 United States v. Woods, 576 F.3d 400, 411 (7th Cir. 2009). 99 Id. 100 Id.

85 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 regard to the outcome and not begin with an intentional act, the Government could not provide one.”101 Accordingly, because Illinois’s involuntary manslaughter conviction only prohibited reckless homicide, the majority held that Wood’s conviction did not count for purposes of sentence enhancement.102 In addition, the court explicitly refrained from using a modified categorical approach to sentencing.103 The court explained that the modified categorical approach only applies when a statute is divisible,104 and a statute is only divisible when it “creates several crimes or a single crime with several modes of commission.”105 “Modes of commission” was specifically limited to conduct that was explicitly identified in the statute.106 Thus, because Illinois’s involuntary manslaughter statute did not specify modes of commission, the court did not consider the involuntary manslaughter statute to be divisible.107 Chief Judge Easterbrook, joined by Judges Posner and Tinder, wrote a dissent that sharply criticized Begay and he urged the Court to create a more concrete list of violent felonies instead of an open-ended test.108 Chief Judge Easterbrook reminded the Court that “[s]tates did not write their statutes with Begay in mind.”109 He further questioned “[h]ow can it be that burglary is a crime of violence, even though people are rarely injured in burglaries, and homicide is not, even though a person’s death is an element of the offense?”110 The dissent argued that the lower court should have been able to look at the charging documents and consider the defendant’s conduct.111 The dissent rationalized this approach in light of the

101 Id. 102 Id. at 413. 103 Id. 104 Id. 105 Id. 106 Id. 107 Id. 108 See id. at 413 (Easterbrook, C.J., dissenting). 109 Id. 110 Id. at 414. 111 Id.

86 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 categorical approach by arguing that as long as there is some question as to what part of a statute the defendant violated, even if that question is irrelevant to ultimate guilt (such as the difference between burglarizing a house and a boat), the sentencing court should be allowed to look at the documents.112 The dissent’s opinion was best summed up by the following:

Woods dropped a five-week-old baby on his head, then shook the comatose child to death. That is purposeful, violent, and aggressive conduct. The possibility that Woods did not intend to drop the child need not detain us; the state statute requires some knowing conduct, a standard satisfied by the shaking if not the dropping. (The state judge did not pin this down, because it was not relevant as a matter of state law.) The Woods panel concludes that recklessness does not meet Begay’s requirement of intentional conduct, but [another case] holds that criminal recklessness—the kind involved here—is a form of intent, and I think it likely that the Justices will deem it sufficient for recidivism enhancements too.113

In contrast to the majority, the dissent focused on the defendant’s conduct as opposed to his mens rea.114 The dissent saw Woods’s activity as falling within the purposeful, violent, and aggressive conduct that the Court meant to target.115 In contrast to the majority, the dissent stated that the statute of conviction did not have to be divisible in order for a modified categorical approach to apply.116 The dissent argued that, under Taylor, a court should be allowed to consult the charging papers and

112 Id. at 416. 113 Id. 114 Compare id. at 410 (majority opinion) with id. at 416 (Easterbrook, C.J., dissenting). 115 See id. at 416 (“[T]he kind [of intent] involved here . . . is a form of intent, and I think it likely that the Justices will deem it sufficient for recidivism enhancements . . . .” (Easterbrook, C.J., dissenting) (emphasis in original)). 116 See id. at 414.

87 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 plea colloquy in order to discover whether a defendant burglarized a house or a barn, even though such a distinction is irrelevant under the generic burglary statute.117 Similarly, how Woods killed his son was ultimately irrelevant for conviction under the involuntary manslaughter statute, but it could be relevant for purposes of sentence enhancement.118 Furthermore, the dissent advocated for a more flexible approach to sentencing under the Guidelines because of their advisory nature.119 Because the Guidelines were not mandatory, and a judge could have therefore imposed a heightened sentence regardless of what the Guidelines suggested, the dissent asked: “why employ elaborate rules about ‘divisibility’ and ‘recklessness’ that the district judge may elect to bypass in the end?”120

II. CAN A MENS REA OF RECKLESSNESS EVER BE PURPOSEFUL UNDER BEGAY?

At first glance, it seems crimes requiring a mens rea of recklessness would never satisfy the Begay test because acting recklessly, by definition, is not the same as acting with intent.121 As explained above, that is the view the Seventh Circuit adopted in Smith and reaffirmed in Woods.122 However, a circuit split has developed with regard to this question. While some circuits have followed reasoning similar to that used in Woods, other courts have held that a mens rea of recklessness, or even no mens rea at all, is sufficient to

117 Id. at 415 ( “[A] third kind of statute provides that ‘any person who enters a building with intent to commit a felony therein’ commits burglary. There’s nothing ‘divisible’ about that law: the word ‘building’ covers barns, ships, and dwellings. Yet Taylor says that here, too, the sentencing judge may look at the charging papers or guilty-plea colloquy to see whether the person was convicted of entering a house rather than a barn.”). 118 Id. 119 Id. at 418. 120 Id. 121 Compare 720 ILL. COMP. STAT. ANN. 5/4–6 (West 2009), with 720 ILL. COMP. STAT. ANN. 5/4–4 (West 2009). 122 See discussion supra Part I.C.

88 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 meet the Begay test.123 In addition, the Fourth Circuit Court of Appeals adopted a modified categorical approach when confronted with a defendant who may have committed his crime recklessly.124

A. Circuits Holding that Recklessness Can Never Meet the “Purposeful” Requirement for a Violent Felony Under the ACCA or USSG

When considering the Court’s decision in Begay, several circuits have held that a predicate offense that has a mens rea of recklessness cannot count as a crime of violence.125 For example, in United States v. Gray, the Second Circuit Court of Appeals held that a conviction for reckless endangerment under New York state law126 did not qualify as the type of purposeful, aggressive, conduct that the Court in Begay hoped to target.127 While the Second Circuit acknowledged that behavior sufficient to be criminalized as reckless endangerment “com[es] close to crossing the threshold into purposeful conduct,”128 the court in Gray ultimately concluded that reckless acts could not be considered intentional.129 In support of its conclusion, the court stated that “Begay places a strong emphasis on intentional-purposeful-conduct as a prerequisite for a crime to be considered similar in kind to [burglary, arson, extortion, and the use of explosives].”130 Furthermore, the Gray court noted that the Court offered the crime of recklessly tampering

123 Compare discussion infra Part II.A with discussion infra Part II.B. 124 See discussion infra Part II.C. 125 See United States v. Gray, 535 F.3d 128 (2d Cir. 2008); United States v. Baker, 559 F.3d 443 (6th Cir. 2009). 126 The defendant was convicted under New York Penal Law § 120.25 which stated that “[a] person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.” N.Y. PENAL LAW § 120.25 (2009). 127 535 F.3d at 131–32. 128 Id. at 132. 129 Id. 130 Id. at 131–32.

89 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 with consumer products in violation of 18 U.S.C. 1365(a)131 as an example of a crime that would not be considered purposeful, aggressive, and violent.132 Similarly, the Sixth Circuit held that reckless endangerment was not a violent felony under the ACCA.133 Post-Begay, the Sixth Circuit was forced to reconsider its position that reckless endangerment qualified as a violent felony.134 A mere year beforehand, but before Begay, the Sixth Circuit had decided United States v. Bailey, in which it held that reckless endangerment was a violent felony because it posed a serious risk of physical harm to another person.135 The Bailey court reasoned that a predicate conviction for reckless endangerment should enhance the sentence of a defendant because “no scenario exists in which an individual could commit felony reckless endangerment without creating a serious risk of harm to others . . . .”136 However, in United States v. Baker, the Sixth Circuit reconsidered its holding in light of Begay and held that reckless endangerment did not qualify as a violent felony.137 The court held that Begay stood for the proposition that the residual clause of the ACCA and USSG only applied to crimes that were similar to burglary and arson instead of every crime that presented a serious potential risk of physical injury to another.138 Accordingly, while the Sixth Circuit was willing to admit that reckless endangerment posed a serious risk, it ultimately concluded that the crime was not purposeful and thus not a violent felony.139 The court stated that “the offense does not involve

131 A person is guilty of violating this statute if he recklessly “disregard[s] . . . the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product.” 18 U.S.C. § 1356(a) (2006). 132 Gray, 535 F.3d at 132 n.3. 133 See United States v. Baker, 559 F.3d 443, 452 (6th Cir. 2009). 134 Id. 135 264 Fed. App’x 480, 482 (6th Cir. 2008). 136 Id. 137 Baker, 559 F.3d at 453. 138 Id. at 452. 139 Id. at 453.

90 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 the type of ‘purposeful, violent, and aggressive’ conduct as burglary, arson, extortion, or the use of explosives . . . . Rather, on its face the statute criminalizes only reckless behavior.”140 While neither the Second Circuit nor the Sixth Circuit explicitly stated that a mens rea of recklessness could never meet the Begay standard, the reasoning utilized above strongly suggested that a criminal statute with only a mens rea of recklessness or negligence was unlikely to count for purposes of sentence enhancement under the ACCA and the USSG in those circuits. Furthermore, courts interpreting these decisions from the Second, Sixth, and Seventh Circuits have recognized the intentional/purposeful mens rea requirement for triggering sentence enhancements under the ACCA and USSG.141 Thus, the mens rea of a statute may be the most defining element when determining whether a statute is a violent felony under the ACCA or USSG.142

B. Circuits Holding that a Mens Rea of Recklessness or Strict Liability Crimes Do Satisfy the “Purposeful” Requirement of Begay

At the other end of the spectrum are those circuits holding that a mens rea of recklessness or crimes without a specified mens rea can be sufficiently purposeful to constitute a violent felony under the ACCA and the USSG.143 These circuits mainly rely upon the fact that there is

140 Id. (emphasis added) (internal citations omitted). 141 See, e.g., United States v. Jones, 574 F.3d 546, 551 (8th Cir. 2009) (“Jones is correct in asserting that some circuits have interpreted Begay to limit the mens rea a crime must have in order to qualify as a violent felony.” (citing United States v. Smith, 544 F.3d 781, 785–86 (7th Cir.2008) (holding that post-Begay crimes of recklessness are not violent felonies under the ACCA); United States v. Gray, 535 F.3d 128, 132 (2d Cir.2008) (holding that "reckless endangerment" is not a crime of violence because the statute “on its face does not criminalize intentional or deliberate conduct."))). 142 See id. 143 See United States v. Zuniga, 553 F.3d 1330, 1336 (10th Cir. 2009); United States v. Polk, 577 F.3d 515, 519 (3d Cir. 2009).

91 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 some intentional or purposeful act that occurs during the commission of the crime.144 For example, in United States v. Zuniga, the Tenth Circuit held that possession of a deadly weapon in prison145 constituted a violent felony under the ACCA.146 The Tenth Circuit immediately noticed that the statute criminalized reckless conduct and, as a result, acknowledged that the defendant’s possession of a deadly weapon did not have to be deliberate or intentional under the statute.147 The court then stated that “the Begay test specifically requires that the crime in question ‘typically’ involve purposeful conduct. It is reasonable to surmise that those who possess deadly weapons in a penal institution typically intend to possess them.”148 The Zuniga court also examined how the state courts interpreted the Texas statute.149 Noting that one of the elements the State had to show was that the accused “possessed the weapon knowingly or intentionally,” the court had an easier time concluding that a conviction for possessing a deadly weapon in prison qualified as a violent felony.150 In Zuniga, the Tenth Circuit also justified its opinion based on its conclusion that possessing a deadly weapon was more similar to burglary, arson, etc., than driving under the influence.151 The court reasoned that:

144 Id. 145 See TEX PENAL CODE ANN. § 46.10 (West 2003) (“A person commits an offense if, while in a penal institution, he (1) intentionally, knowingly, or recklessly: (1) carries on or about his person a deadly weapon; or (2) possesses or conceals a deadly weapon in a penal institution.”). 146 553 F.3d at 1336. 147 Id. at 1334. 148 Id. (internal citations omitted). 149 Id. 150 Id. at 1334–35 (citing Wilson v. State of Texas, No. 13-04-00298-CR, 2007 Tex. App. LEXIS 4332, at *6 (Tex. Crim. App. 13th Dist. May 31, 2007) (unpublished)). Of course, while the Tenth Circuit relied on this opinion in its decision, it should be noted that Wilson was unpublished and not binding on any state court. 151 Id. at 1335.

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The Court in Begay determined that driving under the influence was not a purposeful crime because it was similar to a strict liability offense, ‘criminalizing conduct in respect to which the offender need not have any criminal intent at all.’ Possession of a deadly weapon in prison is not a strict liability crime, because it requires either intentional or reckless behavior. In terms of purpose, it is therefore not analogous to driving under the influence.152

In a very similar case, the Third Circuit also concluded that possession of a deadly weapon was purposeful.153 Interestingly, the statute the defendant was convicted under, 18 U.S.C. §1791(a)(2), was a strict liability offense and had no mens rea requirement.154 Specifically, 18 U.S.C. §1791(a)(2) provided that “[w]hoever . . . being an inmate of a prison, makes, possesses, or obtains, or attempts to make or obtain, a prohibited object shall be punished as provided in subsection (b) of this section.”155 In other words, one could theoretically be convicted under this statute for negligently or recklessly possessing a prohibited object (not even a necessarily a deadly object, just one that is prohibited).156 In looking at the “purposeful” component of the Begay test, the Third Circuit summarily declared that “[w]hile possessing a weapon in prison is purposeful, in that we may assume one who possesses a shank intends that possession, it cannot properly be characterized as conduct that is itself aggressive or violent.”157 Thus, while the Tenth and Third Circuits similarly found that possessing a weapon in prison was purposeful, they differ with regard to whether that possession was aggressive and/or violent.158

152 Id. (internal citations omitted). 153 United States v. Polk, 577 F.3d 515, 519 (3d Cir. 2009). 154 See 18 U.S.C. § 1791(a)(2) (2006). 155 Id. 156 See id. 157 Polk, 577 F.3d at 519. 158 Id.

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C. Recklessness May Qualify as Purposefulness: The Modified Categorical Approach

A frequent problem courts encounter when sentencing a defendant under the ACCA or Guidelines is when a defendant can be convicted under a statute for acting purposefully or recklessly.159 The Fourth Circuit was faced with just such a dilemma in U.S. v. Roseboro.160 In Roseboro, the predicate felony at issue was failure to stop for a blue light.161 The statute at issue criminalized the “failure” to stop for a blue light but did not specify a particular mens rea.162 Specifically, the statute stated:

In the absence of mitigating circumstances, it is unlawful for a motor vehicle driver, while driving on a road, street, or highway of the State, to fail to stop when signaled by a law enforcement vehicle by means of a siren or flashing light. An attempt to increase the speed of a vehicle or in other manner avoid the pursuing law enforcement vehicle when signaled by a siren or flashing light is prima facie evidence of a violation of this section. Failure to see the flashing light or hear the siren does not excuse a failure to stop when the distance between the vehicles and other road conditions are such that it would be reasonable for a driver to hear or see the signals from the law enforcement vehicle.163

The Fourth Circuit held that the wording of the statute placed the sentencing court in a dilemma, because a defendant could intentionally or unintentionally violate the statute.164 Noting that the statute was “categorically overbroad” the court remanded to the district court and

159 See, e.g., United States v. Roseboro, 551 F.3d 226, 235 (4th Cir. 2009). 160 Id. 161 Id. at 228. 162 Id. at 234–35. 163 S.C. CODE ANN. § 56-6-750 (West 2009). 164 Roseboro, 551 F.3d at 234–35.

94 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 allowed the court to consult additional materials to discover whether the defendant had acted intentionally.165 Thus, in Roseboro, the court took a statute that was “strict- liability like” in nature and, instead of determining that the conduct was not purposeful, remanded the case to allow the district court to determine whether the defendant’s conduct was intentional.166

III. IN ORDER TO FULFILL THE GOALS OF THE ACCA AND THE USSG, JUDGES NEED MORE DISCRETION TO DETERMINE PURPOSEFULNESS

As explained above, one of the major goals of the ACCA was to keep violent, repeat offenders off the streets.167 The Guidelines have the additional aspiration of trying to maintain uniformity in sentencing.168 A mens rea approach does not best fulfill these goals. On the other hand, the Tenth and Third Circuit’s approach is insufficient because it potentially allows non-purposeful conduct to be elevated to the level of a violent felony. Instead, judges should be allowed more discretion to look at the record and determine whether the conduct at issue demonstrates that the defendant intended to act in a violent and aggressive manner. Thus, courts should use, and should be allowed to use, the modified categorical approach suggested by the court in Roseboro and the dissent in Woods.

A. The Mens Rea Approach is Unsatisfactory

Limiting violent felonies to only those crimes that require a mens rea of recklessness does not accomplish Congress’s goals of (1) neutralizing violent, repeat offenders and (2) achieving uniformity in sentencing.

165 Id. at 240. 166 Id. 167 See discussion supra Part I.A. 168 See discussion supra Part I.B.

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1. Too Many Offenses Are Left Out of the Definition of Violent Felony, Thus Working Against the Goal of Punishing Serial Offenders

Considering that one of the major goals of Congress in enacting the ACCA and creating the Sentencing Commission was to neutralize violent repeat offenders, the mens rea approach is unable to achieve this goal. Specifically, two of the most heinous crimes, manslaughter and sexual assault might not qualify as violent felonies or crimes of violence under the Seventh Circuit’s mens rea approach.169 Thus, an individual who commits any combination of involuntary manslaughter and sexual assault multiple times might still not be considered a career offender under the ACCA or USSG.170 Looking first at involuntary manslaughter, the Seventh Circuit’s holding in Woods asserts that involuntary manslaughter is not a violent felony.171 However, such a holding is directly in conflict with the position of the Sentencing Commission, which has included manslaughter on its list of enumerated predicate felonies.172 As the Commission was created, in part, as a response to Congress’s desire to incapacitate serious offenders, the Commission’s position on what crimes are violent felonies is persuasive.173 The Seventh Circuit’s

169 See United States v. Woods, 576 F.3d 400, 412–13 (7th Cir. 2009); 720 ILL. COMP. STAT. ANN. 5/12–13 (West 2009). As explained in Part I.C, the Seventh Circuit held that involuntary manslaughter under Illinois law does not qualify as a violent felony under Begay. See discussion supra Part I.C. Further, Illinois’s criminal sexual assault statute does not specify a mens rea, and thus is a strict liability offense, so a conviction under the statute would not be purposeful under a mens rea approach. See infra note 182 and accompanying text. 170 See id. 171 Woods, 576 F.3d at 412–13; see discussion supra Part I.C. 172 U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) cmt. n.1 (2009). 173 See United States v. Herrick, 545 F.3d 53, 60 (1st Cir. 2008) (“We note that the commentary to U.S.S.G. § 4B1.2(a) includes manslaughter as a crime of violence without distinguishing between voluntary and involuntary manslaughter, arguably suggesting that the mens rea for the crime is not determinative.”); see also United States v. Camilo, 71 F.3d 984, 988 (1st Cir. 1995) (citing to the Commission’s commentary to support its position); United States v. Wilson, 993 F.2d 214, 217 (11th Cir. 1993) (citing commentary from the Commission to support its holding that

96 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 mens rea approach, in leading to an opposite result, does not fulfill the goals of the ACCA and the USSG. Arguably, a distinction could be drawn between voluntary and involuntary manslaughter. For example, when considering a bill that would impose mandatory life imprisonment for individuals convicted of three violent felonies, the House of Representatives proposed that the term “serious violent felony” meant “[a] Federal or State offense, by whatever designation and wherever committed, consisting of . . . manslaughter other than involuntary manslaughter.”174 However, even in taking this definition into account, there are important considerations to keep in mind. First, the Commission did not make the distinction between voluntary and involuntary manslaughter.175 Second, the definition above is for a “serious violent felony” as opposed to a “violent felony,” and the ACCA only concerns itself with violent felonies.176 Consequently, there is no indication that Congress meant to remove involuntary manslaughter from the list of violent felonies simply because it was committed recklessly. Similarly, some sex crimes will likely not be considered “purposeful” under the mens rea approach because these crimes do not specify a mens rea.177 Criminal Sexual Assault, for example, is defined in Illinois as:

§ 12-13. Criminal Sexual Assault. (a) The accused commits criminal sexual assault if he or she: (1) commits an act of sexual penetration by the use of force or threat of force; or

reasonably foreseeable consequences of fraud can be taken into account when sentencing). 174 H.R. REP. NO. 103–463, at 2 (1994). 175 See U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) cmt. n.1 (2009). 176 See 18 U.S.C. § 924(e)(1) (2006). 177 See 720 ILL. COMP. STAT. ANN. 5/12–13 (West 2009); 720 ILL. COMP. STAT. ANN. 5/12–14.1 (West 2009). But see United States v. Patterson, 576 F.3d 431, 442 (7th Cir. 2009) (holding that knowingly transporting a minor across state lines for prostitution is a crime of violence).

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(2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent; or (3) commits an act of sexual penetration with a victim who was under 18 years of age when the act was committed and the accused was a family member; or (4) commits an act of sexual penetration with a victim who was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in relation to the victim.178

Of the various definitions, only one, §12-13(a)(2) has a mens rea element to it.179 According to Woods, while a court could engage in a modified categorical approach to discover what offense the defendant committed, the court could not take the facts learned from the record of conviction to determine whether the defendant acted purposefully.180 Instead, the court would be restricted to the statutory language.181 Thus if a defendant committed (a)(1)—sexual penetration by the use of force or threat of force—the court could not determine whether he had acted purposefully because there is no mens rea element. The statute, in fact, reads like a strict liability statute. As a result, the Seventh Circuit would be precluded from determining that a defendant had acted purposefully, and thus the rapist would not be subjected to an enhanced sentence—even if he was to rape two more times.182

178 720 ILL. COMP. STAT. ANN. 5/12–13 (West 2009). 179 720 ILL. COMP. STAT. ANN. 5/12–13(a)(2) (West 2009) (“the accused knew”). 180 See United States v. Woods, 576 F.3d 400, 405 (7th Cir. 2009). 181 See id. 182 In both Woods and Patterson, the Seventh Circuit used the strict liability statute at issue in Begay to point out that the Supreme Court did not intend to enhance sentences for those crimes where the offender did not act with criminal intent. See id. at 409; Patterson, 576 F.3d at 441. Thus, while the Seventh Circuit has never explicitly held that strict liability statutes do not meet the Begay test, such a holding can be inferred from the court’s reasoning in Woods and Patterson.

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Predatory criminal sexual assault of a child functions in a similar way. The statute reads:

§ 12-14.1. Predatory criminal sexual assault of a child. (a) The accused commits predatory criminal sexual assault of a child if: (1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed; or (1.1) the accused was 17 years of age or over and, while armed with a firearm, commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed; or (1.2) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed and, during the commission of the offense, the accused personally discharged a firearm; or (2) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed and the accused caused great bodily harm to the victim that: (A) resulted in permanent disability; or (B) was life threatening; or (3) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed and the accused delivered (by injection, inhalation, ingestion, transfer of possession, or any other means) to the victim without his or her consent, or by threat or deception, and for other than medical purposes, any controlled substance.

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Again, a review of the statute finds no mens rea element.183 Because no criminal intent is specified in this statute, and any of these offenses could theoretically be committed purposefully, knowingly, or recklessly, the Seventh Circuit would be precluded from finding any of these offenses to be crimes of violence.184 Accordingly, the mens rea approach fails to impose larger sentences on those individuals who commit some of the more disturbing crimes: homicide (in the form of involuntary manslaughter) and criminal sexual assault. Such a result seems inconsistent with the goals of the ACCA and USSG, and is in direct opposition to the Commission’s intent.185

2. A Mens Rea Approach Creates a Lack of Uniformity

The other articulated goal of Congress in creating the Commission was to achieve uniformity in sentencing.186 However, under a mens rea approach, defendants with similar levels of culpability end up with widely disparate sentences. Two cases, United States v. Woods and United States v. Hudson, illustrate this dilemma. As discussed in Part I, the defendant in Woods was convicted of involuntary manslaughter after recklessly shaking his disabled infant son and causing his death.187 Although irrelevant for our purposes, there was other evidence that the baby had been abused and had died from blunt trauma to the head.188 In Hudson, one of the defendant’s predicate offenses was fleeing a police officer.189 Specifically, Hudson was guilty of fleeing “while

183 The Model Penal Code identifies four levels of culpability: purpose, knowledge, recklessness, and negligence. MODEL PENAL CODE § 2.02(2) (2009). None of these levels of culpability are identified in the statute. 184 See supra note 182 and accompanying text; see also MODEL PENAL CODE § 2.02(3) (2009) (stating that if a statute does not specify a mens rea, a defendant is guilty of the offense if he commits it purposely, knowingly, or recklessly). 185 U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) cmt. n.1 (2009). 186 See discussion supra Part I.B. 187 See discussion supra Part I.C. 188 United States v. Woods, 576 F.3d 400, 402 (7th Cir. 2009). 189 United States v. Hudson, 577 F.3d 883, 884 (8th Cir. 2009).

100 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 operating a motor vehicle on city streets ‘at excessive speeds and failing to stop for stop signs.’”190 Later, the defendant was also convicted of being a felon in possession of a firearm.191 He argued that he was not subject to the sentence enhancement because his prior conviction for fleeing a police officer was not a crime of violence.192 Specifically, he argued that the statute of conviction did not require an intent to kill or harm, and, as a result, did not require purposefulness.193 In other words, Hudson argued that his behavior was not purposeful because he did not intend to expose anyone to harm.194 The Eighth Circuit disagreed.195 In looking at the statute of conviction, the court noted that Hudson was charged with knowingly fleeing a police officer.196 Accordingly, the court concluded that “knowingly fleeing a police officer who is attempting to make an arrest is purposeful conduct that falls within the ‘otherwise involves’ clause of § 4B1.2(a) as construed by Begay.”197 Consequently, by looking only at the mens rea of the statute of conviction, Hudson was given an additional fifteen-year sentence for knowingly fleeing a police office when his actual conduct may not have presented a “serious potential risk of injury to another.”198 The differing results in Woods and Hudson appear anomalous. Both Woods and Hudson consciously engaged in an act that represented a callous indifference toward human life. Surely, one defendant is not more likely to point a gun and pull a trigger than the other. Yet Hudson was sentenced to an additional fifteen years, while Woods was not. This is especially alarming in light of the fact that Woods’s action actually did claim a human life while Hudson’s did not.

190 Id. 191 Id. 192 Id. 193 Id. at 885–86. 194 See id. 195 Id. at 886. 196 Id. 197 Id. 198 Id.; U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (2009).

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The different results in Hudson and Woods demonstrate that a mens rea approach to purposefulness goes against the goal of uniformity in sentencing. Arguably, uniformity is only a goal with regard to two defendants who are convicted of the same crime, but the goals of the Commission state that the Commission is charged with ensuring certainty in sentencing with regard to similar defendants who have a similar criminal background.199 Since the mens rea approach concentrates solely on the mens rea required for conviction without taking into account any of the background facts of a case, such an approach creates severe disparities in sentencing between similarly- situated defendants.

B. The Tenth Circuit’s Approach is Inconsistent with Begay

Even as the Seventh Circuit’s approach is too narrow, the Tenth Circuit’s rule is too broad. As stated above, the Tenth Circuit found purposefulness when the statute of conviction criminalized behavior that was “typically” committed with purpose.200 However, this overlooks the fact that some defendants could be convicted who did not intentionally engage in any aggressive or violent behavior. A simple hypothetical demonstrates this point. If Joe Inmate believes that someone is waiting for him in the cafeteria, he may bring a sharpened toothbrush with him to defend himself. Nothing, in fact, happens, and Joe means to get rid of the weapon, but he forgets that he has it on his person. Later, during a routine search, guards discover the toothbrush. While Joe did not intend to have the weapon on him at the time he was caught, his offense would still be considered a violent felony under the ACCA. Of course, it could be argued that the inmate intended to possess the weapon earlier, or that he committed an intentional act that lead to him recklessly committing a crime. However, the Seventh Circuit’s response to this argument is sound. In essence, the Seventh Circuit recognized that every unintentional act begins with an intentional

199 28 U.S.C.A. § 991(b)(1)(B) (West 2008). 200 United States v. Zuniga, 553 F.3d 1330, 1334 (10th Cir. 2009).

102 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 act.201 The Tenth Circuit’s approach thus impermissibly blurs the line between actus reus and mens rea.202 By finding that the purposefulness requirement is met in one intentional act, such a holding relieves the court of finding purpose with regard to the actual crime of conviction. In addition, punishing those individuals who do not have the requisite level of intent is contrary to the Court’s holding in Begay.203 Specifically, the Court in Begay was concerned about those individuals who might “deliberately point the gun and pull the trigger.”204 Indeed, one of the Court’s problems with New Mexico’s DUI statute in Begay was that it would add a 15-year sentence enhancement as a result of a crime where the defendant did not need to have any criminal intent whatsoever.205 Therefore, in cases where a defendant could be convicted without having intentionally committed the offense, the Tenth Circuit’s approach goes against the holding of Begay.

C. The Modified Categorical Approach: (Re)Introducing Discretion into Sentencing

On the surface, it is difficult to construe “recklessness” as “purposefulness” because, as the court addressed in Woods, every reckless result likely begins with an intentional act.206 Yet, looking solely at the mens rea of a statute creates unjust results that go against the established purposes of sentencing.207 How is one to reconcile these results?

201 See United States v. Woods, 576 F.3d 400, 410–11 (7th Cir. 2009). 202 See Michael M. O’Hear, Seventh Circuit Criminal Case of the Week: What Is a Crime of Violence?, MARQ. U. L. SCH. FACULTY BLOG, Aug. 9, 2009, http://law.marquette.edu/facultyblog/2009/08/09/seventh-circuit-criminal-case-of- the-week-what-is-a-crime-of-violence. 203 See Begay v. United States, 128 S. Ct. 1581, 1587 (2008). 204 Id. 205 Id. at 1586–87. 206 See United States v. Woods, 476 F.3d 400, 411 (7th Cir. 2009) (“Every crime of recklessness necessarily requires a purposeful, volitional act that sets in motion the later outcome.”). 207 See discussion supra Part III.A.

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Adherence to the categorical approach causes unjust and disparate results in sentencing. While there are understandable reasons why society does not want judges to be able to comb through a defendant’s record when imposing a sentence, by not allowing judges any access to the record of conviction it is virtually impossible to separate the violent, career offenders from the “regular” repeat offenders.208 Under current Court precedent, the best approach so far seems to be the Fourth Circuit’s approach in Roseboro. In Roseboro, the Fourth Circuit took a statute that did not specify a mens rea requirement, and remanded the case back to the lower court to determine whether the defendant had acted with purpose. This approach is preferable to either the mens rea approach or the Tenth Circuit’s approach. With regard to the sexual assault statutes described above, such an approach would allow a sentencing judge to look at certain documents in the record to determine whether a defendant acted purposefully.209 Instead of simply not allowing these crimes to count as predicate offenses, the modified categorical approach will allow a more just and uniform sentencing because defendants with similar degrees of guilt will receive similar punishments.210 The modified categorical approach could have lead to a different result in Woods. Although the statute criminalized only reckless intent, Wood’s conduct demonstrates an intent to commit a violent and aggressive act.211 As the dissent explained, “[l]ikewise a person who drops a baby on his head, and intentionally shakes the inert body violently, has committed an aggressive and dangerous act; the person's

208 See Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004) for a discussion of possible Sixth Amendment concerns when judges use discretion in sentencing. However, Apprendi and its progeny are not of concern because both of those cases dealt with judicial findings of fact. See Apprendi, 530 U.S. at 471; Blakely, 542 U.S. at 300. A modified categorical approach to sentencing would only use facts that have already been found by a jury or have been admitted to by a defendant. See Woods, 576 F.3d at 415 (Easterbrook, C.J., dissenting) (“Shepard blocks using anything other than the charging papers and plea colloquy to establish what the defendant was convicted of.”). 209 See supra note 182 and accompanying text. 210 See discussion supra Part III.A. 211 See Woods, 576 F.3d at 417 (Easterbrook, C.J., dissenting).

104 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 indifference to consequences should not prevent counting the conviction.”212 Similarly, an individual who recklessly shoots a gun into a crowd, but does not intend to kill anyone, intentionally committed a violent and aggressive act even though she was unconcerned about the consequences of her act.213 Arguably, the modified categorical approach represents a return to the “medical” model of sentencing because judges are allowed discretion to determine whether defendants acted purposefully.214 Indeed, some have called for a return to some form of wholly discretionary sentencing.215 However, this article does not call for a return to unfettered discretion. Instead, implementing a modified categorical approach would alleviate concerns about disparate sentencing while furthering the goals of the ACCA and USSG. First, the modified categorical approach would not lead to disparate sentencing. The Guidelines would still be in place so that individuals convicted of a certain crimes would receive the original sentence they would normally receive under the Guidelines.216 The only provision that would be affected would be the sentence enhancement provision.217 To the degree that judges do have more discretion to award sentence enhancements, such discretion is necessary to fulfill the articulated goals of the ACCA and USSG. Furthermore, Congress never meant to entirely eradicate judicial discretion in sentencing.218 In fact, “the drafters of the Guidelines

212 Id. 213 Id. 214 See discussion supra Part I.B for a discussion on the medical model of sentencing. 215 See Adam Lamparello, Implementing the Heartland Departure in a Post- Booker World, 32 AM. J. CRIM. L. 133, 137 (2005). 216 The Application Instructions instruct district courts to calculate a defendant’s sentence, then apply the sentence enhancement. See U.S. SENTENCING GUIDELINES MANUAL § 1B1.1(f) (2009);Woods, 576 F.3d at 411 (“It is worth underscoring . . . that the enhanced sentencing range under the ACCA or the career offender guidelines is imposed in addition to any punishment that has already been imposed on a defendant.” (emphasis in original)). 217 See U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 (2009). 218 See S. REP. No. 98-225, at 77 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3260 (stating that judges were to consider all the purposes of sentencing when

105 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 regime envisioned an important role for judges . . . . As judges applied the Guidelines, they were supposed to highlight issues and concerns that the Guidelines had not addressed, in effect, to create a common law of sentencing in the interstices of the Guidelines.”219 Additionally, the Guidelines themselves allow a sentencing judge to consider any other policies or factors that would allow them to adjust the defendant’s sentence.220 Therefore, because discretion has always been, and continues to be, an integral part of sentencing, the modified categorical approach should not be rejected simply because it allows more discretion than the mens rea approach. Second, the modified categorical approach is more in line with Congress’s intent. Congress meant to target repeat, violent offenders.221 Shaking a baby to death is certainly violent.222 Congress also wanted to achieve greater uniformity in sentencing, and the modified categorical approach, more than a mens rea approach, allows for defendants with similar degrees of culpability to receive similar punishments.223 Instead being confined to the mens rea of a statute, courts will be able to reach a common sense decision as to whether the defendant acted purposefully. Thus, instead of two wildly different results for defendants who engaged in equally culpable behavior, courts can determine, for example, that in this involuntary manslaughter case, the defendant purposefully committed a violent and aggressive act, although she was reckless with regard to the eventual outcome. CONCLUSION

Manslaughter, voluntary or involuntary, results in the loss of a human life. Woods admitted to dropping his mentally handicapped

imposing a sentence); United States v. Jaber, 362 F. Supp. 2d 365, 372–73 (D. Mass. 2005). 219 Jaber, 362 F. Supp. 2d at 373. 220 See U.S. SENTENCING GUIDELINES MANUAL, § 1B1.1(i) (2009). 221 See discussion supra Part I.A. 222 See United States v. Woods, 576 F.3d 400, 416 (7th Cir. 2009) (Easterbrook, C.J., dissenting). 223 See discussion supra Part II.B; see also discussion supra Part III.A.2.

106 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 five-week old son and shaking him to death. As the dissent in Woods realized, this, by its nature is an intentional, aggressive, and violent act.224 Ironically, by getting caught up in the mens rea of the actual statute of conviction, courts lose the ability to target repeat offenders who have the same level of mental culpability.

224 See Woods, 576 F.3d at 416 (Easterbrook, C.J., dissenting).

107 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009

TRUE TO THE FABLE?: EXAMINING THE APPROPRIATE REACH OF CAT’S PAW LIABILITY

EMILY M. KEPNER*

Cite as: Emily M. Kepner, Note, True to the Fable?: Examining the Appropriate Reach of Cat’s Paw Liability, 5 SEVENTH CIRCUIT REV. 108 (2009), http://www.kentlaw.edu/7cr/v5-1/kepner.pdf.

INTRODUCTION

Since the early 1900s, Congress has enacted legislation to deter discrimination in the workplace and provide remedies for discrimination victims.1 All of the antidiscrimination acts prohibit employers from making employment decisions, such as hiring and firing, based on certain prohibited characteristics.2 To succeed with an employment discrimination claim, plaintiffs must ultimately prove that

* J.D. candidate, May 2010, Chicago-Kent College of Law, Illinois Institute of Technology; B.S., cum laude, Dec. 2006, University of Illinois at Urbana- Champaign. 1 Among such legislation is Title VII of the Civil Rights Act, which prohibits employers from discriminating against employees on the basis of their race, color, religion, sex or national origin. 42 U.S.C. § 2000(e)–2000(e)–17 (2006). Likewise, the Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating on the basis of age. 29 U.S.C. §§ 621–634 (2006). The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. 42 U.S.C. §§ 12101–12213 (2006). A similar, though less well-known, piece of federal antidiscrimination legislation is the Uniformed Services Employment and Reemployment Rights Act (USERRA), which prohibits adverse action based on association with the military. 38 U.S.C. §§ 4301–4333 (2006). 2 Taran S. Kaler, Comment, Controlling the Cat’s Paw: Circuit Split Concerning the Level of Control a Biased Subordinate Must Exert over the Formal Decisionmaker’s Choice to Terminate, 48 SANTA CLARA L. REV. 1069, 1070 (2008).

108 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 they were the victims of intentional discrimination.3 Yet this decisive issue begs the question of who must possess the discriminatory intent. Liability certainly exists when plaintiffs demonstrate that an employer, as defined by statute,4 took an adverse employment action because of discriminatory animus. But because the antidiscrimination statutes also extend liability to actions taken by an employer’s agent,5 plaintiffs can also hold employers vicariously liable.6 In today’s modern workplace, it is quite common to hold employers responsible for the actions of their agents. Employers are typically large corporate entities, and the principal employer rarely personally effectuates employment decisions against plaintiffs so as to be held directly liable.7 Instead, the employer’s agent likely made the discriminatory decision, and the plaintiff is attempting to hold the principal employer vicariously liable. Agents are commonly supervisory employees who possess delegated authority to alter the employment terms of lower-level employees.8 Thus, employers can be held liable, whether directly or vicariously, when they or their agents take an adverse employment action against an employee with a prohibited discriminatory intent. However, under the colorfully-named cat’s paw doctrine, plaintiffs can also succeed when an employee involved in the decisionmaking process, besides the actual decisionmaker, had

3 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). 4 42 U.S.C. § 2000e(b) (Title VII definition of “employer”); 29 U.S.C. § 630(b) (ADEA definition of “employer”); 42 U.S.C. § 12111(5)(A)–(B) (ADA definition of “employer”). 5 42 U.S.C. § 2000e(b); 29 U.S.C. § 630(b); 42 U.S.C. § 12111(5)(A)–(B). 6 See generally Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998) (discussing issue of vicarious liability in the employment discrimination context). 7 Rebecca Hanner White & Linda Hamilton Krieger, Whose Motive Matters?: Discrimination in Multi-Actor Employment Decision Making, 61 LA. L. REV. 495, 495–96 (2001); Natasha T. Martin, Immunity for Hire: How the Same-Actor Doctrine Sustains Discrimination in the Contemporary Workplace, 40 CONN. L. REV. 1117, 1144 (2008). 8 Stephen F. Befort & Alison L. Olig, Within Grasp of the Cat’s Paw: Delineating the Scope of Subordinate Bias Liability Under Federal Antidiscrimination Statutes, 60 S.C. L. REV. 383, 384 (2008).

109 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 discriminatory intent.9 The cat’s paw theory of liability emerged to account for the fact that employers’ decisionmaking processes have become more complicated and discriminatory motives can exist at various levels.10 Large employers have established a decisionmaking hierarchy that has many layers of supervisory employees.11 Employment decisions are rarely made by a single individual; instead, decisions are made based upon the input of several different people.12 Higher-level supervisory employees may have to make decisions about employees that they do not personally know or have never even met.13 Consequently, supervisors must rely on information, recommendations and evaluations provided by subordinate employees when making personnel decisions.14 In this context, cat’s paw liability “refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.”15 Although the cat’s paw doctrine was first introduced into employment discrimination law in 1990,16 it actually derives its name from French poet Jean de La Fontaine’s seventeenth century fable “The Monkey and the Cat.”17 As the tale goes, a monkey convinces an unsuspecting cat to scoop chestnuts from

9 See, e.g., EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484– 85 (10th Cir. 2006). 10 BCI Coca-Cola, 450 F.3d at 488. 11 Martin, supra note 7, at 1144. 12 White & Krieger, supra note 7, at 495–96. 13 Sara Eber, Comment, How Much Power Should Be in the Paw?: Independent Investigations and the Cat’s Paw Doctrine, 40 LOY. U. CHI. L.J. 141, 142 (2008). 14 Phillip J. Fowler, Employment Cases and the “Cat’s Paw” Theory, 22 JAN. CBA REC. 44 (2008). 15 EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006). 16 Shager v. Upjohn Co., 913 F.2d 398, 404–05 (7th Cir. 1990). 17 See BCI Coca-Cola, 450 F.3d at 484 (citing Gustave Dore, FABLES OF LA FONTAINE 344 (Walter Thornbury trans., Chartwell Books 1984)).

110 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 a hot fire.18 The cat agrees and pulls chestnuts out one by one, burning his paw in the process.19 At the same time, the monkey eagerly eats all the chestnuts and leaves none for the cat.20 In today’s society, the phrase cat’s paw generally means “one used by another to accomplish his purpose.”21 Recently, cat’s paw liability has become an issue of particular interest in employment law.22 Since its introduction, nearly all United States Courts of Appeal have recognized and adopted the cat’s paw doctrine.23 However, the circuit courts disagree about how much control the biased employee must possess over the decisionmaker to impose liability on the employer.24 Several circuit courts have adopted a lenient standard that requires the biased employee to exercise “influence” over or provide “input” to the decisionmaker.25 In contrast, the Fourth Circuit has adopted a stringent rule that the biased employee must be principally responsible so as to be considered the actual decisionmaker.26 The Fourth Circuit refuses to impose liability even if the biased employee exercised “substantial influence” over the decisionmaker.27 Falling between these two extremes, the Tenth Circuit focuses on whether the biased employee “caused” the adverse

18 Id. 19 Id. 20 Id. 21 Id. (quoting Webster’s Third New International Dictionary Unabridged 354 (2002)). 22 Sean Ratliff, Comment, Independent Investigations: An Inequitable Out for Employers in Cat’s Paw Cases, 80 U. COLO. L. REV. 255, 258 (2009). 23 EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 486 (10th Cir. 2006). 24 Id. 25 See, e.g., Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d. Cir. 2001) (stating “[u]nder our case law, it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate”). 26 See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 289 (4th Cir. 2004) (en banc). 27 Id.

111 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 employment action.28 Yet the Tenth Circuit did not elaborate on what standard of causation was required. After introducing the cat’s paw theory, the Seventh Circuit has applied the doctrine inconsistently. At times, the Seventh Circuit has used a causation based standard, while in other cases the court has applied a more lenient standard. Most recently, the Seventh Circuit adopted a “singular influence” standard that closely aligns with the Fourth Circuit’s strict rule. In 2006, the Supreme Court of the United States granted certiorari to hear a cat’s paw case and to decide whether an employer can be held liable for a subordinate’s discriminatory animus when the ultimate decisionmaker harbored no discriminatory motive.29 The Supreme Court’s grant of certiorari garnered increased attention to the circuit split, and the legal community anticipated that the case’s outcome would profoundly impact the cat’s paw doctrine.30 However, less than one week before oral argument was scheduled to be heard, the Supreme Court granted the employer’s motion to dismiss.31 Therefore, without guidance from the Supreme Court, the circuit split regarding cat’s paw liability continues.32 Part I of this comment will describe the legal background and origins of the cat’s paw theory of employment discrimination. Part II will then delve into the current circuit split, examining the varying approaches used to determine liability. Part III will specifically examine the Seventh Circuit’s unclear cat’s paw precedent and its recent shift to a stricter standard. Part IV will argue that the courts

28 BCI Coca-Cola, 450 F.3d at 487. 29 BCI Coca-Cola Bottling Co. v. EEOC, 450 F.3d 476 (10th Cir. 2006), cert. granted, 549 U.S. 1105 (2007). 30 Angelo J. Genova & Francis J. Vernoia, Practical Considerations from Recent Development in Employment Law: An Analysis of Murphy v. IRS, the “Cat’s Paw” Doctrine and Comparative Obligations Under the Faragher and Ellerth Affirmative Defense, PRAC. L. INST., Litigating Employment Discrimination Claims 2007, June 2007, at 9, 20, 22. 31 BCI Coca-Cola Bottling Co. v. EEOC, 450 F.3d 476 (10th Cir. 2006), cert. dismissed, 549 U.S 1334 (2007). 32 See Ratliff, supra note 22, at 260.

112 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 should adopt the motivating factor standard of causation, should more carefully scrutinize whether an independent investigation breaks the causal chain, and should apply agency principles as a proper limitation on liability.

I. CAT’S PAW LIABILITY: LEGAL BACKGROUND AND ORIGINS

A. Fundamentals of Employment Discrimination Law: Causation and Agency

A critical issue in employment discrimination law involves the element of causation. The antidiscrimination statutes prohibit employers from engaging in intentional discrimination, which has come to be referred to as disparate treatment.33 Plaintiffs bringing disparate treatment claims must ultimately prove that the employer made the adverse employment decision because of a prohibited characteristic.34 Yet wide dispute exists regarding the appropriate standard of causation.35 Courts, commentators, and legislators have utilized a variety of “phrases and formulations to describe the causation requirement in disparate treatment doctrine.”36 In terms of statutory language, the antidiscrimination acts require plaintiffs to prove that the adverse employment action was taken “because of” the plaintiff’s membership in a protected class.37 Although the “because of” language certainly establishes a causation requirement, the phrase

33 Curtis J. Thomas, Note, Cat's in the Cradle: Tenth Circuit Provides Silver Spoon of Subordinate Bias Liability in EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 61 OKLA. L. REV. 629, 633 (2008). 34 See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). 35 White & Krieger, supra note 7, at 504. 36 Martin J. Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law, 94 GEO. L.J. 489, 500 (2006) [hereinafter Katz I]. For example, the Supreme Court used over twenty different formulations to describe the causation requirement in Price Waterhouse v. Hopkins. Id. at 491. 37 Rachel Santoro, Narrowing the Cat’s Paw: An Argument for a Uniform Subordinate Bias Liability Standard, 11 U. PA. J. BUS. L. 823, 831 (2009).

113 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 does not inherently dictate what the standard of causation should be.38 Consequently, uncertainty regarding the causation requirement has developed and burdened disparate treatment law on a macro level.39 Nonetheless, two evidentiary methods have developed to assist plaintiffs in meeting the ultimate burden of proving intentional discrimination.40 First, plaintiffs can use the McDonnell Douglas burden-shifting framework.41 This approach requires plaintiffs to establish a prima facie case of discrimination, which consists of four elements: (1) membership in a protected class, (2) qualification for the job, (3) an adverse employment decision, and (4) circumstances indicating that the protected class membership caused the adverse employment action.42 If the plaintiff proves these elements, then the burden shifts to the employer to offer a legitimate non-discriminatory reason for the adverse employment action.43 If the employer is able to offer a legitimate reason, the plaintiff must show that the offered reason was merely pretext.44 At this point, the burden of proving

38 Katz I, supra note 36, at 491. 39 Id. at 493. 40 Befort & Olig, supra note 8, at 398. Courts traditionally have utilized the mixed-motive framework when plaintiffs present direct evidence of discrimination and used the McDonnell Douglas framework when presented with circumstantial evidence of discrimination. Id. at 399–400. However, the Supreme Court’s decision in Desert Palace, Inc. v. Costa has called this dichotomy into question. Id. at 400. Desert Palace held that plaintiffs are not required to present direct evidence of discrimination and thus definitely alters the mixed-motive framework. But the circuit courts have disagreed as to whether Desert Palace changed the McDonnell Douglas framework as well. Id. 41 Thomas, supra note 33, at 634. 42McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (2000); Dyke v. O’Neal Steel, Inc., 327 F.3d 628, 631 (7th Cir. 2003). 43 McDonnell Douglas, 411 U.S. at 802. 44 Id. In this context, pretext “means a lie, specifically a phony reason for some action . . . [P]retext for discrimination means more than an unusual act; it means something worse than a business error; ‘pretext’ means deceit used to cover one’s tracks.” Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002) (internal quotations and citations omitted).

114 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.”45 Second, plaintiffs can proceed under the “mixed-motives” framework.46 The mixed-motives framework was originally established in Price Waterhouse v. Hopkins, and this method allows plaintiffs to bring claims when the employer was motivated by both permissible and forbidden reasons.47 The Price Waterhouse plurality concluded that the phrase “because of” did not require “but-for” causation.48 Instead, the Court interpreted “because of” to mean that the decision was motivated, in whole or in part, by the prohibited characteristic.49 Therefore, the plaintiff only needed to show that the prohibited characteristic was a motivating factor in the employer’s decision.50 If the plaintiff produces such discriminatory evidence, then the burden shifts to the employer. Historically, under Price Waterhouse, the employer could escape liability by demonstrating that it would have made the same decision even without the discriminatory bias.51 In response to the Price Waterhouse decision, Congress enacted the 1991 Amendments to Title VII. Congress amended the Price Waterhouse rule that allowed employers to avoid liability with such proof.52 Now, employers can use proof that it would have taken the same action despite discriminatory bias only to limit the remedies available to the plaintiff.53 Congress simultaneously codified the rule

45 Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 46 Price Waterhouse v. Hopkins, 490 U.S. 228, 249 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified at 42 U.S.C. § 2000e-2(m) (2006)). 47 Id. 48 Id. at 240 (stating “[t]o construe the words ‘because of’ as colloquial shorthand for ‘but-for’ causation is to misunderstand them”). 49 Id. 50 See U.S.C. § 2000e-2(m); Price Waterhouse, 490 U.S. at 241. 51 See Price Waterhouse, 490 U.S. at 276 (O’Connor, J., concurring); Befort & Olig, supra note 8, at 399–400. 52 See 42 U.S.C. § 2000e-2(m); 42 U.S.C. § 2000e-5(g)(2)(B). 53 42 U.S.C.A. § 2000e-5(g)(2)(B).

115 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 that plaintiffs only needed to show that their protected class played a “motivating factor” in the employment decision.54 In sum, the motivating factor test governs whether the conduct in question constitutes a violation of Title VII while, as a result, the same action test controls the type of compensation available to the victim.55 Notably, Congress enacted the motivating factor and same action formulations only in relation to Title VII, raising questions as to whether these formulations applied to the other antidiscrimination statutes.56 Just recently, however, the Supreme Court held that the motivating factor test did not apply to disparate treatment claims brought pursuant to the ADEA.57 In a 5-4 decision, a majority of the Court decided that the ADEA’s “because of” language required plaintiffs to prove that age was the “but-for” cause of the adverse employment action.58 Regrettably, this decision adds further uncertainty to the already jumbled state of the causation requirement in disparate treatment law. In cat’s paw cases, plaintiffs can use either evidentiary framework.59 A plaintiff proceeding under the McDonnell Douglas framework may demonstrate that the employer’s alleged legitimate reason is actually pretext for a subordinate’s discriminatory motives.60 Alternatively, a plaintiff using the mixed-motives framework must show that, even though a legitimate reason may have existed for the decision, the subordinate’s bias played a motivating role in the employment action.61 Yet regardless of which evidentiary method is

54 Specifically, Section 107 provides that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (2006). 55 Katz I, supra note 36, at 492–94. 56 Id. at 492–93. 57 Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, 2349–51 (2009). 58 Id. at 2352. 59 Befort & Olig, supra note 8, at 401. 60 Id. 61 Id.

116 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 used, the ultimate question remains “whether the plaintiff was the victim of intentional discrimination.”62 In addition to the element of causation, another important issue concerns the scope of vicarious liability under the antidiscrimination statutes. All of the statutes protect against discrimination committed by an employer and its agents.63 The Supreme Court has observed that the agency language “surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible.”64 Accordingly, an employer cannot be held liable for every employee’s actions, but only for those employees that can be considered agents. To determine the proper scope of vicarious liability, Congress has directed courts to utilize common law agency principles.65 In Burlington Industries, Inc. v. Ellerth, the Supreme Court followed Congress’ direction when it used agency principles to consider when an employer can be held vicariously liable for its supervisors’ actions.66 The Supreme Court began by referencing the well-established agency principle that employers are vicariously liable for the torts committed by employees acting within the scope of their employment.67 To be within the scope of employment, the employee’s action must be motivated, at least in part, by a desire to serve the

62 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). 63 42 U.S.C. § 2000e(b) (2006). Title VII defines employer as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.” 42 U.S.C. § 2000e(b). 64 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986). 65 Faragher v. City of Boca Raton, 524 U.S. 775, 791–792 (1998); see also Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 754 (1998). 66 524 U.S. at 754. Specifically, the Court addressed the issue of “whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, based on sex, but does not fulfill the threat.” Id. 67 Ellerth, 524 U.S. at 755–56 (citing RESTATEMENT (SECOND) OF AGENCY § 219(1) (1957)).

117 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 employer.68 Generally, an employee’s discriminatory bias does not constitute conduct that serves the employer’s business.69 However, the Supreme Court recognized that an exception to the scope of employment rule exists.70 Specifically, employers are liable when the employee was “aided in accomplishing” the discriminatory act “by the existence of the agency relation.”71 The Supreme Court stated that the mere existence of the employment relationship was not enough for this exception to apply; instead, the supervisory employee must be able to take a tangible employment action against the subordinate.72 The Supreme Court defined a tangible employment action as an action that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”73 The employer’s delegation of responsibility to the supervisory employee warrants vicarious liability.74 Thus, if the biased supervisory employee personally makes the decision, the employer will be vicariously liable for the supervisor’s intentional discrimination. Such a scenario, however, does not constitute a cat’s paw case.75 Unlike the biased employee in a typical vicarious liability case, the employee in a cat’s paw case does not make the official decision.

68 Id. at 756 (citing RESTATEMENT (SECOND) OF AGENCY §§ 228(1)(c), 230 (1957)). 69 See id. at 757. 70 Id. at 758. 71 Id. at 758 (citing RESTATEMENT (SECOND) OF AGENCY § 219(2)(d) (1957)). 72 Id. at 760. 73 Id. at 761. The Court did not define the outer contours of what constitutes a “tangible employment action.” Id. at 762–63. Some courts have interpreted it to require a materially adverse action. White & Krieger, supra note 7, at 521. One commentator has suggested that it should include any action that “a supervisor’s status as supervisor enables him to take.” Id. 74 Brief of Respondent at 18–19, EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476 (10th Cir. 2006) (No. 06–341), cert. dismissed, 549 U.S. 1334 (2007). 75 Eber, supra note 13, at 152.

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Rather, the biased employee uses his ability to make evaluations and recommendations to trigger the actual decisionmaker to take the adverse action. In this context, courts impute the biased employee’s discriminatory intent to the actual decisionmaker, even when the actual decisionmaker is bias-free. Nonetheless, the agency principles associated with vicarious liability and Ellerth still serve to limit liability in cat’s paw cases, and courts often fashion the cat’s paw doctrine based on these principles.76

B. Shager v. Upjohn: The Introduction of the Cat’s Paw Doctrine

In 1990, Judge Richard Posner introduced the cat’s paw doctrine into employment discrimination law.77 The Seventh Circuit relied on causation and agency principles to conclude that an employer can be liable based on a subordinate employee’s discriminatory intent, even when the actual decisionmaker was admittedly-bias free.78 In Shager v. Upjohn Co., fifty-year old Ralph Shager argued that his former employer, Asgrow, should be liable for the alleged age-based animus of its manager, John Lehnst.79 Lehnst was Asgrow’s youngest district manager, and he supervised Shager and other sales representatives.80 Soon after starting at the company, Lehnst divided the Wisconsin territory into two sections and assigned the more difficult section to Shager.81 Lehnst later decided to hire a third sales representative for the Wisconsin territory, even though the territory was not generating enough business to justify a third position.82 Lehnst hired Schradel, a twenty-nine year old, for the position and assigned Schradel to the best

76 Ali Razzaghi, Comment, Hill v. Lockheed Martin Logistics Management, Inc.: “Substantially Influencing” the Fourth Circuit to Change its Standard for Imputing Employer Liability for the Biases of a Non-Decisionmaker, 73 U. CIN. L. REV. 1709, 1714 (2005); Eber, supra note 13, at 152–53. 77 Shager v. Upjohn Company, 913 F.2d 398, 404–05 (7th Cir. 1990). 78 Id. 79 Id. at 399. 80 Id. 81 Id. 82 Id.

119 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 section while Shager retained the worst section.83 Despite the difference in sales potential between the two sections, Shager’s total sales far exceeded Schradel’s total sales.84 Yet Lehnst inexplicably gave both sales representatives only marginal reviews and even made excuses for Schradel’s performance.85 Lehnst later placed Shager on probation for alleged problems collecting accounts receivable and managing salesmen.86 When the problems continued, Lehnst recommended to the company’s “Career Path Committee” that Shager be terminated.87 In July of 1986, the Career Path Committee fired Shager.88 Subsequently, Shager sued his former employer under the ADEA,89 alleging that he was terminated because of his age.90 Shager presented evidence that Lehnst was biased against older workers.91 Lehnst was apparently troubled by the age difference between himself and his subordinates, many of whom were in their fifties. On one occasion, Lehnst asked a potential employee whether he would mind being supervised by a younger man.92 Lehnst also told a younger employee that “[t]hese older people don’t much like or much care for us baby boomers, but there isn’t much they can do about it.”93 Additionally, Lehnst exaggerated the reasons for putting Shager on probation and later recommending his termination.94 Likewise, Lehnst curiously gave Shager a low evaluation, despite Shager’s exceptional

83 Id. at 399–400. 84 Id. at 400. 85 Id. 86 Id. 87 Id. 88 Id. 89 29 U.S.C. §§ 621–634 (2006). 90 Shager, 913 F.2d at 400. 91 Id. 92 Id. at 399. 93 Id. at 400. 94 Id.

120 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 sales record.95 And during Shradel’s first evaluation, Lehnst commented on how “refreshing” it was to work with a “young man.”96 Based on this evidence, Shager argued that the deficiencies triggering his termination were merely pretext for Lehnst’s discriminatory motive.97 On appeal, the Seventh Circuit considered whether Lehnst’s bias could be imputed to Asgrow.98 Asgrow argued that the neutral Career Path Committee, which apparently did not harbor any animosity toward older workers, shielded itself from Lehnst’s discrimination.99 Initially, the Seventh Circuit discussed the common law agency principle that employers are liable for their supervisory employees’ discriminatory acts taken within their scope of authority.100 Yet that principle would hold Asgrow liable only if Lehnst had actually fired Shager.101 But, after all, the Career Path Committee made the official termination decision, not Lehnst.102 However, the court proceeded to intensely examine the official decision, and, from this, the cat’s paw theory emerged. The Seventh Circuit concluded that the innocence of the Career Path Committee could not protect the company if the committee had acted “as the conduit of Lehnst’s prejudice—his cat’s paw.”103 The court observed that Lehnst’s bias and inaccurate portrayal of Shager’s performance “tainted” and “influenced” the committee’s decision to fire Shager.104 Indeed, personnel committees often defer to a manager’s judgment because managers are in a better position to evaluate lower level

95 Id. 96 Id. 97 Id. at 401. 98 Id. at 404. 99 Id. 100 Id. at 404–05. 101 Id. at 405. 102 Id. 103 Id. 104 Id.

121 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 employees.105 Given that the committee’s meeting regarding Shager’s termination was essentially perfunctory, Lehnst’s influence may have been decisive.106 As a result, Lehnst would have caused Shager’s discharge through his evaluations and recommendation.107 The Seventh Circuit concluded that Lehnst’s discriminatory action would be in violation of the ADEA and could be imputed to the company.108 If the rule were otherwise, “the establishment of corporate committees authorized to rubber stamp personnel actions would preclude a finding of willfulness no matter how egregious the actions in question.”109

C. Cat’s Paw Cases Generally

Since Shager, nearly all of the circuit courts have followed the Seventh Circuit’s lead and adopted the cat’s paw doctrine. Although the Supreme Court has never endorsed the doctrine formally, it did recognize cat’s paw liability in principle in Reeves v. Sanderson Plumbing Products, Inc.110 In Reeves, the plaintiff did not present any evidence that the official decisionmaker was biased.111 Rather, the plaintiff showed that his supervisor, who did exhibit age-based animus, recommended the adverse employment action to the official decisionmaker.112 The biased supervisor happened to be the official decisionmaker’s husband and was described as yielding “absolute power” within the company.113 The Supreme Court characterized the plaintiff’s evidence as showing that the biased supervisor was effectively the “actual decisionmaker” and was “principally

105 Id. 106 Id. 107 Id. 108 Id. 109 Id. at 406. 110 See generally 530 U.S. 133 (2000). 111 See id. at 146. 112 Id. 113 Id. at 151–52.

122 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 responsible” for the termination decision.114 As such, even though the official decisionmaker was bias-free, the Supreme Court upheld the jury verdict finding the employer liable based on the biased supervisor’s actions.115 Although Reeves supports the doctrinal underpinnings of cat’s paw liability, its factual scenario represents only one type of cat’s paw case. At the Reeves end of the spectrum, the ultimate decisionmaker merely acts as a rubber stamp.116 That is, the biased employee acts as the de facto decisionmaker, even though an individual “higher in the organizational hierarchy actually fire[s] the plaintiff.”117 In this context, courts can quickly impose liability on the employer based on the biased employee’s unlawfully motivated actions.118 Similarly, “if the ultimate decisionmaker is aware that the recommendation was improperly motivated, then imposing liability on the employer readily follows.”119 But cat’s paw cases differ in regard to the degree of control the biased employee exercises over the employment decision and, accordingly, they often become highly fact-intensive.120 Cat’s paw cases are more difficult when the ultimate decisionmaker does not simply rubber stamp the biased employee’s recommendation, yet does consider it when making the final decision.121 The employee’s bias

114 Id. 115 Id. at 152. 116 White & Krieger, supra note 7, at 511–512. The rubber stamp terminology refers to the situation where the decision maker “gives perfunctory approval for an adverse employment action explicitly recommended by a biased subordinate.” EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006). 117 White & Krieger, supra note 7, at 511–12. 118 Id. at 512. 119 Id. 120 Loren Gesinsky & Douglas B. Lipsky, When the Subordinate’s Bias Matters, 237 N.Y.L.J. 10 (May 21, 2007) (noting that the current circuit split may be explained by the “unique bundle of facts in each case that must be sifted and weighed in order to determine whether an employer’s complained of action occurred under circumstances giving rise to an inference of discrimination”). 121 White & Krieger, supra note 7, at 512.

123 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 may be exhibited in many forms and may taint the ultimate decision in many ways.122 For example, the biased subordinate might deprive the ultimate decisionmaker of accurate data upon which to base its decision by concealing relevant information or even fabricating evidence.123 Or, more simply, the biased employee might put a certain “spin” on “decision-relevant events.”124 In determining whether to impose liability in this context, courts commonly evaluate whether the official decisionmaker conducted an “independent investigation.” Essentially, courts look to see whether the final decision was “sufficiently insulated from” bias, or whether the “taint injected into the process was removed before the ultimate decision was made.”125 It is this context—where the official decisionmaker does not simply rubber stamp but still considers the biased employee’s recommendation—that has divided the circuit courts.

II. CURRENT CIRCUIT SPLIT REGARDING THE LEVEL OF INFLUENCE NECESSARY TO ESTABLISH LIABILITY

The circuit courts currently disagree about how much influence the biased employee must exercise over the decision to hold the employer liable.126 Although authorities agree about the circuit split’s existence, they disagree about where the circuits stand within this split.127 The approaches contain slight nuances, which makes it difficult to place the courts into distinct categories.128 Not only do

122 Id. at 514–15. 123 Id. at 515. 124 Id. 125 Id. 126 Ratliff, supra note 22, at 260. 127 Compare Fowler, supra note 14, at 45 (characterizing the Russell decision as a “middle of the road approach”), with Eber, supra note 13, at 155 (stating that the Russell opinion demonstrates the lenient standard). 128 Ratliff, supra note 22, at 260 (noting that “the subtleties of the various circuits’ opinions on cat’s paw liability often make it difficult to definitively place them within one category or another”).

124 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 inter-circuit subtleties exist, but intra-circuit subtleties exist, too.129 Adding further confusion, the circuit courts often use imprecise language within a single opinion.130 Nonetheless, the Fifth Circuit’s influence standard, the Fourth Circuit’s actual decisionmaker standard and the Tenth Circuit’s causation standard fairly represent the varying approaches, and each will be discussed in turn.

A. Many of the Circuit Courts Have Adopted an “Influence” or “Input” Standard

Many of the circuits impose liability when the biased employee merely influences the ultimate decision.131 For example, the Fifth Circuit requires the plaintiff to prove that the biased employee “possesse[d] leverage, or exert[ed] influence, over the titular decisionmaker.”132 In Russell v. McKinney Hospital Venture, the fifty- four year old plaintiff, Sandra Russell, argued that co-worker Steve Ciulla’s age-based animus should be imputed to the formal decisionmaker.133 Russell and Ciulla worked in equivalent positions at Homecare, and they reported to the same supervisor, Carol Jacobsen.134 Ciulla allegedly made many remarks indicating age-based bias; in fact, Russell had to buy earplugs for the office because of how frequently Ciulla referred to her as an “old bitch.”135 Ciulla eventually

129 See Thomas, supra note 33, at 654 (comparing one Fifth Circuit case requiring a causal nexus and another Fifth Circuit case focusing on mere influence). 130 Petition for Writ of Certiorari at 16, Brewer v. Bd. of Tr. of the Univ. of Ill., 552 U.S. 825 (2007) (No. 06-1694) (stating that “the various circuit courts have used ambiguous and inconsistent language to describe the appropriate legal standard”). 131 See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 303 (4th Cir. 2004) (Michael, J., dissenting) (noting that “[m]ost other circuits, in either mixed-motive or pretext cases, have held that when the discriminatory bias of a subordinate influences an employment decision, the employer will be charged with the subordinate’s bias”). 132 Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (2000). 133 Id. at 222, 227. 134 Id. 135 Id. at 226.

125 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 approached Jacobsen with an “ultimatum” that he would quit if Jacobsen did not terminate Russell.136 In addition, Ciulla suggested to others that he was responsible for Russell’s termination.137 The Fifth Circuit considered whether Ciulla’s animus could be attributed to Homecare even though Ciulla did not fire Russell. Instead of simply looking for bias in the official decisionmaker, the court assessed whether other employees involved in the decision possessed bias.138 The court stated that it will impute an employee’s discriminatory intent if that employee influenced the official decisionmaker.139 In essence, the court refuses to “blindly accept the titular decisionmaker as the true decisionmaker.”140 Evaluating Russell’s evidence under this framework, the Fifth Circuit concluded that Ciulla “wielded sufficiently great ‘informal’ power within Homecare such that he effectively became the decisionmaker with respect to Russell’s termination.”141 Ciulla’s father was the chief executive officer of Homecare’s parent corporation, and Ciulla allegedly used this power to his advantage.142 When faced with Ciulla’s ultimatum, Jacobsen knew that Ciulla’s father controlled her budget and her job.143 The court decided that Ciulla’s ultimatum and age-based remarks influenced Jacobsen’s decision to terminate Russell.144 Interestingly, even though the Fifth Circuit focused on mere influence, the court used terms connoting a higher degree of control at times. That is, the Fifth Circuit concluded that a reasonable jury could have decided that Ciulla “contributed significantly” to the termination

136 Id. at 224. 137 Id. at 226. 138 Id. 139 Id. 140 Id. 141 Id. at 227–28. 142 Id. at 228. 143 Id. 144 Id.

126 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 decision.145 Then, relying on the language of Reeves, the court stated that Ciulla was “principally responsible” for Russell’s termination.146 Regardless of these apparent discrepancies in terminology, however, courts and commentaries consider the Fifth Circuit’s Russell opinion as demonstrating the mere influence approach.147 Other circuits have adopted similar tests but used varying formulations of the amount of influence required. For example, the Second Circuit has required that the immediate supervisor possess “enormous influence” over the decision.148 Rather than focusing on the amount of influence, some courts emphasize the biased employee’s involvement in the decisionmaking process. For instance, the Sixth Circuit has imposed liability where the biased subordinate “played a significant role” in the ultimate decisionmaking process.149 And some courts examine both the ability to influence and the participation in the decisionmaking process. Specifically, the Ninth Circuit imposes liability if the biased employee “influenced, affected, or was involved in the adverse employment decision.”150

B. The Fourth Circuit’s “Actual Decisionmaker” Standard

The Fourth Circuit has adopted the strictest standard for establishing liability under the cat’s paw doctrine.151 In stark contrast to the influence standard, the Fourth Circuit’s approach requires that the biased employee “possessed such authority as to be viewed as the

145 Id. 146 Id. 147 See Eber, supra note 13, at 155–57 (describing the Russell decision as a model of the lenient standard). 148 Rose v. N.Y. City Bd. of Educ., 257 F.3d 156, 162 (2d Cir. 2001). 149 Johnson v. Kroger Co., 319 F.3d 858, 868 (6th Cir. 2003). 150 Poland v. Chertoff, 494 F.3d 1174, 1183 (9th Cir. 2007); see also Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d. Cir. 2001) (stating “[u]nder our case law, it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate”). 151 See generally Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277 (4th Cir. 2004) (en banc).

127 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 one principally responsible for the decision or the actual decisionmaker.”152 The Fourth Circuit initially set forth this rule in Hill v. Lockheed Martin Logistics Management, Inc., where fifty-seven year old Ethel Hill claimed that she was terminated because of her sex and age.153 Two of the company’s supervisory managers fired Hill after she received three reprimands for violations of standard operating procedures.154 The managers based their decision on company policy that provided that three reprimands warranted discharge.155 Hill did not dispute the rules violations giving rise to her reprimands nor did she claim that the two supervisory managers responsible for her termination acted with discriminatory motives.156 Instead, Hill centered her claims on the alleged animus of Fultz, who was the safety inspector that reported the violations leading to her second and third reprimands.157 Hill asserted that Fultz reported Hill’s infractions because of his discriminatory bias against Hill.158 According to Hill, Fultz exhibited his bias by calling Hill a “useless old lady” who needed to retire, a “troubled old lady” and a “damn woman” on multiple occasions.159 Initially, the Fourth Circuit noted that agency principles guided its determination of who could be considered a decisionmaker.160 The court commented that the other circuits that had already considered the cat’s paw doctrine did not give proper weight to the agency principles that are meant to limit its application.161 The court then turned its attention to the Supreme Court’s decision in Reeves, where the Court addressed an employer’s liability for the discriminatory motives of a

152 Id. at 291. 153 Id. at 282. 154 Id. 155 Id. 156 Id. at 282–83. 157 Id. at 283. 158 Id. 159 Id. 160 Id. at 287. 161 Id. at 289–90.

128 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 non-decisionmaker employee.162 The Fourth Circuit interpreted Reeves to stand for the proposition that the biased employee does not necessarily have to be the “‘formal decisionmaker’” to hold the employer liable.163 But liability will exist only if the biased employee was “‘principally responsible’” for or the “‘actual decisionmaker’” behind the employment action.164 If not, the Fourth Circuit refuses to impose liability even when the biased employee exercised “substantial influence” over or played a “significant role” in the decision.165 Hill, however, argued that Reeves did not define the outer contours of employer liability.166 Hill suggested a “substantial influence” test, which would hold an employer liable when the biased employee substantially influences a decision taken by the formal decisionmaker.167 The Fourth Circuit rejected both propositions.168 The court reasoned that the antidiscrimination statutes and applicable Supreme Court precedent did not allow such a broad reach of employer liability.169 In dissent, Judge Michael remarked that the majority’s strict standard “puts [the Fourth Circuit] at odds with virtually every other circuit” while simultaneously rendering Title VII and the ADEA

162 Id. at 288. 163 Id. 164 Id. at 288–89. 165 Id. at 291. 166 Id. at 289. 167 Id. The EEOC also supported Hill’s proposed test. Id. The Fourth Circuit stated that the EEOC asked for an even broader holding under the substantially influence test. Specifically, the Fourth Circuit interpreted the EEOC’s argument as holding an employer liable “whenever the influence is sufficient to be considered a cause of the employment action, even if the formal decisionmaker did not simply rubber-stamp the biased subordinate’s recommendation.” Id. (emphasis in original). For arguments in further support of the substantially influence test, see Tim Davis, Beyond the Cat’s Paw: An Argument for Adopting a “Substantially Influences” Standard for Title VII and ADEA Liability, 6 PIERCE L. REV. 247 (2007). 168 Hill, 354 F.3d at 289. 169 Id.

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“essentially toothless.”170 Unlike the majority, Judge Michael would have adopted Hill’s proposed substantially influence test.171 Judge Michael argued that the majority erred by placing excessive emphasis on agency principles when it should have focused on causation.172 Causation, unlike agency, is firmly rooted in the statutory language of Title VII and the ADEA.173 That is, the statutes’ impose liability on employers when the adverse employment action was taken “because of” a prohibited characteristic.174 Judge Michael also criticized the majority’s analysis of and reliance on Reeves.175 Judge Michael concluded that the majority’s actual decisionmaker rule unnecessarily removes Title VII and the ADEA’s protections from an entire class of discrimination cases.176

C. The Tenth Circuit’s Causation Standard

Applying a more centrist approach, the Tenth Circuit imposes liability when the biased employee’s actions cause the adverse employment decision.177 In EEOC v. BCI Coca-Cola Bottling Company of Los Angeles, the plaintiff, Stephen Peters, alleged that he was terminated because of his race.178 Peters, an African-American, worked as a merchandiser at BCI’s Albuqeurque, New Mexico facility where more than sixty percent of the employees were Hispanic.179 Jeff Katt, an account manager, and Cesar Grado, a district sales manager,

170 Id. at 299, 301 (Michael, J., dissenting). 171 Id. at 304. 172 Id. at 301. 173 Id. at 302. 174 Id. 175 Id. at 302–04. 176 Id. at 304. 177 EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 487–88 (10th Cir. 2006). 178 Id. at 478. 179 Id.

130 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 supervised Peters.180 Although Grado handled scheduling, merchandisers often called in sick to their own account managers, rather than to Grado.181 Grado also monitored and evaluated the employees under his supervision.182 Grado did not have the authority to make discipline or termination decisions, but he did have the discretion to notify the human resources department of any disciplinary information.183 The human resources department was ultimately in charge of disciplinary action.184 The incident giving rise to Peters’ termination surrounded a busy weekend where Grado directed Katt to inform Peters that Peters had to work on Sunday, his day off.185 Upon notification, Peters told Katt that he could not work because he had plans.186 Grado asked the human resources department whether he could force Peters to work on his day off.187 Pat Edgar, a human resources employee, replied that Grado should tell Peters that working on Sunday was a “direct order” and failure to comply would amount to insubordination, which constituted grounds for termination.188 After Grado relayed this information to Peters, Peters again replied that he had plans and angrily told Grado that his plans were “none of [Grado’s] business.”189 The conservation ended with Peters saying “[d]o what [you] got to do and I’ll do what I got to do.”190 Peters, however, became sick that Saturday, forcing him to cancel his Sunday plans and seek urgent care health care.191 Peters called and informed Katt that he could not work that Sunday because

180 Id. 181 Id. 182 Id. 183 Id. 184 Id. 185 Id. at 479. 186 Id. 187 Id. 188 Id. 189 Id. 190 Id. 191 Id. at 480.

131 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 of his illness.192 After Peters failed to work on Sunday, Edgar spoke with other human resources personnel, as well as Grado.193 Edgar decided to terminate Peters.194 Edgar claimed her primary reason for terminating Peters was his behavior toward Grado, not for failing to work.195 Thereafter, Peters filed a charge with the Equal Employment Opportunity Commission (EEOC), and the EEOC filed suit on his behalf, alleging that his termination was due to racial discrimination.196 The EEOC argued that even though Edgar was the sole decisionmaker and was unaware that Peters was black, “Grado harbored racial animus toward African American employees and . . . this bias [should be] imputed to BCI because of Grado’s substantial involvement in the termination process as Peters’ supervisor and Edgar’s sole source of information about the events on which BCI alleges the termination was primarily based.”197 The EEOC presented affidavits from other BCI employees stating that Grado treated African-American employees worse than employees of other races.198 Grado also allegedly made race-based remarks at the workplace.199 Additionally, the EEOC compared Grado’s treatment of Peters to his treatment of a Hispanic employee in a similar situation.200 During a different busy weekend, Grado told Katt to direct Monica Lovato, a Hispanic merchandiser, to work her day off.201 Lovato replied that she would be celebrating her birthday on those days but Katt insisted that she was required to work.202 Lovato failed to show up to work, even

192 Id. 193 Id. 194 Id. 195 Id. 196 Id. at 482. 197 Id. 198 Id. 199 Id. 200 Id. 201 Id. 202 Id.

132 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 after being paged repeatedly.203 Yet Grado never inquired about Lovato’s reasons for missing work, and instead, Grado stated “you can’t make somebody work one of their days off.”204 The human resources department never disciplined Lovato for this incident.205 On appeal, the Tenth Circuit addressed whether Grado’s alleged racial bias could be imputed to BCI under the cat’s paw theory of liability.206 The Tenth Circuit noted that the circuits disagreed about the level of control that a biased employee must exert over the decision to warrant liability.207 The court described a “lenient” approach that holds employers liable so long as the biased employee exercised any level of influence.208 The Tenth Circuit concluded that the lenient approach was inconsistent with agency principles, improperly eliminated the element of causation, and weakened the deterrent effect of cat’s paw liability.209 Thus, the court decided that plaintiffs must prove more than mere influence over the decisionmaking process.210 Turning to the opposite end of the spectrum, the Tenth Circuit also disagreed with the Fourth Circuit’s strict standard because it misconstrued the Supreme Court’s holding in Reeves.211 The court reasoned that the Reeves Court did not intend for the phrase “actual decisionmaker” to prescribe the outer contours of liability, but, rather, the Supreme Court used the phrase to describe the employee’s evidence.212 In essence, the Tenth Circuit concluded that the Fourth

203 Id. 204 Id. at 482–83. 205 Id. at 483. 206 Id. at 484. 207 Id. at 486. 208 Id. 209 Id. at 486–87. 210 Id. 211 Id. 212 Id.

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Circuit took the cat’s paw metaphor “too literally in deriving its total- control-over-the-decision standard.”213 The court held that plaintiffs must prove that “the biased subordinate’s discriminatory reports, recommendation, or other actions caused the adverse employment action.”214 Not only does this rule comply with agency principles, the court reasoned, but courts require a comparable causation standard in analogous workplace discrimination claims.215 Although the Tenth Circuit clearly adopted a causation- based approach, the court never explicitly defined “cause,” nor did it state what type of causation was required. The court’s omission raises serious doctrinal concerns because several different standards of causation exist. However, the Tenth Circuit did specify that the official decisionmaker can break the causal connection by conducting an independent investigation into the allegations against the employee.216 In fact, the court stated that simply asking the affected employees for their version of the events would constitute an independent investigation.217 But in the case at bar, Edgar’s cursory review of Peter’s personnel file did not amount to an independent investigation.218 The Tenth Circuit concluded that the EEOC presented sufficient evidence that Grado’s biased account of his conversation with Peters caused Peter’s termination.219

213 Id. at 488. 214 Id. 215 Id. at 487–88. Notably, the Tenth Circuit held that the cat’s paw doctrine did not require an explicit recommendation from the biased subordinate to fire the plaintiff. Id. at 488. 216 Id. 217 Id. 218 Id. at 492. 219 Id. at 491.

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III. THE SEVENTH CIRCUIT: WHERE DOES IT STAND?

The Seventh Circuit has been pegged with the introduction of the cat’s paw doctrine, and yet it has inconsistently applied the doctrine. The court has even admitted its ambiguous ways, stating “our approach to Title VII cases involving an employee’s influence over a decision maker has not always been completely clear.”220 The Seventh Circuit’s first cat’s paw case, Shager, characterized the subordinate’s influence as “decisive” and evaluated the “causal link” between the subordinate’s bias and Shager’s discharge.221 Since Shager, the Seventh Circuit has used various standards in cat’s paw cases. At times the court has applied a more lenient standard, but recently the court has required a much higher level of control.222 In fact, the Seventh Circuit stated in 2007 that “[o]ur opinions have sometimes suggested that not only significant influence, but any influence over an employment decision is sufficient to impose Title VII liability on an employer.”223 For example, in Dey v. Colt Construction and Development Company, the Seventh Circuit held that plaintiffs can defeat summary judgment by showing that “an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.”224 The plaintiff, Dey, filed suit arguing that she was terminated in retaliation for her sexual harassment complaints against the company’s vice president and general counsel,

220 Brewer v. Bd. of Tr. of the Univ. of Ill., 479 F.3d 908, 919 (7th Cir. 2007). 221 913 F.2d 398, 405 (7th Cir. 1990). 222 Compare Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994), with Brewer, 479 F.3d 908. 223 Brewer, 479 F.3d at 919. 224 28 F.3d 1446, 1459 (7th Cir. 1994); see also Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997) (the court stated that “the prejudices of an employee, normally a subordinate but here a coequal, are imputed to the employee who has formal authority over the plaintiff’s job . . . where the subordinate, by concealing relevant information from the decisionmaking employee or feeding false information to him, is able to influence the decision”); Hoffman v. MCA, Inc., 144 F.3d 1117, 1121–22 (7th Cir. 1998) (“tainted the decision maker’s judgment”).

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Chernoff.225 However, the official decisionmaker, Isray, was unaware of Dey’s complaints.226 Accordingly, the company claimed that no causal link existed between Dey’s protected activity and her termination.227 On appeal, the Seventh Circuit recognized that the official decisionmaker was unaware of Dey’s protected activity, but further observed that Chernoff participated in the meeting discussing Dey’s termination.228 During the meeting, Isray had asked Chernoff about Dey’s performance.229 Chernoff replied that her performance was unsatisfactory and that he believed she should be terminated.230 From this, the court concluded that, even if Isray was unaware of the complaints, “those complaints may have affected Chernoff's unflattering assessment of her job performance” and “Chernoff's participation may have introduced a discriminatory animus into Isray's decision.”231 In Lust v. Sealy, Inc., the Seventh Circuit explicitly renounced the Fourth Circuit’s actual decisionmaker standard and stated that the strict rule was not in line with the Seventh Circuit’s view.232 The Seventh Circuit explained that courts should not interpret the cat’s paw formula too literally.233 In fact, if the cat’s paw analogy was “taken even semi-literally it would be inconsistent with the normal analysis of causal issues in tort litigation.”234 Yet in 2007, just a few years later, the Seventh Circuit arguably aligned itself with the Fourth Circuit’s stringent standard. The Seventh Circuit held that liability should exist only when the biased employee

225 Dey, 28 F.3d at 1450. 226 Id. 227 Id. 228 Id. 229 Id. at 1459. 230 Id. 231 Id. at 1459–1460. 232 383 F.3d 580, 584 (7th Cir. 2004). 233 Id. 234 Id.

136 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 exercises “singular influence” over the official decisionmaker.235 In Brewer, Lonnell Brewer, an African-American, brought a Title VII action against the University of Illinois alleging that he was terminated from his job and dismissed from his master’s program because of his race.236 Brewer invoked the cat’s paw theory to impute the discriminatory bias of his supervisor, Kerrin Thompson, to the University.237 The events leading to Brewer’s termination involved a scandal regarding his parking pass.238 When Brewer began his assistantship, Thompson told him that he could park anywhere. 239After receiving a ticket for a broken pass, Brewer went to the university’s parking services to get a replacement parking sticker.240 Parking services noticed that Brewer’s parking application contained inaccurate information.241 Brewer went to speak with Thompson about the issue, and Thompson became “irate,” telling Brewer he should have never gone to the parking services office because Thompson had lied in the application to be able to get Brewer the parking tag.242 After Brewer reminded Thompson that she told him he could park anywhere, she furiously stated that she was “through with you people.”243 And as Brewer left her office, Thompson yelled out “I have had it with you nigger, get my tag!”244 The program director, Denise Hendricks, terminated Brewer because of the parking incident.245 Brewer argued

235 See Brewer, 479 F.3d at 917–18. 236 Id. at 909. 237 Id. at 916–17. 238 Id. at 909. Judge Cudahy interestingly introduced the case by stating that it “concerns the corrupt, Machiavellian world of permit parking at the University of Illinois’s Urbana-Champaign campus, and the ill fortune of a student who became involved in it.” Id. 239 Id. at 910. 240 Id. at 913. 241 Id. 242 Id. 243 Id. 244 Id. 245 Id.

137 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 that racial bias motivated Thompson’s failure to tell Hendricks that she had given Brewer permission to park anywhere, and Brewer contended that this omission caused his termination.246 On appeal, the Seventh Circuit analyzed whether the University could be liable for Thompson’s racially motivated omission.247 The court stated that what other employees say to each other typically does not constitute an adverse employment action.248 However, in certain contexts, such as a performance review, what one employee says or does not say about another can control an employee’s wages, affect chances of promotion or even trigger termination.249 The court decided that Thompson’s withholding of information influenced Hendricks’s decision to fire Brewer.250 But an employee’s minimal amount of influence does not warrant liability; rather, the biased employee must exercise singular influence.251 The Seventh Circuit explained that the biased employee must “possess so much influence as to basically be herself the true ‘functional[ ] . . . decision-maker.’”252 Focusing on the analogy underlying the doctrine, the court stated that the functional decisionmaker must be nothing more than the biased employee’s cat’s paw.253 The court described such a situation as one where the functional decisionmaker entirely depends on another employee to “supply the information on which to base that decision.”254 Liability will not exist as long as the decisionmaker does not rely solely on the biased employee’s information, even if she heavily relies on it.255

246 Id. at 916. 247 Id. 248 Id. at 917. 249 Id. 250 Id. 251 Id. 252 Id. (quoting Little v. Ill. Dept. of Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004)). 253 Id. at 917–18. 254 Id. at 918. 255 Id. at 919.

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Similarly, the court held that an employer can prevent liability by conducting an investigation into the facts relevant to the decision.256 The Seventh Circuit concluded that Hendricks looked into the situation herself and did not entirely rely on the information that Thompson told her.257 Notably, the court stated that when faced with two conflicting stories, an employer satisfies the independent investigation defense by simply considering both stories.258 The court also suggested Brewer had a duty to tell Hendricks that Thompson was withholding information to trigger further investigation.259 The Seventh Circuit then turned to address the conflict between the singular influence approach and its prior precedent.260 To the extent that previous cases had suggested that any influence establishes liability, the court stated those cases were doubtful dicta and simply involved “imprecise language.”261 Further, the court compared those cases with numerous others where the court upheld summary judgment when a biased employee may have exercised potential, but slight, influence over the decision.262 Most recently, the Seventh Circuit reaffirmed its singular influence standard in an employment discrimination case arising under the Uniformed Services Employment and Reemployment Rights Act.263 In Staub v. Proctor Hospital, the plaintiff, Vincent Staub, alleged that he was terminated because of his military association and the reasons given for his termination—insubordination, shirking, and attitude problems—were merely pretext.264 As an Army reservist, Staub had military obligations one weekend per month and two weeks

256 Id. at 918. 257Id. at 919. 258Id. at 918. 259 Id. at 919. 260 Id. 261 Id. 262 Id. at 919–20. 263 Staub v. Proctor Hosp., 560 F.3d 647, 650–51 (7th Cir. 2009); 38 U.S.C. §§ 4301–4333 (2006). 264 Staub, 560 F.3d at 650–51.

139 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 in the summer.265 Janice Mulally, Staub’s supervisor in charge of scheduling, often ignored Staub’s requests for time off, calling his military duties “bullshit.”266 On one occasion, Mulally issued Staub a written warning for allegedly disobeying instructions.267 A few months later, a coworker complained that Staub was often unavailable.268 Later, Staub’s supervisor was unable to locate him, in violation of Mulally’s instruction to notify her of his location.269 After this episode, Linda Buck, the vice president of human resources, terminated Staub.270 Buck stated that without the three prior incidents—Mulally’s warning, the coworker’s complaint and Staub’s “disappearance”—she would not have fired Staub.271 Staub invoked the cat’s paw theory to impute Mulally’s animus to Buck.272 Staub contended that Mulally fed false information to Buck because of her discriminatory bias and that Buck relied on this information in deciding to terminate Staub.273 Staub convinced a jury of this theory and obtained a verdict in his favor.274 On appeal, however, the Seventh Circuit reversed the jury verdict because of insufficient evidence.275 The court applied the same rule as it did in Brewer, namely, whether the biased employee exercised singular influence over the official decisionmaker.276 Unless the ultimate decisionmaker held that title only nominally, liability will not exist.277 Again, drawing from the underlying analogy, the Seventh Circuit

265 Id. at 651. 266 Id. at 651–52. 267 Id. at 653. 268 Id. 269 Id. at 654. 270 Id. 271 Id. 272 Id. at 655. 273 Id. at 655. 274 Id. 275 Id. at 657. 276 Id. at 656. 277 Id.

140 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 stated “true to the fable, [a cat’s paw case] requires a blind reliance, the stuff of ‘singular influence.’ ”278 Thus, the Seventh Circuit’s precedent demonstrates how courts have struggled with the proper application of the cat’s paw doctrine over the past twenty years.

IV. THE APPROPRIATE REACH OF CAT’S PAW LIABILITY

The circuits’ varying standards apparently results from just how literally courts interpret the cat’s paw analogy. On the one hand, courts applying the influence standard hardly focus on the analogy, using it as a guidepost at most. On the other hand, the Fourth Circuit has taken the metaphor quite literally in “deriving its total-control-over-the- actual-decision standard.”279 The Tenth Circuit expressly disagrees with an approach that limits liability to cases closely resembling the cat’s paw.280 Rather, the Tenth Circuit described its view of the analogy by stating, “[s]tripped of their metaphors, subordinate bias claims simply recognize that many companies separate the decisonmaking function from the investigation and reporting functions, and that racial bias can taint any of those functions.”281 And in Staub, the Seventh Circuit limited liability to cases that are “true to the fable.”282 Ultimately, a comparison of each circuit’s unique approach is more than a semantic exercise.283 The particular standard can affect the outcome of the case, whether it is resolved at the summary judgment level or proceeds to trial.284 Thus, without a uniform standard, “similarly situated parties receive different treatment

278 Id. at 659 (quoting Brewer v. Bd. of Tr. of the Univ. of Ill., 479 F.3d 908, 917 (7th Cir. 2007). 279 EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 488 (10th Cir. 2006). 280 Id. 281 Id. 282 Staub v. Proctor Hosp., 560 F.3d 647, 659 (7th Cir. 2009). 283 Thomas, supra note 33, at 655. 284 Id.

141 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 depending on where they bring their cases.”285 Courts need to adopt a coherent and uniform standard for deciding these common cases. In doing so, this section offers three suggestions. First, courts should use a motivating factor standard of causation in determining liability rather than focusing on vague formulations of influence. Second, courts need to scrutinize whether an independent investigation truly breaks the causal connection. Third, courts should apply agency principles to limit the imposition of vicarious liability in this context.

A. Courts Should Adopt the Standard of Motivating Factor Causation to Determine the Requisite Level of Control that a Biased Employee Must Exercise in Order to Impose Liability

The element of causation constitutes one of the central issues in delineating the appropriate reach of cat’s paw liability.286 As in any other disparate treatment claim, the plaintiff in a cat’s paw case must demonstrate a causal connection between the prohibited characteristic and the challenged action.287 Although the current circuit split focuses on the requisite degree of influence that the biased employee must exercise, the courts’ various formulations, as a practical matter, relate to the standard of causation that the courts are seeking to impose.288 Specifically, the lenient influence approach requires only a minimal level of causation, while the strict actual decisionmaker and singular influence standards require a much higher level of causation. Even the courts that claim to use a causation-based approach do not define causation nor indicate what causation standard they require. However, the lack of a unified causation standard in cat’s paw cases should come as no surprise because, as discussed in Section I.A, employment discrimination law, on the whole, suffers from the same deficiency.289

285 Eber, supra note 13, at 187. 286 White & Krieger, supra note 7, at 511. 287 Id. 288 Thomas, supra note 33, at 659. 289 Katz I, supra note 36, at 491–93. Attempting to make sense of the causation doctrine, Professor Katz has categorized the six most prominent formulations as

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To resolve the ambiguity, courts should adopt the motivating factor causation standard to determine when employers should be held liable for several reasons. First, the statutory language of Title VII explicitly calls for a motivating factor test.290 Congress amended Title VII so that instead of requiring that the adverse employment action was taken “because of” a prohibited characteristic, now the prohibited characteristic need only be a “motivating factor.”291 Prior to the 1991 amendment, the “because of” language had been interpreted to require but-for causation.292 The tort concept of but-for causation means that a factor is considered necessary to an event if, but for its existence, the event would not have taken place when it did.293 The Supreme Court’s opinion in Price Waterhouse, which triggered the 1991 Amendments, discussed the problems with requiring plaintiffs to prove but-for causation, especially in disparate treatment cases.294 As a result, scholars agree that the change to the motivating factor test demonstrates Congress’ intent to remove the standard of but-for causation.295 Therefore, the strict principally responsible and singular influence standards of causation contradict the statutory language of Title VII and correspondingly Congress’ intent. By requiring that the

follows: (1) the “motivating factor” test from the 1991 Act and Price Waterhouse; (2) the “same action” formulation also from the 1991 Act; (3) the “but for” test; (4) the “determinative influence” or “determinative factor” formulation; (5) the “a role,” “a cause,” and “a factor” test; and (6) the “substantial factor” test. Id. at 500–01. 290 See Befort & Olig, supra note 8, at 402. 291 42 U.S.C. § 2000e-2(m); Leigh A. Van Ostrand, A Close Look at ADEA Mixed-Motives Claims and Gross v. FBL Financial Services, Inc., 78 FORDHAM L. REV. 399, 417–18 (2009). 292 See White & Krieger, supra note 7, at 505. 293 Katz I, supra note 36, at 496, 501. 294 Martin J. Katz, Unifying Disparate Treatment (Really), 59 HASTINGS L.J. 643, 655–58 (2008) [hereinafter Katz II] (discussing how plaintiffs have problems getting access to the evidence that is necessary to prove but for causation because it is under the control of the defendant, that is, it is “often in the head of the decision- maker”). 295 Katz I, supra note 36, at 505–06.

143 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 biased subordinate serve as the “actual decisionmaker,” the strict causation standards requires, at a minimum, but-for causation.296 In place of but-for causation, Title VII now requires that the prohibited characteristic be a “motivating factor” in the decision.297 Congress definitely enacted the motivating factor test to require a less onerous causation standard that but-for causation.298 Although the motivating factor language does not constitute a traditional causation concept, legislative history suggests that it most likely refers to the tort standard of minimal causation.299 Minimal causation exists when a factor does not rise to the level of necessity, but does have some causal influence on the event in question.300 However, in light of the Supreme Court’s recent decision in Gross v. FBL Financial Services, Inc., the motivating factor standard apparently only applies in Title VII cat’s paw cases.301 Yet strong arguments exist that the same standard should be used in relation to all of the antidiscrimination statutes that use the “because of” language.302 As Justice Stevens noted in his Gross dissent, Price Waterhouse interpreted the “because of” language as requiring the motivating factor test and not but-for causation.303 Additionally, the Supreme Court has historically applied Title VII precedent to ADEA

296 Befort & Olig, supra note 8, at 402. 297 42 U.S.C. § 2000e-2(m). 298 See Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2357 (2009) (Stevens, J., dissenting) (stating that Price Waterhouse repudiated the but-for standard twenty years ago and Congress’ response also demonstrates that but-for causation is not necessary); Befort & Olig, supra note 8, at 402–03. 299 Katz I, supra note 36, at 505–06. 300 Id. at 498–99. 301 129 S. Ct. 2343 (2009). 302See Katz II, supra note 294, at 667–73 (outlining numerous reasons why the motivating factor interpretation of “because of” should be applied to antidiscrimination statutes other than Title VII, such as an assumption of uniformity, the uniform-meaning canon of statutory construction, express statement of congressional intent and the historical context of the 1991 Amendment). 303 Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989) (stating, “[t]o construe the words ‘because of’ as colloquial shorthand for ‘but-for’ causation is to misunderstand them”).

144 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 cases.304 And with respect to cat’s paw cases specifically, courts have consistently assumed that the same legal standard applies to all of the antidiscrimination statutes.305 Unfortunately, the current fragmented treatment of antidiscrimination statutes creates additional problems in attempting to create a unified standard for the cat’s paw doctrine. Nonetheless, the best solution should still focus on causation. In addition to statutory language, antidiscrimination legislation’s underlying goals support motivating factor causation. Congress enacted antidiscrimination statutes to deter discrimination and to provide remedies to discrimination victims.306 The stringent actual decisionmaker and singular influence standards counter the statutes’ deterrent purpose. Knowing they can escape liability so long as the biased employee did not completely control the decision, employers have little incentive to proactively eliminate discrimination in their workplaces.307 In fact, the strict rules may encourage employers to design policies of “willful blindness” where the decisionmaking process “intentionally mask[s] the underlying discriminatory motive as a basis to avoid liability.”308 At the same time, overly lenient standards may not further the deterrent goal either. If employers can be liable based on an insignificant amount of biased influence, they may believe that preventative measures are simply fruitless.309 A causation-based standard forges a middle ground that encourages employers to implement policies that prevent, not cover up, discrimination.

304 Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying Title VII principles to ADEA case). 305 Petition for Writ of Certiorari at 24, Staub v. Proctor Hosp., 560 F.3d 647 (7th Cir. 2009) (No. 09-400), available at http://www.scotusblog.com/wp/wp- content/uploads/2009/11/09-400_pet1.pdf. 306 Befort & Olig, supra note 8, at 403. 307 Keaton Wong, Comment, Weighing Influence: Employment Discrimination and the Theory of Subordinate Bias Liability, 57 AM. U. L. REV. 1729, 1753–54 (2008). 308 Befort & Olig, supra note 8, at 404. 309 Eber, supra note 13, at 177–78.

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A causation-based approach also advances the remedial purpose of antidiscrimination. A less onerous standard, like motivating factor causation, makes it easier for plaintiffs to defeat summary judgment and allow a jury to decide whether the discriminatory conduct caused the employment decision.310 Permitting greater access to a jury is important because federal antidiscrimination statutes are remedial in nature and, as such, should be broadly construed to fulfill their purposes.311 Strict standards of causation, like those of the Fourth and Seventh Circuit, ignore the remedial purpose of antidiscrimination statutes by imposing such a high hurdle.312 The actual decisionmaker and singular influence rules effectively remove an entire category of plaintiffs from the protections of antidiscrimination legislation.313 Moreover, a causation-based standard properly maintains the element of causation. Despite the ambiguities about the standard of causation, there is no doubt that the antidiscrimination statutes require a causal connection between the unlawful bias and the challenged decision.314 The lenient approach may inappropriately remove the causation requirement.315 Courts may impose liability based on a trivial amount of influence or involvement and presume that causation exists. Thus, the lenient standard’s failure to address the element of causation constitutes a significant flaw. A motivating factor standard, however, does not eliminate a requirement of causation. Minimal causation still requires that the discriminatory intent have a causal influence on the adverse employment action, but it does not require that the intent rise to the level of “but for” causation.

310 Id. at 175. 311 Befort & Olig, supra note 8, at 403. 312 Id. 313 Kaler, supra note 2, at 1087. 314 White & Krieger, supra note 7, at 503–05. 315 EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 486–87 (10th Cir. 2006) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998) as construing Title VII “to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority” (emphasis in original)).

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Finally, courts can uniformly understand and apply traditional tort principles of causation.316 Courts have struggled in applying the vague standards enunciated by many of the circuit courts. The blurred boundaries between whether a biased employee was the “actual decisionmaker,” the one “principally responsible,” exercised “singular influence,” or “provided input” causes illogical results.317 Instead of assessing ambiguous terminology, courts should explicitly evaluate the element of causation. Tort causation principles are “well-defined and widely understood by courts.” 318 Thus, in contrast to the influence and actual decisionmaker approaches, the causation-based standard certainly focuses on the appropriate issue. But because several different causation standards exist in employment discrimination law, courts need to clarify what standard of causation they require. In doing so, courts should adopt the motivating factor standard because it comes straight from the language of Title VII, maintains an element of causation and provides a uniform formulation that courts can readily apply. In sum, motivating factor causation offers the best solution to the circuit split over the level of control that the biased employee must exercise over the actual decisionmaker.

B. “Independent” Investigations: When Should They Be Permitted to Break the Causal Connection?

Closely related to the standard of causation, the independent investigation defense constitutes another important issue in the cat’s paw context. An independent investigation “serves to replace the influence of a subordinate’s bias with the untainted determination of an unbiased ultimate decisionmaker.”319 By investigating the circumstances relevant to the decision, the official decisionmaker can remove the taint of discrimination brought in by the biased employee’s

316 Eber, supra note 13, at 184. 317 See id. 318 Id. 319 Befort & Olig, supra note 8, at 413–14.

147 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 actions and thereby break the chain of causation.320 Nearly all of the circuit courts allow an employer to escape liability by conducting an independent investigation.321 Yet despite this general agreement, the circuits are again divided about the meaning of “independent investigation.”322 More precisely, the courts disagree about the type of investigation that employers must conduct to remove the taint of discrimination.323 For example, the Tenth Circuit in BCI stated that merely asking the affected employee for his side of the story suffices.324 The Seventh Circuit in Brewer stated that “[i]t does not matter that, in a particular situation, much of the information has come from a potentially biased source, so long as the decision maker does not . . . limit her investigation to information from the biased source.”325 The Seventh Circuit also suggested that the affected employee had a duty to inform the official decisionmaker of any additional facts that would warrant further investigation.326 In contrast, the Fifth Circuit has held that an

320 Id. at 412. 321 See, e.g., Poland v. Chertoff, 494 F.3d 1174, 1183 (9th Cir. 2007); EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 486 (10th Cir. 2006); Cariglia v. Hertz Equip. Rental Corp., 363 F.3d 77, 87 n.4 (1st Cir. 2004); Willis v. Marion County Auditor’s Office, 118 F.3d 542, 547 (7th Cir. 1997); Long v. Eastfield Coll., 88 F.3d 300, 307 (5th Cir. 1996). 322 Ratliff, supra note 22, at 269. 323 Id. 324 BCI Coca-Cola, 450 F.3d at 488. The First and Eleventh Circuits have adopted a similar view. Cariglia v. Hertz Equipment Rental Corp., 363 F.3d 77, 87 n.4 (1st Cir. 2004 ) (stating that its decision to remand the case for additional findings may have been different if the plaintiff had been given an opportunity to address the allegations against him); Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1250 (11th Cir. 1998) (holding that an employer should be absolved from liability when “the employer makes an effort to determine the employee’s side of the story”). 325 479 F.3d at 918. 326 479 F.3d 919; see also Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 293–94 (4th Cir. 2004) (en banc) (noting that the employee failed to dispute any of her biased supervisor’s negative evaluations and that “it was incumbent upon her to dispute any basis for the reprimand at that time if she intended to complain later”); but see Madden v. Chattanooga City Wide Serv. Dept.,

148 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 investigation does not necessarily sever the causal link between the alleged bias and the decision.327 Instead, the Fifth Circuit allows the jury to determine whether the ultimate decision was based on the employer’s independent investigation.328 As an example of a clearly sufficient effort, the investigation in Stimpson v. City of Tuscaloosa consisted of a three-day hearing where the employee was permitted to present evidence and witnesses on his behalf.329 Courts have given less attention to steps that do not constitute an independent investigation. But the Tenth Circuit did find a basic review of the affected employee’s personnel file unsatisfactory.330 The uncertainty relating to independent investigations burdens all types of employers.331 Employers increasingly vest decisionmaking authority in lower-level employees and allow those employees to base their decisions on information provided by subordinates.332 With the varying standards for cat’s paw liability, employers are unsure how to tailor their decisionmaking structure so as to avoid liability.333 In particular, large employers with centralized personnel departments need help designing procedures that expose potential bias.334 And smaller employers with fewer resources also need to know “how much time and money must be put into an investigation.”335

549 F.3d 666 (6th Cir. 2008) (finding employer liable even though the employee failed to raise his supervisor’s racial bias during an investigation conducted by a subordinate manager). 327 Gee v. Principi, 289 F.3d 342, 346–47 (5th Cir. 2002). 328 Long v. Eastfield Coll., 88 F.3d 300, 307 (5th Cir. 1996); see also Kramer v. Logan Sch. Dist. No. R-1, 157 F.3d 620, 622–24 (8th Cir. 1998) (holding that the issue of whether the school board rubber stamped a recommendation for non- renewal was “appropriately presented to the jury”). 329 Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999). 330450 F.3d, 476, 492–93 (10th Cir. 2006). 331 Santoro, supra note 37, at 835. 332 Eber, supra note 13, at 188. 333 Id. 334 Santoro, supra note 37, at 835. 335 Id.

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Although the independent investigation doctrine may be theoretically sound, several problems exist with the defense in its current state. First, many circuits allow too low of a level of investigation to break the causal connection. By characterizing the mere act of asking employees for their version of the events as an independent investigation, courts too quickly assume that this action will remove the discriminatory taint. The Seventh Circuit in Brewer stated that an independent investigation contains “some affirmative act by the decision maker to come to his own decision.”336 Yet the court held that the decisionmaker’s simple action of looking at the altered parking sticker, which served as the impetus for the employee’s termination, constituted such an affirmative action.337 Courts should be wary in concluding that such cursory actions constitute an independent investigation. Because the defense fundamentally relates to causation, it is vital that courts examine whether the investigation truly breaks the connection between the employee’s bias and the ultimate decision.338 Thus, courts should not blindly consider any perfunctory employer action an independent investigation, but, instead, should more carefully scrutinize the employer’s steps. In its merits brief to the Supreme Court, the EEOC suggested that the “more thorough, balanced, and truly independent the investigation, the more likely the termination will be the result of the investigation rather than the discriminatory input.”339 In addition to the low threshold of what satisfies the defense, another problem relates to whether an investigation can ever truly be independent in the cat’s paw context. The circuit courts have assumed that an impartial inquiry is possible and have ignored the role of expectancy confirmation bias.340 Expectancy confirmation bias, a

336 Brewer v. Bd. of Tr. of the Univ. of Ill., 479 F.3d 908, 919 (7th Cir. 2007). 337 Id. 338 Eber, supra note 13, at 194–95. 339 Brief of Respondent at 35, EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476 (10th Cir. 2006) (No. 06–341), cert. dismissed, 549 U.S. 1334 (2007). 340 Recent Cases, Employment Law -- Title VII -- Tenth Circuit Clarifies Causation Standard for Subordinate Bias Claims, 120 HARV. L. REV. 1699, 1703 (2007).

150 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 social psychology concept, teaches that after a recommendation has been made, the recommendation will serve as a prior theory or a tentative hypothesis.341 More specifically, a biased employee’s recommendation “can reasonably be expected to influence the ultimate decision maker’s judgment in a recommendation-consistent direction, even if he conducts his own investigation.”342 Expectancies also affect the amount and type of information that individuals seek before making a final decision.343 Because the decisionmaker may be anchored to a presumption of guilt, the decisionmaker may investigate the underlying events in a way that uncovers only expectation-confirming evidence.344 Further, decisionmakers may ask asymmetric questions that allow confirmation of their hypotheses.345 Not only does expectancy confirmation bias influence the investigation, but it also affects how individuals process information once uncovered. The decisionmaker will likely consider theory-confirming evidence more probative than any theory- disconfirming evidence. 346 Social science research demonstrates that the decisionmaker may “remember the strengths of confirming evidence but the weaknesses of disconfirming evidence . . . [and] accept confirming evidence at face value while scrutinizing disconfirming evidence hypercritically.”347 Individuals also process expectancy-confirming information more easily.348

341 White & Krieger, supra note 7, at 524. For a detailed description of the classic studies illustrating the expectancy confirmation bias, see id. at 525. 342 Id. at 524. 343 Recent Cases, supra note 340, at 1704. 344 Id. 345 Id. 346 White & Krieger, supra note 7, at 525–26. 347 Recent Cases, supra note 340, at 1704–05 (quoting Charles G. Lord et. al., Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 J. PERSONALITY & SOC. PSYCHOL. 2098, 2099 (1979) (determining “that individuals with strong preconceived opinions examine evidence in a biased manner”)). 348 Id. at 1704.

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Indeed, the effects of expectancy confirmation bias are strongest in a situation like a cat’s paw case.349 The decisionmaker may give “excessive deference” to the biased subordinate’s story and less credit to the employee’s account because of the supervisor’s higher position in the workplace hierarchy.350 Further, individuals holding positions of power are more likely to be affected by expectancy confirmation bias.351 Because of high demands on their cognitive resources and the lack of any direct negative consequences, superiors are prone to use the hypothesis as a “convenient heuristic” and to conduct investigations in an expectancy-confirming way.352 Research also demonstrates that expectancy confirmation bias tends to materialize more often in situations dealing with ambiguous or complex evidence, which is common in employment decisions.353 Consequently, the notion that an investigation can always remove the taint of bias is inherently flawed. The independent investigation defense, as it currently stands, does nothing to account for this possibility.354 To counteract the effects of expectancy confirmation bias, the decisionmaker should inquire into the relevant supervisor’s background and motives whenever an employment action is taken against a member of a protected class.355 For example, the ultimate decisionmaker could interview the supervisor’s colleagues and examine the supervisor’s file for potential complaints of biased behavior.356 The decisionmaker could study the supervisor’s reports

349 White & Krieger, supra note 7, at 526. 350 Recent Cases, supra note 340, at 1703–04. 351 Id. at 1705. 352 Id. 353 Id. Research also suggests that the effects of expectancy confirmation bias will be magnified where “the deficiencies or transgressions grounding the supervisor’s report or recommendation are consistent with a stereotype associated with the target employee’s social group.” White & Krieger, supra note 7, at 524–25. 354 For an argument that the independent investigation issue should be considered a question of fact and judges should not be permitted to grant summary judgment based on the defense, see Ratliff, supra note 22, at 274–77. 355 Recent Cases, supra note 340, at 1706. 356 Id.

152 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 and recommendations regarding other employees to check for any pattern of bias.357 Professors White and Krieger suggest that

[s]uch an affirmative process would require, among other things, explicitly considering the possibility that bias had influenced the process at its earlier stages, assuring that all available allegation or recommendation-inconsistent facts have been energetically developed and their potential implications thoroughly explored, and subjecting all recommendation-consistent information to rigorous critical scrutiny.358

If necessary, an employer could hire an independent outside consultant to conduct the investigation, although this option might be costly.359 Ultimately, the decisionmaker should “explicitly consider[] the possibility that bias had influenced the process at its earlier stages” to eliminate any discriminatory effects.360 However, a rigid rule detailing mandatory steps would ignore the fact-intensive nature of cat’s paw claims.361 An independent investigation standard also must recognize that employers need to be able to rely on information from subordinate employees.362 Employers should be able to maintain flexibility in conducting these inquiries,

357 Id. 358 White & Krieger, supra note 7, at 527. 359 Santoro, supra note 37, at 840. An outside consultant provides the benefit of being more experienced in conducting these types of employment investigations, interviewing employees and reviewing evidence. Additionally, an outside consultant may be more likely than an inside party to assess the situation from an impartial perspective. On the other hand, an outside consultant may be less familiar with the particular workplace’s culture, organizational structure and the parties involved in the employment decision. Id. 360 White & Krieger, supra note 7, at 527. 361 Eber, supra note 13, at 194. 362 Staub v. Proctor Hosp., 560 F.3d 647, 659 (7th Cir. 2009) (explaining that any independent investigation standard must account for the realities of the workplace).

153 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 especially in light of the potential time and costs.363 A more thorough investigation does not need to be an onerous or lengthy task.364 Certainly not every situation would call for a three-day evidentiary hearing, as was conducted in Stimpson.365 In sum, courts should permit employers to prevent liability by conducting independent investigations. But courts must hold employers to a more meaningful standard in assessing whether the investigation sufficiently broke the causal link.366

C. Proper Consideration of Agency Principles Serves to Limit Employer Liability Under the Cat’s Paw Doctrine

Even after establishing a causal link between a prohibited characteristic and the challenged decision, the plaintiff must still demonstrate that the disparate treatment can be attributed to the employer.367 Such an inquiry relates to the underlying agency principles that simultaneously give rise to cat’s paw liability and serve to limit its application. A proper application of vicarious liability “eases concerns that causation analysis imposes liability for discrimination on a too attenuated basis.”368 As discussed in Section I.A, Congress’ use of the term agent in defining employer “evince[d] an intent to place some limits on the acts of employees for which employers . . . are to be held responsible.”369 The question becomes, therefore, which employees can cause liability under the cat’s paw doctrine.370

363 Recent Cases, supra note 340, at 1706. 364 Id. 365 186 F.3d 1328, 1332 (11th Cir. 1999). 366 Eber, supra note 13, at 195. 367 White & Krieger, supra note 7, at 517. 368 Id. at 522. 369 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986). 370 Ernest F. Lidge, III, The Male Employee Disciplined for Sexual Harassment as Sex Discrimination Plaintiff, 30 U. MEM. L. REV. 717, 747 (2000).

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As can be assumed by this point, the circuit courts have given the agency issue varying degrees of attention. Many of the courts utilizing the lenient standard essentially ignore the issue of agency. One commentator noted that because those courts failed to overtly discuss the agency issue, “it is not clear whether these courts view the agency link as established by virtue of the actions of the biased subordinate or by virtue of the actions of the ultimate decisionmaker.”371 The Fourth Circuit based its actual decisionmaker rule, in large part, on agency principles.372 The Fourth Circuit limits liability to those employees to whom the employer delegated supervisory authority.373 In contrast, the Tenth Circuit requires the biased employee to misuse some form of delegated authority.374 The court did not limit such authority to only supervisory abilities, but held that the “authority to monitor performance, report disciplinary infractions, and recommend employment actions” also sufficed.375 The Tenth Circuit’s approach provides the most balanced answer to the agency question in cat’s paw cases. By disregarding the agency limitation, the lenient courts improperly open the door to automatic liability for all employees’ actions. Instead, courts should apply agency principles because they properly cabin the situations that can expose the employer to cat’s paw liability. The agency limitation relates to the deterrent objective of antidiscrimination legislation. In other words, employers should be held liable for the “discriminatory act of employees that it reasonably may have prevented.”376 Employers have a better opportunity to prevent and monitor misconduct by employees possessing delegated authority than by

371 Befort & Olig, supra note 8, at 408. 372 Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 287 (4th Cir. 2004) (en banc). 373 Id. at 288–91. 374 EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 487 (10th Cir. 2006). 375 Id. at 485. 376 Befort & Olig, supra note 8, at 410.

155 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 ordinary workers.377 For example, an employer should not be held vicariously liable if a biased customer or independent contractor filed a false report of employee misconduct that caused the employee to be terminated.378 Nor would an employer be liable for an ordinary employee, lacking any delegated authority, falsely reports another employee’s misconduct.379 On the other hand, Supreme Court precedent and policy concerns suggest that vicarious liability should not be limited to only formal supervisors. In Ellerth, the Supreme Court concluded that vicarious liability exists when a supervisor effectuates a tangible employment action against a subordinate.380 Importantly, however, the Ellerth Court did not limit liability to only this context.381 Instead, the Court remarked that other circumstances implicating employer liability based on the agency relationship were “less obvious.”382 The Supreme Court’s decision in Ellerth “ultimately stands for the proposition that an employer may be liable for agency purposes when an employee misuses delegated authority that results in an adverse employment action.”383 Consequently, courts have properly determined that cat’s paw liability, as a specific branch of vicarious liability, exists when the biased subordinate who causes the adverse employment action is a supervisor. Yet, just as Ellerth explicitly noted, this scenario does not represent the outer bounds of vicarious liability, and liability may be appropriate in other contexts. Employers should also be liable for

377 Brief of Respondent at 23, EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476 (10th Cir. 2006) (No. 06–341), cert. dismissed, 549 U.S. 1334 (2007). 378 Id. at 22–23. 379 See White & Krieger, supra note 7, at 519–20 (describing scenario where single discriminatory act by an ordinary employee would not give rise to liability because “no action properly attributable to the employer was the product of an intent to discriminate”). 380 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760 (1998). 381 Id. at 762–63. 382 Id. at 763. 383 Befort & Olig, supra note 8, at 412.

156 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 employee misuse of different types of delegated authority.384 For example, an employee lacking formal supervisory ability may still be able to make recommendations on issues such as promotion, discipline or termination.385 In fact, the increasing prevalence of peer evaluations suggests that biased coworkers may have just as much power as formal supervisors.386 The biased employee may not hold the title of supervisor, but employer liability would still be proper “if the recommender’s misuse of that lesser form of delegated authority serves as a motivating factor in an adverse employment action.”387 In applying agency principles, courts should not be overly formalistic in focusing only on whether the employee was vested with the appropriate title. Thus, the Fourth’s Circuit’s rigid limitation of liability to only actual decisionmakers misinterprets agency principles. Consistent with the Tenth Circuit, courts should focus on employees with any delegated ability to inflict harm on other employees, instead of being unduly limited to only named supervisors.

CONCLUSION

In conclusion, cat’s paw liability constitutes an important facet of employment discrimination law because it accounts for the changing structure of workplace personnel departments. Yet, as a relatively new legal theory, the cat’s paw doctrine contains several problematic issues that need to be addressed. The current circuit split demonstrates the difficulty courts have faced in applying the doctrine. Although the cat’s paw issue is ripe for review by the Supreme Court, until that time comes the circuit courts should attempt to adopt a uniform and sound approach. In doing so, courts should utilize a motivating factor standard of causation rather than focusing on vague notions of control, influence or involvement. Additionally, courts should more carefully scrutinize whether an employer’s actions sufficiently break the causal

384 Id. at 411. 385 Id. 386 See Kaler, supra note 2, at 1090. 387 Id. at 412.

157 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 connection so as to be considered an independent investigation. Finally, even after finding causation satisfied, courts should apply agency principles to determine if the employer can be held vicariously liable for the employee’s actions. By implementing these suggestions, courts will do justice to the cat’s paw metaphor.

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PRISONERS AND PUBLIC EMPLOYEES: BRIDGES TO A NEW FUTURE IN PRISONERS’ FREE SPEECH RETALIATION CLAIMS

MATTHEW D. ROSE*

Cite as: Matthew D. Rose, Comment, Prisoners and Public Employees: Bridges to a New Future in Prisoners’ Free Speech Retaliation Claims, 5 SEVENTH CIRCUIT REV. 159 (2009), http://www.kentlaw.edu/7cr/v5-1/rose.pdf.

INTRODUCTION

Prisoners, by virtue of their incarceration, necessarily sacrificed some of the constitutional rights and privileges that they possessed as free citizens to ensure the effective operation of our prison system.1 In the First Amendment context, the Supreme Court case of Pell v. Procunier established that “a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system” (the “Pell test”).2 Yet, the Court left this “superficial formula” relatively unexamined and undefined.3 Specifically, Pell refrained from determining if the First Amendment right to free speech remained “inconsistent with a prison inmate’s status as a prisoner or with the

* J.D. candidate, May 2010, Chicago-Kent College of Law, Illinois Institute of Technology; B.A., Jan. 2007, University of Michigan at Ann Arbor. Thank you, Mallory, for your enduring love and support. 1 See, e.g., Price v. Johnston, 334 U.S. 266, 285 (1948), abrogated by McClesky v. Zant, 499 U.S. 467 (1991) (“[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.”). 2 417 U.S. 817, 822 (1974). 3 See MICHAEL B. MUSLIN, RIGHTS OF PRISONERS § 1.04 (2d ed. 1993) (“This superficial formula fails to identify which constitutional rights are taken by law, but it does make the point that important rights survive incarceration.”).

159 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 legitimate penological objectives of the corrections system.”4 Instead, Pell and its progeny primarily evaluated whether prison restrictions on prisoners’ asserted free speech rights possessed a reasonable relation to the government’s legitimate penological interests.5 Eventually, Turner v. Safley expressly confirmed the Court’s approach to evaluating the reasonableness of prison restrictions on prisoners’ asserted free speech rights.6 Turner announced that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests” (the “Turner test”).7 Turner further established a very deferential rational basis standard of review and a relatively well- defined four-factor approach to evaluate the relationship between the prison’s restrictions and its legitimate penological interests.8 Turner, however, neglected to precisely identify the existence and scope of protection to prisoners’ free speech rights.9 Consequently, the Court’s neglect of the Pell test and the overall uncertain status of prisoners’ free speech rights presented considerable difficulties for the Seventh Circuit when it evaluated prisoners’ free speech retaliation claims.10 Because the Court never determined if the First Amendment protected prisoners’ free speech from retaliation or the proper constitutional standard for evaluating prisoners’ free speech retaliation claims,11 the Seventh Circuit found itself applying the Court’s well-known and well-defined test for evaluating public employees’ free speech retaliation claims to the prison setting.12

4 See discussion infra Part I.A and note 52 and accompanying text. 5 See discussion infra Part I.A and note 61 and accompanying text. 6 482 U.S. 78, 89 (1987); see discussion infra Part I.B. 7 Turner, 482 U.S. at 89. 8 See id. at 89–93; discussion infra Parts I.B. 9 See discussion infra Parts I.B–C. 10 See discussion infra Part IV.A., IV.C, V.B. 11 See Bridges v. Gilbert, 557 F.3d 541, 549 (7th Cir. 2009) (observing that the Court’s prisoner free speech jurisprudence refrained from explicitly mandating, or excluding, the legitimate penological interests test for evaluating prisoners’ free speech retaliation claims). 12 See, e.g., Brookins v. Kolb, 990 F.2d 308, 313(7th Cir. 1992), abrogated in part by Bridges, 557 F.3d 541 (7th Cir. 2009); Pearson v. Welborn, 471 F.3d 732,

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In the Court’s public employee free speech jurisprudence, the First Amendment protected a public employee’s speech against retaliation only if the public employee (1) “spoke as a citizen on a matter of public concern” (the “public concern test”);13 and (2) the government-employer possessed no “adequate justification for treating the employee differently from any other member of the general public” (the “Pickering balancing test”).14 Hence, the Seventh Circuit supported the notion that the First Amendment protected a prisoner’s speech against retaliation if the prisoner—like the public employee— spoke “on a matter of public concern” and the government-as-jailor possessed no legitimate interest in restricting the prisoner’s speech. Aside from the fact that the Court’s precedent arguably left open what tests should apply to evaluate prisoners’ free speech retaliation claims, the Seventh Circuit’s application of the public concern and Pickering balancing tests to the prison context made some sense for three primary reasons.15 First, unlike the uncertain and confusing status of prisoners’ free speech rights, the Court specifically articulated a precise and well-defined test to evaluate free speech retaliation claims in the public employment context.16 Second, if the First Amendment restricted public employees’ free speech retaliation claims by a public concern test, then the First Amendment surely similarly restricted prisoners’ free speech retaliation claims unless courts reached the absurd result of potentially granting prisoners

741–42 (7th Cir. 2006); McElroy v. Force, 403 F.3d 855, 858–59 (7th Cir. 2005) (per curiam); Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir. 1999), abrogated in part by Bridges, 557 F.3d 541. 13 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citing Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968)). 14 Id. 15 See Bridges, 557 F.3d at 549–50 (observing that the Court’s public employee free speech jurisprudence neither expressly limited the public concern test to public employees’ free speech retaliation claims, nor definitely indicated that the test should apply to other free speech retaliation claims); supra note 11 and accompanying text. 16 See Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999) (finding it helpful to draw upon the public employee free speech jurisprudence to analyze other free speech retaliation claims because the bulk of First Amendment retaliation claims arose in the public employee setting); discussion infra Part I.

161 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 greater free speech rights than public employees.17 Third, the free speech rights of prisoners and public employees remained similarly situated in that both received less constitutional protection than normal citizens because the government’s unique interests in controlling both populations to effectively provide government services necessarily required both groups to accept certain limitations on their freedom of speech.18 The Seventh Circuit, however, reconsidered its support for applying the public concern and Pickering balancing tests to prisoners’ free speech retaliation claims in Bridges v. Gilbert.19 The prisoner- claimant, Jimmy Bridges, alleged that prison officials retaliated against him for providing an affidavit in a lawsuit brought by the estate of another inmate.20 In that prior lawsuit, Bridges averred his account of an incident involving prison officials’ alleged mistreatment of the other inmate while that inmate was gravely ill and later died.21 The trial court dismissed Bridges’s complaint because his speech did not involve a matter of public concern since it only involved a matter personal to the estate of the other inmate.22 On appeal, Bridges urged the Seventh Circuit to reject its support of a public concern test for prisoners’ free speech retaliation claim in favor of the Turner test.23

17 See Thaddeus-X, 175 F.3d at 388 (commenting that the public concern requirement may be applicable to prisoners’ free speech retaliation claims because “[p]risoners certainly do not have greater free speech rights than public employees.”). 18 Compare supra note 1 and accompanying text, with Garcetti, 547 U.S. at 418 (“When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.”). See generally Scott A. Moss, Students and Workers and Prisoners—Oh, My! A Cautionary Note About Excessive Institutional Tailoring of First Amendment Doctrine, 54 U.C.L.A L. REV 1635 (2007) (observing that the low level of scrutiny the Court applied to prisoners’ and public employees’ free speech claims contrasted with the strict scrutiny standard the Court typically applied to government restrictions on free speech). 19 See 557 F.3d at 546–52. 20 Id. at 544. 21 Id. at 544, 551. 22 Bridges v. Huibregtse, No. 06-C-544-S, 2007 U.S. Dist. LEXIS 2477, at *4 (W.D. Wis. Jan. 8, 2007). 23 Bridges, 557 F.3d at 547.

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Ultimately, the Seventh Circuit agreed with Bridges and held that “a prisoner’s speech can be protected even when it does not involve a matter of public concern.”24 Instead, the Seventh Circuit purportedly adopted the Turner test to evaluate prisoners’ free speech retaliation claims.25 In reality, however, the Seventh Circuit analyzed Bridges’s free speech retaliation claim under the Pell test when it held that Bridges’s allegedly truthful speech about possible prison abuses was “not inconsistent with legitimate penological objectives” without applying the Turner test, its factors, standard of review, or explicit reference to the deference courts typically reserve for the judgment of prison officials.26 Consequently, the Seventh Circuit’s attempt to clarify the constitutional level of protection for prisoners’ free speech retaliation claims only left the ambiguous status of prisoners’ free speech rights as uncertain as ever.27 This article analyzes and evaluates the Seventh Circuit’s opinion in Bridges v. Gilbert. Part I reviews the Court’s relevant First Amendment jurisprudence concerning prisoners’ free speech rights, while Part II examines the Court’s public employee free speech jurisprudence. Part III analyzes other federal circuits’ approaches to prisoners’ free speech retaliation claims, while Part IV discusses the Seventh Circuit’s approach to prisoners’ free speech retaliation claims. Lastly, Part V evaluates the Seventh Circuit’s decision in Bridges. Part V argues that the Seventh Circuit’s purported adoption of the Turner test plausibly conformed to Court precedent, but that Bridges effectively, and incorrectly, applied the Pell test to the prisoner’s free speech claim. Finally, Part V contends that the Seventh Circuit should have considered applying the public concern and Pickering balancing tests to adjudicate a prisoner’s speech on a matter of public- penological concern against the government’s legitimate penological interests in restricting the prisoner’s speech. This approach proves more workable than the legitimate penological interests tests, protects

24 Id. at 551. 25 Id. at 551–52. 26 See id.; discussion infra Parts IV.C, V.B. 27 See discussion infra Parts IV.C, V.B–C.

163 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 important free speech rights, and ensures that prisoners do not possess potentially broader free speech rights than public employees.

I. THE COURT’S PRISONER FREE SPEECH JURISPRUDENCE

Whether prisoners even enjoyed the protection of the Free Speech Clause of the First Amendment,28 the “Constitution’s most majestic guarantee,”29 remained in doubt for nearly 170 years.30 Since American prisons first developed in the early nineteenth century after the conception of the Constitution,31 courts initially applied the Bill of Rights only as “a declaration of general principles to govern a society of freemen, and not of convicted felons and men civilly dead.”32 One court famously treated convicted felons as “slaves of the State,” who possessed only those “personal rights . . . the law in its humanity accords . . . .”33 Also, because the early prototypical prison institutions strictly prohibited inmates from talking, engaging in communications with other prisoners, and receiving publications except for the Bible, considerable doubt remained over whether prisoners retained their free speech rights.34 Early twentieth century prison reform movements relaxed these silence requirements and other prisoner speech restrictions due to then-prevailing beliefs that the harshness of prison life promoted recidivism by hardening prisoners to a criminal way of life.35 Yet, by the mid-twentieth century, society generally considered prisons’ rehabilitative efforts futile.36 Consequently, prisons primarily became

28 The Free Speech Clause of the First Amendment states, “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. CONST. amend. I. 29 LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-1 (2d ed. 1988). 30 MUSLIN, supra note 3, § 1.02. 31 Id. § 1.01. 32 Ruffin v. Commonwealth, 21 Gratt. 790, 796 (Va. 1871). 33 Id. 34 MUSLIN, supra note 3, § 1.01. 35 Id. 36 Id.

164 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 warehouses for society’s criminals with little regard for prisoners’ free speech rights or other conditions of confinement.37 Furthermore, since courts deliberately refrained from questioning what constitutional rights survived incarceration as part of the so- called hands-off doctrine, the law perpetuated the ambiguous status of prisoners’ free speech rights.38 Courts supported the hands-off doctrine because they believed judicial intervention into internal prison affairs implicated concerns about the separation of powers,39 federalism,40 institutional expertise,41 and the unstated potential for boundless—and possibly meritless—litigation.42 Ultimately, the Supreme Court ended the hands-off doctrine and permitted courts to adjudicate prisoners’ free speech claims against prison officials.43 Thus, the Court developed its prisoner free speech jurisprudence in cases like Pell v. Procunier44 and Turner v. Safley.45 These cases established the possible tests for evaluating prisoners’ free speech retaliation claims, but they provided little definition or protection to prisoners’ free speech rights.46 As a result, the hands-off doctrine’s legacy on the uncertain status of prisoners’ free speech rights remained ever-present in the Court’s prisoner free speech

37 Id. 38 Id. § 1.02. 39 Id. (commenting that concerns about the separation of powers existed because courts generally viewed the management and control of prisons as executive and legislative functions). 40 Id. (commenting that considerations about federalism arose because many prisoner suits were brought in federal courts by state inmates, and federal courts did not want to tell states how to run their prisons). 41 Id. (commenting that concerns about institutional expertise developed because courts believed that the management of prisons required considerable training, skill, and experience that only corrections officials possessed). 42 Id. (commenting that concerns about litigation developed because of the large volume of idle prisoners). 43 Id. § 1.03; see also Procunier v. Martinez, 416 U.S. 396, 405–06 (1974) (“When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.”). 44 417 U.S. 817 (1974). 45 482 U.S. 78 (1987). 46 See discussion infra Part I.A–C.

165 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 jurisprudence.47 Accordingly, Part I reviews Pell v. Procunier, Turner v. Safley, and the differences between the Pell and Turner tests.

A. Pell v. Procunier Pell upheld a prison regulation prohibiting face-to-face communications between prison inmates and members of the press.48 In analyzing the prisoners’ free speech claims,49 the Court initially noted that lawful incarceration necessarily restricted the rights and privileges of prisoners.50 As a corollary to that principle, the Pell Court announced its test that “a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.”51 The Pell Court, however, did not consider the existence of prisoners’ free speech rights to communicate with the journalists survived their imprisonment.52 Instead, the Pell Court assumed that the prisoners possessed a free speech right to communicate with the journalists, and proceeded to evaluate the reasonableness of the prison regulation in light of the prison’s legitimate penological objectives.53 Next, the Pell Court identified three generally legitimate penological interests: (1) the deterrence of crime; (2) the rehabilitation of prisoners; and (3) the maintenance of internal security

47 See MUSLIN, supra note 3, § 1.04. 48 Pell, 417 U.S. at 827–28, 835. This comment does not analyze the press officials’ more famous First Amendment challenge. 49 The Pell prisoners asserted a free speech right to communicate their views to any willing listener, which included a willing representative of the press for the purpose of publication by a willing publisher. Id. at 822. The Court assumed that the Free Speech Clause protected such a right. Id. 50 Id. (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). 51 Id. 52 Id.; see also Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (commenting that Pell refrained from deciding whether the asserted First Amendment right survived incarceration because the prison regulation was a reasonable exercise of the prison officials’ judgment as to the appropriate means of furthering penological goals). 53 Pell, 417 U.S. at 822.

166 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 considerations within the prison institutions.54 Then, the Court upheld the prison restrictions because they furthered these legitimate penological objectives.55 First, the Court determined that the restrictions deterred crime because isolating prisoners in presumably undesirable conditions reasonably deterred prisoners and others from committing additional criminal offenses.56 Second, the restrictions furthered prisoners’ rehabilitation and maintained prison security because the corrections officers believed that the restrictions allowed the inmates to have personal contact with people who aided their rehabilitation while not compromising the security concerns inherent in face-to-face communications.57 Thus, in evaluating whether the prison restrictions served the legitimate penological objectives, Pell deferred to the “expert judgment” of the corrections officers absent “substantial evidence in the record to indicate . . . the officials . . . exaggerated their response to [the legitimate penological] considerations.”58 Pell also considered the regulation as a reasonable time, place, and manner restriction because it was content-neutral and allowed prisoners alternative means of communicating with outsiders.59 Ultimately, the Pell Court’s failure to apply the Pell test left future courts without any definition or explanation of what free speech rights, if any, actually survived incarceration.60 Instead, the Court generally adopted Pell’s approach to solely evaluate the validity of

54 Id. 55 Id. at 827–28. 56 Id. at 822. The Court’s reasoning under the legitimate penological interest of deterring crime placed no real limiting principle on the types of permissible prison restrictions because any restriction on prisoners’ free speech rights would make conditions less desirable and thereby deter crime. See id.; cf. also Beard v. Banks, 548 U.S. 541, 546 (2006) (Stevens, J., dissenting) (arguing that the deprivation theory of rehabilitation possessed no limiting principle because any deprivation of a prisoner’s constitutional right provided the prisoner an incentive to improve his or her behavior and the theoretical opportunity to have the right restored with improved behavior). However, no case since Pell disavowed this reasoning. 57 Pell, 417 U.S. at 822, 827. 58 Id. at 827. 59 Id. at 823–27. 60 See id. at 822; supra note 3 and accompanying text.

167 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 contested prison regulations on prisoners’ asserted First Amendment right under a very deferential, rational basis standard of review.61 The Court formally adopted this approach in Turner v. Safley.62

B. Turner v. Safley In a 5–4 decision written by Justice O’Connor, Turner upheld a prison regulation prohibiting correspondence between inmates in the prison system unless the correspondence was between immediate family members or concerned legal matters, but invalidated a prison regulation that essentially prohibited inmates from marrying anyone.63 Turner expressly resolved the constitutional standard of review for evaluating the validity of prison regulations that infringed upon the free speech rights of prisoners.64 Specifically, Turner rejected evaluating contested prison regulations under a heightened or intermediate level of scrutiny.65 Instead, Turner announced a rational basis standard of review and its test by declaring that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”66 Additionally, Turner established four relevant factors that courts should consider when evaluating the reasonableness of the contested

61 See, e.g., Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (observing that the Court generally adopted Pell’s refusal to consider if the prisoner’s asserted right survived incarceration, and instead evaluated the reasonableness of the prison restrictions on the asserted right). 62 See discussion infra Part I.B. 63 Turner v. Safley, 482 U.S. 78, 81 (1987). 64 Id. at 86, 89. Turner also announced the constitutional standard for evaluating a regulation that restricted prisoners’ due process right to marry. Id. at 89. 65 Id. In Procunier v. Martinez, 416 U.S. 396, 413 (1974) abrogated in part by Thornburgh v. Abbott, 490 U.S. 401, 413–14 (1989), the Court applied an intermediate level of scrutiny to invalidate a prison regulation that restricted the free speech rights of non-inmates based solely on the First Amendment rights of the non- prison population. Thornburgh applied Turner’s rational basis review to prisoners’ incoming communications even from non-prisoners, but left undecided the standard of review for restrictions on prisoners’ outgoing communications to non-prisoners. 490 U.S. at 413–14. 66 Turner, 482 U.S. at 89.

168 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 prison regulation.67 “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.”68 Framed differently, the rational or logical connection between the prison regulation and the legitimate, content- neutral, penological interest cannot remain “so remote as to render the policy arbitrary or irrational.”69 Second, Turner considered the existence of “alternative means of exercising the right that remain open to prison inmates.”70 Third, Turner analyzed “the impact accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally.”71 Fourth, Turner stated that “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.”72 In Turner, the correspondence restriction was supported by each of the factors, according to the Court’s rational basis review.73 First, the correspondence regulation was logically connected to the prison’s valid security concerns because the prison officials claimed that they implemented the regulation to control communications about escape, assault, violence, and gang-related plans.74 Second, the correspondence regulation allowed inmates alternative means of expression because it only barred communication between “a limited class of other people.”75 Third, since the Turner prison officials testified that accommodating the prisoners’ correspondence rights entailed significant security risks to guards and inmates, the Court deferred to the prison officials’ expert judgment in enacting the prison

67 Id. 68 Id. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). 69 Id. at 89–90. 70 Id. at 90. 71 Id. at 92–93. 72 Id. at 90. Under this factor, the inmate possessed the burden of proving the contested regulation was an “exaggerated response” to prison concerns, which the inmate could accomplish by pointing to an “alternative that fully accommodates the prisoner’s rights at a de minimis cost to valid penological interests.” Id. at 90–91. 73 Id. at 91–93. 74 Id. at 91–92. 75 Id. at 92.

169 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 regulation.76 Fourth, the proposed alternative of having the prison officials monitor and screen the correspondence imposed more than a de minimis cost due to the administrative difficulties and risk of error in missing dangerous messages.77 Turner’s test and its analysis definitively established a rational basis standard of review for evaluating prisoners’ free speech claims.78 The Turner Court granted prisoners’ free speech claims the lowest level of First Amendment protection to advance the Court’s policy of judicial restraint in prison affairs.79 The Court, motivated by the same- old concerns about the separation of powers,80 institutional expertise,81 and federalism,82 decided that rational basis review appropriately afforded substantial deference to the expert judgment of prison officials.83 Rational basis review not only allowed courts to refrain from the awkward position of second-guessing prison officials, but it also provided prison officials with confidence that they would not have to second-guess “their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.”84 Consequently, some commentators argued that Turner’s rational basis review marked a return to the thoroughly

76 Id. 77 Id. at 93. 78 Id. at 89. 79 Id. at 85. 80 Id. at 84–85 (“Prison administration is . . . a task that has been committed to the responsibility of [the legislative and executive] branches, and separation of powers concerns counsel a policy of judicial restraint.”). 81 Id. (“Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources.”). Additionally, the Court commented that “‘courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.’ . . . ‘[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree.’” Id. at 84 (quoting Procunier v. Martinez, 416 U.S. 396, 404–5 (1974)). 82 Id. at 85 (“Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.”). 83 Id. at 89. 84 Id.

170 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 discredited hands-off doctrine.85 At the least, rational basis review ensured that courts recognized and protected fewer prisoners’ free speech rights.86 Moreover, while Turner neglected to consider if prisoners retained a constitutional right to free speech under the Pell test,87 the Turner Court applied the Pell test to expressly hold that prisoners’ right to marry was not inconsistent with the prisoners’ status or the legitimate penological objectives of the corrections system.88 In applying the Pell test, the Turner Court reasoned that the right to marry survived incarceration because many of the incidents of marriage remained “unaffected by the fact of confinement or the pursuit of legitimate corrections goals.”89 Some of the incidents of marriage that survived incarceration included personal expressions of emotional support, public commitment, and religious faith.90 The Turner Court, however, made no mention of a rational basis standard of review, the appropriate level of deference to apply to prison officials’ contrary contentions, or the Turner factors when it considered whether the prisoners’ right to marry was inconsistent with

85 See MUSLIN, supra note 3, § 1.04 (citing Cheryl Dunn Giles, Turner v. Safley and Its Progeny: A Gradual Retreat to the “Hands-Off” Doctrine?, 35 ARIZ. L. REV. 219 (1993)). 86 Id. 87 See Turner, 482 U.S. at 84. The Court expressly noted that prisoners retained at least three constitutional rights: First, the right to petition the government for the redress of grievances under Johnson v. Avery, 393 U.S. 483 (1969); second, the right to protection against invidious racial discrimination in violation of the Equal Protection Clause under Lee v. Washington, 390 U.S. 333 (1968); and third, the right to the protections of due process under Wolff v. McDonnell, 418 U.S. 539 (1974). The Court, however, never mentioned that prisoners retained their free speech rights. See Turner, 482 U.S. at 84. 88 Id. at 95 (citing Pell v. Procunier, 417 U.S. at 822). 89 Id. at 96. 90 Turner found four incidents of marriage survived incarceration. Id. at 95–96. First, inmate marriages, like other marriages, were personal expressions of emotional support and public commitment. Id. Second, inmate marriages may also be expressions of religious faith. Id. at 96. Third, inmates may marry with the expectation of later consummating their marriage once they were eventually released. Id. Fourth, marital status conferred the receipt of certain important government benefits. Id.

171 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 legitimate penological objectives.91 At the same time, however, the Turner Court also appeared to support a total prohibition on the right to marry if the prohibition formed part of the punishment for the prisoner’s crime.92 Thus, the Court’s analysis of what constitutional rights survived incarceration remained unclear.93 Finally, after the Turner Court used the Pell test to hold that prisoners retained the right to marry, the Court applied the Turner test to invalidate the prison’s marriage restrictions under its rational basis review.94 Unlike the Court’s application of the Turner test to the correspondence restrictions, the Court seemed less willing to defer to the prison officials’ judgments about the rational relationship between the marriage restrictions and the prison’s legitimate penological objectives.95 First, the Court held that the marriage restrictions possessed no reasonable relation to the prison officials’ asserted interests in preventing the security threat from “love triangles” and promoting the rehabilitation of female convicts entangled in excessively dependent relationships with dangerous men.96 Second, the Court did not expressly consider the reasonableness of the

91 See id. at 95–96. 92 See id. at 96 (distinguishing Butler v. Wilson, 415 U.S. 953 (1974), summarily aff’g Johnson v. Rockefeller, 365 F. Supp. 377 (S.D. N.Y. 1974)). Currently, only Justices Thomas and Scalia expressly support this view. See, e.g., Overton v. Bazzetta, 539 U.S. 126, 139–41 (2003) (Thomas, J., concurring) (evaluating prisoners’ challenges to deprivations of their asserted rights solely under the Eighth Amendment). 93 See James E. Robertson, The Rehnquist Court and the “Turnerization” of Prisoners’ Rights, 10 N.Y. CITY L. REV 97, 107 (2006) (discussing the Court’s lack of clarity in what rights survive incarceration). 94 Id. at 97–99. 95 See id. at 91–93, 97–99. 96 Id. at 98–99. Regarding the security justification, the Court held that the marriage restriction was too broad because “love triangles” could exist independent of marriage relationships. Id. at 98. For the rehabilitation interest, the Court similarly held that the marriage restriction was too broad because it encompassed inmate- civilian marriages and male inmate marriages. Id. at 99. Obviously, the correspondence regulation was too broad in that it blocked non-dangerous communications; however, the Court still found the ban “logically connected” to the prison’s legitimate security concerns. See id. at 91–92.

172 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 marriage restriction under Turner’s second factor, but the restriction necessarily left inmates with some alternative means of exercising their right to marry by not completely prohibiting inmate marriages.97 Lastly, the Court found the third and fourth factors showed that the marriage restriction possessed no reasonable relation to the prison’s legitimate interests largely because the Court reasoned that accommodating non-dangerous marriages posed no security risks.98 Thus, Turner itself demonstrated the important differences and consequences between the Pell and Turner tests. Part C discusses these differences in greater detail.

C. The Differences Between the Pell and Turner Tests Produced Important Consequences for Prisoners’ Free Speech Rights The Pell and Turner tests asked different questions, contained markedly different analysis, and produced different consequences with respect to protecting prisoners’ rights.99 While the Turner test possessed a relatively well-defined framework of analysis and standard of review that compelled courts to substantially defer to prison officials’ determinations about the reasonableness of restricting prisoners’ rights, the Pell test lacked definition, a specific standard of review, and further allowed courts to make their own determinations of proper prison administration.100 Consequently, the Turner test

97 See id. at 99. Since the Court claimed the marriage restriction formed an “almost complete ban on the decision to marry,” it apparently left some alternative means of exercising the right and should have passed under this second factor. See id. at 92, 99. 98 Id. at 97–98. Under the third factor, because the Court determined the marriage decision was a completely private decision that did not reasonably impact the prison’s security concerns, the impact of accommodating the right to marry failed to trigger a significant “ripple effect” on other inmates and prison officials. Id. at 98. Under the fourth factor, the marriage regulation had an easy alternative to accommodate the right to marry at a de minimus cost because inmates could marry unless the warden specifically determined the marriage presented a security risk. Id. at 97–98. 99 See discussion supra Part I.B; discussion infra Parts I.C, III.B–C, V.B. 100 See discussion supra Part I.B; discussion infra Parts I.C, III.B–C, V.B.

173 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 recognized few prisoners’ rights, but the Pell test is vague—it may recognize many prisoners’ rights or no rights whatsoever.101 Essentially, the Pell test determined if prisoners possessed a given First Amendment right, while the Turner test evaluated the reasonableness of restricting that given right.102 In the prisoner free speech retaliation claim context, courts applying the Pell test should ask if the prisoner’s right to exercise free speech without government retaliation remained “not inconsistent with [the prisoner’s] status as a prisoner or the legitimate penological objectives of the corrections system.”103 In contrast, courts applying the Turner test to a prisoner’s free speech retaliation claim should ask if the prison’s allegedly retaliatory actions were “reasonably related to legitimate penological interests.”104 Accordingly, the Pell test largely operated as a threshold to the Turner test.105 If a prisoner’s free speech retaliation claim failed to pass the Pell test, then courts need not question the reasonableness of restricting the prisoner’s speech under the Turner test because the prisoner possessed no actual right to a free speech retaliation claim, and judicial deference to prison officials should be nearly absolute.106 But, if the prisoner’s asserted free speech right passed the Pell test and survived imprisonment, then courts could still apply the Turner test to determine the reasonableness of restricting the prisoner’s speech.107 Of course, if the court’s Pell inquiry determined that prisoners possessed

101 See discussion supra Part I.B; discussion infra Parts I.C, III.B–C, V.B. 102 See discussion supra Part I.A–B. 103 See Pell v. Procunier, 417 U.S. 817, 822 (1974); discussion supra Part I.A. 104 See Turner, 482 U.S. at 89; discussion supra Part I.B. 105 See, e.g., Pell, 417 U.S. at 822; Johnson v. California, 543 U.S. 499, 510 (2006) (finding under the Pell test that prisoners retained their Fourteenth Amendment Equal Protection right against invidious racial discrimination, and remanding to evaluate the prisoner’s claim under strict scrutiny review rather than Turner’s rational basis review). 106 See, e.g., Pell, 417 U.S. at 822; Abdul Wali v. Coughlin, 754 F.2d 1015, 1033 (2d Cir. 1985) (stating that when the prisoner’s asserted right was found not to exist in the prison context because it was inherently inconsistent with legitimate penological objectives, there could not be any actual invasion of the purported right, and judicial deference to prison officials should be nearly absolute). 107 See, e.g., Turner, 482 U.S. at 95–99.

174 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 a protected right to speak freely without retaliation, then the court would perhaps be more willing to protect that right against governmental restrictions—as demonstrated by Turner.108 The standard of review and level of deference courts respectively applied to prisoners’ free speech claims and prison officials’ contentions about prison administration marked one critical distinction between the Pell and Turner tests. The Turner test specifically formed a definite framework, with a four-factor test and rational basis standard of review.109 In fact, Turner’s factors and its analysis explicitly instructed courts to defer to the prison officials’ considerations of whether the prison’s actions reasonably related to the prison’s legitimate interests.110 Conversely, the Court failed to develop a definite framework or standard of review when it applied the Pell test.111 By itself, the Pell test remained an indeterminate and “superficial formula” that failed to identify what constitutional rights survived incarceration.112 Consequently, courts applying just the Pell test tended to make their own judgments about proper prison administration.113 For instance, in Johnson v. California,114 the Court recently applied just the Pell test to hold that prisoners retained their Fourteenth Amendment Equal Protection right against invidious racial discrimination.115 In so holding, the Court rejected evaluating the

108 See id. (applying the Pell test to find that prisoners retained the right to marry and further invalidating the marriage restrictions under the Turner test, but applying the Turner test to uphold the correspondence restrictions); supra notes 96– 98 and accompanying text. 109 See discussion supra Part I.B. 110 See discussion supra Part I.B. 111 See discussion supra Parts I.A–B. 112 See supra note 3 and accompanying text. 113 See discussion supra Part I.B; discussion infra Parts I.C., III.B–C, IV.C, V.B. 114 543 U.S. 499 (2005). 115 Id. at 510–11. Johnson also asserted in dicta the less controversial claim that a prisoner’s Eighth Amendment rights against cruel and unusual punishment survived incarceration. Id. Whether rights other than those considered in Johnson survived incarceration remains undetermined, but recent evidence suggested courts confined Johnson’s reasoning to racial discrimination and Eighth Amendment

175 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 prison’s unwritten policy of initially segregating prisoners’ cell mates by race under Turner’s rational basis review, and remanded the case to review the prison’s policy under strict scrutiny like all government racial classifications.116 The Johnson Court held that prisoners retained their Equal Protection Clause right against racial discrimination because such a right need not “necessarily be compromised for the sake of proper prison administration . . . . [since] the Fourteenth Amendment’s ban on racial discrimination is not only consistent with proper prison administration, but also bolsters the legitimacy of the entire criminal justice system.”117 The Johnson Court’s reasoning cited precedent concerning the Fourteenth Amendment and the criminal justice system; but, like Turner’s application of the Pell test to the right to marry, Johnson made no mention of the standard of review or the level of deference courts should apply to the prison officials’ contrary contentions.118 In dissent, Justice Thomas harshly criticized the Court’s use of the Pell test.119 Justice Thomas argued that the majority ignored precedent and wise policy by making its own ill-considered judgment about proper prison administration, instead of expressly deferring to the expert judgment of prison officials.120 According to Justice Thomas, the Pell test necessarily required courts to make their own judgments about proper prison administration because, “[f]or a court to know whether any particular right is inconsistent with proper prison administration, it must have some implicit notion of what a proper

claims. See Robertson, supra note 93, at 108 (analyzing recent prisoner rights cases). This comment, however, contends that the federal circuits applied Johnson’s reasoning to prisoners’ free speech retaliation claims. See discussion supra Parts III.B–C; IV.C, V.B. 116 Id. at 515. 117 Id. at 510–11. 118 Id. (citing Rose v. Mitchell, 443 U.S. 545, 555 (1979); Batson v. Kentucky, 476 U.S. 79, 99 (1986)); see also Robertson, supra note 93, at 107 (discussing Johnson’s failure to further elaborate or identify why rights remained fundamentally inconsistent with incarceration); discussion supra Part I.B. 119 Johnson, 543 U.S. at 541–42 (Thomas, J., dissenting). 120 Id.

176 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 prison ought to look like and how it ought to be administered.”121 Yet, Justice Thomas argued that the Court specifically developed and routinely applied the Turner test because precedent and wise policy dictated that courts should not make judgments about proper prison administration.122 Thus, Justice Thomas believed that the Pell test remained irreparably inconsistent with the Court’s precedent and policy of deference to prison officials.123 The other critical difference between the Pell and Turner tests concerned how they evaluated the prisoners’ asserted rights. Both tests “refused to recognize any hierarchy of values among important constitutionally protected interests”124 and balance the prisoners’ rights against the government’s legitimate penological interests by always elevating any penological concern to “a higher constitutional plane than [the asserted constitutional] rights.”125 In Shaw v. Murphy, the Court specifically rejected a prison inmate’s attempt to enhance the First Amendment protection of his speech about important legal

121 Id. 122 Id. 123 See id. Justice Thomas advocated an approach examining the history of incarceration to determine if prisoners forfeited their asserted rights as a condition of their punishment. See, e.g., Overton v. Bazzetta, 539 U.S. 126, 141–45 (2003) (Thomas, J., concurring). This approach, however, remained just as indeterminate as the Pell test because the history of incarceration constantly evolved to restrict or accommodate prisoners’ free speech rights depending on then-prevailing beliefs about whether such measures best achieved legitimate penological objectives. See discussion supra Part I. 124 MUSLIN, supra note 3, § 1.04; Robertson, supra note 93, at 119–20 (“[Turner’s] first [factor] functions as the leveler of rights by drawing no distinction between “weak” (non-fundamental) and “strong” (fundamental) rights.”). 125 Robertson, supra note 93, at 119–20 (“[Turner’s] first [factor’s] commitment to rationality, the sine qua non of the test, has a clear subtext: Reasonable means of achieving goals, including petty goals, trump rights. Indeed, penal goals acquire the status of categorical imperatives.”). Robertson further described the Turner test as “faux-balancing” because the Turner test “deceptively suggests balancing,” but the first factor controlled the outcome of the remaining factors and was generally contrived “to foreordain a finding against the prisoner’s constitutional claim.” Id. (quoting Lynn S. Branham, “Go and Sin No More”: The Constitutionality of Governmentally Funded Faith-Based Prison Units, 37 U. MICH. J.L. REFORM 291, 297 (2004)).

177 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 matters—or balance the value of the prisoner’s speech against the prison’s legitimate interests—because such approaches contravened the Turner test’s singular concern with the rational relationship between the prison’s actions and its legitimate objectives.126 Similarly, the Pell test, by definition, refrained from assigning any weight or value to the prisoner’s asserted free speech rights beyond those rights’ mere consistency to the prison’s legitimate penological interests.127 Yet, although the Turner test deliberately ignored the identity, nature, or existence of prisoners’ asserted rights by solely focusing on the rational relationship between the prison’s actions and its legitimate penological interests, the Pell test necessarily required courts to consider the identity, nature, and existence of prisoners’ asserted free speech rights to determine whether they remained consistent with incarceration.128 For instance, when the Turner Court applied just the Turner test to the prisoner’s free speech claim, the Court assumed that the prisoner retained a First Amendment right to correspond with other inmates without any further discussion or analysis of why prisoners retained such free speech rights.129 Conversely, when the Turner Court applied the Pell test to the prisoner’s right to marry claim, the Court exhaustively considered the identity, nature, and incidents of the right to marry and whether such incidents remained applicable in the prison setting.130 Since the Turner test refused to question the identity or quality of prisoners’ free speech rights, the Turner test had the effect of ignoring prisoners’ free speech rights with the consequence of

126 See, e.g., Shaw v. Murphy, 532 U.S. 223, 229–30 (2001). In Shaw, the prisoner contested prison rules that prevented him, as a high-security inmate, from offering legal assistance to a minimum-security prisoner. Id. at 225 n. 1. Since the prison rules possessed a reasonable relation to the prison’s legitimate security interests, the Court upheld the rules. Id. at 229–30. The Court expressly rejected an attempt to balance the importance of the prisoner’s right, or the value of the content of the prisoner’s speech, against the importance of the penological interests served by the prison rule. Id. at 229 n.2. 127 See MUSLIN, supra note 3, § 1.04. 128 See discussion supra Parts I.A–C; discussion infra Parts III.B–C, IV.C. 129 Turner v. Safley, 482 U.S. 78, 84, 89 (1987). 130 Id. at 95–96; supra notes 90–91 and accompanying text.

178 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 recognizing fewer prisoner free speech rights in practice.131 Contrarily, when the Turner Court had to consider the nature and actual existence of the prisoner’s asserted right under the Pell test, the Court felt more inclined to protect that right against the prison’s restrictions.132 Interestingly, the Court’s applications of the Pell test suggested that prisoners should retain their free speech rights.133 Undoubtedly, prisoners’ free speech rights encompassed the same personal expressions of emotional support, public commitment, and religious faith that survived incarceration as incidents of marriage.134 In fact, prisoner speech helped inform the public about how the government operated prisons,135 checked government abuses of power by prison officials,136 contributed to the “marketplace of ideas,”137 reduced recidivism,138 and further enabled the political participation of “discrete and insular minorities.”139 Not surprisingly, then, courts consistently applied the Pell test to find that many of the incidents of free speech remained consistent with incarceration.140 Yet, courts applying the Pell test could just as easily conclude that prisoners’ free speech rights remained inconsistent with incarceration, making the application of the Pell test to prisoners’ free speech retaliation claims a pyrrhic victory for prisoners.141 Ultimately, the differences between the Pell and Turner tests produced markedly divergent consequences with respect to protecting

131 See MUSLIN, supra note 3, § 1.04; discussion supra Part I.B–C. 132 See supra note 108 and accompanying text. 133 See discussion supra Parts I.B–C. 134 See supra note 90 and accompanying text. 135 See MUSLIN, supra note 3, § 5.00. 136 See id. 137 See id. 138 See Jessica Feierman, Creative Prison Lawyering: From Silence to Democracy, 11 GEO J. ON POVERTY L. & POL’Y 249, 250 n.7 (2004). 139 See id. at 249, 269, 271 (arguing that prisoners as a class consisted of a discrete and insular minority and individual prisoners typically belonged to discrete and insular minorities); MUSLIN, supra note 3, § 1.03 n.43 (citing United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938)). 140 See discussion supra Parts III.B–C, IV.C. 141 See supra note 106 and accompanying text.

179 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 prisoners’ rights or deferring to prison officials. While the Turner test may defer too much to prison officials’ judgments about prisoners’ rights, the indeterminacy of the Pell test may produce a similarly extreme deference or the unfortunate consequence of unduly impeding prison officials in performing their legitimate and necessary public services. Before discussing how the federal circuits’ approaches to prisoners’ free speech retaliation claims further demonstrated the important differences between the Pell and Turner tests, this comment analyzes the Court’s approach to evaluating free speech retaliation claims in the highly restrictive context of public employment.

II. THE COURT’S PUBLIC EMPLOYEE FREE SPEECH JURISPRUDENCE

Unlike the Court’s prisoner free speech jurisprudence, the Court clearly established the test for analyzing public employees’ free speech retaliation claims in the cases Pickering v. Board of Education of Township High School District 205,142 Connick v. Meyers,143 and Garcetti v. Ceballos.144 These cases formed a two-step approach for evaluating public employees’ free speech retaliation claims: First, the public employee must “speak as a citizen on a matter of public concern” (the “public concern test”); and second, the public employee’s free speech interests must outweigh the government’s interest—as an employer—in restricting the speech to effectively provide public services (the “Pickering balancing test”).145 If the public employee failed to speak as a citizen on a matter of public concern, then the employee possessed no free speech retaliation claim, and courts dismissed the claim without even engaging in the Pickering balancing test.146 Although this two-step approach provided public employees with less constitutional protection for their free speech rights than normal citizens, the tests critically identified and preserved important free speech rights while not unduly interfering with essential

142 391 U.S. 563 (1968). 143 461 U.S. 138 (1983). 144 547 U.S. 410 (2006). 145 See, e.g., id. at 418. 146 See id.

180 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 government interests by performing its categorical public concern and ad hoc Pickering balancing tests.147 Thus, this comment briefly reviews the Court’s public employee free speech jurisprudence.

A. Pickering v. Board of Education of Township High School District 205

Pickering held that a public school teacher’s dismissal for sending a letter to a local newspaper that criticized the way the school board and district superintendent handled past revenue raising proposals violated the teacher’s First Amendment right to free speech.148 Pickering unequivocally rejected the old dogma that public employees waived their constitutional rights as citizens to comment on matters of public concern even when those matters were connected to their public employment.149 On the other hand, Pickering noted that “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”150 Thus, Pickering instructed courts to balance “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”151 In striking this Pickering balance, the Court specially protected speech on a matter of public concern.152 Specifically, the Court

147 See Moss, supra note 18, at 1639; discussion infra Part II. 148 Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 564– 65 (1968). 149 Id. at 568 (citing Keyishian v. Bd. of Regents, 385 U.S. 589, 605–06 (1967) (“The theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.”)); see also Connick v. Meyers, 461 U.S. 138, 143 (1983) (“[T]he unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment . . . including those which restricted the exercise of constitutional rights.”). 150 Pickering, 391 U.S. at 568. 151 Id. 152 See id. at 568, 573.

181 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 declared that “[t]he public’s interest in having free and unhindered debate on matters of public importance [remained] the core value of the Free Speech Clause.”153 The Pickering Court also noted that the Court especially protected speech on a matter of public concern in other free speech contexts when it weakened the protections public officials and figures received against libelous statements related to their official conduct154 and the protections individuals received against invasions of privacy when the invasive statement involved a matter of public interest.155 Furthermore, the Court recognized that public employees, “as a class, [were] the members of a community most likely to possess informed and definite opinions” on the public questions related to their employment.156 Since the informed opinions of public employees on matters of public concern remained critical to the “free and open debate . . . vital to informed decision-making by the electorate,” the Court found it “essential that [public employees] be able to speak out freely on such questions without fear of [retaliation].”157 On the other side of the Pickering balance, the Court considered the government’s interest in promoting the efficiency, integrity, and proper discipline of its employees.158 Consequently, the Pickering Court established a number of relevant factors in evaluating the effect of the employee’s speech on the government’s interests as an employer.159 Pickering noted that the government’s interests in restricting the employee’s speech were stronger when the employee’s speech was (1) directed to people the employee shared daily contact with, (2) adversely affected discipline by immediate supervisors or disrupted workplace harmony, (3) impeded the employee’s performance of duties or interfered with the regular operations of the

153 Id. at 573 (emphasis added). 154 Id. at 573–74. See generally N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). 155 Pickering, 391 U.S. at 573–74. See generally Time, Inc. v. Hill, 385 U.S. 374 (1967). 156 Pickering, 391 U.S. at 572. 157 Id. at 571–72. 158 Id. at 568; see also Connick v. Meyers, 461 U.S. 138, 150–51 (1983). 159 Pickering, 391 U.S. at 569–70.

182 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 workplace, and (4) the employer-employee relationship was of a personal and intimate nature necessarily requiring loyalty and confidences to properly function.160 Since the Pickering employee’s speech “only tangentially and insubstantially” involved matters related to his employment, the Pickering balance favored the employee’s right to speak as a citizen on a matter of public concern.161 Thus, Pickering demonstrated how the Court protected critically important First Amendment speech while not unduly interfering with the government’s unique interests in restricting that speech.162 Later, in Connick and Garcetti, the Court refined the public concern and Pickering balancing tests to afford additional weight to the government’s unique interests.163

B. Connick v. Meyers

Connick definitively established that a public employee’s speech must involve a matter of public concern to even merit further adjudication in the form of the Pickering balancing test.164 In Connick, an Assistant District Attorney (“ADA”) was fired after she contested a position transfer by writing and distributing a questionnaire that solicited the views of her fellow staff members about office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.165 The Court dismissed the ADA’s free speech retaliation claim by holding that the ADA did not engage in

160 Id. 161 Id. at 574. 162 See discussion infra Part II.A. 163 See discussion supra Part II.B–C. 164 Connick, 461 U.S. at 147, 154. Connick still held that the First Amendment afforded limited protection to public employee speech that did not involve a matter of public concern. Id. However, Connick claimed that the federal judiciary possessed virtually no role in adjudicating public employee speech that did not involve a matter of public concern, and should defer to the employer’s personnel decisions “absent the most unusual circumstances.” Id. 165 Id. at 140–42.

183 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 protected speech.166 Specifically, Connick held that “[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”167 Thus, Connick deferred to the employer’s interests by (1) refusing to engage in the Pickering balance when the employee’s speech did not involve a matter of public concern and (2) strengthening the government’s interests in the Pickering balance when the context of the employee’s speech about matters of public concern directly implicated the employer’s interests in performing public services.168 Furthermore, Connick clarified two additional factors for courts to consider when performing the Pickering balancing test. First, Connick noted that “the state’s burden in justifying a particular discharge varie[d] depending upon the nature of the employee’s expression.”169 Hence, when the employee’s speech concerned itself more with causing insubordination and disrupting close working relationships than matters of public concern, the Court afforded “a wide degree of deference to the employer’s judgment.”170 This deference allowed the employer to prevent the employee from disrupting the office and destroying working relationships before such events unfolded.171 Second, Connick considered the time, place, and manner of the

166 Id. at 147–49, 154. Specifically, Connick held that the ADA’s speech about pressure to work in political campaigns entailed a matter of public concern, but that all the other speech merely reflected her personal grievances with internal office policy. Id. Accordingly, the Court applied the Pickering balance test to the ADA’s speech about pressure to work in political campaigns, but the Court favored the employer’s interests, because the ADA’s speech was designed to cause insubordination among the close working relationships essential to perform the public services. Id. at 151–52. 167 Id. at 146. 168 Id. at 146–47, 150–53. 169 Id. at 150. 170 Id. at 151–52. 171 Id. at 152.

184 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 employee’s speech.172 Speech at the workplace, especially if it violated office policy, tilted the balance in favor of the government’s interest in institutional efficiency.173 In Garcetti, the Court further strengthened the employer’s interest in restricting “workplace speech” by categorically removing such speech from any First Amendment protection.174

C. Garcetti v. Ceballos Garcetti held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”175 In Garcetti, a deputy district attorney complained that he suffered retaliation for writing a memorandum about misrepresentations in a warrant affidavit, speaking to his supervisors about his opinions, and testifying for the defense at a suppression hearing concerning the warrant.176 Since the employee’s speech “owe[d] its existence to [the] . . . employee’s professional responsibilities,” government restrictions on the employee’s speech failed to implicate “any liberties the employee might have enjoyed as a private citizen.”177 The Garcetti Court removed an employee’s speech about matters of public concern from First Amendment protection because “[e]mployers have heightened interests in controlling speech made by an employee in his or her professional capacity.”178 Since “government employers . . . need a significant degree of control over their employees’ words and actions” to efficiently provide public services,179 the Court substantially deferred to the government’s

172 Id. 173 Id. at 152–53. 174 See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); discussion infra Part II.C. 175 Garcetti, 547 U.S. at 421. 176 Id. at 413–15. 177 Id. at 421–22. 178 Id. at 422. 179 Id. at 418.

185 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 interests by removing employees’ speech from constitutional protection.180 The Court further refrained from adjudicating employees’ speech made pursuant to their official duties because a contrary ruling would “demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.”181 Hence, the Court’s public employee free speech jurisprudence showed that courts can provide definition and protection to free speech rights while also affording substantial deference to the government’s unique interests in restricting free speech rights. Unfortunately, the federal circuits’ approaches to prisoners’ free speech retaliation claims failed to accomplish the same results by not extending the public concern and Pickering balancing tests to prisoners’ free speech retaliation claims.

III. THE APPROACHES OF OTHER FEDERAL CIRCUITS TO PRISONERS’ FREE SPEECH RETALIATION CLAIMS Interestingly, none of the federal circuits expressly held that the public concern test applied to prisoners’ free speech retaliation claims, but none of the circuits explicitly held the opposite until the Seventh Circuit decided Bridges.182 Only the Sixth Circuit exhaustively considered whether the public concern test should apply to prisoners’ First Amendment retaliation claims before ultimately leaving the question undecided.183 The Second and Third Circuits doubted the applicability of the public concern test to the prison context by merely commenting, without much explanation, that prisoners’ First Amendment retaliation claims typically addressed matters of personal

180 See id. at 422–23. 181 Id. at 423. Presumably, the federalism concerns developed from federal courts adjudicating the First Amendment claims of state employees, while the separation of powers concerns derived from courts interfering with the public offices of the other co-equal branches of government. See id. 182 See Bridges v. Gilbert, 557 F.3d 541, 550–51 (7th Cir. 2009); Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999). 183 See discussion infra Part III.A.

186 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 concern.184 The Fifth and Eighth Circuits summarily applied the Pell test to prisoners’ free speech retaliation claims without even considering the public concern test.185 In so doing, the Fifth and Eighth Circuits’ approaches shared many similarities to the Seventh Circuit approach in Bridges. Thus, this comment discusses the approaches of the Fifth, Sixth, and Eighth Circuits to prisoners’ free speech retaliation claims.

A. The Sixth Circuit’s Approach to Prisoner Free Speech Retaliation Claims In Thaddeus-X v. Blatter, the Sixth Circuit thoroughly discussed the history and purpose of the prisoner and public employee free speech doctrines when the court considered whether it should adopt the public concern test for prisoners’ First Amendment retaliation claims.186 Specifically, the court expressly distinguished between prisoners’ free speech rights and their right to access the courts under the First Amendment’s Petition Clause.187 The court reasoned that prisoners possessed a “well-established constitutional right to access the courts,”188 which definitely and clearly survived incarceration unlike the “less clear . . . contours of free speech rights in the prison setting.”189 Thus, the court held that no authority existed to further limit prisoners’ “most ‘fundamental political right’ [to access the

184 See Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000) (refusing to extend the public concern test to prisoners’ petitions for redress of grievances because such petitions typically addressed matters of personal concern); cf. also Eichenlaub v. Township of Indiana, 385 F.3d 274, 283–84 (3d Cir. 2004) (refusing to extend the public concern requirement to a private citizen’s free speech retaliation claim; and, commenting in dicta that the Third Circuit permitted prisoners’ free speech retaliation claims without applying a public concern requirement even though prisoners’ “complaints are often highly particularized objections to alleged individual mistreatment”). 185 See discussion infra Part III.B–C. 186 175 F.3d at 388–93. 187 Id. at 391–92. 188 Id. at 391; see also Lewis v. Casey, 518 U.S. 343 (1996). 189 Thaddeus-X, 175 F.3d at 391.

187 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 courts]”190 by subjecting it to an additional public concern test.191 Accordingly, the court refused to determine “the appropriateness of explicitly applying the public concern limitation to prisoners, whose free speech rights are uncontrovertedly limited by virtue of their incarceration.”192 The court’s analysis, however, provided a number of salient points for the free speech analysis. First, the Thaddeus-X defendants disputed the prisoners’ free speech claim by arguing that the prisoners’ speech must involve a matter of public concern to receive First Amendment protection against retaliation so that prisoners do not possess potentially greater free speech rights than public employees.193 The court unequivocally agreed by observing that “[p]risoners certainly do not have greater free speech rights than public employees.”194 Second, the court found it helpful to draw upon the public employee free speech jurisprudence when analyzing other free speech retaliation claims because the bulk of First Amendment retaliation claims arose in the public employee setting.195 Third, the court reasoned that the public concern test should not limit prisoners’ most valued right to access the courts because the test initially developed to broaden public employees’ free speech

190 Id. at 391 (quoting Hudson v. McMillian, 503 U.S. 1, 15 (1992) (Blackmun, J., concurring)). 191 Id. at 392. The Sixth Circuit reasoned that applying the public concern test to prisoners’ right to access the courts would eliminate virtually all prisoner suits because such suits were nearly always a matter of personal concern to the prisoner. Id. Alternatively, the Sixth Circuit recognized that it could hold that all prisoner suits were per se matters of public concern because of the policies embodied in the enabling statutes governing prisoners’ right to access the courts like the habeus corpus and § 1983 statutes. Id. at 392 n.8. Yet, the Sixth Circuit realized that such a holding had the same effect as not adopting a public concern test because the prisoners’ right to access the courts would not be limited by the content of their suits. Id. 192 Id. at 392. 193 Id. at 388. 194 Id. The court similarly asserted that “[a] prisoner’s First Amendment rights are not more extensive than those of a government employee; in fact, under most clauses of the First Amendment, they are much more strictly limited.” Id. at 392. 195 Id. at 388.

188 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 rights.196 Fourth, the court observed that the First Amendment protected speech based on the context of the speech, and the differing First Amendment analyses accounted for the various levels of protection.197 For instance, the free speech rights of an individual varied depending on whether the individual spoke in a classic public forum,198 as a public employee in the public office,199 or as a prisoner in a prison cell.200 Lastly, the court commented that “[t]he Pickering balancing test . . . has been applied in a variety of First Amendment settings,”201 and “can . . . easily be applied in the prison context, accommodating the difference between the government as employer and as jailor.”202 Yet, the court cautioned that the distinctions between the public employees’ free speech rights and the prisoners’ valued right to access the courts, the separate interests of the government entities, and the dissimilar nature of the relationship between the plaintiff and the government in the two settings meant that “any honest attempt to perform the [Pickering] balancing . . . cannot unhesitatingly import reasoning from the public employment setting into the prison setting.”203

196 See id. at 389, 393. 197 Id. at 388–89. 198 See, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (noting that speakers in a classic public forum can say virtually anything without government interference because government speech restrictions in class public forums remained subject to strict scrutiny review; i.e., they must be content- neutral, leave open alternative channels of communication, and “narrowly tailored to serve a significant government interest.”). 199 See discussion supra Part II. 200 See discussion supra Part I. 201 Thaddeus-X, 175 F.3d at 392; see also Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 678 (1996) (applying the Pickering balancing test to evaluate an independent contractor’s free speech retaliation claim). 202 Thaddeus-X, 175 F.3d at 392. 203 Id. at 393. When the Seventh Circuit cited this language in Bridges v. Gilbert to claim the Sixth Circuit doubted the propriety of applying a public concern requirement to prisoners’ free speech, it failed to mention that this language specifically referred to the right to access the courts. See 557 F.3d at 551–52.

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B. The Fifth Circuit’s Approach to Prisoner Free Speech Retaliation Claims Two Fifth Circuit cases, Jackson v. Cain204 and Freeman v. Texas Department of Criminal Justice,205 illustrated how the Fifth Circuit used the Pell test to evaluate prisoners’ free speech claims even when the court claimed to apply the Turner test.206 As a result, the Fifth Circuit further confused the status of prisoners’ free speech rights and unduly interfered with the prerogatives of prison officials.207 In Jackson, prison officials allegedly retaliated against a prisoner for writing a letter to the warden that complained about how the prison failed to include some of the clothing he intended to transfer from his old prison.208 The court cited Pell to acknowledge that the prisoner possessed a “First Amendment right to freedom of expression so long as it is not inconsistent with his status as a prisoner and does not adversely affect a legitimate state interest.”209 Then, the court claimed to extend the Turner test to the prisoner’s free speech retaliation claim.210 Yet, the court protected the prisoner’s expression by simply holding—without reference to the Turner factors, standard of review, or any further explanation—that “complaining about treatment by means of a private letter to the warden can be compatible with the acceptable behavior of a prisoner and thus may not adversely affect the discipline of the prison.”211 If the prison officials offered a contrary assertion indicating that the prisoner’s letter was actually inconsistent with legitimate penological objectives, the court either failed to consider the level of appropriate deference to apply to such an assertion or simply refused to defer to the prison officials’ assertion.212

204 864 F.2d 1235 (5th Cir. 1989). 205 369 F.3d 854 (5th Cir. 2004). 206 See discussion infra Part III.B. 207 See discussion infra Part III.B. 208 Jackson, 864 F.2d at 1238–39. 209 Id. at 1248 (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). 210 Id. 211 Id. 212 See id.

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Jackson thus showed that the court applied the Pell test to protect a prisoner’s relatively low-value speech about missing laundry.213 In Freeman, a prisoner alleged retaliation for circulating a statement to his fellow inmates and non-incarcerated Church of Christ leaders that criticized the chaplain, a prison official, for “depart[ing] from the faith” and further requested that the chaplain no longer lead the prisoner members of the Church of Christ.214 The prisoner also sought and received permission from the chaplain to read the statement during a church service.215 The chaplain ordered the prisoner to stop reading the statement, and the prisoner quickly complied.216 Prison officials then escorted the prisoner from the service, but roughly fifty other inmates also left the service with the prisoner.217 The prisoner later received a disciplinary violation for causing a disturbance, which he argued retaliated against his freedom of speech.218 In deciding this case, the Fifth Circuit again applied just the Pell test to recognize that prisoners retained a general First Amendment right to criticize prison officials, prison conditions, and official misconduct.219 The court, however, restricted prisoners’ general right to complain about prison conditions and official misconduct by requiring prisoners to exercise this right in a manner consistent with their status as a prisoner.220 Consequently, the court held that “[p]rison officials may legitimately punish inmates who verbally confront

213 See id.; discussion supra Part I.C. 214 Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 858 (5th Cir. 2004). 215 Id. 216 Id. 217 Id. 218 Id. The prisoner also made a free exercise and equal protection claim based on the prison’s rules allegedly restricting the worship of Church of Christ members. See id. at 860–63. These claims are not relevant to this comment. 219 Id. at 864 (citing Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir. 1986)). 220 Id.

191 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 institutional authority without running afoul of the First Amendment.”221 In applying the Pell test, the Freeman court ruled against the prisoner’s free speech claim because the manner of his public criticism was not consistent with his status as a prisoner.222 According to the court, the prisoner’s speech was inconsistent with his status because the prisoner intended his speech to incite a disturbance and his speech actually incited a disturbance.223 Remarkably, this reasoning was identical to the very protective standard the Court established for evaluating government restrictions on speech advocating illegal action in Brandenburg v. Ohio.224 Additionally, the Freeman Court did not mention if it determined that the prisoner’s speech was inconsistent with his status by explicitly deferring to the judgment of the prison officials or through its own independent evaluation of the speech.225 Lastly, the court appeared to support the idea that prisoners retained no free speech rights whatsoever because the Freeman prisoner could have exercised his Petition Clause rights to make his criticism through the prison’s internal grievance procedures, which would have further prevented a disturbance or otherwise threaten internal prison security.226

221 Id. (citing Goff v. Dailey, 991 F.2d 1437, 1439 (8th Cir. 1993) (recognizing that a “prison has a legitimate penological interest in punishing inmates for mocking and challenging correctional officers by making crude personal statements about them in a recreation room full of other inmates”)). 222 Id. 223 Id. 224 See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“[T]he constitutional guarantees of free speech . . . do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”). Yet, in the prison setting, Court precedent established that prison officials should have much greater leeway in restricting prisoners’ speech. See discussion supra Part I. 225 See Freeman, 369 F.3d at 864. 226 Id.; see also Adams v. Gunnell, 729 F.2d 362, 367–68 (5th Cir. 1984) (limiting prisoners’ right to collaborate in a prison-wide petition because available internal grievances procedures better avoided the potential for inciting violence from internally circulated petitions).

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Thus, Freeman demonstrated how the Fifth Circuit applied the Pell test to prisoner’s free speech retaliation claims with unpredictable results, ranging from no protection whatsoever to applying inflexible and highly speech-protective legal rules to govern proper prison administration.

C. The Eighth Circuit’s Approach to Prisoner Free Speech Retaliation Claims

In Cornell v. Woods,227 the Eighth Circuit applied just the Pell test to hold that the First Amendment protected a prisoner’s right to freely and truthfully respond to a prison official’s investigation of another official’s misconduct without fear of retaliation.228 In Cornell, the head of the prison’s internal affairs division promised the prisoner- claimant immunity from discipline if the prisoner cooperated in the investigation of another prison official’s suspected violation of prison rules that prohibited transactions between prison employees and prisoners.229 The prisoner truthfully admitted that he made such a transaction with the prison official, but later complained that he suffered retaliation for participating in the investigation.230 In deciding the case, the court first considered whether the prisoner possessed a constitutional right to participate in the internal prison investigation.231 Initially, the court noted that ordinary citizens enjoyed a constitutional privilege to freely participate in governmental investigations.232 The court also analogized to the limited First Amendment rights of public employees by commenting that even public employees remained “constitutionally shielded from employer retaliation for their participation in investigations concerning matters of public concern.”233 Then, the court applied the Pell test to find that:

227 69 F.3d 1383 (8th Cir. 1995). 228 Id. at 1388. 229 Id. at 1386. 230 Id. 231 Id. at 1388. 232 Id. 233 Id. (citing Gorman v. Robinson, 977 F.2d 350, 356 (7th Cir. 1992)).

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[T]he right to respond to a prison investigator’s inquiries [was] not inconsistent with a person’s status as a prisoner or with the legitimate penological objectives of the corrections system. To the contrary, . . . truthfully answering questions concerning a misconduct investigation against a correctional officer [was] undoubtedly quite consistent with legitimate penological objectives.234

The court, however, neglected to expressly consider the appropriate level of deference or standard of review for any contrary claim made by the prison officials that the prisoner’s speech was inconsistent with legitimate penological objectives.235 Thus, the court may have simply made its own judgment that the prisoner’s speech was “undoubtedly quite consistent with legitimate penological objectives.”236 Ultimately, the court’s rule may also unduly prevent prison officials from legitimately punishing prisoners who prison officials discovered violated prison rules through misconduct investigations.237 The Fifth and Eighth Circuits’ approaches represented the path the Seventh Circuit later adopted in Bridges, while the Sixth Circuit’s analysis demonstrated that the Seventh Circuit may have correctly applied the public concern test to prisoners’ free speech retaliation claims in the first place. This comment now reviews the Seventh Circuit’s approach to prisoners’ free speech retaliation claims.

IV. THE SEVENTH CIRCUIT’S APPROACH TO PRISONER FREE SPEECH RETALIATION CLAIMS IN BRIDGES V. GILBERT The Seventh Circuit’s approach to evaluating prisoners’ free speech retaliation claims depicted the unclear status of prisoners’ free speech rights.238 First, the Seventh Circuit unhesitatingly applied the

234 Id. (internal quotations omitted). 235 See id. 236 See id. 237 See id. 238 See discussion infra Parts IV–V.

194 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 public concern test to the prison setting.239 Then, after thoughtful consideration, the Seventh Circuit claimed to adopt the Turner test for prisoners’ free speech retaliation claims.240 Yet, a careful reading of the court’s opinion in Bridges v. Gilbert demonstrated that the Seventh Circuit, like the Fifth and Eighth Circuits, applied the Pell test to evaluate a prisoner’s free speech retaliation claim.241 Accordingly, Part IV of this comment reviews the Seventh Circuit’s prior support of the public concern test for prisoners’ free speech retaliation claims and the court’s opinion in Bridges to “bridge” the irregular and unchartered waters of the Pell test.242

A. The Seventh Circuit’s Prior Support for a Public Concern Test for Prisoner Free Speech Retaliation Claims The Seventh Circuit first signaled its support for applying the public concern test to prisoners’ free speech retaliation claims in Brookins v. Kolb.243 In Brookins, a prison inmate, who was the co- chair of a prison paralegal committee, complained that prison officials retaliated against him for exercising his First Amendment rights to free association and speech.244 While acting as the co-chair of the paralegal committee, the inmate wrote a letter advocating that the committee pay for the polygraph testing of all the concerned parties in another prisoner’s upcoming disciplinary proceedings.245 The letter violated prison rules requiring that a prison official authorize any committee correspondence and disbursement of committee funds.246 The court rejected the inmate’s free speech claim, reasoning that the letter did not involve a matter of public concern.247 Yet, Brookins failed to

239 See discussion infra Part IV.A. 240 See discussion infra Part IV.D. 241 See discussion infra Parts IV.D., V.B. 242 See discussion infra Parts IV.A, IV.D. 243 990 F.2d 308, 313 (7th Cir. 1992), abrogated in part by Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009). 244 Id. at 310. 245 Id. 246 Id. 247 Id. at 313.

195 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 consider why the prisoner’s speech must involve a matter of public concern to receive protection against retaliation.248 In Sasnett v. Litscher,249 Judge Posner summarily dismissed the free speech claims of Protestant prisoners disputing prison regulations that restricted them from wearing crosses outside their clothing.250 While Judge Posner’s decision primarily held that the prisoners’ free speech claims were merely duplicative of their valid free exercise claims,251 Judge Posner also reasoned that the free speech claims failed by analogy to the Pickering line of cases because the prisoners did not want to wear the crosses to make a public statement or convert other inmates.252 In McElroy v. Lopac,253 a prison inmate complained that prison officials retaliated against him for his inquiries into whether he would receive “lay-in” pay while he awaited transfer from his prison sewing job to another job after the prison closed the sewing factory.254 The majority’s opinion rejected the prisoner’s free speech retaliation claim because the prisoner’s questions about “lay-in” pay were a matter of purely individual economic interest, and not a matter of public concern.255 The dissent argued that the prisoner’s inquiry involved a matter of public concern to the prison population who lost their sewing jobs and to the general public’s concern about compensating unemployed prison workers.256 Finally, in Pearson v. Welborn,257 a prisoner claimed that he suffered retaliation for complaining about the lack of yard time, shackling of inmates to one another around a small table during group therapy, and refusing to become a prison informant on prison gang

248 See id. 249 197 F.3d 290 (7th Cir. 1999), abrogated in part by Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009). 250 Id. at 292. 251 Id. 252 Id. 253 403 F.3d 855 (7th Cir. 2005) (per curiam). 254 Id. at 856–57. 255 Id. at 858–59. 256 Id. at 859 (Fairchild, J., dissenting). 257 471 F.3d 732 (7th Cir. 2006).

196 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 members while he was incarcerated in a new, restrictive security environment designed to transfer prison inmates who renounced their gang membership back into the general prison population.258 The prison officials argued that the prisoner possessed no general right to complain about prison conditions, and that his complaints only involved mere personal grievances.259 The court held that the prisoner’s complaints about the lack of yard time and shackling during group therapy involved matters of sufficient public concern because they urged a change in the prison policy for all the similarly incarcerated prisoners and discussed how the prison operated its fledgling program to transition prisoners from the restrictive conditions at the maximum-security prison to the standard general population prison.260 Ultimately, the Seventh Circuit’s application of the public concern test to prisoners’ free speech retaliation claims ended with the court’s decision in Bridges v. Gilbert. Thus, this comment reviews the factual allegations of Bridges before discussing the court’s opinion in Bridges.

B. Factual Allegations in Bridges v. Gilbert On September 22, 2006, Jimmy Bridges alleged the following facts were true according to his pro se § 1983 complaint that various prison officials retaliated against him for exercising his First Amendment rights to free speech, to access the courts,261 and to petition the government for redress of grievances.262

258 Id. at 734–36. 259 Id. at 740. 260 Id. at 741–42. 261 This comment does not discuss Bridges’s First Amendment claim to a right to access the courts. The court rejected this claim because Bridges made his affidavit in support of Powe’s right to access the courts, but was not critical to vindicate Powe’s right. Bridges v. Gilbert, 557 F.3d 541, 544, 553–54 (7th Cir. 2009). 262 This comment also does not discuss Bridges’s claims concerning the right to petition for redress of grievances. The court rejected this claim because (1) Bridges’s threat to file a grievance did not constitute a protected grievance, (2) there was insufficient retaliation, and (3) Bridges’s current suit encompassed any harm from alleged prior infringements on his Petition Clause rights. Id. at 554–55.

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While Bridges was a prisoner incarcerated at the Wisconsin Secure Program Facility, he lived in a prison cell adjacent to the cell of inmate Leon Powe.263 On the night of March 14, 2003, Bridges heard Powe complain about a terrible smell in his drinking cup and that he had been vomiting.264 A nurse brought Powe some Tylenol and Tums.265 The next morning, Bridges called through a vent to check on Powe again.266 Powe weakly responded that he was in pain and could not eat.267 Several prison officials came to Powe’s cell and told him to eat, but Powe failed to respond.268 Afterward, Powe told another group of prison officials that he was in terrible pain and could not move.269 The prison officials responded by threatening to beat-up Powe for not responding to earlier inquiries.270 Eventually, prison officials removed Powe from his prison cell and brought him to the prison’s medical center, but Powe died the following morning.271 Later, Powe’s estate brought a wrongful death action against several prison authorities.272 In March 2005, attorneys for Powe’s estate interviewed Bridges as a witness to the care Powe received.273 Bridges supplied Powe’s attorneys with an affidavit and agreed to testify as a trial witness.274 The case settled before trial, but Powe’s attorneys used Bridges’s affidavit in response to the prison officials’ motion for summary judgment.275 After the case settled, Bridges believed that prison officials subjected him to a campaign of harassment in retaliation for his

263 Id. at 544. 264 Id. 265 Id. 266 Id. 267 Id. 268 Id. 269 Id. 270 Id. 271 Id. 272 Id. 273 Id. 274 Id. 275 Id.

198 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 participation in the Powe lawsuit.276 Prison officials allegedly caused delays in Bridges’s mail, repeatedly kicked open his cell door, turned his cell light on and off, and loudly slammed his cell door shut when he was sleeping.277 Bridges complained about this treatment to a prison guard.278 In response, the guard filed a disciplinary charge against Bridges that was later upgraded to a major offense indicating that Bridges’s conduct created a serious risk of disruption at the prison.279 Eventually, Bridges was exonerated of any wrongdoing in connection to the disciplinary charge.280 Bridges also complained that prison officials further retaliated against him by improperly treating the grievances he filed about these incidents.281 Ultimately, the district court dismissed Bridges’s complaint for his failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because, like Brookins, Bridges’s affidavit only involved a matter personal to Powe’s estate and did not advocate a change in prison policy or criticize the administration of prison policy.282

C. The Seventh Circuit’s Opinion in Bridges v. Gilbert

On appeal, Bridges urged the Seventh Circuit to abandon its support for a public concern test to prisoners’ free speech claims.283 Instead, Bridges contended that the Seventh Circuit should apply the legitimate penological interest tests from the Court’s prisoner free speech jurisprudence to evaluate whether Bridges engaged in protected speech.284 In a decision written by Judge Tinder and joined by Chief Judge Easterbrook and Judge Wood, the Seventh Circuit reversed the district

276 Id. at 545. 277 Id. 278 Id. 279 Id. 280 Id. 281 Id. 282 See case cited supra note 22. 283 Bridges, 557 F.3d at 547. 284 Id. at 547, 551.

199 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 court’s opinion in Bridges’s favor for his free speech retaliation claim.285 In so doing, the Seventh Circuit expressly disavowed its support for the public concern test in prisoners’ free speech retaliation claims.286 The court, however, left open the possibility of applying the public concern test for a prisoner-employee’s complaints about compensation like in McElroy.287 Since the panel’s decision overruled the Seventh Circuit’s support for a public concern test in prisoners’ free speech retaliation claims, the panel circulated its decision among all the judges of the Seventh Circuit in regular active service to determine if a majority of the judges favored a rehearing en banc pursuant to the Seventh Circuit’s Rule 40(e), but no judge favored a rehearing.288 Instead of applying the public concern test to prisoners’ free speech retaliation claims, the court claimed to adopt the Turner test.289 The court’s opinion in Bridges advanced three principal reasons to support its purported adoption of the Turner test.290 First, the court held that the Turner test constituted the proper test for evaluating prisoners’ asserted constitutional interests.291 Second, the court reasoned that public employees voluntarily chose the restrictions on their free speech rights by accepting public employment, while imprisonment remained involuntary.292 Third, the court held that applying a public concern test to prisoners’ speech would unnecessarily restrict prisoners’ rights more than required to preserve legitimate penological interests.293 This comment discusses in turn Bridges’s analysis of its three principal reasons for adopting the Turner test.

285 Id. at 551–52, 555–56. 286 Id. at 551 n.2. 287 Id. at 552 n.3; see also McElroy v. Lopac, 403 F.3d 855, 858–59 (7th Cir. 2005) (per curiam). 288 Bridges, 557 F.3d at 551 n.2; see also 7TH CIR. R. 40(e). 289 Bridges, 557 F.3d at 551. 290 See id. at 550. 291 Id. 292 Id. 293 Id.

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First and foremost, the court chose to evaluate prisoners’ free speech retaliation claims under the Turner test rather than the public concern test because the court acknowledged that the two tests developed in two different contexts to account for the unique institutional differences between public employment and prisons.294 Specifically, the court recognized that the Court created the public concern test “to maintain the delicate balance between a citizen’s right to speak (and the public interest in having thoughtful debate) and the employer’s need to effectively provide government services,” while the Court formed the legitimate penological interests tests “to preserve some free speech rights for prisoners in a restrictive and challenging environment where prison officials must be focused on crime deterrence, prisoner rehabilitation, and internal prison security.”295 Second, the court rejected applying the public concern test to prisoners’ free speech retaliation claims because the court placed significant emphasis on the notion that public employees voluntarily consented to the limitations on their freedoms whereas prisoners remained incarcerated against their will.296 The court justified the differing levels of constitutional protection between prisoners and public employees by reasoning that “obviously, a citizen has the choice to enter into public employment, while imprisonment is not voluntary.”297 Similarly, when discussing in dicta the applicability of a public concern test to the speech of a prisoner-employee, the court commented that “[t]he official interest in the efficient provision of [government] services, coupled with the benefits to the prisoner from taking the job, may justify a public concern limitation on the prisoner’s speech made as an employee.”298 Third, the court held that applying the public concern test to prisoners’ free speech retaliation claims would eliminate virtually all constitutional protection afforded to prisoner speech.299 Instead of

294 See id. 295 Id. 296 See id. 297 Id. (emphasis added). 298 Id. at 552 n.3 (internal quotations omitted) (emphasis added). 299 See id. at 550.

201 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 expressly arguing that prisoner speech rarely involved a matter of public concern (like the Second and Third Circuits), the court observed that applying Garcetti’s distinction between speech as a public employee and as a citizen would be impossible in the prison context.300 Specifically, the court reasoned that because prisoners remained “[s]hut-off from the outside world, the prisoner’s speech would nearly always be speech made as a prisoner rather than as a citizen.”301 Similarly, when discussing in dicta if the public concern test should apply to a prisoner-employee’s speech, the court observed that “the degree of control exercised by officials over all aspects of a prisoner’s life may make any distinction between speech as an inmate and speech as a prisoner-employee unworkable.”302 Lastly, the panel also noted that a public concern test for prisoners’ free speech retaliation claims needlessly imposed an additional barrier that “seem[ed] to restrict prisoners’ constitutional rights far more than is ‘justified by the considerations underlying our penal system.’”303 Finally, the court purportedly applied the Turner test to protect Bridges’s speech in the affidavit.304 Yet, the court protected Bridges’s speech by simply holding that “[p]roviding an eyewitness account . . . of an incident where prison officials are alleged to have mistreated an inmate who was gravely ill (and later died) is not inconsistent with legitimate penological interests.”305 The panel supported its holding only by analogizing to the Eighth Circuit’s decision in Cornell.306 Thus, the court declared that “[p]risons have an interest in keeping the inmates as safe and secure as possible while imprisoned, and truthful speech that describes possible abuses can actually be quite consistent with that objective.”307 Accordingly, the court concluded that “Bridges . . . adequately alleged, for the purposes of surviving a

300 Id.; see also cases cited supra note 184 and accompanying text. 301 Bridges, 557 F.3d at 550 (internal quotations omitted). 302 Id. at 552 n.3. 303 Id. at 550 (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). 304 See id. at 551–52. 305 Id. at 551. 306 Id.; see also discussion supra Part III.C. 307 Bridges, 557 F.3d at 551.

202 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 motion to dismiss, that he engaged in activity protected by the First Amendment.”308

V. EVALUATION OF BRIDGES: BRIDGING THE GAP BETWEEN PELL, TURNER, AND THE FREE SPEECH RIGHTS OF PRISONERS AND PUBLIC EMPLOYEES. Part V first argues that the Seventh Circuit’s disavowal of the public concern test in the prison context likely conformed with, but was not required by, Supreme Court precedent. Then, Part V contends that the court likely erred in actually applying the relatively unexamined and indeterminate Pell test to protect Bridges’s allegedly truthful speech about prison abuses with unfortunate consequences for the clarity of prisoners’ free speech rights and the prerogatives of prison officials. Lastly, Part V argues that the court should have continued to use a modified version of the public concern and Pickering balancing tests for prisoners’ free speech retaliation claims because those tests offered clarity and protection to important First Amendment speech, provided sufficient deference to prison officials’ needs, and ensured that prisoners do not possess potentially greater free speech rights than public employees.

A. The Seventh Circuit Likely Conformed to Court Precedent by Disavowing the Public Concern Test for Prisoners’ Free Speech Retaliation Claims

In rejecting the public concern test and purportedly adopting the Turner test to evaluate prisoners’ free speech retaliation claims, the Seventh Circuit likely conformed to the Court’s precedent. Although the Court’s prisoner and public employee free speech jurisprudences do not expressly affirm or reject applying the public concern and Pickering balancing tests to prisoners’ free speech retaliation claims,309 Bridges correctly reasoned that the Court created the public concern and legitimate penological interests tests to account for and

308 Id. at 551–52. 309 See supra notes 11, 15 and accompanying text.

203 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 evaluate the level of First Amendment protection in two different institutional contexts.310 While the Court’s approach to create a First Amendment “doctrine for every institution” may actually exaggerate institutional uniqueness to the detriment of protecting fundamental free speech rights and promoting uniformity in the law,311 the Sixth Circuit rightly observed that “context matters” in the Court’s First Amendment jurisprudence.312 Hence, even though the Court applied the public concern and Pickering balancing tests to other free speech claims,313 because the Court created the public concern and penological interest tests to accommodate the First Amendment distinctions in two different institutional contexts, inferior courts likely remained bound to following the Court’s tests for each context.314 Furthermore, the Court’s opinion in Shaw v. Murphy provided the Seventh Circuit with sufficient precedential support to reject the public concern test for prisoners’ free speech retaliation claims.315 First, the Shaw Court declared that “Turner . . . adopted a unitary, deferential standard for reviewing prisoners’ constitutional claims.”316 Secondly, the Shaw Court specifically refused to enhance the constitutional protections of a prisoner’s speech based on the content of the prisoner’s speech because “the Turner test, by its terms, simply does not accommodate valuations of content.”317

310 See Bridges, 557 F.3d at 551; discussion supra Part IV.C. 311 See Moss, supra note 18, at 1671. Moss argued for evaluating the First Amendment claims of public school students, public employees, and prisoners under intermediate scrutiny review because the Court’s current approaches exaggerated the risk of affording greater protection to constitutionally guaranteed rights. Id. at 1644– 45, 1674–79. Moss further asserted that the Court’s strict scrutiny review of racial discrimination claims in each of these institutional settings proved the Court not only exaggerated the risks in the First Amendment setting, but also caused disharmony in the law by granting different levels of constitutional protection to similar fundamental rights in the same institutional settings. Id. at 1674–79. 312 See Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999); discussion supra Part III.A. 313 See cases cited supra notes 154–55, 201. 314 See Bridges, 557 F.3d at 551. 315 See 532 U.S. 223, 228–30 (2001); supra note 126 and accompanying text. 316 Shaw, 532 U.S. at 229. 317 Id. at 229; see also supra note 126 and accompanying text.

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While Shaw incorrectly claimed that Turner adopted a “unitary” standard for evaluating prisoners’ constitutional claims,318 the Court consistently applied just the Turner test to evaluate prisoners’ asserted free speech claims.319 Additionally, if the Seventh Circuit adopted the public concern test for prisoners’ free speech claims, then the Seventh Circuit would necessarily make a valuation of the content of the prisoners’ speech by preferring prisoners’ speech on a matter of public concern.320 Shaw rejected such preferential valuations based on the content of a prisoner’s speech because they (1) contravened Turner’s singular focus between the prison’s legitimate interests and the prison’s restrictions on speech and (2) frustrated the Court’s policy of deference to prison officials by requiring courts to undertake a greater role in adjudicating prison affairs.321 Arguably, if the public concern test actually limited the constitutional protection granted to prisoner speech, then Shaw may implicitly endorse the test.322 In any event, Shaw provided sufficient precedential support for the Seventh Circuit’s decision to reject the public concern test in favor of the Turner test when evaluating prisoners’ free speech retaliation claims.323

318 Turner clearly failed to adopt a “unitary” standard for reviewing prisoners’ constitutional claims. The Court extended Turner in Overton v. Bazzetta, 539 U.S. 126 (2003) (prisoners’ First Amendment right to freedom of association); Lewis v. Casey, 518 U.S. 343 (1996) (prisoners’ First Amendment right of access to the courts); Washington v. Harper, 494 U.S. 210 (1990) (prisoners’ due process right against involuntary medication); and O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (prisoners’ First Amendment right to free exercise of religion). Yet, the Court refused to extend Turner in Johnson v. California, 543 U.S. 499 (2005) (prisoners’ Fourteenth Amendment right against invidious racial discrimination); McKune v. Lile, 536 U.S. 24 (2002) (prisoners’ Fifth Amendment right against self- incrimination); and Farmer v. Brennan, 511 U.S. 825 (1994) (prisoners’ Eighth Amendment right against cruel and unusual punishment). 319 See discussion supra Part I. 320 See Connick v. Meyers, 461 U.S. 138, 147–48 (1983) (“Whether . . . speech addresses a matter of public concern must be determined by the content, form, and context of a given statement.”). 321 Shaw, 532 U.S. at 230. 322 See id. 323 See id.

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B. The Seventh Circuit Incorrectly Applied the Pell Test Instead of the Turner Test to Evaluate Bridges’s Free Speech Retaliation Claim Although the Seventh Circuit likely conformed to Court precedent by purportedly adopting the Turner test to evaluate Bridges’s free speech retaliation claim, the court probably erred by actually applying the Pell test when it considered Bridges’s free speech retaliation claim. Consequently, the court’s attempt to navigate the relatively unchartered waters of the Pell test left the court making its own judgments about proper prison procedure with potentially vast consequences for prisoners’ free speech rights and prison officials’ pursuit of legitimate penological objectives. Like the Fifth and Eighth Circuits, the Seventh Circuit clearly applied the Pell test rather than the Turner test when the court evaluated Bridges’s free speech claim.324 In claiming to apply the Turner test to Bridges’s free speech claim, the Seventh Circuit failed to quote the language of the Turner test, apply the Turner factors, evaluate the rational basis between the prison officials’ actions and the prison’s legitimate interests, explicitly invoke rational basis review, or expressly consider the level of deference it afforded to the prison officials.325 Instead, the court merely held that Bridges sufficiently alleged a free speech retaliation claim because his eyewitness account of an incident where prison officials allegedly mistreated a gravely ill inmate was not inconsistent with legitimate penological objectives.326 Had the Seventh Circuit correctly applied the Turner test, then the court would have questioned if the prison’s allegedly retaliatory actions possessed a reasonable relationship to the prison’s legitimate penological interests.327 For example, if the Seventh Circuit applied the Turner test, the Bridges prison officials could have asserted that they engaged in the

324 See discussion supra Parts III.B–C, IV.C. 325 See discussion supra Parts I.B, IV.C. 326 See Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009). 327 See supra note 349.

206 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 allegedly retaliatory actions because—in their expert judgment—such actions reasonably related to the prison’s legitimate interests in having Bridges use the prison’s internal grievance system to report official abuse or request medical attention.328 As the Fifth Circuit similarly recognized in Freeman, such internal grievance systems not only preserved prisoners’ First Amendment rights (to petition, not to speak), but also decreased the risk of violence from prisoners’ public criticisms of officials’ conduct and “kept inmates as safe and secure as possible while imprisoned” by swiftly assessing the need to provide medical services and punish official abuse.329 If the Seventh Circuit applied the Turner test to this contention, then the court likely would have concluded that the prison officials possessed a rational basis for restricting Bridges’s speech.330 Furthermore, because the court did not question the reasonableness of restricting Bridges’s allegedly truthful speech about prison abuses under the Turner test, the court formed a rigid rule categorically protecting prisoners’ allegations about prison abuses.331 By simply applying the Pell test to hold that prisoners’ allegedly truthful speech about prison abuses was not inconsistent with legitimate penological objectives, the court determined that restricting such speech remained unreasonably inconsistent with legitimate penological objectives unless the court later drew an exception to its rule.332 Yet, restrictions on prisoners’ speech about prison abuses may be entirely consistent with legitimate penological objectives. For

328 See discussion supra Parts I.B, IV.B; cf. also Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 864 (5th Cir. 2004). 329 See Freeman, 369 F.3d at 864; Bridges, 557 F.3d at 551. This argument could also imply that prisoners’ free speech rights remained entirely inconsistent with incarceration under the Pell test, especially where prisons operated grievance procedures. See Freeman, 369 F.3d at 864. 330 See id.; discussion supra Part I.B. The prison officials’ actions would be logically connected to the prison’s legitimate interest in responding appropriately to prisoners’ requests for medical attention or complaints about official abuse instead of waiting to dispute such information in an adversarial lawsuit. See Bridges, 557 F.3d at 544–45; discussion supra Part I.B. 331 See Bridges, 557 F.3d at 551; discussion supra Part I.C. 332 See Bridges, 557 F.3d at 551.

207 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 instance, prison officials may want to restrict prisoners’ complaints about prison abuses due to the potential danger to incite a riot like in Freeman or because of its insulting, demonstrably false, or otherwise unproductive character.333 Thus, while it may be reasonable in some instances to restrict prisoners’ speech about prison abuses, the court’s rule in Bridges unduly threatens prison officials with liability for appropriately responding to speech threatening the prison’s legitimate interests. Finally, the court protected Bridges’s allegedly truthful speech describing prison abuses by making its own judgment that such speech remained consistent with the prison’s interest in keeping “inmates as safe and secure as possible while imprisoned.”334 Consequently, the court not only contravened Court precedent explicitly instructing courts to not make judgments about proper prison administration, but the Seventh Circuit’s judgments may unduly impede proper prison administration.335 For instance, the court’s decision in Bridges failed to mention the level of deference it applied to any of the prison officials’ contrary contentions that Bridges’s speech was inconsistent with incarceration.336 Instead, the court reasoned from the Eighth Circuit’s determination in Cornell that truthful speech about prison official abuses was consistent with imprisonment.337 Even if the Eighth Circuit made its own judgment about proper prison administration in Cornell, the court merely enforced the prison officials’ promise of immunity to the prisoner for participating in the prison’s own investigation; i.e., the Eighth Circuit only extended protection to prison-solicited prisoner speech.338 Conversely, the Seventh Circuit’s rule may allow the inmates to run the asylum by protecting unsolicited allegations about prison abuses even if such speech interfered with

333 See Freeman, 369 F.3d at 864; discussion supra Part I.A–B. 334 See Bridges, 557 F.3d at 551. 335 See discussion supra Part I.A–C; discussion infra Part V.B. 336 See Bridges, 557 F.3d at 551. 337 Id. (citing Cornell v. Woods, 69 F.3d 1383, 1388 (8th Cir. 1995)). 338 See discussion supra Part III.C.

208 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 prison officials’ legitimate penological interests.339 Essentially, the Seventh Circuit’s rule treated prisoners as potentially helpful assistants in prison administration.340 While prison officials may act wisely by not retaliating against prisoners’ allegedly truthful speech about prison abuses, the Court’s precedent left this judgment to prison officials, and not the dictates of the First Amendment.341 Ultimately, the Seventh Circuit’s application of the Pell test to Bridges’s free speech retaliation claim arguably supplanted the prison officials’ judgment of proper prison administration and created a categorical rule that may unduly interfere with prison officials’ provision of legitimate penological objectives. Lastly, while the Seventh Circuit applied the Pell test to protect Bridges’s speech, future applications of the Pell test may leave prisoners’ speech completely unprotected.

C. The Seventh Circuit Should Have Adapted the Public Concern and Pickering Balancing Tests to Evaluate Bridges’s Free Speech Retaliation Claim Instead of applying the legitimate penological interest tests to prisoners’ free speech retaliation claims, the Seventh Circuit should have considered balancing Bridges’s speech as a prisoner on a matter of public concern against the prison’s legitimate penological interests in restricting Bridges’s speech. Such an approach proves more workable than the legitimate penological interest tests, protects critical free speech rights, and ensures that prisoners do not possess potentially broader free speech rights than public employees.

339 See Bridges, 557 F.3d at 551. 340 See id. 341 See cf. Connick v. Meyers, 461 U.S. 138, 149 (1983) (“While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.”); see discussion supra Part I.

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1. The Public Concern and Pickering Balancing Tests Evaluate Prisoners’ Free Speech Retaliation Claims Better than the Legitimate Penological Interests Tests As the Sixth Circuit recognized, the public concern and Pickering balancing tests are easily adaptable to the prison context provided courts perform an honest attempt to not unhesitatingly import reasoning from the public employee setting to the prison context.342 The Seventh Circuit reasoned that applying the public concern test to the prison context resulted in an unworkable rule because (1) prisoners rarely spoke as citizens on matters of public concern and (2) prisoners’ complaints generally involved matters of purely private concern.343 However, the Seventh Circuit’s prior applications of the public concern test to prisoners’ free speech claims should resolve both of these concerns.344 In addressing this first concern, the Seventh Circuit largely ignored the requirement that prisoners must speak as a citizen.345 Such an approach may be appropriate because prisoners generally and necessarily lack the freedom public employees possess to exercise their dual rights as citizens.346 Yet, prisoners often speak as citizens, especially when they engage in any outgoing communications; i.e., communications intended for use outside the prison walls like writing letters, articles, books, etc.347 For instance, Bridges probably spoke as

342 Thaddeus-X v. Blatter, 175 F.3d 378, 392 (6th Cir. 1999); see also discussion supra Part III.A . 343 Bridges, 557 F.3d at 550; see also cases cited supra note 184 and accompanying text. 344 See discussion supra Part IV.A. 345 See discussion supra Part IV.A. 346 See Bridges, 557 F.3d at 550, 552 n.3. Compare discussion supra Part I, with discussion supra Part II. 347 Cf. Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006) (holding that the public employee did not speak as a citizen when he wrote the memorandum pursuant to his official duties); Thornburgh v. Abbott, 490 U.S. 401, 411–12 (1989) (holding that prisoners’ incoming communications posed a greater threat to internal prison security than outgoing communications because outgoing communications were not intended for an inmate audience and officials could readily identify the predictable dangers from outside communications).

210 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 a citizen when he gave his affidavit in a legal proceeding.348 While Bridges owed the existence of his speech describing possible prison abuses to his status as a prisoner, Bridges did not make his speech pursuant to any duties he possessed as a prisoner.349 In any event, simply evaluating the prisoner’s speech as a prisoner resolves this concern. If the government-as-jailor possesses special interests in restricting a prisoner’s speech as a prisoner compared to a prisoner’s speech as a citizen, then the Pickering balancing test can properly account for those interests by giving stronger weight to the government’s interests.350 In addressing the second concern, the Seventh Circuit’s prior applications of the public concern test prove that the test is readily applicable to the prison setting.351 The Seventh Circuit’s precedent showed that prisoners’ speech involved a matter of public concern if the speech urged a change in prison policy, criticized the official administration of prison policy, informed the general public about how the government operated important prison institutions, or involved a matter of concern to the prison population.352 This not only protects a significant quantum of prisoner speech, but it offers protection to roughly the same type of speech that courts categorically protected

348 Compare Bridges, 557 F.3d at 544–45 (prisoner providing an affidavit in a public lawsuit), with Garcetti, 547 U.S. at 421–22 (employee writing a memorandum pursuant to his official duties). 349 See supra note 348 and accompanying text. 350 See Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 569–70 (1968); Connick v. Meyers, 461 U.S. 138, 150 (1983) (stating that “the State’s burden in justifying [its interests] varie[d] depending upon the nature of the employee's expression.”). 351 See discussion supra Part IV.A. 352 Brookins v. Kolb, 990 F.2d 308, 313 (7th Cir. 1992) (holding that prisoners’ speech urging a change of prison policy or criticizing official administration of prison policy involved a matter of public concern); Pearson v. Welborn, 471 F.3d 732, 741–42 (7th Cir. 2006) (holding that prisoner’s speech informing the general public about the internal operations of a new prison program to integrate gang members into the general prison population involved a matter of public concern); see also McElroy v. Lopac, 403 F.3d 855, 859 (7th Cir. 2005) (Fairchild, J., dissenting) (claiming that prisoner’s speech about “lay-in” pay after prison terminated prisoners’ sewing jobs involved a matter of public concern to the respective prison population).

211 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 under their applications of the Pell test.353 Moreover, prisoners can pursue purely private concerns through the prison’s internal grievance procedures or by otherwise exercising their Petition Clause rights.354 As the Sixth Circuit warranted, this distinction between prisoners’ free speech and petition rights may be justified because prisoners possess a well-established and well-regulated right to petition unlike their ambiguous and more restricted free speech rights.355 Also, because prisoners’ individual free speech rights can be justified largely due to the public’s interest in “free and unhindered debate on matters of public importance,” unlike prisoners’ highly individualized right to petition, a public concern test may be uniquely appropriate and workable for prisoners’ free speech claims.356 More importantly, the Seventh Circuit should have recognized that both of the legitimate penological interest tests form unworkable rules in evaluating prisoners’ free speech retaliation claims. The Pell test either (1) forces courts to make their own improper judgments about appropriate prison administration with the consequence of dictating inflexible categorical rules to prison officials, (2) allows courts to defer absolutely to prison officials, or (3) permits courts to simply determine that prisoners retained no free speech rights whatsoever.357 As for the Turner test, it compels courts to defer too much to prison officials, with the consequence of recognizing practically no prisoner free speech rights and remaining especially unworkable in evaluating free speech retaliation claims.358 Since the Turner test protects prisoners’ free speech retaliation claims only if the prison officials’ allegedly retaliatory actions possess no reasonable relation to the prison’s legitimate penological concerns, the test conflated the third element in prisoners’ free speech retaliation

353 See discussion supra Parts III.B–C, IV.C. 354 See, e.g., Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000). 355 See Thaddeus-X v. Blatter, 175 F.3d 378, 391–92 (6th Cir. 1999). 356 See id.; cf. also Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 571–72 (1968) (protecting public employees’ limited free speech right to speak on a matter of public concern because the First Amendment specially protected the public’s interest in free and unhindered debate). 357 See discussion supra Parts I.C., V.B. 358 See discussion supra Parts I.B–C, V.B.; discussion infra Part V.C.1.

212 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 claims with the first element.359 In the first element to a prisoner’s free speech retaliation claim, the prisoner must prove that they engaged in activity protected by the First Amendment; and in the third element, the prisoner must prove that the First Amendment activity was at least a motivating factor in the prison officials’ decision to take the retaliatory action.360 The Turner test conflates these two elements because courts would likely determine if the prison officials’ allegedly retaliatory actions possess a reasonable relation to the legitimate penological objective by inquiring into the prison officials’ motivation for suppressing the prisoners’ speech.361 Hence, if a prisoner’s freedom of speech forms a motivating factor in the prison official’s retaliatory actions, then the prison official’s actions probably possess no reasonable relationship to legitimate penological objectives unless the prisoner’s freedom of speech remains fundamentally inconsistent with legitimate penological objectives.362 Since the Pell test ultimately questions whether a prisoner’s free speech rights remains fundamentally inconsistent with legitimate penological objectives, courts understandably found themselves applying the undefined and indeterminate Pell test to evaluate prisoners’ free speech retaliation claims.363 Unlike the legitimate penological interest tests, the Court established the public concern and Pickering balancing tests to specifically evaluate the level of constitutional protection in free speech retaliation claims.364 Thus, as the Sixth Circuit implicitly recognized, a test that adapts the Court’s sole test for evaluating free speech retaliation claims to the prison context may better account for the institutional uniqueness of prisons than blindly applying the current legitimate penological interest tests to prisoners’ free speech retaliation claims.365

359 See discussion supra Parts I.B–C. 360 See, e.g., Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). 361 See discussion supra Parts I.B–C, V.C.1. 362 See discussion supra Parts I.B–C, V.C.1. 363 See discussion supra Parts I.B–C, III.B–C, IV.C. 364 See discussion supra Parts I–II. 365 See Thaddeus-X v. Blatter, 175 F.3d 378, 389 (6th Cir. 1999).

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Furthermore, the Pickering balancing test may prove more practical for evaluating prisoners’ free speech retaliation claims than the legitimate penological interest tests for three primary reasons. First, courts can easily adapt the Pickering factors to deal with prisons’ unique interests in performing legitimate penological objectives, and lots of the current Pickering factors similarly apply to the prison context.366 For instance, Connick affords “a wide degree of deference to the employer’s judgment” when the employee’s speech concerns itself more with causing insubordination or violates office policy; and, this wide degree of deference even allows employers to take action before a disruption unfolded. 367 Likewise, prison officials should probably receive “a wide degree of deference” when a prisoners’ speech is more concerned with causing insubordination, and especially if it violates prison policy.368 Yet, when the Fifth Circuit in Freeman attempted to afford this wide degree of deference to a prisoners’ “insubordinate” speech, the court likely frustrated prison officials’ future efforts by protecting insubordinate speech that did not intend to or actually incite a disturbance.369 Second, while the Shaw Court criticized content-balancing tests for supplanting the due deference courts owe to prison officials,370 cases like Connick demonstrate that the Pickering balance sufficiently affords substantial deference to the government’s interests.371 Connick specifically created the categorical balancing in the public concern test so that courts would completely defer to the employer’s interests when the employee fails to speak on a matter of public concern.372 Thus, a rule requiring prisoners to speak on a matter of public-penological concern before evaluating the legitimate penological interests involved may prove more deferential than a rule solely examining the asserted

366 See id. at 392; discussion supra Parts II.A–B. 367 Connick v. Meyers, 461 U.S. 138, 151–52 (1983). 368 See id.; discussion supra Part I. 369 See Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 864 (5th Cir. 2004); supra note 224 and accompanying text. 370 Shaw v. Murphy, 532 U.S. 223, 229–30 (2001). 371 See discussion supra Part II.B. 372 Connick, 461 U.S. at 146–47.

214 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 penological interests.373 Moreover, courts sufficiently possess the requisite expertise to appropriately balance the prison’s legitimate interests against the prisoners’ free speech rights.374 Not only is it the role of courts to balance competing interests in adjudicating constitutional claims, but courts routinely “adjudicate case fields alien to them” without deferring to certain interests or claims like they would in the Pickering balancing test.375 Third, the legitimate penological interest tests may not provide adequate deference to the government’s interests. Courts routinely apply the indeterminate Pell test to afford little or no deference to prison officials’ judgments, and they further create inflexible categorical rules dictating proper prison administration.376 Alternatively, because the Pickering balancing test depends on the unique facts of the case, courts’ applications of the Pickering balancing test would not inappropriately form inflexible categorical rules dictating proper prison administration.377 Hence, applying the public concern and Pickering balancing tests to prisoners’ free speech retaliation claims forms a practical rule that would prove more feasible than applying the legitimate penological interest tests to prisoners’ free speech retaliation claims.

373 See id.; discussion supra Part V.B. 374 See Moss, supra note 18, at 1666–68. Moss noted that “judges do have a fair bit of expertise in the criminal justice system, given both their extensive adjudication of prisoner filings and the background a great many federal judges have as prosecutors or otherwise as government officials in the executive or legislative branch.” Id. at 1667. Moss further argued that “even if certain institutions are harder for courts to analyze effectively, parties and courts are unlikely to accept erroneous rulings easily, but instead will spend more time and resources remedying the problem of imperfect information.” Id. at 1667–68. 375 See id. at 1666–67; discussion supra Part II. 376 See discussion supra Parts I.C, III.B–C, V.B. 377 See, e.g., Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 569 (1968) (“Because of the enormous variety of fact situations . . . we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.”).

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2. The Public Concern and Pickering Balancing Tests Protect Prisoners’ Most Important First Amendment Rights While Ensuring that Prisoners Do Not Possess Potentially Broader Free Speech Rights than Public Employees

The Seventh Circuit’s opinion in Bridges recognized that adopting the legitimate penological interests tests not only protects speech on a lower “rung [in] the hierarchy of First Amendment values,” but also potentially affords prisoners with broader free speech rights than public employees.378 Conversely, applying the public concern and Pickering balancing tests to prisoners’ free speech retaliation claims would protect prisoners’ important free speech rights, provide definition to the Court’s amorphous prisoner free speech jurisprudence, and ensure that prisoners do not absurdly possess potentially greater free speech rights than public employees. As demonstrated by the Court’s public employee free speech jurisprudence, “the First Amendment’s primary aim is the full protection of speech upon issues of public concern.”379 The Court specifically created and defined the free speech rights of public employees to protect speech on a matter of public concern because of (1) “the Constitution’s special concern with threats to the right of citizens to participate in political affairs,”380 and (2) “[t]he public’s interest in having free and unhindered debate on matters of public importance [remained] the core value of the Free Speech Clause.”381 Lastly, “the [C]ourt has frequently reaffirmed that speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.”382 Thus, if the First Amendment’s primary aim remained the full protection of speech on matters of public concern, then the legitimate

378 See Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009) (quoting Carey v. Brown, 447 U.S. 455, 467 (1980)). 379 Connick v. Meyers, 461 U.S. 138, 154 (1983) (emphasis added). 380 Id. at 144–45 (emphasis added). 381 Pickering, 391 U.S. at 573 (emphasis added). 382 Connick, 461 U.S. at 145 (quoting Carey, 447 U.S. at 467) (emphasis added).

216 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 penological interest tests’ failure to specially protect speech on matters of public concern serves no real or important First Amendment interests.383 In fact, since the legitimate penological interests tests “refused to recognize any hierarchy of values among important [free speech] interests” by elevating any penological concern to “a higher constitutional plane than [the prisoner’s free speech] rights,” they protect practically worthless speech while failing to protect cherished First Amendment values.384 Tellingly, the legitimate penological interest tests protects low-value speech about a prisoner’s missing laundry in Jackson, but it may not protect the Pearson prisoner’s critically important speech about prison officials coercing prisoners into becoming prison informants.385 Obviously, the Court developed the legitimate penological interest tests because it wanted to accommodate the needs of prison officials, and not because it wanted to protect valuable speech.386 Thus, if the public concern and Pickering balancing tests sufficiently accommodate prison officials’ needs, then the tests should be preferred because they also protect critically important speech at the heart of the First Amendment’s self-government rationale. Additionally, the fact that prisoners necessarily sacrifice some of the rights and privileges that they normally possess as citizens does not mean that the First Amendment should potentially afford no protection to prisoners’ speech on matters of public concern.387 Like public employees, prisoners retain some rights as citizens to engage in public debate; so, the First Amendment should specially protect their speech on matters of public concern.388 More importantly, the First Amendment should especially protect prisoners’ speech on matters of public concern because such speech critically informs “the public’s

383 See id. 384 See discussion supra Part I.C; supra notes 124–25 and accompanying text. 385 See Jackson v. Cain, 864 F.2d 1235, 1428 (5th Cir. 1989); Pearson v. Welborn, 471 F.3d 732, 741–42 (7th Cir. 2006). 386 See discussion supra Part I. 387 See supra note 1 and accompanying text; discussion supra Parts II, V.C.2. 388 See supra note 1 and accompanying text; discussion supra Parts I, II, V.B., V.C.2.

217 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 interest in having free and unhindered debate on matters of public importance;” e.g., the operation of prison institutions.389 Like public employees, prisoners are “as a class, the members of a community most likely to possess informed and definite opinions,” and share critical facts and information about the operation of prison institution.390 Since prisons are typically isolated from the general public, and because government’s power in operating prisons is at its apex, the First Amendment should afford special protection to prisoners’ speech on matters involving prison operations to inform the public debate and serve as a check on governmental abuse of power.391 At the least, this proposition seems more sensible and in accord with the First Amendment’s purposes than a test treating prisoners as partners in proper prison administration.392 Furthermore, the public concern and Pickering balancing tests provide critical definition and protection to prisoners’ amorphous free speech rights. The legitimate penological interests tests fail to identify and assess any value to prisoners’ free speech rights as against the government’s interests.393 Consequently, courts possess little guidance in identifying what free speech rights to protect—if any—and when to actually protect those rights against legitimate governmental restrictions.394 Alternatively, the public concern and Pickering balancing tests expressly inform courts to protect a prisoner’s speech on a matter of public concern unless the government possesses greater legitimate penological interests in restricting the prisoner’s speech.395 Whether courts will actually protect prisoners’ speech on matters of public-penological concern depends on the strength of the prison’s legitimate penological objectives, to which courts give great deference

389 See Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 573 (1968); MUSLIN, supra note 3, § 5.00. 390 See Pickering, 391 U.S. at 572. 391 See MUSLIN, supra note 3, § 5.00; discussion supra Part I. 392 See discussion supra Parts V.B, V.C.2. 393 See discussion supra Part I.C; supra notes 124–25 and accompanying text. 394 See discussion supra Part I.C. 395 See discussion supra Part II.

218 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 under the Court’s prisoner free speech jurisprudence and similar Pickering balancing factors.396 Lastly, applying the public concern and Pickering balancing tests to prisoners’ free speech retaliation claims ensures that prisoners do not posses potentially greater free speech rights than public employees. While the Seventh Circuit accurately noted that “[a] prisoner’s speech can be circumscribed in many ways that a public employee’s speech cannot, and the two tests for assessing protected speech account for those differences,” the legitimate penological interests test may afford prisoners greater free speech rights than public employees by not specifically subjecting prisoners’ speech to a public concern requirement.397 Thus, the court’s holding in Bridges presents an absurd result. As the Sixth Circuit said, “[p]risoners certainly do not have greater free speech rights than public employees.”398 The Seventh Circuit, however, justified this potentially absurd result on the thoroughly discredited rationale that public employees waived restrictions on their free speech rights by consenting to their government employment.399 The Court unequivocally rejected the view that public employees waived their constitutional rights as a condition of their employment.400 If anything, “[t]he waiver argument seems strongest as to prisoners.”401 Arguably, prisoners waive their rights by virtue of committing a crime or as a necessary incident of their incarceration or punishment.402 Concededly, a balancing test that ignores the requirement that prisoners speak as citizens and further permits prisoners to speak on matters of penological concern may give prisoners greater free speech rights than public employees. It just seems absurd, however, that the

396 See discussion supra Parts I, II, V.C.1. 397 Bridges v. Gilbert, 557 F.3d 541, 550 (7th Cir. 2009); see also supra note 17 and accompanying text. 398 See Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999); see also supra note 194 and accompanying text. 399 See discussion supra Part IV.C. 400 See, e.g., cases cited supra note 149 and accompanying text. 401 Moss, supra note 17, at 1652. 402 Id. at 1652–53.

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First Amendment would not specially protect speech on a public concern; and in so doing, potentially grant prisoners more freedom of speech than trusted and invaluable public servants.

CONCLUSION

Ultimately, applying the public concern and Pickering balancing tests to prisoners’ free speech retaliation claims would provide definition and security to prisoners’ free speech rights, promote important speech at the heart of the First Amendment, afford sufficient deference to prison officials’ needs, and ensure that prisoners do not possess potentially greater free speech rights than public employees. The public concern and Pickering balancing tests offer a bridge to a new First Amendment future in prisoners’ free speech retaliation claims. That bridge provides definition and protection to the uncertain, amorphous, and largely unprotected status of prisoners’ free speech rights. That bridge also does not unduly interfere with prison officials’ pursuit of legitimate penological objectives or potentially protect vast amounts of relatively worthless speech. That is the bridge the Seventh Circuit should have built for evaluating prisoners’ free speech retaliation claims.

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THE SEVENTH CIRCUIT GIVETH, AND THE DISTRICT OF COLUMBIA CIRCUIT TAKETH AWAY: THE NATIONAL LABOR RELATIONS BOARD’S AUTHORITY TO ACT UNDER SECTION 3(b) OF THE NATIONAL LABOR RELATIONS ACT

* TYLER T. MURPHY

Cite as: Tyler T. Murphy, Note, The Seventh Circuit Giveth, and the District of Columbia Circuit Taketh Away: The National Labor Relations Board’s Authority to Act Under Section 3(b) of the National Labor Relations Act, 5 SEVENTH CIRCUIT REV. 221 (2009), http://www.kentlaw.edu/7cr/v5-1/murphy.pdf.

INTRODUCTION

In December 2007, the National Labor Relations Board (“NLRB” or “Board”) faced a novel problem: how could the Board continue operating with only two members?1 At that time, the Board had four members; however, two members had terms expiring at the end of the year.2 When their terms expired, the Board would lose its three- member quorum,3 effectively stopping operations until the Board had at least three members.4 To avoid this outcome, the Board used Section 3(b) of the National Labor Relations Act (“Section 3(b)”) to

* J.D. candidate, May 2010, Chicago-Kent College of Law, Illinois Institute of Technology; B.A., 2006, Michigan State University. 1 Brief of Petitioner at 8–9, Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) (No. 08-1162). 2 Board Members Since 1935, http://www.nlrb.gov/about_us/overview/board/ board_members_since_1935.aspx (last visited Jan. 5, 2010). 3 National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. § 153(b) (2006). 4 Brief of Petitioner at 8–9, Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) (No. 08-1162).

221 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 delegate its decision-making authority to a three-member panel.5 Section 3(b) states:

The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. . . . A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.6

The Board believed that delegating its authority to a three- member panel would subject the panel to a smaller, two-member quorum.7 Therefore, when the third member’s term expired, the remaining two-member panel could continue deciding cases.8 In effect, the Board thought that this delegation would allow the Board to operate as a two-member panel.9 Based on this interpretation, the two- member panel has gone on to issue hundreds of decisions and orders.10 On May 1, 2009, the Seventh Circuit and the District of Columbia Circuit issued decisions on the two-member panel’s legal authority to decided cases.11 Generally, the two Circuits determined whether the two-member panel could issue decisions under Section 3(b).12 Although the same statutory provision and relevant facts were at issue,

5 Id. at 8. 6 National Labor Relations (Wagner) Act § 3(b). 7 See Brief of Petitioner at 8–9, Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) (No. 08-1162). 8 See New Process Steel, LP v. NLRB, 564 F.3d 840, 845 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 9 See id. 10 See id. 11 Compare id. at 848 (holding two-member panel had the authority to issue decisions), with Laurel Baye Healthcare, 564 F.3d at 476 (holding two-member panel did not have the authority to issue decisions). 12 E.g., New Process Steel, 564 F.3d at 845.

222 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 the Seventh Circuit and the D.C. Circuit reached opposite conclusions.13 The courts arrived at their holdings based on two separate statutory arguments.14 Specifically, the Seventh Circuit decided whether the Board could establish a three-member panel when the third member was merely a sham member—a member who would never decide cases with the panel.15 According to the Seventh Circuit, the Board could create such a panel, so long as the Board initially delegated its power to at least three active Board members.16 Because the Board initially created a three-member panel, the Seventh Circuit upheld the two-member panel’s authority to decide cases.17 In effect, the Seventh Circuit found that the sham member did not affect the legality of Board’s delegation under Section 3(b).18 In contrast, the D.C. Circuit determined whether a two-member panel could decide cases after the Board lost its three-member quorum.19 The D.C. Circuit held that, under Section 3(b), neither the Board nor any delegated panel can act when the Board has less than three total members.20 Effectively, the D.C. Circuit interpreted Section 3(b) as requiring three total Board members before any decision can be issued.21 Because the Board had only two members, the two- member panel could not issue decisions.22

13 Compare id. at 848 (holding two-member panel had the authority to issue decisions), with Laurel Baye Healthcare, 564 F.3d at 476 (holding two-member panel did not have the authority to issue decisions). 14 Compare New Process Steel, 564 F.3d at 848 (deciding whether the Board could delegate its authority to what is effectively a two-member panel), with Laurel Baye Healthcare, 564 F.3d at 476 (deciding whether the two-member panel could operate when the Board failed to satisfy its three member quorum requirement). 15 New Process Steel, 564 F.3d at 845. 16 Id. at 845–46. 17 Id. 18 Id. 19 Laurel Baye Healthcare, 564 F.3d at 472. 20 Id. at 472–76. 21 Id. at 472–73. 22 Id. at 476.

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While the distinction between these two decisions is subtle, recognizing the difference is critical to understanding the recent line of cases interpreting Section 3(b). Broadly stated, the Seventh Circuit addressed the Board’s initial delegation,23 while the D.C. Circuit addressed the panel’s ability to decide cases after Board lost its quorum.24 Specifically, the Seventh Circuit decided whether the Board could delegate decision-making authority to what was effectively a two-member panel,25 while the D.C. Circuit decided whether the two- member panel could decide cases after the Board lost its three-member quorum.26 Not only does each issue require a separate interpretation, but the Seventh Circuit has not even determined whether Section 3(b) allows a two-member panel to act when the Board has only two members.27 Consequently, the Seventh Circuit has not precluded a future challenge to the two-member panel’s authority based on this argument.28 Moreover, the D.C. Circuit is not the only court that has decided whether the two-member panel could act after the Board lost its three- member quorum.29 In fact, the Second Circuit held that, even though the Board had only two members, Section 3(b) did not preclude the two-member panel from issuing decisions.30 The Second and D.C. Circuits’ conflicting interpretations have further increased the uncertainty surrounding Section 3(b) and the two-member panel. With a growing trend of uncertainty, one thing is clear: definitive resolution to Section 3(b)’s ambiguity is needed. Without a certain answer, the Board, the two-member panel and hundreds of NLRB

23 New Process Steel, LP v. NLRB, 564 F.3d 840, 845–46 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 24 Laurel Baye Healthcare, 564 F.3d at 472. 25 New Process Steel, 564 F.3d at 845–46. 26 Laurel Baye Healthcare, 564 F.3d 469, 472–73. 27 See New Process Steel, 564 F.3d at 845–46 (not addressing whether the panel can act when the Board has two total members). 28 See id. at 845. 29 E.g., Snell Island SNF LLC v. NLRB, 568 F.3d 410, 419–24 (2d Cir. 2009). 30 Id.

224 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 decisions remain in doubt.31 As long as uncertainty remains, the Board appears content to avoid deciding its most contentious cases.32 This combination of uncertainty and inaction threatens labor relations across the United States.33 Fortunately, the Board’s uncertainty will soon be resolved, as the Supreme Court recently granted certiorari to decide whether the current Board can decide cases under Section 3(b).34 Nevertheless, the Supreme Court must carefully review Section 3(b) to avoid reaching an incomplete or unsatisfying decision. To avoid such a result, the Supreme Court should apply Chevron USA, Inc. v. Natural Resource Defense Council, Inc., which offers a legal framework that both embraces Section 3(b)’s ambiguity and establishes a satisfying outcome.35 Under Chevron, the Supreme Court would first determine whether Section 3(b) precisely answers the question presented.36 As this article argues, however, Section 3(b) does not precisely answer either argument that has been raised. Therefore, the Supreme Court would proceed to Chevron step-two where they defer to the Board’s interpretation, as long as the interpretation is reasonable.37 This article will also show that the Board’s interpretation is reasonable, and thus that the Supreme Court should defer to the Board’s interpretation. In other words, Chevron analysis allows the Supreme Court to uphold the two-member panel’s authority to decide cases under Section 3(b). This article begins by exploring the Board’s origins, as well as the Board’s subsequent legislative codification and amendments. Next, this article will discuss the recent Circuit decisions interpreting Section 3(b) by analyzing each decision’s issues, legal reasoning and

31 Sam Hananel, Gridlocked NLRB Puts Off Notable Labor-Law Cases, RICHMOND TIMES-DISPATCH, Sept. 26, 2009, http://www2.timesdispatch.com/rtd/ lifestyles/health_med_fit/article/I-NLRB0903_20090924-231810/295413/. 32 Id. 33 Id. 34 New Process Steel, LP v. NLRB, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 35 467 U.S. 837, 842–43 (1984). 36 Id. at 842–43. 37 Id. at 843.

225 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 outcome. Finally, this article contends that a satisfying decision cannot rest solely on Section 3(b)’s plain language and legislative history. Instead, this article will demonstrate how Chevron analysis provides a legal framework that embraces Section 3(b)’s ambiguity, yet provides a satisfying outcome.

I. THE HISTORY OF THE NATIONAL LABOR RELATIONS BOARD

A. The National Industrial Recovery Act: The National Labor Board

As part of the New Deal initiative, Congress enacted the National Industrial Recovery Act (“NIRA”)38 to spur economic recovery through fair trade practices and public works projects.39 To encourage fair trade practices, Section 7(a) of the NIRA (“Section 7(a)”)40 sought to “democratize” labor by giving employees the right to collectively

38 National Industrial Recovery Act, ch. 90, §§ 1–10, 48 Stat. 195 (1933) declared unconstitutional by Schechter Poultry Corp. v. United States 295 U.S. 495 (1935). 39 National Industrial Recovery Act §1 (“A national emergency productive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people, is hereby declared to exist.”). 40 The NIRA states:

Every code of fair competition, agreement, and license approved, prescribed, or issued under this title shall contain the following conditions: (1) That employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self- organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; [and] (2) that no employee and no one seeking employment shall be required as a condition of employment to join any company union or to refrain from joining, organizing, or assisting a labor organization of his own choosing[.] §7(a).

226 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 bargain with their employers.41 Specifically, the NIRA prohibited employers from requiring employees to join a specific union, including employer-run unions, as a condition of employment.42 The NIRA drafters believed that regulating collective bargaining would improve employee bargaining power, which would then result in increased purchasing power and standards of living.43 However, Section 7(a) failed to protect employees from employer coercion.44 To begin, the National Recovery Administration (“NRA”), the agency that administered the NIRA, did not strictly enforce Section 7(a)’s prohibitions.45 Additionally, employers manipulated the NIRA’s vague language to circumvent Section 7(a).46 Due to the divide between Section 7(a)’s guarantees and Section 7(a)’s actual enforcement, industrial strife spread across the country and threatened economic recovery.47 Consequently, President Franklin D. Roosevelt issued an executive order establishing the National Labor Board (“NLB”).48 Under the executive order, President Roosevelt gave the NLB the

41 Kenneth M. Casebeer, Holder of the Pen: An Interview with Leon Keyserling on Drafting the Wagner Act, 42 U. MIAMI L. REV. 285, 302 (1987) (“[The drafters’] main concern was the fundamental and basic denial of the right to organize and bargain collectively.”). 42 National Industrial Recovery Act § 7(a). 43 Casebeer, supra note 41, at 300–02. 44 See 79 CONG. REC. 2368, 2371 (1935), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT 1935, at 1311, 1311 (1949) (statement of Sen. Wagner). 45 Valerie A. Sanchez, A New Look at ADR in New Deal Labor Law Enforcement: The Emergence of a Dispute Processing Continuum Under the Wagner Act, 20 OHIO ST. J. ON DISP. RESOL. 621, 640 (2005). 46 See 79 CONG. REC. 2368, 2371 (1935) (statement of Sen. Wagner). 47 Id. 48 Exec. Order No. 6763 (1934) (creating the Original Board) available at http://www.presidency.ucsb.edu/ws/index.php?pid=14708; Exec. Order No. 7074 (1935) (extending Original Board for another year) available at http://www.presidency.ucsb.edu/ws/index.php?pid=15079.

227 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 authority to resolve disputes arising under Section 7(a).49 The NLB had seven members: a chairman, three employer representatives, and three employee representatives.50 Although the NLB was more responsive than the NRA, the NLB had its own problems.51 First, the NLB often resolved cases by majority preference, rather than based on Section 7(a)’s substantive requirements.52 Second, the NLB could not control industry-specific boards, who were also interpreting Section 7(a), which often created conflicting interpretations.53 Finally, the NLB had no enforcement power, except for the ability to refer cases to the Department of Justice.54 Moreover, the NLB could not compel evidence or witnesses, making prosecution nearly impossible.55 Therefore, employers frequently ignored the NLB’s decisions without consequence.56 In sum, the NLB failed to protect employees who wanted to organize under Section 7(a).57

B. The Wagner Act: Codifying the Board

In response to the NLB’s problems, Senator Robert F. Wagner wanted legislation that would clearly define the substantive and procedural rights established in Section 7(a).58 Accordingly, Senator Wagner proposed legislation that defined the term “unfair labor practices”—something that Section 7(a) had failed to accomplish.59

49 Exec. Order No. 6763 available at http://www.presidency.ucsb.edu/ws/ index.php?pid=14708. 50 Casebeer, supra note 41, at 302. 51 See 79 CONG. REC. 2368, 2371 (1935) (statement of Sen. Wagner). 52 Casebeer, supra note 41, at 302. 53 79 CONG. REC. 2368, 2371 (1935) (statement of Sen. Wagner). 54 Id. 55 Id. 56 See Casebeer, supra note 41, at 302. 57 See id. 58 S. REP. No. 79-1184, at 2–3 (1934), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT 1935, at 1099, 1101 (1949). 59 Id. at 2.

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The legislation would also create a new Board with defined powers and procedures.60 Senator Wagner believed that more detailed legislation would resolve industrial strife by solidifying employee and employer expectations.61 After two years of debate, Congress enacted the National Labor Relations Act (“Wagner Act”), which codified the NLB.62 The new Board (“Wagner Board”) would have three non-partisan members.63 Congress envisioned the Wagner Board as a primarily adjudicative body, rather than a prosecutorial body.64 Consequently, the Wagner Board would not conciliate negotiations between industry and labor.65 Instead, the Wagner Board would: (1) make final administrative interpretations in unfair labor practices cases; and (2) resolve disputes over union representation.66 Unlike the NLB, the Wagner Board would have binding authority over the parties, and its decisions would be subject to judicial review.67 Despite the Wagner Act’s intentions, the Wagner Board struggled to gain legitimacy.68 Board opponents were concerned that unions exercised too much control over the Wagner Board.69 They also alleged that the Wagner Board—acting as prosecutor, judge and jury— possessed too much power.70 They argued that the Wagner Board’s

60 Id. at 3. 61 79 CONG. REC. 2368, 2371 (1935) (statement of Sen. Wagner). 62 National Labor Relations (Wagner) Act, ch. 372, §§ 3–16, 49 Stat. 449, 451– 57 (1935) reprinted in 2 NLRB, LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT 1935, at 3270, 3272–79 (1949). 63 Id. at § 3. 64 S. REP. No. 79-1184, at 3 (1934), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT 1935, at 1099, 1101–02 (1949). 65 S. REP. No. 74-573, at 8 (1935), reprinted in 2 NLRB, LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT 1935, at 2300, 2307 (1949). 66 S. REP. No. 79-1184, at 3. 67 S. REP. No. 74-573, at 15. 68 H.R. REP. No. 80-245, at 25 (1947), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 292, 316 (1949). 69 Id. at 6. 70 Id. at 25.

229 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 nearly unchecked power to make factual determinations had caused the Board to act “arrogant, arbitrary, and unfair.”71 Additionally, the Wagner Board could not maintain its growing docket.72 By 1947, the Wagner Board was over a year behind schedule, which forced the Wagner Board to delegate decision-making authority to subordinate officers.73 Specifically, the Wagner Board had trial examiners create initial reports and advisory opinions.74 If no member disagreed with the trial examiner, the Wagner Board would adopt the trial examiner’s determination.75 In effect, the Wagner Board was ignoring its adjudicative functions, contrary to congressional intent.76

C. The Taft-Hartley Act: Amending the Board

Initially, the Senate and the House proposed different solutions to the Wagner Board’s problems.77 Under the Senate’s legislation, the Board would expand to seven members, but the Board could delegate its power to smaller panels.78 With seven members, the Board could hear and decide twice as many cases, and thus relieve its crowded docket.79 Additionally, the legislation emphasized the Board’s independent adjudicative purpose, and attempted to remove

71 Id. 72 S. REP. No. 80-105, at 8 (1947), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 407, 414 (1949). 73 Id. at 8–9. 74 Id. 75 Id. 76 Rather than adjudicating cases like an appellate court, like Congress intended, the Wagner Board was “disposing of cases in an institutional fashion.” Id. at 9. 77 Compare S. 1126, 80th Cong. § 3 (1st Sess. 1947) reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 99, 106–07 (1949), with H.R. 3020, 80th Cong. § 3 (1st Sess. 1947) reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 31, 44–45 (1949). 78 S. 1126 at § 3. 79 S. REP. No. 80-105, at 8 (1947).

230 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 administrative influences from the Board’s decision-making process.80 For instance, the Senate legislation prohibited the Board from relying on a trial examiner’s determination.81 Instead, the legislation envisioned a Board that would deliberate and decide cases more like an appellate court.82 Rather than expanding the Board, the House proposed a pure separation between the Board’s adjudicative and administrative functions.83 The House believed that a purely adjudicative Board would operate more efficiently.84 Accordingly, the House advocated a purely adjudicative Board, with a new General Counsel to manage administrative matters.85 The House also prohibited the Board from using trial examiners during the decision-making process.86 Like the Senate, the House wanted the Board to operate more like an appellate court.87 Despite initial disagreement, a House and Senate conference committee agreed to expand the Board’s membership to five members.88 Although unclear, the five-member board apparently eased concerns that a seven-member board would be “unwieldy.”89 To be sure, several Senators thought that efficient case resolution required

80 Id. at 9. 81 S. 1126 at § 4. 82 S. REP. No. 80-105, at 9. 83 H.R. 3020, 80th Cong. § 3 (1st Sess. 1947). 84 93 CONG. REC. 3521, 3534 (1947), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 601, 613 (1949) (statement of Rep. Hartley). 85 H.R. REP. No. 80-245, at 6 (1947). 86 Id. at 25. 87 Id. at 6. 88 H.R. REP. No. 80-510, at 37 (1947) (Conf. Rep.), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 505, 541 (1949) (printing initial joint resolution). 89 S. REP. No. 80-105, pt. 2, at 33 (1947), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 463, 495 (1949) (Senate minority report).

231 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 sufficient appropriations, rather than increased membership.90 This position coincides with the House legislation, which advocated case resolution through a more efficient allocation of resources and responsibilities.91 The joint legislation also gave the Board the ability to delegate decision-making authority to three-member panels.92 Additionally, the legislation provided a quorum provision that created separate requirements for the Board and any delegated panel.93 Under the legislation, the Board needed three members to quorum, while a delegated panel only needed two members.94 Moreover, the joint legislation created a new General Counsel to manage the Board’s administrative matters, including the Board’s prosecutorial and investigatory functions.95 The legislation also abolished the Board’s review division and prohibited the Board from consulting with trial examiners.96 Effectively, the joint legislation “limit[ed] the Board to the performance of quasi-judicial functions.”97 On June 23, 1947, Congress passed the Labor Management Relations Act (“Taft-Hartley Act”).98 Under the Taft-Hartley Act, Congress expanded the Board consistent with the conference

90 93 CONG. REC. 4136, 4158 (1947), reprinted in 2 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 1017, 1052 (1949) (statement of Sen. Murray); 93 CONG. REC. 6654, 6660 (1947), reprinted in 2 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 1565, 1576 (1949) (statement of Sen. Murray). 91 93 CONG. REC. 3521, 3534 (1947), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 601, 613 (1949) (statement of Rep. Hartley). 92 H.R. REP. No. 80-510, at 5 (1947) (Conf. Rep.). 93 Id. 94 Id. 95 Id. at 5 (printing initial joint resolution). 96 Id. at 37–38. 97 Id. at 38. 98 Labor Management Relations (Taft-Hartley) Act, ch. 120, §§ 3–6, 61 Stat. 136, 139–40 (1947) reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 1, 4–5 (1949).

232 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 committee’s recommendations; consequently, the Board would have five total members.99 As set forth above, Section 3(b) stated that:

The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.100

Although the Taft-Hartley Act has since been amended, the relevant portions of Section 3(b) have remained unchanged.101

D. The Board at Issue: A Two-Member Panel

In December 2007, the Board had four active members, and thus one vacant seat.102 At that time, the Board’s members included: Wilma Liebman; Peter Schaumber; Peter Kirsanow; and Dennis Walsh.103 However, Kirsanow and Walsh had terms expiring on December 31, 2007.104 Without anyone appointed to fill the current or pending vacancies, the Board feared it would lose the ability to conduct business on January 1, 2008.105 Specifically, the Board knew it would lose its three-member quorum, which would effectively preclude the

99 Id. at § 3(a). 100 Id. at § 3(b). 101 Compare id. at § 3(a)–(b), with National Labor Relations (Wagner) Act § 3(a)–(b), 29 U.S.C. § 153(a)–(b) (2006). 102 Board Members Since 1935, http://www.nlrb.gov/about_us/overview/ board/board_members_since_1935.aspx (last visited Jan. 5, 2010). 103 Id. 104 Id. 105 See Brief of Petitioner at 8–9, Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) (No. 08-1162).

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Board from acting until the three-member quorum could be satisfied.106 On December 20, 2007, the Board used Section 3(b) to delegate its decision-making authority to a three-member panel, which included Liebman, Schaumber and Kirsanow.107 The Board scheduled the delegation to take effect on December 28, 2007—three days before Kirsanow’s term expired.108 Essentially, the Board believed it could avoid the three-member quorum by delegating its power to a three- member panel, which would be subject to a smaller, two-member quorum.109 If correct, the Board would retain its ability to decide cases when Kirsanow and Walsh retired.110 The Board justified its decision by relying on a plain reading of Section 3(b) and an opinion letter from the Office of Legal Counsel (“OLC”).111 According to the Board and the OLC, Section 3(b) allowed the Board to issue decisions under the proposed arrangement, “as long as a quorum of two members remained.”112 They reasoned that, under Section 3(b), the Board could delegate power to a three-member panel, and that panel could decide cases with a two-member quorum.113 Based on this interpretation, the two-member panel has gone on to issue hundreds of decisions.114 However, the panel’s decisions have

106 Id. 107 Id. at 8. 108 Id. at 8–9. 109 See National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. § 153(b) (2006) (“[T]hree members of the Board shall . . . constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.”). 110 Brief of Petitioner at 8–9, Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) (No. 08-1162). 111 Id. at 11. 112 Id.; Quorum Requirements, Op. Off. Legal Counsel, 2003 WL 24166831, at *1 (Mar. 4, 2003). 113 Id. 114 See Brief of Petitioner at 13, Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) (No. 08-1162).

234 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 recently come under attack by petitioners challenging the Board’s interpretation of its authority to decide cases under Section 3(b).115

II. THE CIRCUIT SPLIT

Thus far, the First, Second, Seventh and D.C. Circuits have issued opinions interpreting Section 3(b).116 Despite the same relevant facts and statutory language, the Circuits have not only reached different conclusions, but they have also addressed different issues and applied different legal frameworks.117 This section will discuss the issues, legal reasoning and outcomes in the First Circuit’s decision in Northeastern Land Services, Ltd., v. NLRB, the D.C. Circuit’s decision in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB and the Second Circuit’s decision in Snell Island SNF, LLC v. NLRB.118 By analyzing these decisions, this section will establish a context for understanding the Seventh Circuit’s decision in New Process Steel, LP v. NLRB.

A. The First Circuit: Northeastern Land Services, Ltd. v. NLRB

Northeastern Land Services, Ltd., v. NLRB began when the Board determined that Northeastern Land Services (“NLS”) had violated the NLRA by committing an unfair labor practice.119 On appeal to the First Circuit, NLS challenged the Board’s authority to create what was

115 See, e.g., Snell Island SNF LLC v. NLRB, 568 F.3d 410, 416–20 (2d Cir. 2009) (discussing cases). 116 See Ne. Land Servs., Ltd. v. NLRB, 560 F.3d 36 (1st Cir. 2009); Snell Island, 568 F.3d 410; New Process Steel, LP v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457); Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009). 117 See generally Ne. Land Servs., 560 F.3d 36; Snell Island, 568 F.3d 410; New Process Steel, 564 F.3d 840; Laurel Baye Healthcare, 564 F.3d 469. 118 Ne. Land Servs., 560 F.3d 36; Snell Island, 568 F.3d 410; New Process Steel, 564 F.3d 840; Laurel Baye Healthcare, 564 F.3d 469. 119 560 F.3d at 39–40.

235 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 effectively a two-member panel.120 Consequently, the First Circuit had to determine whether the Board’s delegation complied with Section 3(b).121 The First Circuit held that the Board’s “delegation of its institutional power to a panel that ultimately consisted of a two- member quorum . . . was lawful.”122 The First Circuit reached its conclusion based on a plain reading of Section 3(b).123 According to the First Circuit, Section 3(b) allowed the Board to delegate all its powers to a three-member panel, which the Board had done.124 Further, the First Circuit held that, under Section 3(b)’s vacancy and quorum provisions,125 the two-member panel could decide cases despite permanently losing its third member.126 Beyond its textual analysis, the First Circuit argued that its decision was consistent with an OLC opinion letter and the Ninth Circuit’s decision in Photo-Sonics, Inc. v. NLRB.127 The First Circuit cited both opinions as support for the proposition that a three-member panel can operate with only a two-member quorum.128 The OLC opinion letter argued that a panel could issue decisions, “as long as a quorum of two members remained.”129 The OLC reasoned that Section 3(b)’s plain meaning allowed the Board to delegate power to three-member panels, which could then act with two members.130 In Photo-Sonics, the Ninth Circuit had to determine whether a three- member panel could act when one member resigned before the panel

120 Id. 121 Id. at 40–41. 122 Id. at 41. 123 Id. at 41–42. 124 Id. at 41. 125 National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. § 153(b) (2006). 126 Ne. Land Servs., 560 F.3d at 41. 127 Id. at 41–42. 128 Id. 129 Quorum Requirements, Op. Off. Legal Counsel, 2003 WL 24166831, at *1 (Mar. 4, 2003). 130 Id.

236 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 issued its official decision.131 The Ninth Circuit held that the panel had the authority to issue its decision because “all three panel members concurred in the decision.”132 In dicta, the Ninth Circuit also argued that, under Section 3(b), the two-member panel satisfied the two- member quorum requirement, and thus the panel could issue its decision regardless of the third member’s participation.133 The First Circuit also suggested that, under Chevron USA, Inc. v. Natural Resources Defense Council, Inc.,134 the court should defer to the agency’s interpretation.135 However, the First Circuit neither applied Chevron nor explained how much deference it gave the Board’s interpretation.136 Furthermore, the First Circuit reasoned that finding the two-member panel unlawful would “impose an undue burden on the administrative process” by effectively halting Board operations.137 Like its insubstantial Chevron analysis, the First Circuit did not clearly explain whether administrative efficiency was essential to its decision.138 In fact, the First Circuit only briefly mentioned the concern, and provided little legal foundation to support the proposition.139 Consequently, the First Circuit did not discuss whether Chevron deference or pragmatic concerns were determinative, or even relevant, to its decision.140 Nevertheless, after Northeastern Land Services, one thing was clear: the First Circuit interpreted Section 3(b) to allow three-member panels to continue operating with two-members.141 For the First

131 Photo-Sonic, Inc. v. NLRB, 678 F.2d 121, 122 (9th Cir. 1982). 132 Id. 133 Id. at 122–23. 134 467 U.S. 837 (1984). 135 Ne. Land Servs., Ltd. v. NLRB, 560 F.3d 36, 40 (1st Cir. 2009). 136 See id. at 38–42. 137 Id. at 41 (quoting R.R. Yardmasters of Am. v. Harris, 721 F.2d 1332, 1343 (D.C. Cir. 1983)). 138 Id. at 38–42. 139 Id. at 41. 140 See id. at 40–41. 141 Id.

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Circuit, neither the pending nor subsequent vacancies terminated the two-member panel’s ability to decide cases.142 In effect, the First Circuit held that, under Section 3(b), the Board lawfully delegated its decision-making authority to what was effectively a two-member panel.143

B. The D.C. Circuit: Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB

Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB came to the D.C. Circuit after the Board found that Laurel Baye Healthcare (“LBH”) committed an unfair labor practice against a local union.144 On appeal, LBH challenged the Board’s authority to act on two grounds.145 First, LBH made the same argument presented to the First Circuit: the Board cannot delegate its power to a three-member panel knowing the panel will operate with only two-members?146 Alternatively, LBH argued that the two-member panel could not decide cases after the Board lost its three-member quorum.147 In other words, LBH claimed that the two-member panel could not act when the Board had only two members.148 In Laurel Baye Healthcare, the D.C. Circuit found LBH’s second argument persuasive.149 Specifically, the D.C. Circuit held that the two-member panel lost its decision-making power when the Board’s membership fell below three members, causing the Board to lose its quorum.150 The D.C. Circuit began its analysis with a textual analysis

142 Id. 143 Id. 144 564 F.3d 469 (D.C. Cir. 2009). 145 Id. at 472. 146 Id. 147 Id. 148 Id. 149 Id. (“Because we find the second formulation of the argument convincing, we pretermit the first.”). 150 Id. at 472.

238 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 of Section 3(b).151 The D.C. Circuit reasoned that allowing the Board to operate with two total members would render portions of Section 3(b) inoperative.152 First, the D.C. Circuit argued that Section 3(b) requires the Board to satisfy its quorum requirement before it can lawfully act.153 If the Board could operate with only two members, the D.C. Circuit reasoned that Section 3(b)’s requirement that “the Board quorum . . . must be satisfied at all times” would be rendered inoperative.154 The D.C. Circuit also noted that Section 3(b)’s language would be an “unlikely” way to allow a two-member panel to act.155 Second, the D.C. Circuit argued that Section 3(b)’s two quorum provisions operate concurrently.156 According to the D.C. Circuit, the panel’s two-member quorum requirement does not override the Board’s three-member quorum requirement.157 The D.C. Circuit reasoned that Section 3(b) uses two different “object nouns”—“the Board” and “any group”—which proves that “each quorum provision is independent from the other.” 158 Therefore, the panel’s quorum requirement merely establishes a different quorum for delegated panels.159 The D.C. Circuit concluded that “the [Board’s three- member] quorum requirement . . . must still be satisfied, regardless of

151 Id. at 472–73. 152 Id. 153 Id. (“[B]oard quorum requirement must be satisfied ‘at all times.’”(quoting National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. § 153(b)) (emphasis in original)). 154 Id. 155 Id. at 473 (“[I]f Congress intended a two-member Board to be able to act as if it had a quorum, the existing statutory language would be an unlikely way to express that intention.”). 156 Id. at 472–73. 157 Id. 158 Id. at 473. 159 Id. at 472–73 (“[I]t does not seem odd at all that a sub-unit of any body would have a smaller quorum number than the quorum of the body as a whole” because quorums “are usually majorities.”).

239 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 whether the Board’s authority is delegated to a [smaller panel].”160 Essentially, the D.C. Circuit saw the two-member panel as an unsuccessful attempt to circumvent the Board’s three-member quorum.161 Furthermore, the D.C. Circuit read Section 3(b)’s vacancy provision162 as being dependent on the Board’s three-member quorum requirement.163 The D.C. Circuit argued that the vacancy provision could be interpreted in two ways: (1) the Board cannot act with more than one vacancy164; or (2) the Board cannot function with more than two vacancies.165 The D.C. Circuit held that the latter interpretation was most consistent with Section 3(b)’s language.166 Specifically, the D.C. Circuit reasoned that this reading properly reconciled Section 3(b)’s quorum requirement and vacancy provisions.167 Therefore, the D.C. Circuit concluded that no decisions can be issued when the Board has more than two vacancies.168 The D.C. Circuit also looked to agency and corporation law to support its plain reading.169 According to the court, a panel loses its authority when the delegating Board loses its quorum.170 When the Board lost its three-member quorum, the two-member panel also lost its decision-making authority.171 The D.C. Circuit reasoned that a

160 Id. at 472. 161 Id. at 473. 162 National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. § 153(b) (2006) (“A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board . . . .”). 163 Laurel Baye Healthcare, 564 F.3d at 475. 164 See id. (reading vacancy literally to allow only one vacancy). 165 Id. (“The Board’s ability to legally transact business exists only when three or more members are on the Board.”). 166 Id. 167 Id. 168 Id. 169 Id. at 473. 170 Id. (citing Restatement (Third) of Agency § 3.07(4) (2006) and Fletcher Cyclopedia of the Law of Corporations § 504 (2008)). 171 Laurel Baye Healthcare, 564 F.3d at 473.

240 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 delegated panel does not act on its own behalf; instead, the delegated panel acts on the Board’s behalf.172 If the Board cannot act, then the delegated panel also has no authority to act.173 Therefore, the two- member panel could no longer decide cases after the Board lost its three-member quorum.174 Furthermore, the D.C Circuit concluded that its prior precedents did not affect its holding.175 First, the D.C. Circuit disagreed with the Board’s contention that Railroad Yardmasters of American v. Harris176 permitted the Board to function without a three-member quorum.177 In Yardmasters, the D.C. Circuit allowed the National Mediation Board’s (“NMB”) two remaining members to delegate the NMB’s powers to one member on the same day the second member resigned.178 Effectively, the D.C. Circuit allowed a single member to exercise the NMB’s powers even though the NMB could not satisfy its two- member quorum.179 Despite the strikingly similar facts, the D.C. Circuit dismissed Yardmasters because the Yardmasters opinion explicitly limited the holding to its facts.180 The D.C. Circuit also reasoned that Yardmasters applied to advisory agencies, but not to agencies making substantive adjudications, like the Board.181 The D.C. Circuit also distinguished Falcon Trading Group, Ltd. v. SEC.182 In 1995, the Securities and Exchange Commission (“SEC”) promulgated a quorum regulation that allowed the SEC to operate with

172 Id. 173 Id. 174 Id. 175 Id. at 474. 176 721 F.2d 1332 (D.C. Cir. 1983). 177 Laurel Baye Healthcare, 564 F.3d at 474. 178 721 F.2d at 1342–45. 179 Id. at 1340. 180 Id. 181 Id. 182 Id. at 474–75.

241 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 a quorum of its remaining members.183 The petitioner in Falcon Trading challenged the SEC’s authority to promulgate quorum regulations under the Securities and Exchange Act.184 The D.C. Circuit upheld the SEC’s quorum regulation on the grounds that Congress had authorized the SEC to promulgate its own quorum rules.185 The D.C. Circuit argued that Falcon Trading did not apply to the Board because Section 3(b) explicitly establishes the Board’s quorum requirements.186 The D.C. Circuit found this distinction persuasive because Section 3(b)’s quorum requirements, unlike the SEC’s, precluded the Board from promulgating its own quorum regulations.187 Finally, the D.C. Circuit did not find the First Circuit’s decision in Northeastern Land Services persuasive.188 The D.C. Circuit noted that the First Circuit’s decision only determined whether a panel can operate with two members.189 However, in Laurel Baye Healthcare, the D.C. Circuit addressed the question whether a panel can operate when the Board loses its three-member quorum.190 Because the First Circuit addressed a different question, the D.C. Circuit concluded that Northeastern Land Services offered little guidance.191 Therefore, the D.C. Circuit held that, under Section 3(b), the Board, and any

183 17 C.F.R. § 200.41 (2009) (“A quorum of the Commission shall consist of three members; provided, however, that if the number of Commissioners in office is less than three, a quorum shall consist of the number of members in office.”). 184 Falcon Trading Group, Ltd. v. SEC, 102 F.3d 579, 582 (D.C. Cir. 1996). 185 Id. (citing the Securities Exchange Act of 1934 § 23(a)(1), 15 U.S.C. § 78w(a)(1) (2006) as authority for the proposition that Congress had delegated the relevant rulemaking authority to the SEC). 186 Laurel Baye Healthcare, 564 F.3d at 475. 187 Id. 188 Id. at 475–76. 189 Id. (“The determination of [the continuing validity of a three-member delegee group after the expiration of the term of one member] is not necessary to our decision.”). 190 Id. at 476 (finding “the lack of a quorum on the Board as a whole is the determining factor”). 191 Id.

242 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 delegated panel, cannot decide cases when the Board has less than three members.192 Although the D.C. Circuit found LBH’s second argument dispositive, the court indirectly discussed whether the Board could create what was effectively a two-member panel.193 The D.C. Circuit suggested that the court would have interpreted Section 3(b) to allow the two-member panel to act after the third member vacated her seat.194 Specifically, the D.C. Circuit stated that “a three-member Board may delegate its powers to a three-member group, and this [panel] may act with two members” if the Board’s three-member quorum requirement is satisfied.195 The D.C. Circuit’s reasoning is consistent with the First Circuit decision finding two-member panels lawful under Section 3(b).196 However, the D.C. Circuit did not discuss whether the Board’s intent for the three-member panel to operate as a two-member panel would be a relevant distinction.197 Regardless of this distinction, the D.C. Circuit would only allow the panel to act if the Board could satisfy its three-member quorum.198 Therefore, the D.C. Circuit has not definitively decided whether the Board can delegate its power to what is effectively a two-member panel.199

C. The Second Circuit: Snell Island SNF, LLC v. NLRB

Snell Island SNF, LLC v. NLRB came to the Second Circuit after the two-member panel determined that an employer illegally refused

192 Id. at 472–73. 193 Id. at 472. 194 See id. at 472–73. 195 Id. 196 Id. 197 See id. at 472–76. 198 Id. at 472–73 (holding two-member panel may act “so long as the Board quorum requirement is, ‘at all times,’ satisfied) (quoting National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. 153(b) (2006)). 199 Id. at 472.

243 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 to negotiate with a local union.200 On appeal, the employers challenged the Board’s authority to act on the same two grounds that the petitioners relied on in Laurel Baye Healthcare.201 First, the employers argued that the Board could not delegate its power to what was effectively a two-member panel.202 Second, the employers argued that the two-member panel could not act when the Board lost its three- member quorum.203 Unlike the D.C. Circuit,204 the Second Circuit addressed both of the employer’s arguments.205 The Second Circuit began its analysis by holding that the Board could delegate its power to what was effectively a two-member panel.206 Agreeing with the Northeastern Land Services decision,207 the Second Circuit interpreted Section 3(b) to allow the Board to establish a three-member panel.208 Further, the Second Circuit reasoned that a pending vacancy had “no bearing on the fact that the panel was lawfully constituted in the first instance.”209 In effect, a two-member panel can issue decisions, so long as the Board initially delegates its powers to three active members.210

200 568 F.3d 410, 414 (2d Cir. 2009). 201 Compare Snell Island, 568 F.3d at 411 (deciding “whether . . . a two- member panel . . . is permitted under Section 3(b) . . . where a third member of the panel was disqualified because his term had expired and the total membership of the NLRB was only two members”), with Laurel Baye Healthcare, 564 F.3d at 472 (deciding whether Board can delegate power to what is effectively a two-member panel and whether the NLRB can act with only two members). 202 Snell Island, 568 F.3d at 419. 203 Id. 204 Laurel Baye Healthcare, 564 F.3d at 472 (“Because we find the second [argument] convincing, we pretermit the first [argument].”). 205 Snell Island, 568 F.3d at 419–24. 206 Id. at 419. 207 See Ne. Land Servs., Ltd. v. NLRB, 560 F.3d 36, 41–42 (1st Cir. 2009) (interpreting Section 3(b)’s plain meaning to allow the Board to delegate its power to a three-member panel despite a third member’s pending vacancy). 208 Snell Island, 568 F.3d at 419. 209 Id. 210 Id. (holding a panel must be “duly constituted in the first instance . . . before the action of a quorum of the panel is valid”) (internal quotation

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Next, the Second Circuit addressed the employer’s argument that the panel could not decide cases when the Board could not satisfy its three-member quorum.211 The Second Circuit, however, offered a different framework for analyzing the issue.212 The Second Circuit applied Chevron analysis213 to determine whether the panel could act when the Board had only two members.214 Initially, the Second Circuit found that Chevron applied even though the statutory interpretation involved a question about the agency’s authority.215 After deciding that Chevron applied, the Second Circuit began its analysis by determining whether Section 3(b) allowed the two-member panel to continue deciding cases.216 However, the Second Circuit found that Section 3(b)’s plain language did not explicitly answer the question.217 Following Second Circuit precedent, the court turned to canons of statutory construction to help resolve this question.218 The Second Circuit agreed with the D.C. Circuit that the Board cannot act without a three-member quorum; otherwise, the quorum provision’s “at all

marks and citations omitted); see also Nguyen v. United States, 539 U.S. 69, 82 (2003). 211 Snell Island, 568 F.3d at 419–20. 212 Compare id. at 419–24 (analyzing the Board’s authority to act with two members under Chevron), with Laurel Baye Healthcare of Lake Lanier, LLC v. NLRB, 564 F.3d 470, 472–76 (D.C. Cir. 2009) (analyzing the Board’s authority to act with a primarily plain meaning reading), and New Process Steel, LP v. NLRB, 564 F.3d 840, 846–48 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457) (same). 213 See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–45 (1984) (when Congress has not explicitly expressed its intent in a statute, the court will defer to the administrating agency’s reasonable statutory interpretation). 214 Snell Island, 568 F.3d at 419–24. 215 Id. at 415–16 (collecting cases). 216 Id. at 419–20. 217 Id. at 420 (“[N]othing in the statute itself explains what happens to a duly constituted panel of the NLRB when the Board itself loses its quorum.”) (emphasis in original). 218 Id. (quoting N.Y. State Office of Children & Family Servs. v. U.S. Dep’t of Health & Human Servs. Admin., 556 F.3d 90, 97 (2d Cir. 2009)).

245 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 times” language would be rendered inoperative.219 However, the Second Circuit found that this argument did not explicitly indicate “what happens to a panel that was duly constituted before the Board lost its quorum.”220 The Second Circuit explained that, unlike the D.C. Circuit, its precedent did not allow it to look to traditional doctrines of agency for guidance.221 Instead, the Second Circuit focused on Section 3(b)’s legislative history.222 The Second Circuit noted that the Taft-Hartley Act’s primary purpose was to equalize the power between employers and employees.223 Despite the Taft-Hartley Act’s sweeping reform, the Second Circuit found little legislative history on Section 3(b).224 Nevertheless, the Second Circuit found that Senators, both supporting and opposing the Taft-Hartley Act, acknowledged that increasing the Board would increase its efficiency.225 By expanding the Board’s membership, the Board could double its productivity and relieve its overcrowded docket.226 Although the Senate appeared concerned with

219 Id. (holding Board quorum requirement must be satisfied at all times); accord Laurel Baye Healthcare of Lake Lanier v. NLRB, 564 F.3d 469, 472–73 220 Id. at 420. 221 Id. (“Our Court’s precedents . . . require us to turn to legislative history instead of considering related fields of law . . . .”). 222 Id. at 420–23. 223 Id. at 420 (citing Lawrence M. Friedman, AMERICAN LAW IN THE 20TH CENTURY 189 (2002)). 224 Id. at 420–23. 225 Id. at 421; 93 CONG. REC. 3950, 3953 (1947) reprinted in 2 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 1005, 1011 (1949) (Taft-Hartley Act sponsor Senator Robert A. Taft explaining that increasing the Board’s membership would allow the Board to hold twice as many hearings); 93 CONG. REC. 6593, 6614 (1947) reprinted in 2 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 1526, 1562 (1949) (Taft-Hartley Act opponent Senator Wayne L. Morse explaining that a larger Board could hear more cases). 226 See S. REP. No. 80-105, at 19 (1947) (Senate Bill expanded the Board from three members to seven members subject to the delegation and quorum provisions currently provided for in Section 3(b)); id. at 8 (“[E]xpansion of the Board . . . would

246 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 the Board’s efficiency, the Second Circuit claimed that the House did not substantively discuss expanding the Board;227 rather, the House only noted that the final bill retained the Board, but increased its membership from three to five members.228 In all of Section 3(b)’s legislative history, the Second Circuit only found one statement addressing the precise issue presented.229 The Second Circuit found that Senator Joseph C. O’Mahoney raised the question whether Section 3(b) allowed the Board to operate with “less than a quorum of the Board.”230 Because Senator O’Mahoney’s statement elicited no response, the Second Circuit dismissed his statement as a stray comment.231 Additionally, the Second Circuit observed that originally the NLRA had established a three-member Board that could act with a two-member quorum.232 The Second Circuit also found that, prior to the Taft-Hartley Act, the Board had operated with a two-member quorum on three separate occasions.233 Nonetheless, the Second Circuit concluded that, although the Taft-Hartley Act intended to enable the Board to resolve more disputes, the legislative history did permit [the Board] to operate in panels of three, thereby increasing . . . its ability to dispose of cases” by one-hundred percent, thus relieving its crowded docket). 227 See H.R. REP. No. 80-245, at 25 (1947). 228 H.R. REP. No. 80-510, at 37 (1947) (“The conference agreement . . . retains the existing Board but increases its membership to five”). 229 Snell Island SNF LLC v. NLRB, 568 F.3d 410, 422 (2d Cir. 2009). 230 93 CONG. REC. 7677, 7679 (1947) reprinted in 2 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 1629, 1632 (1949) (Senator Joseph C. O’Mahoney stating that “we have a bill . . . which not only authorizes the Board to delegate its powers, but authorizes the Board to delegate its powers . . . to less than a quorum of the Board”). 231 Snell Island, 568 F.3d at 422. 232 Id. at 421–22. 233 Snell Island, 568 F.3d at 421 (Board operated with a two-member quorum three times before the Taft-Hartley Act passed: (1) two-member quorum issued three decisions between August 31, 1936 and September 23, 1936; (2) two-member quorum issued 239 decisions between August 27, 1940 and November 26, 1940; and (3) two-member quorum issued 224 decisions between August 27, 1941 and October 11, 1941).

247 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 not conclusively determine whether a delegated panel could continue to act when the Board lost its quorum.234 Because the Second Circuit could not conclude that Congress had addressed the precise question presented, the court proceeded to Chevron step-two.235 At step-two, the Second Circuit held that the Board’s interpretation—Section 3(b) allowed two-member panels to act when the Board lost its quorum—was reasonable.236 The Second Circuit reasoned that the Taft-Hartley Act intended to increase the Board’s efficiency and the Board’s interpretation fulfilled this purpose.237 Moreover, the Second Circuit noted that “[c]ourts have generally been sympathetic to a federal agency’s efforts to continue to operate in the face of vacancies.”238 Although the Second Circuit found the Board’s interpretation reasonable, the court did not accept the Board’s interpretation as the only reasonable conclusion.239 In fact, the Second Circuit noted that the D.C. Circuit’s interpretation of Section 3(b) was also reasonable.240 Nevertheless, the Second Circuit still deferred to the Board’s interpretation, as required by Chevron.241 Consequently, the court upheld the two-member panel’s authority to decided cases.242 The Second Circuit’s outcome, however, is the result of Chevron’s deferential framework, rather than the court reaching a definitive conclusion.243

234 Id. at 423 (holding “we are unable to conclude that delegation to less than a quorum of the Board was an intended or unintended consequence of the Taft-Hartley amendments”). 235 Id. at 423–24. 236 Id. at 424. 237 Id. at 423–24. 238 Id. at 423 n.8. 239 Id. at 424. 240 Id. (noting that “the D.C. Circuit’s view that where a Board loses its authority, so does its panels . . . is also a reasonable interpretation of [Section 3(b)]”) 241 Id. at 423–24. 242 Id. at 424. 243 See id. at 419–24 (Second Circuit fails to offer its own interpretation of Section 3(b)).

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III. NEW PROCESS STEEL, LP V. NLRB

After receiving an adverse ruling from the two-member panel, New Process appealed the decision to the Seventh Circuit.244 In the relevant portion of the appeal, New Process challenged the Board’s ability to delegate its power to what was effectively a two-member panel.245 Because of New Process’ limited argument, the Seventh Circuit did not have to determine whether a panel could continue to act after the Board lost its quorum.246 According to the Seventh Circuit, the Board could delegate its power to what was effectively a two-member panel.247 Consequently, the Seventh Circuit upheld the two-member panel’s ability to continue issuing decisions.248 The Seventh Circuit interpreted Section 3(b) to allow this result by its plain language.249 Specifically, the Seventh Circuit reasoned that Section 3(b)’s delegation provision250 allowed

244 New Process Steel, LP v. NLRB 564 F.3d 840, 845 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 245 Id. (“New Process alleges that [the] delegation procedure violates . . . [Section] 3(b) . . . because it was in fact a delegation to a two-member panel rather than a three-member panel.”). 246 Compare id. at 845–48 (analyzing only whether the Board could delegate power to what is effectively a two-member panel), with Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472–76 (D.C. Cir. 2009) (analyzing only whether the panel could continue acting when the Board had two total members), and Snell Island, 568 F.3d at 419–24 (analyzing both whether the Board could delegate power to what is effectively a two-member panel and whether the panel could continue acing when the Board had two total members). 247 New Process Steel, 564 F.3d at 845–48. 248 Id. at 845–46. 249 Id. at 845 (“[T]he vacancy of one member of a three member panel does not impede the right of the remaining two members” from acting “indeed is the plain meaning of [Section 3(b)].”). 250 “The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.” National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. § 153(b) (2006).

249 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 the Board to delegate its authority to a three-member panel.251 Further, the Seventh Circuit argued that Section 3(b)’s quorum provision252 expressly states that a three-member panel only needs a two-member quorum to issue decisions.253 The Seventh Circuit reasoned that New Process’ interpretation would render Section 3(b)’s quorum provision inoperative because a three-member panel would be prohibited from operating with two members.254 The Seventh Circuit noted that its interpretation was consistent with the First Circuit’s opinion in Northeastern Land Services and the Ninth Circuit’s opinion in Photo- Sonics.255 The Seventh Circuit then analyzed the Taft-Hartley Act’s legislative history to determine whether its interpretation was consistent with Congress’ intent.256 The Seventh Circuit discovered that the House and Senate had proposed different solutions for amending the Board.257 According to the Seventh Circuit, the House

251 New Process Steel, 564 F.3d at 845–46. 252 “[T]hree members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any [three-member panel].” National Labor Relations (Wagner) Act § 3(b). 253 New Process Steel, 564 F.3d at 846. 254 Id. at 846 n.2 (“New Process’ reading . . . appears to sap the quorum provision of any meaning, because it would prohibit a properly constituted panel of three members from proceeding with a quorum of two.”). 255 Id. (interpreting Section 3(b) as allowing the Board to delegate power to what is effectively a two-member panel); accord Ne. Land Servs., Ltd. v. NLRB, 560 F.3d 36, 41 (1st Cir. 2009); Photo-Sonics, Inc. v. NLRB, 678 F.2d 121, 122–23 (9th Cir. 1982) (interpreting Section 3(b) to allow legally delegated three-member panels to continue acting with a two-member quorum). However, at the time the Seventh Circuit decided New Process Steel, neither the D.C. Circuit nor the Second Circuit had issued their opinions. Compare New Process Steel, 564 F.3d 840 (decided May 1, 2009), with Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) (decided May 1, 2009), and Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009) (decided June 17, 2009). 256 New Process Steel, 564 F.3d at 846–47. 257 Id. at 847 (comparing H.R.REP. No. 80-245, at 25 (1947) with S. REP. No. 80-105, at 19 (1947)).

250 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 intended to create a new board that would only decide cases.258 The Senate, on the other hand, wanted to expand the Board to seven members, subject to provisions similar to those found in Section 3(b).259 The Seventh Circuit concluded that Congress’ primarily concerned was improving the Board’s efficiency.260 The Seventh Circuit reasoned that invalidating the panel, and effectively preventing the panel from operating, would be an inefficient result.261 Therefore, the Seventh Circuit held that, without additional legislative history,262 allowing the panel to decide cases would be more consistent with congressional intent.263 The Seventh Circuit also reviewed several prior decisions to determine whether its interpretation was sound.264 The Seventh Circuit began by discussing Nguyen v. United States, in which the Supreme Court held that a court of appeals panel could not operate with two Article III judges and one Article IV judge.265 According to the Supreme Court, under the relevant statute,266 a court of appeals panel could not lawfully operate without three Article III judges.267 The Supreme Court also held that a two-judge common law quorum requirement did not affect the initial delegation’s lawfulness.268 The

258 Id. (analyzing H.R.REP. No. 80-245, at 25). 259 Id. (analyzing S. REP. No. 80-105, at 19). 260 Id. (holding that although the House was also concerned with the quality of the Board’s decisions, Congress’ “primary concern was increasing the efficiency of the Board”). 261 Id. at 847. 262 Id. (arguing that, to support its interpretation, New Process needed legislative history “establishing that the Board was forbidden from operating with a quorum of two, or that Congress was particularly concerned about delegating authority to Board members whose term was about to expire”). 263 Id. 264 Id. at 847–48. 265 Nguyen v. United States, 539 U.S. 69, 82–83 (2003). 266 28 U.S.C. § 46(b) (2000). 267 Nguyen, 539 U.S. at 83. 268 Id.

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Seventh Circuit distinguished Nguyen on two grounds.269 First, the Seventh Circuit reasoned that the court of appeals statute contained neither a delegation nor a quorum provision.270 Second, the court noted that Congress created the court of appeals statute to stop circuits from assigning cases to two-judge panels.271 Because of these distinctions, the Seventh Circuit found little guidance in Nguyen.272 Furthermore, the Seventh Circuit discussed its decision in Assure Competitive Transportation, Inc. v. United States to support its Section 3(b) interpretation.273 In Assure, the court had to determine what constituted a quorum of the Interstate Commerce Commission (“ICC”).274 The ICC consisted of eleven members and the statute defined a quorum as “a majority of the ICC.”275 However, the statute also contained a vacancy provision that prevented vacancies from stopping ICC operations.276 According to the court, the ICC statute only required the ICC to have a majority of existing members to satisfy its quorum.277 Therefore, the ICC could act when a majority of the existing six members participated.278 New Process objected that the Assure court upheld the quorum because the ICC asked Congress to resolve the statute’s ambiguity before it acted.279 But according to the Seventh Circuit, this distinction was irrelevant.280 The court reasoned that, unlike the ICC statute, Section 3(b) explicitly allowed

269 New Process Steel, 564 F.3d at 848. 270 Id. 271 Id. 272 Id. (Section 3(b) “contains quorum and delegation clauses that cover the scenario at issue here”). 273 Id. at 845. 274 Assure Competitive Transp., Inc. v. United States, 629 F.2d 467, 472–73 (7th Cir. 2009). 275 Id. at 472. 276 Id. 277 Id. at 473. 278 Id. 279 New Process Steel, LP v. NLRB, 564 F.3d 840, 848 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 280 Id.

252 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 the Board to delegate its power to what would effectively be a two- member panel.281 Finally, the Seventh Circuit cited three additional cases for the proposition that a “public board has the authority to act despite vacancies.”282 The Seventh Circuit reasoned that only the Board has the authority to act, not individual Board members.283 However, the Seventh Circuit recognized that the Board could not act without a three-member quorum.284 Because the Seventh Circuit did not address the question of whether the Board can act with only two members, it is unclear whether this proposition would have persuaded the Seventh Circuit. 285 Nevertheless, it is worth noting that the Seventh Circuit’s language is nearly identical to language used by the D.C. Circuit in its agency law analysis.286 With that said, the Seventh Circuit found the Board’s initial delegation lawful under Section 3(b), and therefore upheld the two-member panel’s authority to issue decisions.287

281 Id. (holding that “[g]iven that the plain meaning of the statute supports NLRB’s [sic] reading of the statute, New Process’ interpretation of Assure is unpersuasive”). 282 Id. (citing FTC v. Flotill Prods., Inc., 389 U.S. 179 (1967); Falcon Trading Group, Ltd. v. SEC, 102 F.3d 579 (D.C. Cir. 1996); R.R. Yardmasters of Am. v. Harris, 721 F.2d 1332 (D.C. Cir. 1983)). 283 Id. 284 Id. (reasoning that the “NLRB has the authority to act so long as they have satisfied the quorum requirements”). 285 See id. at 845 (deciding whether the NLRB violated Section 3(b) “because [the delegation] was in fact a delegation to a two-member panel rather than a three- member panel”). 286 Compare id. at 848 (“[A] public board has the authority to act despite vacancies because the board, rather than the individual members, has the authority to act.”), with Laurel Baye Healthcare of Lake Lanier v. NLRB, 564 F.3d 469, 473 (D.C. Cir. 2009) (“It must be remembered that the delegee committee does not act on its own behalf . . . . [t]he only authority by which the committee can act is that of the Board.”). 287 See New Process Steel, 564 F.3d at 848.

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IV. CHEVRON: A WORKABLE LEGAL FRAMEWORK

At the outset, it is critical to remember that there are two separate arguments challenging the two-member panel’s authority.288 First, there is a question whether the Board can delegate its powers to what is effectively a two-member panel.289 In other words, can the Board create a three-member panel when it knows the panel will really operate with two members?290 This argument challenges the lawfulness of the Board’s initial delegation. In effect, petitioners have argued that the Board’s intent determines whether the delegation is lawful.291 According to the Board’s challengers, if the Board really wants a two-member panel, then the delegation violates Section 3(b).292 On the contrary, the Board argues that its intent is irrelevant, and thus Section 3(b) only requires an initial delegation to three active members.293 That is to say, if the Board delegates authority to a three members, then the delegation is always lawful.294 Unlike the first issue, the second question involves events occurring after the Board’s initial delegation.295 The second question asks whether the two-member panel may continue deciding cases when the Board loses its three-member quorum.296 This argument involves the relationship between the Board and the delegated panel.297 Specifically, petitioners argue that when the entire Board

288 Laurel Baye Healthcare, 564 F.3d at 472. 289 See id. 290 Id. 291 See id. 292 Id. 293 New Process Steel, LP v. NLRB, 564 F.3d 840, 845 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 294 See id. 295 See Snell Island SNF LLC v. NLRB, 568 F.3d 410, 422 (2d Cir. 2009). 296 Id. 297 See Laurel Baye Healthcare, 564 F.3d at 472–73.

254 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 cannot quorum, any delegated panel also loses its authority.298 Under this theory, a panel cannot act when the Board’s membership falls below three members.299 To properly analyze Section 3(b), one must first recognize the distinction between these arguments. Furthermore, these two issues provide alternative arguments for challenging the Board’s authority.300 If the Supreme Court finds that either interpretation precludes the two-member panel from acting, then the panel’s actions must be deemed unlawful.301 Accordingly, the Supreme Court would have to invalidate the Board’s decision and preclude the Board from issuing decisions.302 Removing the Board’s authority, however, would have a significant impact on labor relations. In effect, the Board would be prevented from resolving labor disputes until “such times as [the Board] may once again consist of sufficient members to constitute a quorum.”303 Nevertheless, the Circuits have mostly succeeded in allowing the Board to avoid this fate.304 Through various legal frameworks and analyses, every Circuit addressing the Board’s current structure, except the D.C. Circuit, has found that the two-member panel complies with Section 3(b).305 Despite these decisions, this section will show that a close reading of Section 3(b) and its legislative history does not precisely resolve either question. 306 Consequently, the Circuits have been forced into

298 Id. at 472. 299 See id. 300 Id. (holding that “because we find the second formulation . . . convincing, we pretermit the first”). 301 Id. 302 Id. at 476. 303 Id. 304 E.g., New Process Steel, LP v. NLRB, 564 F.3d 840, 848 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 305 Compare New Process Steel, 564 F.3d at 848, Snell Island SNF LLC v. NLRB, 568 F.3d 410, 422 (2d Cir. 2009), and Ne. Land Servs., Ltd. v. NLRB, 560 F.3d 36, 41–42 (1st Cir. 2009), with Laurel Baye Healthcare, 564 F.3d at 472–73. 306 Although the Board has continued to function, the two-member panel has refused to decide difficult cases. See Sam Hananel, Gridlocked NLRB Puts Off Notable Labor-Law Cases, RICHMOND TIMES-DISPATCH, Sept. 26, 2009,

255 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 attenuated reasoning to justify allowing the Board to continue operating. Furthermore, each Circuit has provided its own unique analysis statute.307 With hundreds of Board decision hanging in the balance, a more convincing justification is needed. Fortunately, Chevron analysis provides a legal framework that both embraces Section 3(b)’s ambiguity and allows the Board to continue resolving disputes.308

A. Chevron Analysis: Deferring to an Agency’s Interpretation of Its Own Authority?

Before applying Chevron analysis, the Supreme Court must first determine whether Chevron deference should apply to the Board’s interpretation of its own authority.309 While many Circuits apply Chevron in such cases, some Circuits, like the Seventh Circuit, have reached the opposite conclusion.310 Traditionally, Circuits have offered two rationales for refusing to extend Chevron to an agency’s interpretation of its own authority.311 First, these Circuits claim that agencies have “no special expertise” in interpreting their own authority.312 Second, these Circuits argue that agencies should not make policy determinations that limit or expand their own authority.313 http://www2.timesdispatch.com/rtd/lifestyles/health_med_fit/article/I- NLRB0903_20090924-231810/295413/. 307 See generally Ne. Land Servs., 560 F.3d 36; Snell Island SNF LLC v. NLRB, 568 F.3d 410; New Process Steel, 564 F.3d 840; Laurel Baye Healthcare, 564 F.3d 469. 308 See Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–45 (1984). 309 Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 844 (1986). 310 See N. Ill. Steel Supply Co. v. Sec’y of Labor, 294 F.3d 844, 847 (7th Cir. 2002) (“While . . . several other [C]ircuits have granted deference to an agency’s determination of its own jurisdiction . . . . [w]e believe that de novo review is appropriate.”). 311 See Miss. Power & Light Co. v. Mississippi, 487 U.S. 354, 381 (1988) (Scalia, J., concurring). 312 Id. 313 Id.

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Nevertheless, as Justice Antonin Scalia has observed, the Supreme Court has rejected both arguments.314 In Commodity Futures Trading Commission v. Schor, the Commodity Futures Trading Commission (“CFTC”) promulgated a rule that allowed it to hear certain counterclaims.315 Under the CFTC’s enabling act, the CFTC could promulgate rules “reasonably necessary to effectuate any of the provisions or to accomplish any of the [CFTC’s] purposes.”316 The CFTC argued that this provision granted the CFTC the authority to hear counterclaims.317 Despite the “statutory interpretation- jurisdictional nature of the question,” the Supreme Court deferred to the CFTC’s interpretation.318 In doing so, the Supreme Court explicitly rejected the argument that an agency does not have superior expertise in interpreting its own authority.319 In City of New York v. Federal Communication Commission, the Supreme Court also rejected the argument that agencies cannot interpret the scope of their own authority.320 The Court reasoned that federal agencies are often given a “broad grant of authority to reconcile conflicting policies.”321 So long as the policy determination is delegated to the agency, courts should not disturb an agency’s reasonable determination.322 Justice Scalia also noted that Chevron deference is both necessary and appropriate when agencies interpret their own authority.323 First,

314 Id. 315 Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 844 (1986). 316 Id. at 845. 317 Id. 318 Id. 319 Id. at 843–44 (“The Court of Appeals declined to defer to the CFTC's interpretation because, in its view . . . the question was not one on which a specialized administrative agency, in contrast to a court of general jurisdiction, had superior expertise. . . . We find [this reason] insubstantial.”). 320 City of N.Y. v. FCC, 486 U.S. 57, 64 (1988). 321 Id. 322 Id. 323 Miss. Power & Light Co. v. Mississippi, 487 U.S. 354, 381–82 (1988) (Scalia, J., concurring).

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Chevron is necessary because there is no relevant distinction between an agency taking unauthorized action and an agency exceeding its delegated authority.324 If this distinction controlled, courts would apply Chevron deference “depending upon how generally [they] describe[d] the authority.”325 Second, Chevron deference, by its own rationale, “would naturally expect that the agency would be responsible, within broad limits, for resolving ambiguities in its statutory authority.”326 Otherwise, federal courts would have to resolve every statutory ambiguity de novo; however, Congress would not want de novo review of “every ambiguity in statutory authority.”327 If Congress disagrees with the agency’s interpretation, Congress can amend the statutory language to resolve the ambiguity.328 Thus, Chevron deference places the ultimate policy determination with the legislative and executive branches, rather than the judiciary.329 Finally, Chevron limits the agency’s interpretation to the relevant statute, which allows the Circuits to avoid expanding traditional legal doctrines beyond what they can bear.330 As applied to the Board, Congress has granted the Board the authority to make “such rules and regulations as may be necessary to carry out” the Board’s responsibilities.331 Congress also “declared [it] the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce.”332 Furthermore, Section 3(b) gives the Board considerable authority in arranging its own decision-making apparatus.333 When read together,

324 Id. at 381. 325 Id. (internal quotations omitted). 326 Id. at 381–82. 327 Id. at 382. 328 Id. 329 See Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–45 (1984). 330 See id. 331 National Labor Relations (Wagner) Act § 6, 29 U.S.C. § 156 (2006). 332 Id. § 1. 333 Id. § 3(b).

258 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 the provisions have given the Board the ability to interpret its own authority under Section 3(b). In sum, the Supreme Court has solid legal support for applying Chevron deference to the Board’s interpretation of its own authority.

B. Chevron Application

After determining that Chevron controls, the Supreme Court applies Chevron’s two-step test to the Board’s interpretation.334 At Chevron step-one, the Supreme Court must determine whether Congress has explicitly answered the precise question presented.335 Primarily, the Supreme Court looks to the applicable statute when determining whether Congress has provided the answer.336 However, the Supreme Court will also look to the statute’s legislative history, particularly when the statute’s language is unclear.337 If Congress has explicitly answered the question, the Supreme Court will enforce Congress’ intent.338 In other words, the Supreme Court will not defer to an agency’s interpretation when the statute clearly provides the answer.339 In the Board’s case, the Supreme Court does not have to decide how Section 3(b) resolves the issues presented; instead, the Supreme Court has to decide whether Section 3(b) is ambiguous on those issues.340 If they find Section 3(b) ambiguous, the Supreme Court proceeds to Chevron step-two.341 At Chevron step-two, the Court defers to a reasonable agency interpretation.342 In fact, Chevron deference applies

334 Chevron, 467 U.S. at 842–45. 335 Id. at 842–43. 336 See id. at 843 n.9. 337 Id. at 845. 338 Id. at 842–43. 339 Id. (holding that “the agency[] must give effect to the unambiguously expressed intent of Congress”). 340 See Snell Island SNF LLC v. NLRB, 568 F.3d 410, 419–23 (2d Cir. 2009). 341 Chevron, 467 U.S. at 843. 342 Id.

259 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 even though the statute can be interpreted in multiple ways.343 Chevron deference only requires a reasonable interpretation and not the best interpretation.344 Accordingly, the Supreme Court should defer to the Board’s Section 3(b) interpretation, as long as they find the interpretation reasonable.345

1. Delegating Power to What Is Effectively a Two-Member Panel

First, the Supreme Court should use Chevron analysis to determine whether the Board can delegate its power to what is effectively a two-member panel. At Chevron step-one, the Supreme Court must determine whether Section 3(b) explicitly answers the question.346 Thus far, the Circuits have unanimously interpreted Section 3(b) to allow the Board to create what is effectively a two- member panel.347 At first glance, their reasoning appears persuasive; however, a closer reading reveals that the Section 3(b) does not precisely indicate whether the delegation is lawful. The Circuits have answered the question with a purely technical reading of Section 3(b).348 According to the Circuits, the dispositive inquiry is: was power initially delegated to three members?349 If the answer is yes, then the Circuits have found the delegation lawful.350 While this reading is tenable, the question remains whether Section 3(b) explicitly allows this result. Clearly, Section 3(b) would not allow the Board to delegate its power to a two-member panel.351

343 Id. at 843 n.11 (“The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction.”). 344 See id. 345 Snell Island, 568 F.3d at 422–23. 346 Chevron, 467 U.S. at 843–45. 347 See generally New Process Steel, LP v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457); Ne. Land Servs., Ltd. v. NLRB, 560 F.3d 36 (1st Cir. 2009); Snell Island, 568 F.3d 410. 348 See, e.g., New Process Steel, 564 F.3d at 845–46. 349 See id. at 845. 350 See id. 351 National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. § 153(b) (2006).

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Nevertheless, under the Circuits’ reading, the Board can delegate its power to a two-member panel by including a sham member—a member whose term is about to expire—in its initial delegation.352 But should a purely technical delegation allow the Board to create a two- member panel? In both cases, after all, the Board intends to create a two-member panel. In fact, the Circuits’ interpretations have completely ignored the Board’s intent.353 By ignoring the Board’s intent, the Circuits create an irrational result: the Board can delegate its power to a two-member panel, so long as it includes a sham third member.354 Effectively, the Circuits interpret the delegation provision as allowing two-member panels.355 Thus, the Board is now free to circumvent the three-member panel requirement by including a sham member in the initial delegation. Such a result is inconsistent with Section 3(b)’s language.356 The vacancy and quorum provisions also fail to answer the question. The vacancy provision states that “a vacancy in the Board shall not impair . . . the powers of the Board.”357 The Circuits read this provision as explicitly allowing a two-member panel to operate despite a subsequent vacancy.358 However, the vacancy provision does not explicitly address a vacancy in a three-member panel, only the Board as a whole.359 Thus, the vacancy provision offers little guidance on the precise question presented.

352 See New Process Steel, 564 F.3d 845–46. 353 E.g., id. at 845–48. 354 Id. at 846 (holding that “[a]s long as the panel consisted of three NLRB members at the time it was constituted,” the panel can operate with two members). 355 Id. 356 See National Labor Relations (Wagner) Act § 3(b). 357 Id. (emphasis added). 358 New Process Steel, 564 F.3d 845–46. 359 See National Labor Relations (Wagner) Act § 3(b) (stating that “[A] vacancy in the Board shall not impair . . . the powers of the Board” (emphasis added)).

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The quorum provision provides a better explanation about the effect of vacancies on a three-member panel.360 Because the quorum provision allows a three-member panel to operate with a two-member quorum, it seems clear that a panel can operate with two members, so long as the original delegation is lawful.361 Nevertheless, the quorum provision does not answer the precise question.362 The challenge is to the Board’s initial delegation, which must be lawful before the panel can act.363 Even if the quorum provision allows a three-member panel to act with two members, the question remains whether the Board can delegate its powers to the panel in the first place. In fact, both the vacancy and quorum provisions regulate events occurring after the delegation, rather than the actual delegation.364 If the delegation initially violates Section 3(b), neither the quorum provision nor the vacancy provision can save the delegation.365 That is, even if an initial two-member delegation satisfies the vacancy and quorum provisions, the initial two-member delegation nevertheless clearly violates Section 3(b). Consequently, neither provision helps resolve the question whether the Board’s delegation was lawful. The legislative history also fails to provide a precise answer. The Circuits that have parsed the legislative history have been persuaded by the Senate’s concern about the Board’s efficiency.366 Specifically, those Circuits have noted that the Senate wanted to expand the Board to seven members and to allow three-member panels; this way, the Board could resolve more cases.367 While this explains why Section 3(b) allows the Board to delegate its powers to three-member panels,

360 The panel’s quorum provision states that “two members shall constitute a quorum” when the Board delegates its authority to a three-member panel. Id. 361 Id. 362 See id. 363 Id. 364 See id. 365 See id. 366 See New Process Steel, LP v. NLRB, 564 F.3d 840, 847 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 367 Id. (noting that Congress’ “primary concern was increasing the efficiency of the Board” by creating a larger Board).

262 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 efficiency alone cannot justify delegating power to a two-member panel. Again, Section 3(b) explicitly disallows two-member panels.368 If Congress had wanted to allow two-member panels, they would have drafted Section 3(b) accordingly. Moreover, a closer reading of Section 3(b)’s legislative history shows that Congress also wanted a more judicious Board.369 Specifically, some Senators wanted a Board that would act like an appellate court “where divergent views . . . [would] be reflected in each decision.”370 Other Senators feared that a seven-member Board would become “unwieldy.”371 These Senators believed that a large Board would “interfere with efficient administration, without any . . . compensating advantage.”372 Instead, they argued that increased appropriations would allow the Board to focus on deciding cases, rather than worrying about its administrative duties.373 The House voiced a similar desire for more deliberative adjudication and less administration.374 In fact, the House’s initial bill did not expand the Board at all; instead, the bill separated the Board’s administrative and adjudicative functions.375 The House believed that the Board’s administrative duties had caused the Board to become lazy in its decision-making.376 Specifically, the House thought that the Board had become too reliant on trial examiners, often deferring to their decisions.377 Therefore, the House sought a purely adjudicative Board, which would focus almost exclusively on deciding cases.378

368 National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. § 153(b) (2006). 369 H.R. REP. No. 80-510, at 5 (1947) (Conf. Rep.) (printing initial joint resolution). 370 S. REP. No. 80-105, at 9 (1947). 371 S. REP. No. 80-105, pt. 2, at 33 (1947) (Senate minority report). 372 Id. 373 Id. 374 H.R. REP. No. 80-245, at 6 (1947). 375 H.R. 3020, 80th Cong. §§ 3–4 (1st Sess. 1947). 376 H.R. REP. No. 80-245, at 6. 377 Id. at 25. 378 Id. at 6.

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Despite congressional concern about the Board’s adjudicative procedures, the Circuits have virtually ignored the impact of these concerns on Section 3(b).379 However, the legislative history suggests that the Taft-Hartley Act intended to create a deliberative judicial body, like an appellate court.380 This intent is also reflected in the Taft- Hartley Act’s amendments, as they allow three-member panels.381 Presumably, Congress believed three-member panels would have enough divergent views to mitigate their concerns. While the two- member quorum provision seems to be in conflict with Congress’ intent, Section 3(b) can be narrowly read to allow two-member panels only when the third member is temporarily disabled. This narrow reading is consistent with Photo-Sonics, where the Ninth Circuit held that a two-member panel could act after a third-member resigned.382 The Circuits have cited Photo-Sonics for the proposition that a panel may act so long as the Board’s initial delegation includes three members,383 but this reading overstates the case’s holding and the quorum provision’s effect.384 Photo-Sonic involved an unforeseen resignation, unlike the pending expiration in the current line of cases.385 Thus, in contrast to the current problem, the case did not involve actual intent to delegate authority to a two-member panel.386

379 New Process Steel, LP v. NLRB, 564 F.3d 840, 847 n.4 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457) (dismissing concerns about the Board’s judiciousness as a minor concern to Congress). 380 See, e.g., H.R. REP. No. 80-245, at 6. 381 Labor Management Relations (Taft-Hartley) Act, ch. 120, § 3, 61 Stat. 136, 139 (1947). 382 Photo-Sonics, Inc. v. NLRB, 678 F.2d 121, 122 (9th Cir. 1982) (comparing Section 3(b) to federal court of appeals where three-member panels have issued opinions after a third member died or became ill). 383 New Process Steel, 564 F.3d at 847. 384 Photo-Sonics, 687 F.2d at 122 (holding that “since all three [panel] members concurred in the decision, we need not determine whether [the panel member’s] resignation precluded his participation in the Board’s decision” issued after the panel member’s resignation). 385 Id. 386 Id.

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And again, the quorum provision cannot be read to save an initially unlawful delegation. In sum, Section 3(b) fails to indicate whether the Board can delegate its authority to what is effectively a two-member panel. Accordingly, the Supreme Court should proceed to Chevron step-two, where they must determine whether the Board’s interpretation is reasonable.387 Here, the Board interprets Section 3(b) as allowing the Board to delegate its power to a three-member panel, even when the Board knows the panel will operate with two members.388 Thus, the Supreme Court will have to determine whether Section 3(b) can be reasonably interpreted to allow this result. Based on the legal reasoning applied in the Circuits,389 Section 3(b)’s language can easily bear the Board’s interpretation. Moreover, Chevron deference applies even though Section 3(b) can also be interpreted as requiring an intended three-member panel.390 In fact, Chevron deference only requires a reasonable interpretation and not the best interpretation.391 Either way, the Board’s interpretation is reasonable, and thus the Supreme Court should uphold the Board’s delegation.

2. Panel Actions when the Board Has Only Two Total Members

The second issue presents a different question: can a panel continue deciding cases when the Board loses its three-member quorum?392 Again, the Supreme Court must first determine whether

387 Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842– 43 (1984). 388 See generally New Process Steel, LP v. NLRB, 564 F.3d 840, 845 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 389 See, e.g., id. at 845–47. 390 See Chevron, 467 U.S. at 843 n.11 (“The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction.”). 391 See id. 392 Snell Island SNF LLC v. NLRB, 568 F.3d 410, 420 (2d Cir. 2009).

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Congress has explicitly answered the question.393 To determine Congress’ intent, the Circuits will look to Section 3(b)’s language and legislative history.394 So far, the two Circuits that have addressed this issue, the D.C. Circuit and the Second Circuit, have reached different conclusions.395 However, these Circuits did not completely disagree about Section 3(b)’s interpretation.396 Both Circuits agree that the Board’s three-member quorum requirement must be satisfied before the Board can act.397 Specifically, Section 3(b) states that “three members of the Board shall, at all times, constitute a quorum of the Board.”398 As both Circuits noted, the Board must have at least three members to conduct Board business.399 Otherwise, the quorum provision’s “at all times” language would be rendered inoperative.400 The D.C. Circuit also reasoned that Section 3(b)’s Board and panel quorum provisions operate independently.401 According to the D.C. Circuit, the panel’s two-member quorum cannot be substituted for the Board’s three-member quorum.402 But Section 3(b)’s plain language does not answer the question presented. The issue is not whether the Board can act as a two-member Board; in fact, both Circuits agree that the Board cannot act with two

393 Chevron, 467 U.S. at 842–43. 394 Id. at 843–45. 395 Compare Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472 (D.C. Cir. 2009) (interpreting Section 3(b) as removing the panel’s authority to act when the Board cannot satisfy its quorum requirement), with Snell Island, 568 F.3d at 420 (interpreting Section 3(b) as allowing the panel to act despite the Board failing to meet its quorum requirement). 396 Snell Island, 568 F.3d at 420 (noting that the D.C. Circuit’s interpretation of Section 3(b) is also reasonable). 397 Id. (agreeing with the D.C. Circuit that the Board cannot act without three members). 398 National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. § 153(b) (2006) (emphasis added). 399 Id. 400 Laurel Baye Healthcare, 564 F.3d at 472. 401 Id. at 472–73. 402 See id.

266 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 members.403 Instead, the more precise question is whether the two- member panel can act after the Board loses its quorum.404 In other words, does Section 3(b) allow panels to operate completely independent from the Board? The D.C. Circuit answered this narrower question by consulting traditional agency doctrines.405 The D.C. Circuit reasoned that a panel is the Board’s agent, so that the panel’s agency ceases the moment the Board loses its quorum.406 Unlike the D.C. Circuit, the Second Circuit did not consider traditional agency doctrine.407 Instead, the Second Circuit attempted to the resolve Section 3(b)’s ambiguity by looking at the Taft-Hartley Act’s legislative history.408 However, the Taft-Hartley Act’s legislative history is inconclusive.409 As the Second Circuit noted, some Senators wanted to increase the Board’s decision-making capacity through increased membership.410 Yet, Congress did not amend Section 3(b) to allow seven members; instead, Congress only expanded the Board to five members.411 In fact, this change is more consistent with the Senate Minority Report and the House’s initial bill.412 The Senate Minority Report raised concerns that a seven-member Board would be too “unwieldy.”413 Similarly, the House believed that the Board’s efficiency could be improved by simply separating the Board’s adjudicative and administrative functions.414 The Senate Minority

403 Compare Laurel Baye Healthcare, 564 F.3d at 472, with Snell Island, 568 F.3d at 420. 404 Snell Island, 568 F.3d at 420. 405 Laurel Baye Healthcare, 564 F.3d at 473. 406 Id. 407 Snell Island, 568 F.3d at 420. 408 Id. 409 Id. at 423. 410 S. REP. No. 80-105, at 8 (1947). 411 Labor Management Relations (Taft-Hartley) Act, ch. 120, § 3, 61 Stat. 136 (1947). 412 Compare S. REP. No. 80-105, pt. 2, at 33 (1947) (Senate minority report), with H.R. 3020, 80th Cong. § 3 (1st Sess. 1947). 413 S. REP. No. 80-105, pt. 2, at 33 (Senate minority report). 414 H.R. 3020 at § 3–4.

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Report and the House essentially argued that a smaller, purely adjudicative Board would: (1) be able to decide more cases; and (2) make more judicious decisions.415 Unfortunately, neither purpose offers a clear resolution to the question presented. While Congress wanted more efficient case resolution, the Board is concerned with its authority to hear cases.416 That is to say, the Board advocates efficiency by allowing case resolution with low membership, while the legislative history advocates efficiency by expanding membership and segregating responsibilities.417 These two different types of efficiency are easily distinguishable, and thus they should not be equated with one another. In fact, when Section 3(b)’s purpose is broadly defined to include all efficient outcomes, the definition becomes overinclusive. For example, a broad definition of efficiency would support Board members acting individually, as this arrangement would clearly allow the Board to resolve more cases. However, Section 3(b) clearly prohibits Board members from acting individually.418 Congress’ concern about judicious decision-making also fails to resolve the issue. Congress wanted the Board to act like an appellate court, with divergent views and deliberative decision-making.419 Section 3(b) suggests that Congress thought three members offered a number sufficient to meet their concerns.420 However, the panel’s two- member quorum provision conflicts with this reading.421 To resolve this conflict, the quorum provision can be read narrowly. That is to say, if the panel quorum provision only allows two-member panels when a third member is temporarily disabled, then less-deliberative

415 S. REP. No. 80-105, pt. 2, at 33 (Senate minority report); H.R. REP. No. 80- 245, at 6 (1947). 416 New Process Steel, LP v. NLRB, 564 F.3d 840, 847 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 417 See id. 418 National Labor Relations (Wagner) Act § 3(b), 29 U.S.C. § 153(b) (2006). 419 S. REP. No. 80-105, at 9 (1947). 420 Section 3(b) allows the Board to form three-member panels and to act with a three-member quorum. National Labor Relations (Wagner) Act § 3(b). 421 Id.

268 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 decisions will rarely occur. This narrow reading is also consistent with Section 3(b)’s three-member Board quorum requirement.422 Nevertheless, Congress’ desire to create a purely adjudicative Board does not precisely answer whether a two-member panel can operate when the Board loses its quorum. Because Section 3(b) is ambiguous, the Supreme Court must determine whether the Board’s interpretation is reasonable.423 According to the Board, Section 3(b) allows a panel to decide cases even when the Board has only two members.424 In Snell Island, the Second Circuit correctly applied Chevron step-two to this precise question.425 As the Second Circuit reasoned, the Board’s interpretation is reasonable because the Taft-Hartley Act’s “animating purpose” was to increase the Board’s overall efficiency.426 The Second Circuit also correctly noted that the Board’s interpretation is not necessarily the only or best interpretation.427 Instead, the Second Circuit concluded that the D.C. Circuit’s opposite interpretation in Laurel Baye Healthcare was also a reasonable interpretation.428 Nevertheless, the Second Circuit properly deferred to the Board’s interpretation, thus allowing the two-member panel to continue to act.429 In sum, the Supreme Court should uphold the two-member panel’s decision- making authority, despite the Board’s inability to quorum.

422 Id. 423 Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842– 43 (1984). 424 See generally Snell Island SNF LLC v. NLRB, 568 F.3d 410, 420 (2d Cir. 2009). 425 Id. at 423–24. 426 Id. at 423. 427 Id. at 424. 428 Id. 429 Id.

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CONCLUSION

The Seventh Circuit’s decision in New Process Steel demonstrates the current uncertainty surrounding Section 3(b).430 Despite interpreting Section 3(b) to allow the Board’s initial delegation,431 the Seventh Circuit’s legal reasoning is unsatisfying. A closer reading of Section 3(b)’s language and legislative history shows that Section 3(b) does not conclusively support the Seventh Circuit’s holding. Moreover, the Seventh Circuit has yet to determine whether the two- member panel can decide cases while the Board does not have a three- member quorum.432 Consequently, whether the panel is acting lawfully remains unresolved in the Seventh Circuit, at least until the second issue is addressed or the Supreme Court offers its conclusion. In spite of Section 3(b)’s ambiguity, Chevron allows the Supreme Court to preserve the Board’s authority to decide cases while also creating a stable legal framework. Although Chevron deference does not resolve Section 3(b)’s ambiguity, Chevron allows the Board to make the ultimate determination.433 However, Chevron does not give unlimited deference to the agency; instead, the agency must offer a reasonable interpretation.434 By deferring to the Board’s reasonable interpretation, the Supreme Court can reach an acceptable outcome without having to make a conclusive interpretation based on inconclusive evidence. In doing so, the Board can consider not only Section 3(b)’s language and legislative history, but also the Board’s desire to continue operating. If Congress disagrees with the Board’s interpretation, then Congress can amend Section 3(b) to resolve the

430 See generally 564 F.3d 840 (7th Cir. 2009), cert. granted, 130 S. Ct. 488 (U.S. Nov. 2, 2009) (No. 08-1457). 431 Id. at 846–47. 432 See id. at 846. 433 See Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). 434 Id.

270 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 ambiguity.435 Thus, Chevron deference allows the legislative and executive branches to make the policy determination. In this way, Chevron provides a legal framework that both embraces Section 3(b)’s ambiguity and creates a satisfying outcome.

435 See id.

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DOBBEY v. ILLINOIS DEPARTMENT OF CORRECTIONS: A SMALL PIECE OF A GROWING POLICY PUZZLE

ASHLEY M. BELICH*

Cite as: Ashley M. Belich, Note, Dobbey v. Illinois Department of Corrections: A Small Piece of a Growing Policy Puzzle, 5 SEVENTH CIRCUIT REV. 272 (2009), http://www.kentlaw.edu/7cr/v5-1/belich.pdf.

INTRODUCTION

The current state of prisoner litigation in the United States is both inefficient and ineffective. Cases like Dobbey v. Illinois Dept. of Corrections demonstrate that adopting a broad interpretation of the right to petition is the only way to reform prisoner litigation. Dobbey is a curious decision handed down through the pen of Judge Richard Posner. The question was whether the plaintiff, a prisoner, failed to state a claim against individual defendants, prison employees, regarding an alleged violation of his First Amendment right to petition.1 This was an issue which Judge Posner conceived as “difficult” because the right to petition “is little discussed either in cases or in commentaries . . . and its scope is unsettled.”2 At the early procedural phase of the Dobbey litigation, Judge Posner did not rule or even comment on the merits of the claim but, instead, focused on the circuit split regarding the right to petition.3 On the one hand, Judge Posner argued that the Seventh Circuit interprets a prisoner’s right to

* J.D. candidate, May 2011, Chicago-Kent College of Law, Illinois Institute of Technology; B.A., 2008, University of Illinois at Urbana-Champaign. 1 Dobbey v. Ill. Dep’t of Corrs., 574 F.3d 443, 444 (7th Cir. 2009). 2 Id. at 446. 3 Id.

272 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 petition under the First Amendment narrowly, contrasting the Seventh Circuit with the broader view of the Tenth Circuit.4 While Judge Posner attempted to distinguish between the purported narrow Seventh Circuit interpretation and the broad Tenth Circuit view, the true effect of his opinion in Dobbey is to expose flaws in the grievance procedures which restrict inmates’ First Amendment right to petition. Judge Posner’s discussion of the circuit split can be explained as an outgrowth from a larger problem: the prisoner grievance system in Illinois State Prisons. Further, Dobbey can be viewed as a jumping off point for a broad policy debate concerning this inmate grievance system, and why it fails to guarantee prisoners their constitutionally guaranteed right to petition. The inmate grievance system is so overly restrictive that as a consequence the inmates’ right to petition is severely abridged. This abridging of the right has severely dissipated inmates’ abilities to bring meritorious claims in Federal Courts. Our inquiry must be then, what should the Seventh Circuit’s analysis be in order to guarantee prisoners this constitutional right?

A. Background

This comment will examine Dobbey and the effect a failed inmate grievance procedure has upon an inmate’s first amendment right to petition. First, this article provides a general explanation of the right to petition, describing the right and how it fits into our judicial system. Next, a more specific background addresses the right to petition in the context of inmates such as the plaintiff in Dobbey. Third, an examination of the current circuit split between various Circuits, such as the Seventh and Tenth Circuits, demonstrates the difference between the broad and narrow interpretations of the right to petition. Fourth, an analysis shows how a broken prisoner grievance system coupled with a narrow interpretation of the right to petition severely handicaps prisoners attempting to bring causes of action against the prison system. Fifth, this article argues that a broad interpretation of the right to petition is the best way to secure justice for prisoners

4 Id. at 446–47.

273 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 petitioning the courts for redress. Finally, this comment will offer to the Illinois Department of Corrections and prisons alike, on how best to begin the process of redrafting their prisoner grievance systems. The right to petition is “among the most precious of the liberties safeguarded by the Bill of Rights.”5 It is included in the First Amendment, which states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”6 The right to petition not only represents the power to speak against injustices, but also represents the tools with which to change those injustices.7 Essentially, a “petition” is an address directly to the government requesting it examine an alleged failure.8 It is important to note that the First Amendment does not protect the mere act of petitioning the government, but only extends the right to situations where an individual’s other First Amendment rights are implicated, for instance free speech.9 Meaningful access to the courts and the other expressive rights contained in the First Amendment must be two parts of a greater whole.10 Thus a right to 11 petition claim must implicate some other First Amendment right. Although the petition clause was effectively ignored for much of U.S. Constitutional history, the United States Supreme Court has held that

5 United Mine Workers of Am. Dist. 12 v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967). 6 U.S. CONST. amend. I (emphasis added). 7 Elisia Hahnenberg, Right to Petition Government (The), Learning to Give: Curriculum Division of the LEAGUE, http://learningtogive.org/papers/paper204.html (last visited Jan. 14, 2009). 8 Foraker v. Chaffinch, 501 F.3d 231, 236 (3rd Cir. 2007) (citing the rule laid out in Connick v. Myers, 461 U.S. 138, 154 (1983)). 9 WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999). It is important to note that Dobbey explicitly complies with this standard set out by the Court. The plaintiff in Dobbey implicated First Amendment free speech protections when he reported the incident to the media and voiced his concerns within the jail. 10 Cf. id. 11 See id.

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“[t]he very idea of government, republican in form, implies a right on the part of its citizens to . . . petition for a redress of grievances.”12 In practice, this fundamental right has acquired considerably more attention from the courts over the past several years.13

B. Historical Development

Since its first appearance in the Magna Carta,14 the right to petition has slowly evolved into a fixture of Anglo-American law.15 In 1215, the right to petition was one of the several concessions King John extended to the English barons in adopting the Magna Carta.16 The Magna Carta states, “[i]f we or . . . any of our servants offend against anyone in any way . . . four barons shall come to us or our justiciar, if we are out of the kingdom, and shall bring it to our notice and ask that we will have it redressed without delay.”17 Under the Magna Carta, English subjects used its form of “petitioning” to communicate with the King and the early Parliament.18 In 1689, the English Bill of Rights adopted a provision stating subjects had the right to petition the King, and allowing for the redress of grievances towards parliament to be addressed frequently.19 Even though

12 Shireen A. Barday, Comment, FEC v. Wisconsin Right to . . . Petition? A Comment on FEC v. Wisconsin Right to Life, 61 STAN. L. REV. 443, 445(2008) (quoting United States v. Cruikshank, 92 U.S. 542, 552 (1875)). 13 Carol Rice Andrews, After Be & K: The “Difficult Constitution Question” of Defining the First Amendment Right to Petition Courts, 39 HOUS. L. REV. 1299, 1300 (2003). 14 Id. at 1303 n.14 (translating text of the Magna Carta which states: "[I]f we or ... any of our servants offend against anyone in any way . . . four barons shall come to us or our justiciar, if we are out of the kingdom, and shall bring it to our notice and ask that we will have it redressed without delay"). 15 Id. at 1303 16 Id. 17 MAGNA CARTA, ch. 61 (1215), translated and reprinted in J.C. HOLT, MAGNA CARTA 333-35 (1965). 18 Id. at 1303. 19 BILL OF RIGHTS (1689), reprinted in BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 43 (1st vol. 1971).

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“petitioning was legitimized through written guarantees during th[is] period, the right was not always tolerated in practice.”20 From its initial adoption in the thirteenth century Magna Carta, and for 500 years thereafter, petitioning the government was not a realistic right because petitioners were frequently punished.21 The true right to petition was slowly accepted over time by the government in power.22 The right to petition was first recognized in colonial America when colonists petitioned their assemblies for resolution of private disputes as well as for legislative action.23 Petitions in Colonial America were a valuable and well-established right prior to the drafting and adoption of the First Amendment.24 While colonial times marked a strong increase in petitions against legislatures, the historical context of the First Amendment allows petitions against all branches of government.25 This was not the case in practice, however, and the right to petition has only recently been extended to the judicial branch of government.26 This past practice dictated that the initial fight to gain court access for the redress of governmental wrongs centered primarily on due process and not the First Amendment.27 Ultimately, the Court established the right to petition as applied to the courts “in two entirely different contexts—association and antitrust cases.”28 The Supreme Court’s landmark decision in NAACP v. Button held that “litigation may well be the sole practicable avenue open for a minority

20 Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut from a Different Cloth, 21 HASTINGS CONST. L.Q. 15, 19–20 (1993) (citing Norman B. Smith, “Shall Make No Law Abridging…”: An Analysis Of The Neglected, But Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153, 1154 (1986)). 21 Id. at 20. 22 Id. 23 Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142, 144–55 (1986). 24 Id. at 155–56. 25 Andrews, supra note 13, at 1305. 26 See id. 27 See id. 28 Id. at 1306.

276 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 to petition the government for redress of grievances.”29 This landmark decision was the beginning of a more broadly accepted judicial right to petition the government, which was eventually extended to prison inmates.

C. Inmates and the Right to Petition

Like all Americans, prisoners enjoy the right to petition the government for redress of grievances. This right includes inmates’ access to the courts for purposes of presenting their complaints regarding the condition of their detention.30 Additionally, prisoners are guaranteed access to a law library or to someone trained in the law during incarceration.31 In essence, the right to petition allows inmates to bring actions in federal courts to recover for damages wrongfully inflicted upon them by prison administrators.32 The United States Department of Justice certified a formal inmate grievance procedure in 1992, officially recognizing the right.33 While many Americans enjoy a direct path to the right to petition, inmates have been subject to harsher restrictions on their right to address our government. In reality, the process involved in an inmate’s successful right to petition can be extremely confusing for a prisoner. Adopted in 1996, the Prison Litigation Reform Act (“PLRA”) requires inmates bringing civil rights lawsuits to first file internal grievances with jailhouse authorities before contemplating suit.34 The PLRA was established as a reaction to the overwhelming number of prisoner civil rights suits brought under both 42 U.S.C. § 1983 and the

29 371 U.S. 415, 430 (1963). 30 See generally Ex parte Hull, 312 U.S. 546 (1941). 31 See generally White v. Ragen, 324 U.S. 760 (1945). 32 See generally Haines v. Kerner, 404 U.S. 519 (1972). 33 FLA. ADMIN. CODE r. 33-103.001, available at https://www.flrules.org/gateway/ruleNo.asp?id= 33-103.001. 34 See 42 U.S.C. § 1997e(a).

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Constitution.35 From 1990 to 1996, the number of suits filed in federal court by inmates almost doubled.36 This large volume of cases imposed substantial costs on the litigation system, and in 1995 civil rights suits constituted thirteen percent of all civil cases in federal district courts.37 At the core of the PLRA is its screening requirement.38 In an attempt to reduce the amount of prisoner litigation, the PLRA provides that, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal Law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”39 In enacting this law, “Congress sought to curb what was perceived to be an overwhelming number of frivolous prisoner lawsuits.”40 By definition, an action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”41 Cases which are frivolous, malicious, or fail to state a claim on which relief can be granted, as well as cases that seek damages from a defendant who is immune from such damages are quickly dismissed.42 Under these standards set out in the PLRA, the internal grievance process in some states is quite tedious.43 Regulations often require inmates to name the officers who wronged them and write out comprehensive descriptions of the alleged wrong to avoid dismissal of their cases.44 These requirements prove nearly impossible for many

35 Kermit Roosevelt III, Exhaustion Under The Prison Litigation Reform Act: The Consequence of Procedural Error, 51 EMORY L.J. 1771, 1772 (2003). 36 Id. 37 Id. 38 Id. 39 42 U.S.C. § 1997e(a). 40 SAVE, REFORM THE PRISON LITIGATION REFORM ACT (PLRA) 1, www.savecoalition.org/pdfs/save_final_report.pdf. 41 Neitzke v. Williams, 490 U.S. 319, 325 (1989). 42 Id. 43 SAVE, supra note 40, at_2. 44 Id.

278 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 inmates.45 And under the PLRA, an inmate may exercise his First Amendment right to petition only after the inmate has completely exhausted his administrative remedies under the prison’s internal grievance process.46 From a legal perspective, the grievance process is a sound way to ensure inmate-initiated lawsuits are minimized.47 This policy has an obvious rationale: “[T]he administrative agency must first be given an opportunity to solve its own problems; and, the administrative record developed by the appeals process is invaluable to a reviewing court in understanding the issues in controversy, and often saves the court the time and expense of an evidentiary hearing.”48 Finally, from a practical perspective, many people believe that if inmates are told the grievance process available to them requires complaints to be submitted directly to institution staff, they may not bother seeking formal redress, thus minimizing lawsuits.49 These requirements set forth in the PLRA effectively deter many prospective prisoner plaintiffs from effectively pursuing litigation, but the obstacles for a prisoner plaintiff do not end once the administrative requirements are met. In the Seventh Circuit, precedent has established a narrow reading of the first amendment right to petition which further burdens potential inmate plaintiffs.

45 See Inmate Grievance Was Good Enough for Follow-Up Lawsuit, http://secondcircuitcivilrights.blogspot.com/2009/02/inmate-grievance-was-good- enough-for.html (Feb. 2, 2009, 10:36 EST). 46 Id. 47 Marty Drapkin, Does Your Inmate Grievance Policy Protect You?, CORRECTIONSONE, June 2, 2009, http://www.correctionsone.com/corrections/articles/1844067-Does-your-inmate- grievance-policy-protect-you/. 48 Tom Watson, Prison System Part 1: Fear of Retaliation Discourages Prisoners From Filing Appeals and Other Problems, THREE-STRIKES-LEGAL.COM, http://three-strikes-legal.com/fear_of_retaliation.htm (last visited Jan. 25, 2010). 49 Cf. Drapkin, supra note 47.

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A CIRCUIT SPLIT

Although the right to petition appears straight forward on its face, a Circuit split in the federal court system has rendered it convoluted at best. Different courts have developed clashing interpretations of the right to petition clause and which complaints qualify for its protection. Decisions in the United States Court of Appeals for the Seventh Circuit and the United States Court of Appeals for the Tenth Circuit illustrate that the former has chosen a more narrow approach, with the latter giving the right more fluidity.50 Seventh Circuit decisions state that “dispute[s] cannot be constitutionalized merely by filing a legal action.”51 This reasoning has been followed by the Fourth Circuit and Ninth Circuit as well.52 The Seventh Circuit has been reluctant to construe the rule broadly, arguing that “[a]ny abridgement of the right to free speech is merely the incidental effect of observing an otherwise legitimate regulation.”53 Altman v. Hurst narrowly defined the right to petition, holding that the Supreme Court’s interpretation of the right is limited to political expression and does not extend to the general right to bring suit in the federal courts.54 In Altman, the plaintiff was a police sergeant employed in Hickory Hills, Illinois.55 The plaintiff contended that his First Amendment rights were violated when he was punished for allegedly encouraging a fellow officer to appeal her suspension.56 His conduct was deemed to be merely a private dispute rather than a matter of public concern, and was therefore dismissed from federal

50 Dobbey v. Ill. Dep’t of Corrs., 574 F.3d 443, 446 (7th Cir. 2009). 51 Id. at 446–47 (quoting Altman v. Hurst, 734 F.2d 1240, 1244 n.10 (7th Cir. 1984) (per curiam)). 52 Kirby v. City Of Elizabeth City, 388 F.3d 440, 448 (4th Cir. 2004) (stating, therefore, that claims must be a matter of public concern in order to be constitutionally protected); see also Rendish v. City of Tacoma, 123 F.3d 1216, 1221 (9th Cir. 1997). 53 Lawline v. Am. Bar Ass’n, 956 F.2d 1378, 1386 (7th Cir. 1992). 54 See 734 F.2d at 1244 n.10. 55 Id. at 1244. 56 Id.

280 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 court.57 Further, the court in Moss v. Westerman stated that a claim must be more than a personal gripe, must present an issue affecting all prisoners, and must question a policy that affects the prison as a whole.58 Finally, perhaps the Seventh Circuit’s most deliberate pronouncement of its narrow view is Yatvin v. Madison Metropolitan School District. In Yatvin, the plaintiff, a woman, applied for an assistant superintendent position in a particular school district.59 She was one of four candidates, the other three being men.60 When two of the men were recommended for the position, the plaintiff claimed sex discrimination and filed charges with the appropriate agencies.61 Following this incident, she applied for a different administrative position in the same school district.62 Two women, including the plaintiff, and two men had applied.63 The other woman was chosen for the job, prompting the plaintiff to claim this was in retaliation for her filing the sex discrimination charges.64 The court asserted that “[t]he contention that every act of retaliation against a person who files charges of wrongdoing with a public agency denies freedom of speech or the right to petition for redress of grievances . . . is simply stated too broadly.”65 In short, the court held not every “legal gesture or pleading” is protected by the First Amendment.66 As to the Seventh Circuit’s view in the context of an inmate, Parker v. Walker helps define the court’s narrow interpretation of the right to petition, making clear that an inmate’s life is controlled by

57 Id. 58 No. 04-CV-0570-MJR, 2008 U.S. Dist. LEXIS 1481, at *8 (S.D. Ill. Jan. 9, 2008). 59 Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 415 (7th Cir. 1988). 60 Id. 61 Id. 62 Id. 63 Id. 64 Id. 65 Id. at 419. 66 Id.

281 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 prison officials down to the smallest detail.67 The plaintiff had filed numerous grievances against the prison staff, after they filed a disciplinary report against him, alleging that he needed protective custody in the prison and should not have to obey the staff and go back to “general population.”68 Ultimately, the board denied plaintiff’s grievances.69 The Court did not “understand the Constitution as providing a remedy for every slight or petty annoyance that befalls an inmate even if done with retaliatory intent . . . . [The retaliatory act] must rise above the inconsequential and trivial.”70 Moreover, the Court stated that occurrences lacking adverse material affect are simply part of the unpleasantness of prison life which does not give rise to a retaliation claim.71 Even if a defendant’s acts have material affected the plaintiff inmate, the complaints and grievances must be “related to matters of public concern” and not be merely a personal gripe about an incident.72 In contrast, the Tenth Circuit has defined the right in an exceedingly broad manner.73 Courts have stated that any form of official retaliation in response to a person utilizing their freedom of speech is actionable.74 The court set forth a three prong test in Worrell v. Henry for unlawful retaliation by government officials in response to the exercise of the First Amendment right to petition.75 The plaintiff must show

67 See No. 08-CV-152-MJR, 2008 U.S. Dist. LEXIS 90195, at *13 (S.D. Ill. Nov. 6. 2008). 68 Id. at *3–4. 69 Id. 70 Id. 71 Id. at *14 (stating that minor changes in a prisoner’s life that lack a material adverse affect fit this category). 72 Id. at *16 (citation omitted). 73 See Dobbey v. Ill. Dep’t of Corrs., 574 F.3d 443, 447 (7th Cir. 2009). 74 219 F.3d 1197, 1212 (10th Cir. 2000) (stating that this includes prosecution, threatened prosecution, bad faith investigation, and legal harassment). 75 Id.

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(1) that [he or she] was engaged in constitutionally protected activity; (2) that the defendant’s actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant’s adverse action was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.76

In Worrell, the plaintiff claimed his First Amendment rights were violated when he testified for the defense in capital murder case, causing the District Attorney’s office to rescind a job offer to him.77 The Court stated that the plaintiff is afforded “the benefit of all favorable inferences,” and that as long as there was evidence to support the factors, he is engaging in constitutionally protected activity.78 This broad reasoning has been adopted by the Third and Fifth Circuits.79 However, the courts have cautioned that petitions made through informal channels may be given a lesser degree of constitutional protection than their formal counterparts.80 This broad view was demonstrated in Van Deelen v. Johnson, where the Court found that a private citizen expressed a constitutionally protected First Amendment right anytime he or she petitions the government for redress.81 The court further stated claims that are minor and questionable, as well as claims that are mighty and consequential, are all welcomed.82 Further, the court stated that matters of public concern are not required for addressing the

76 Id. 77 Id. at 1202. 78 Id. at 1213–1214. 79 See Reilly v. City of Atlantic City, 532 F.3d 216, 230 (3d. Cir. 2008); Izen v. Catalina, 398 F.3d 363, 367 (5th Cir. 2005). 80 Foraker v. Chaffinch, 501 F.3d 231, 237 (3d Cir. 2007) (citing San Filippo v. Bongiovanni, 30 F.3d 424, 439–40 (3d Cir. 1994)). 81 497 F.3d 1151, 1156 (10th Cir. 2007). 82 Id. at 1157 n.6 (citing McCook v. Springer Sch. Dist., 44 F. App’x 896, 903– 04 (10th Cir. 2002)).

283 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 constitutionality of a First Amendment right to petition claim.83 Rather, a plaintiff’s First Amendment claim can survive on the ground that at least some of the speech at issue involved public concern.84 What’s more, private citizens are considered in a broader context of free expression protected under the First Amendment in contrast to public employees.85 In sum, the Tenth Circuit suggests that the First Amendment petition clause does not pick and choose its causes.86 This broad interpretation of the right to petition is not without limits. In Ellibee v. Higgins the court stated that a plaintiff “must demonstrate an actual injury to his ability to pursue a non-frivolous legal claim.”87 This actual injury, the court reasoned, is needed in order to show that the defendant interfered with the plaintiff’s First Amendment right to pursue grievances and participate in litigation.88 Additionally, the plaintiff must demonstrate that the injury would dissuade a person of ordinary firmness from continuing to participate in that activity.89 These commonsense limits imposed by the Tenth Circuit still focus on keeping frivolous prisoner claims out of federal courts, but do so in a way that respects prisoner’s ultimate right to bring a suit under the right to petition. In the analysis that follows, flaws in the narrow interpretation of the right to petition become strikingly clear.

A. The Facts of Dobbey v. Illinois Department of Corrections

Turning to the case at issue, Dobbey v. Illinois Department of Corrections is an extraordinary illustration of the current tension in the

83 Id. 84 Id. 85 Id. 86 Id. 87 No. 4-3402-CM, 2006 U.S. Dist. LEXIS 8777, at *6 (D. Kan. Feb. 13, 2006). 88Id. 89 Id. (citing Poole v. County of Otero, 271 F.3d 995, 960 (10th Cir. 2001)).

284 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 courts over the proper interpretation of an inmate’s right to petition.90 The plaintiff, Lester Dobbey, is a black inmate at the Menard Correctional Facility, an Illinois state prison.91 During his five years at the prison, Lester Dobbey worked as a staff janitor, and had no record of problems or altercations with the prison staff.92 However, signs of trouble first began while five white prison security guards were playing cards in the main control room, also called the “officers’ cage.”93 Dobbey had just entered the breakfast room with two other black inmates and began preparing breakfast trays with them.94 During this time, he was able to see the inside of the officers’ cage. Dobbey looked into the cage and allegedly observed one of the guards who got up from the card game to hang a noose from the ceiling.95 According to Dobbey, the guard then proceeded to swat the noose so that it swung back and forth, and sat down to watch it “looking crazy with evil eyes”.96 All three black inmates saw the swinging noose hung by the guard in the officers’ cage.97 Approximately twenty minutes later, another guard allegedly took down the noose.98 Dobbey filed a grievance with prison authorities complaining of the guard’s intimidating conduct.99 The following day, Dobbey sent letters describing the intimidating noose incident to various media outlets and state officials.100 Approximately one month later, a prison disciplinary charge was filed

90 See generally John E. Wolfgram, How the Judiciary Stole the Right to Petition, 31 U. WEST L.A. L. REV. 1, 3 (2000) available at http://www.constitution.org/abus/wolfgram/ptnright.htm. 91 Dobbey v. Ill. Dep’t of Corrs., 574 F.3d 443, 444 (7th Cir. 2009). 92 Id. 93 Id. 94 Id. 95 Id. 96 Id. 97 Id. at 445. 98 Id. 99 Id. 100 Id.

285 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 against Dobbey for allegedly disobeying a guard’s order. The order instructed Dobbey that he must scrape wax off a section of floor in the prison.101 Dobbey asserted that he was scraping diligently even though the task was demeaning, but claims the guard told him, “you’re on Bullshit around here.”102 As a result of the disciplinary charge, Dobbey was terminated from his janitorial job and various other sanctions were imposed upon him by prison administrators.103 Dobbey felt that he was assigned the menial work tasks and ultimately terminated from his job because he complained of the conduct of the prison guards. When he inquired as to the denial of his grievance, Dobbey was told that his grievance regarding the noose incident was denied because “there was no evidence of the noose.” Dobbey believed, however, that prison authorities were simply covering for their employees.104 Dobbey then filed suit, alleging cruel and unusual punishment, as well as retaliation by the prison guards for exercising his First Amendment right to petition when he filed an internal grievance with prison authorities.105 Dobbey stated that “the defendants retaliated against him for his exercising his First Amendment rights—in other words, they punished him for his speech—and if this is correct they violated the amendment and by doing so gave him a valid basis for suing them under 42 U.S.C. § 1983.”106 The district judge dismissed the suit before service of process, on the authority of 28 U.S.C. § 1915A, which, in regards to Dobbey, directs dismissal if the complaint fails to state a claim or if it seeks monetary relief from an immune defendant.107 Judge Posner was then faced with the question of whether the district judge was correct in his belief that Dobbey’s

101 Id. 102 Id. 103 Id. 104 Id. 105 Id. at 445–46. 106 Id. at 446. 107 See 28 U.S.C. § 1915A(b)(1), (2); Dobbey, 574 F.3d at 446.

286 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 complaint failed to state a claim for violation of the First Amendment right to petition against the defendants.108

B. Judge Posner’s Analysis

Judge Posner reversed and remanded Dobbey’s retaliation claim, as it was clear to him that the complaint contained sufficient allegations of retaliation. However, since the district court dismissed Dobbey’s complaint before any discovery, no analysis of the substantive issues was possible without additional fact-finding.109 Judge Posner stated, “we must assume that the plaintiff's punishment for allegedly failing to scrape wax as ordered was indeed retaliation for filing a grievance about, and for publicizing the noose incident, so that the issue to be resolved is whether the filing or the publicizing was protected by the First Amendment.”110 Noting the lack of a developed record, Judge Posner offered “no opinion on the ultimate merits of that claim because further development of the record may cast the facts in a different light from the complaint.”111 While Judge Posner’s opinion did not bring any finality to Dobbey’s case, his discussion of the differing views of courts as to the right to petition opened the door to a deeper policy concern, highlighting the difficulties for inmate petitions which stem in part from the inadequacy of the inmate grievance system.

THE IMPORTANCE OF INMATES’ ABILITY TO BRING A CLAIM

An examination of inmates’ right to bring a cause of action is essential to an understanding of the flawed narrow view of the right to petition and is consistent with a theory that a broad interpretation of the right is required. Moreover, it sheds light on how the right to petition is severely limited and restricted, landing an inmate’s exercise

108 Dobbey, 574 F.3d at 446. 109 Id. at 447. 110 Id. at 446. 111 Id. at 447.

287 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 of the right in jeopardy. A prisoner’s “right to complain in whatever form he or she chooses about government official conduct lies at the core of First Amendment freedoms.”112 This right clearly extends to prisoners abilities to file grievances with prison authorities, and ultimately ability to file a lawsuit. Fundamentally, public officials’ actions, including prison personnel, are subject to criticism and debate.113 Prisoners and citizens alike involved in this issue should not be subjected to the threat of retaliation when they speak out on such issues.114 The prevention of inmate litigation through retaliation for filing grievances runs afoul of the first amendment right to petition because “stat[ing] that one class of individuals may not participate [in petitioning the government] in the same manner as all others is clearly a violation of this principle.”115 Courts have held that even if a public officer suffers inconvenience, embarrassment, or damage to reputation as a result of public criticism akin to inmate complaints and litigation, it is simply a burden which “unfortunately all civil servants may be called upon occasionally to shoulder as part of the obligation of the job.”116 As previously discussed, the PLRA requires inmates to file internal grievances within their prison system before suing. This requirement alone makes the PLRA problematic, causing a serious obstacle to inmates’ right to petition. Not only has the Seventh Circuit noted that “[i]ts provisions have never seriously been debated,” it has been accurately criticized as a product of “haste” which lacks a

112 LYNNE WILSON, MALICIOUS PROSECUTION COUNTERCLAIMS AND THE RIGHT OF PETITION IN POLICE MISCONDUCT SUITS 11–12, http://www.nlg-npap.org/html/research/LWmailiciousprosecution.pdf (last visited Jan. 25, 2009). 113Id. 114 Id. 115Diverse Coalition of Organizations Call for White House to Rescind Rule Restricting Lobbyist Communications on Bailout Funds, CREW, Mar. 31, 2009, http://www.citizensforethics.org/node/38370. 116 Wilson, supra note 112 (quoting Greenberg v. City of N.Y. Mun. Bldg., 392 N.Y.S.2d 547, 550 (1977)).

288 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 committee report.117 Senate records indicate that there is no defined scope to the legislation, and there is no discussion of its intended effects upon meritorious First Amendment prisoner claims.118 As a result, more than just frivolous litigation is suppressed.119 If the PLRA was intended to selectively discourage the filing of frivolous or meritless lawsuits, as proponents argue, then it should follow that prisoners are winning a larger percentage of their lawsuits after the enactment of the PLRA.120 However, “the most comprehensive study to date shows just the opposite: since the passage of the PLRA, prisoners not only are filing fewer lawsuits, but also are succeeding in a smaller proportion of the cases they do file.”121

While it appears there was little debate in Congress regarding the potential impact of § 1997e(e), there were many anecdotal references to the most notorious frivolous prisoner claims. The most touted among these included suits for an unsatisfactory haircut, disappointment at not being invited to a pizza party, having inadequate locker space, and being served chunky instead of creamy peanut butter. These cases, though purportedly examples of actual prisoner suits, are hardly representative of prisoner suits as a whole. Nor do they reflect the merits of cases brought by prisoners subjected to egregious violations of their civil rights.122

117 Corbett H. Williams, Evisceration of The First Amendment: The Prison Litigation Reform Act and Interpretation of 42 U.S.C. § 1997E(E) In Prisoner First Amendment Claims, 39 LOYOLA L.A. L. REV. 859, 863 (2006). 118 Id. at 864. 119 Id. 120 HUMAN RIGHTS WATCH, NO EQUAL JUSTICE: THE PRISON LITIGATION REFORM ACT IN THE UNITED STATES 35 (2009), http://www.hrw.org/sites/default/files/reports/us0609web.pdf. 121 Id. 122 Williams, supra note 117, at 860–861.

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This is a strong indication that the PLRA has skewed the right to petition against prisoners.123 Inmate cases remain those matters filed by individuals spurned by society, and the cases are seldom successful.124 As a result, prisoners’ cases are often presumed frivolous by the people responsible for reading and evaluating the petitions filed by those prisoners.125 Ultimately, the empirical data objectively demonstrates that the PLRA’s standards have imposed new and difficult obstacles which result in even constitutionally meritorious cases being frequently dismissed.126 The PLRA has prevented inmates from raising legitimate claims because more cases are dismissed and fewer are settled.127 Constitutionally meritorious cases are faced with insurmountable obstacles.128 Inmates are consistently harmed in cases that are dismissed notwithstanding their constitutional merit, which compromises “the entire system of accountability that ensures prison and jail officials comply with constitutional mandates.”129 Serious cases, such as those involving retaliation, are dismissed because the PLRA bars even meritorious claims from court if an inmate has not accurately complied with the numerous technical requirements of the prison grievance system.130 Furthermore, officials involved in grievance procedures, such as wardens, jailers, and sheriffs, all have a

123 Id. 124 Christopher E. Smith, The Governance of Corrections: Implications of the Changing Interface of Courts and Corrections, 2 CRIM. JUST. 113, 129 (2000). 125 Id. (citing law clerks, U.S. magistrates, and district judges as responsible for “reading and evaluating petitions filed by prisoners”). 126 Williams, supra note 117, at 860–861. 127 MARGO SCHLANGER & GIOVANNI SHAY, AMERICAN CONSTITUTION SOCIETY FOR LAW AND PUBLIC POLICY, PRESERVING THE RULE OF LAW IN AMERICA’S PRISONS: THE CASE FOR AMENDING THE PRISON LITIGATION REFORM ACT 3 (2007), available at http://www.acslaw.org/files/Schlanger%20Shay%20PLRA%20Paper%203-28- 07.pdf. 128 Id. 129 Id. at 2. 130 Id. at 9.

290 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 common interest “in avoiding adverse judgments against themselves or their colleagues.”131 Correctional administrators are largely aware of the potential benefits of effective grievance procedures, “including the provision of information with respect to existing problems and needed adjustments, the improvement of the facility’s credibility with courts, the provision of documentation in the event that inmates file suit, and the resolution of issues before they reach the courts.”132 However, it is still obvious, whether by failure or design, that grievance procedures are widely ineffective.133 In further evaluating the flaws in prison policies behind cases such as Dobbey, it is appropriate to look to the system’s effect on the inmates, including their perception of the system’s ability to protect their rights. First, it is natural for an inmate to feel aggrieved because they are in the custody of state or federal prison authorities.134 Simply put: “prisons are not intended to be pleasant places.”135 Despite this, a prisoner has all the legal rights of an ordinary citizen with the exception of those expressly or impliedly taken by the law.136 Grievance procedures play a key role in ensuring the protection of rights in hierarchal settings, such as prisons.137 These correctional institutions represent one of the most rigid and authoritarian patterns of social organization.138 While in prison, inmates are utterly subject to the coercive power of the state, acting through the institution.139 This power is only legitimately exercised as long as the rights retained by inmates are protected.140 In fact, prisoners who are not given fair

131 Id. at 10. 132 David M. Adlerstein, The “Iron Triangle” of the Prison Litigation Reform Act, 101 COLUM. L. REV. 1681, 1694 (2001). 133 Id. 134 Id. at 1682. 135 Id. 136 Id. 137 Id. 138 Id. at n.8. 139 Id. at 1682. 140 Id.

291 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 grievance procedures may be further inclined to “externalize” their displeasure with the system toward other inmates, prison officials, or the general public once released.141 An inmate’s perception of the grievance process is a crucial and often undervalued part of the analysis.142 While the inmate grievance procedure can be a beneficial and useful tool for inmates, if they are not assured using the process will result in solving problems or addressing issues, they will forgo using the process.143 “Many inmates regard the grievance procedure as a last resort, some because they insist that they will be labeled a complainer or a troublemaker, and believe retaliation will occur, so that problems will only increase if they use the grievance procedure.”144 “Further, as evidenced by the persistence of § 1983 litigation, inmates are often dissatisfied with the disposition of grievances. Apart from the limited scope of available remedies, corrections administrators may be predisposed toward upholding institutional policy and supporting subordinate officers.”145 Due to this perception of the grievance system by prisoners, many inmates attempt to have problems resolved by alternative and unfavorable means.146 Many inmates even attempt in-person communication with staff members before they ever consider using the grievance procedure.147 Additionally, a basic structural problem exists within grievance process’s exhaustion requirements because prison officials themselves both design the grievance system that prisoners must exhaust before filing suit and find themselves as the defendants in most lawsuits brought by prisoners.148 This generates an incentive for prison officials

141 Id. 142 CORRECTIONAL INSTITUTE INSPECTION COMMITTEE, INMATE GRIEVANCE PROCEDURE REVIEW 18 (2006), available at http://www.ciic.state.oh.us/reports/igp.pdf. 143 Id. 144 Id. 145 Adlerstein, supra note 132, at 1696. 146 Id. 147 Id. 148 HUMAN RIGHTS WATCH, supra note 120, at 12.

292 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 to design grievance systems with short deadlines, multiple steps, and numerous technical requirements.149 “Perversely, it actually undermines internal accountability as well, by encouraging prisons to come up with high procedural hurdles, and to refuse to consider the merits of serious grievances, in order to best preserve a defense of non-exhaustion.”150 Unfortunately, the PLRA imposes no limits or requirements for grievance systems and allows the sky as “the limit for the procedural complexity or difficulty of the exhaustion regime.”151 The lack of grievance system requirements by design tends to discourage rather that facilitate compliance by prisoners.152 For instance, some prison’s systems require that the prisoner first raise the issue of which he is complaining with the staff member involved, even if the grievance entails abusive conduct or assault by that staff member.153 Requirements like this can severely hinder a complaint’s ability to make it through the grievance process from start to finish, thus allowing the inmate to bring a claim in court. Furthermore, a prisoner’s “failure to coherently set forth the nature of a grievance, to limit grievances to one per form, and to file within a prescribed (and typically brief) period” are additional problems that may end in dismissal, forever barring a prisoner from redress.”154 In instances where grievances are denied, the prisoners often do not receive adequate explanation of the reason behind the ruling against their grievance.155 The rationale behind this is that most prison officials lack the education and understanding to formulate an adequate and concise grievance response.156 But whatever the justification, more arduous the grievance rules mean less likelihood that a prison or its staff members will be subject to damages or have their conduct

149 Id. 150 Schlanger & Shay, supra note 127, at 10. 151 HUMAN RIGHTS WATCH, supra note 120, at 12 (citation omitted). 152 Id. 153 Id. 154 Adlerstein, supra note 132, at 1695. 155 Id. at 1696 156 Id.

293 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 enjoined in a subsequent lawsuit.157 The ineffectiveness of these types of systems has led to a grievance system that may effectively remove frivolous litigation from the courts, but also frustrates the adequate redress of prisoner grievances.158

A. Illinois Department of Corrections

Most relevant to the inquiry in this case are the policies of the Illinois Department of Corrections, which has a three-step grievance procedure. According to Illinois Administrative Code, if a prisoner has a grievance or complaint he must first seek the assistance of an inmate counselor.159 Second, if the prisoner’s complaint remains unremedied despite the help of a counselor, the prisoner may then file a written grievance.160 The written grievance is reviewed by a grievance officer who submits a recommendation to the chief administrative officer.161 Finally, if the warden denies the prisoner's grievance, the prisoner has 30 days in which to appeal the warden's decision to the Director, who then may order a hearing before the Administrative Review Board.162 Only after all of these administrative hurdles are cleared can an inmate file a grievance in federal court. Once the action is filed, under Seventh Circuit precedent a prisoner must also state a claim of constitutional dimension.163 In other words, a state’s inmate grievance procedure alone does not give the inmate a liberty interest protected by the constitution.164 Since the Constitution contains no clause requiring an inmate grievance

157 SCHLANGER & SHAY, supra note 127, at 10. 158Adlerstein, supra note 132, at 1696–97. 159Ill. Admin. Code tit. 20, § 504.810; Burrell v. Powers, 431 F.3d 282, 284 (7th Cir. 2005). 160 Ill. Admin. Code tit. 20, § 504.810. 161 Id. § 504.830. 162 Id. § 504.850. 163 Bulmer v. Sutton, No. 04-922-JPG, 2006 WL 2644942, at *2 (S.D. Ill. September 14, 2006). 164 Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).

294 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 procedure, the failure of state prison officials to follow their own procedures does not, on its face, violate the Constitution.165 However, the Seventh Circuit has held that prison officials may not retaliate against inmates for filing grievances or otherwise complaining about their conditions of confinement.166 Once a complaint is successfully filed upon completion of the grievance process, an inmate need only offer the bare minimum facts necessary to put the defendant on notice of the claim so that he may file an answer.167 To state a claim of improper retaliation, the inmate only has to name the suit and the act of retaliation.168 Although inmates do not often navigate the grievance system effectively, those that do are rewarded by the federal system’s notice pleading standard. The main problem for inmates, however, is not pleading retaliation claims, but proving them and winning them.

B. Retaliation Occurring After an Inmate Files a Grievance Cannot Be Solved by the Same Inadequate Process

Retaliation against inmates is a striking policy concern within the inmate grievance system.169 The threat of retaliation makes it clear that grievance systems are not functioning correctly, and are not effectively allowing inmates to bring a claim. This problem again creates the necessity for a broad interpretation of the right to petition by courts. Generally, solidarity exists between prison officials against inmates, which not only has a chilling effect throughout the prison, but also poses a legitimate concern for retaliatory measures by these officials against the inmates.170 Inmates who have experienced prison official retaliation for good faith use of the grievance process may be

165 See Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992). 166 Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). 167 Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). 168 Id. 169 CORRECTIONAL INSTITUTE INSPECTION COMMITTEE, supra note 142, at 19. 170 Adlerstein, supra note 132, at 1696.

295 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 justifiably hesitant to use the procedure again to report their claim.171 Inmates that do file grievances with the system “may find . . . that retaliation is extremely difficult to prove. Areas of alleged retaliation are reported in areas which staff has the authority to exercise discretion.”172 A lack of evidence proving that a prison official or staff member violated the prohibition against retaliation does not allow any disciplinary or corrective action to be taken.173 In other words, an inmate disadvantaged by a lack of resources is at a great handicap to show proof of retaliation from a correctional officer who has the prison system on his side. The presence of retaliation by correctional officials may encourage the aggrieved to refrain from bringing suit and witnesses to remain silent.174 In other words, they are “[c]ompletely dependent on their institutional environments” and thus “particularly susceptible to intimidation and frequently afraid to voice their grievances.”175 Dobbey is a perfect example of a case where prison officials have claimed “an unfettered right to punish prisoners who complain about abuse by prison guards.”176 Legitimatizing retaliatory punishment further institutionalizes a culture of impunity within prisons.177 Prisons have become environments where criticism of official misconduct is wildly suppressed behind their walls.178 Prisons are known for their insularity from mainstream society.179 This merges with their coercive mandate, creating an environment in which abuse of authority is an ever-present, yet accountability is severely

171 CORRECTIONAL INSTITUTE INSPECTION COMMITTEE, supra note 142, at 19. 172 Id. 173 Id. 174 Adlerstein, supra note 132, at 1691. 175 S. Rep. No. 95-1056, at 18 (1980). 176 Brief for Legal Aid Society of the City of New York et al., as Amici Curiae Supporting Respondents, Shaw v. Murphy, 532 U.S. 418 (2001) (No. 99-1613), 2000 WL 1845914, at *2. 177 Id. 178 Id. at *3. 179 Id.

296 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 diminished.180 This creates “a pervasive prison culture of extreme loyalty by staff, including the rigid ‘code of silence’ by which staff and supervisors shield one another from accountability.”181 Inmates who do complain about abuse or criticize jailer staff are singled out and targeted by prison staff for retaliation in order to secure their silence.182 This creates a culture that ensures “impunity, . . . fosters abuse and permits cover-ups on a scale virtually impossible in free society.”183 This retaliation is rampant in the flawed Illinois Department of Corrections procedures in place throughout the state of Illinois. Retaliation, and the inability or unwillingness of inmates to bring claims because of it, is one of the main reasons why it is necessary for the courts to move to a more broad view of the right to petition. The grievance procedures currently in place are wholly ineffective at discouraging retaliation against inmates.

C. Problematic Findings by the John Howard Association in the Cook County Department of Corrections Confirms the Need for a Broad Right to Petition

The broken system of grievance administration in Illinois which effectively denies inmates the right to petition is starkly apparent in the John Howard Association’s Duran report. The John Howard Association (“JHA”) is the oldest and toughest advocate “for fair, human, and effective incarceration and punishment practices and policies” in Illinois.184 In its 21st Duran report, JHA examined the conditions of confinement at the Cook County Department of Corrections (“CCDOC”).185 A review of the CCDOC’s grievance

180 Id. 181 Id. 182 Id. 183 Id. 184 JOHN HOWARD ASSOCIATION, COURT MONITORING REPORT ON CROWDING AND CONDITIONS OF CONFINEMENT AT THE COOK COUNTY DEPARTMENT OF CORRECTIONS 1 (2005) available at http://www.john- howard.org/images/execsumm_bc21.doc. 185 Id.

297 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 procedure was conducted during March and April 2005 by JHA staff.186 JHA took a sampling of ten percent of all inmate grievances from the 2004 calendar year, using a systematic random sampling procedure to select the grievances.187 Data from these original grievance forms was collected, tabulated, and analyzed to provide insight into the grievance process for that calendar year.188 The data revealed the following:

[D]uring 2004, nearly one-third (32.6%) of the grievances were collected within 24 hours (i.e., 0 - 1 day). This represents a significant decrease from the 24-hour collection rates of 50.0 percent in 2000, 55.0 percent in 1997 and 52.7 percent in 1996. Specifically, it represents a 17.4 percent decrease from the 2000 collection rate. This is particularly important to recognize, because the grievance procedures were modified in 2000 in order to provide inmates with a more expeditious way of handling complaints, but the data suggest that the revisions in the procedure may have had the opposite effect. Similarly, only 65.2 percent of grievances were collected within three days, showing a decrease in the timeliness of collection rates as compared to 67.9 percent in 2000, 82.5 percent in 1997 and 72.1 percent in 1996. CCDOC should look back at what circumstances were in play during 1997 that yielded faster collection rates. Over one-third (34.8%) of the grievances were significantly delayed (i.e. - 4 or more days) before collection. This is nearly a 3 percent increase from the rate of 32.1 percent in 2000. The data clearly expresses that the timeliness of grievance collection is continually decreasing.189

186 Id. 187 Id. 188 Id. at 15. 189 Id. at 15–16.

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Prison officials’ response time to grievances was also a problematic finding in the JHA’s report.190 In fact, the most serious grievances, for example those involving physical contact with staff, elicited the longest average response time.191 Alleged verbal incidents between inmates and staff had an average of nineteen days between the filing of a grievances and the time that inmate grievant received a response, while nonverbal incidents between an inmate and staff had an average twenty one day response time.192 These numbers indicate an average response time that is almost four times longer than what the Consent Decree, which sets forth provisions for the adequate responses to grievances, requires.193

D. The Department of Justice’s 2007 Investigation of the Cook County Jail Exposes Illinois’ Flawed Grievance Systems and the Need for Inmates to Have Broader Access to Court

In June and July of 2007, the United States Department of Justice (“DOJ”) conducted an onsite investigation of the Cook County Jail, pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997.194 CRIPA gives the DOJ power to seek a remedy for a pattern or practice of conduct that violates the constitutional rights of inmates in adult detention and correctional facilities.195 All preliminary findings were communicated to CCJ

190 Id. at 16. 191 Id. 192 Id. 193 Id. 194 Letter from Department of Justice, Civil Rights Division, to Todd H. Stroger, Coo k County Board President, & Thomas Dart, Cook County Sheriff [hereinafter DOJ Letter], at 1 (July 11, 2008), available at http://www.justice.gov/crt/split/documents/CookCountyJail_findingsletter_7-11- 08.pdf. 19542 U.S.C. § 1997f. CRIPA was enacted in 1980 seeks to remedy institutionalized abuses. CRIPA allows the Attorney General to sue state and local officials who operate institutions in which a pattern or practice of flagrant or egregious conditions deprives residents of their constitutional rights. Id.

299 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 officials, Cook County’s legal counsel, and the Sherriff’s Office following the close of the July 2007 visit to the CCJ.196 Overall, the DOJ found that certain conditions at the CCJ violate the constitutional rights of inmates.197 These onsite inspections were conducted by expert consultants in corrections, use of force, custodial medical and mental health care, fire safety, and sanitation.198 All types of prison staff as well as inmates were interviewed. Before, during, and after the DOJ’s visits, its staff reviewed an extensive number of “documents, including policies and procedures, incident reports, use of force reports, investigative reports, inmate grievances, disciplinary reports, unit logs, orientation materials, medical records, and staff training materials.”199 Since the grievance system is a vehicle for inmates to bring prison staff misconduct to light, often in the form of retaliation, as in Dobbey, it is important to note the DOJ’s examination and findings of the CCJ’s staff investigations.200 The DOJ stated that “to ensure reasonably safe conditions for inmates, correctional facilities must develop and maintain adequate systems to investigate staff misconduct, including alleged . . . abuse by staff.”201 Generally accepted correctional practices require clear and comprehensive policies and practices governing the investigation of staff use of force and misconduct.202 The report asserted,

Adequate policies and practices include, at a minimum, screening of all grievance reports, specific criteria for initiating investigations based upon the report screening, specific criteria for investigations based upon the report screening, specific criteria for initiating

196 DOJ Letter, supra note 194, at 1. 197 Id. 198 Id. 199 Id. 200 Id. at 20. 201 Id. 202 Id.

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investigations based upon allegations from any source, timelines for the completion of internal investigations, and organized structure and format for recording and maintaining information in the investigatory file.203

Additionally, the investigation must be and appear to be unbiased.204 The DOJ discovered that the CCJ’s investigatory practice fails on multiple levels, namely those involving timely investigations.205 Investigations must be undertaken promptly, or there is risk of the incident not being solved.206 In fact, most investigations were only undertaken once the inmate filed a lawsuit, which often occurs up to two years after the initial incident.207 Through the DOJ’s finding, it is apparent the CCJ investigations are reactive and suffer from the appearance of bias.208 Investigations were often undertaken only because the CCJ was defending an inmate lawsuit.209 These findings revealed some of the only instances in which investigation on staff conduct was opened.210 The CCJ’s conduct clearly shows a lack of affirmative action by the jail to resolve grievances and move them through the system in an effort to redress inmate problems with institutional staff. An inmate grievance system is a fundamental element of a functional prison system, with the purpose of providing a mechanism for allowing inmates to raise confinement-related concerns and notify the administration.211 When inmates view the system as credible, they can also serve as a source of intelligence to staff regarding potential security breaches in addition to excessive force or other staff

203 Id. 204 Id. 205 Id. 206 Id. 207Id. at 21. 208 Id. 209 Id. 210 Id. 211 Id. at 40.

301 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 misconduct.212 Not only should the grievance system be readily available and easily accessible to all inmates, but it should also allow prisoners to file their grievances in a secure and confidential manner, without threat of reprisal, and have them answered by staff that performs its responsibilities in a responsive and prompt manner.213 Staff at the CCJ was expected to collect grievances from inmate tiers at least twice a week; however, this did not occur on a consistent basis.214 Inmates complained of not having access to these staff members, and as a result the grievance process, often because they were locked in their cells during staff rounds.215 Moreover, these same staff members are expected to handle the grievances of over 200 inmates each.216 To say this is an ambitious task is to put it quite lightly.217 Divisional policy and procedure further requires locked grievance boxes to be place at each of the “housing units” for inmates to place their grievances in.218 Each weekday these grievances are to be collected by the previously mentioned appointed staff members.219 Unfortunately, the grievance system functions quite differently in practice, and varies between jail divisions and tiers.220 The prevailing policy, not found in the written policy, is for the inmates to hand their completed grievances to the staff while they are conducting rounds.221 Staff reported that inmate grievances are to be inserted in confidential envelopes sealed by the inmate, another policy not included in written divisional policies.222 Some divisions even allow inmates to give

212 Id. 213 Id. 214 Id. 215 Id. 216 Id. 217 Id. 218 Id. 219 Id. 220 Id. 221 Id. 222 Id.

302 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 completed grievances to a security supervisor who records the grievance in a log and gives it to the proper staff member.223 Security staff in other divisions refuses to handle grievances, citing conflict avoidance and impropriety as reasons for staying away.224 The aforementioned policies are just a few of the policies found at the CCJ, while many other versions exist.225 Even though it is apparent that the divisions were not using the required grievance boxes, many staff members, including the Program Services Administrator, were under the faulty assumption that inmates used these boxes.226 Overall, “[t]here is an extremely high level of confusion regarding the grievance policy and practice at all levels of CCJ.”227 Access to grievance forms by inmates is another universal problem.228 Often, grievances and the confidential envelopes used to carry them are unavailable on jail tiers and the grievance forms are rarely available in languages other than English, such as Spanish, which is the only language spoken, read, and understood by many inmates.229 The DOJ also found that inmates have little trust in the grievance system, believing the process to be unreliable and repeatedly complaining about its efficacy, with good cause.230 Inadequate responses are given to certain grievances, like, for example, ones concerning use of force.231 Although an investigator will occasionally speak to an inmate filing these types of grievances, inmates state that they never heard back again about the grievances.232 Furthermore, most inmates complained of never hearing back at all after filing a

223 Id. 224 Id. at 40– 41. 225 Id. at 41. 226 Id. 227 Id. 228 Id. 229Id. (citing Title VI of the Civil Rights Act of 1964, 42 U.S.C § 2000D et seq.). 230 Id. 231 Id. 232 Id.

303 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 grievance or even receiving some sort of summary denial in response to its filing.233 In some instances when inmates do receive grievance responses, the responses contain falsified information from the staff member involved in altercation with the inmate, a fabrication that astoundingly remains in CCJ’s records as a valid grievance response, even though they are aware of its falsification.234 In one such case. the CCJ only opened an investigation, seven months later, after the inmate filed a lawsuit.235

E. Study of Two Illinois Penitentiaries: Vienna Correctional Center and Stateville Correctional Center Show that the PLRA Has Been Unsuccessful in Its Objectives

In 1982, an analysis of the grievance files in these two correction al facilities was performed by an author for the American Bar F oun dation, randomly selecting inmates and staff to interview; grievance hearings and the grievance board were also observed.236 The study made it clear that prison grievance procedures are diverse from jurisdiction to jurisdiction and often from institution to institution as well.237 This finding is similar to those found in the CCJ, an investigation performed post-PLRA. The Department of Corrections’ regulations made reference to “locked mailboxes” for the deposit of written grievances, but access to the procedure is much more informal and varied.238 At Vienna, grievances, usually in the form of hand- written notes rather than the requisite form, are given directly to the

233 Id. 234Id. (discussing inmate Byron S. who filed a grievance after he an officer broke his jaw, but was denied an investigation in his grievance response because the officer had falsely reported that Byron had previously attacked him, such that Byron was ruled “combative”). 235 Id. 236 Samuel Jan Brakel, Administrative Justice in the Penitentiary: A Report on Inmate Grievance Procedures, 7 AM. B. FOUND. RES. J. 111, 114–15 (1982). 237 See id. at 115. 238 Id. at 116.

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Institutional Inquiry Board, the grievance board, or an intermediary.239 Stateville’s arrangement is more random, using the IIB chairman to conduct hearings and allowing him to select random officials and counselors to sit in with him.240 Essentially, the grievance procedure was created to: “(1) improve institutional management and problem identification, (2) reduce inmate frustration and potential for prison violence, (3) increase the prospects of inmate rehabilitation, (4) keep down the volume of litigation, and last, but not least, (5) promote ‘justice’ in institutional relations and procedures.”241 Ironically, these problems persisted despite the prison grievance system, and the PLRA which was established to address part, if not all, of these issues. The study revealed that it was often difficult to discern grievance report subject matter because of the aggregations in Stateville reports. Both Vienna and Stateville grievance forms contained grievance category options that confused inmates.242 This does not appear to have improved as a result of the PLRA; the JHA and DOJ investigations disclosed confusion on the part of inmates on how to classify or file their grievances in order to receive proper review from prison administration.243 Inmates in Stateville and Vienna did not speak positively of the grievance system. Overall, inmates stated that “the procedure is ‘good on paper’ but that it does not work so well in practice, because the wrong people sit on the board, too little heed is paid to the inmates’ side of the dispute, too little time is taken to investigate, or just the opposite (no great paradox)—that the process takes too much time.”244 Vienna prison guards also had strong negative opinions about the grievance procedure.245 Essentially, they felt that “(1) the procedure wasn’t needed, (2) the prisoners didn’t deserve it, and (3) prisoners

239 Id. 240 Id. 241 Id. at 118. 242 Id. at 123. 243 See generally JHA, supra note 184; DOJ Letter, supra note 194. 244 Id. at 127. 245 Id.

305 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 abused it.”246 These views were duplicated for the most part in Stateville.247 Unfortunately, prison guard attitudes towards inmates filing grievance have rarely changed today, and most prison employees are still unhappy with the process. The Vienna and Stateville investigation advised that prison grievance systems must be used beyond their day-to-day- effects, and grievances must be periodically reviewed in order to identify patterns and anticipate problems in prisons.248 Doing so would help formulate policies and procedures that adequately respond to them.249 Furthermore, grievance procedures should be more formal and oriented; an idea that will give prisoners more faith in the system.250 These proposals are still needed today, even in the wake of the PLRA’s enactment. Since it is apparent that it will be very difficult to restructure prison grievance systems because of the environment and attitude towards prisons, a broader interpretation of the right to petition will give inmates the ability to exercise their right and successfully bring a constitutionally protected claim to court.

CONCLUSION

It has been established that the inadequate grievance systems in Illinois prison have put inmates’ right to petition in jeopardy. Although incarceration is intended to be unpleasant punishment, “the fact that prisons will always be unattractive places does not mean that all inmate difficulties can be ignored.”251 While, it is not suggested that inmates have an automatic right to equality with free citizens, it is going too far to strip them of all constitutional protection and prolong the acceptance of inmate mistreatment and inhumane prison

246 Id. at 127–28. 247 Id. 248 Id. at 129. 249 Id. 250 Id. at 136. 251 Kenneth Adams, Adjusting to Prison Life: Stress, Coping and Maladaptation, 16 CRIME AND JUSTICE 275, 275 (1992).

306 SEVENTH CIRCUIT REVIEW Volume 5, Issue 1 Fall 2009 conditions. Therefore, the test for an inmate’s constitutionally protected claim is best asserted by courts adopting the broad interpretation of the right to petition. Using this broad view allows inmates to proficiently navigate their way toward justice for wrongs they have endured in Illinois prisons, often at the hand of prison guards. Under the narrow view, a prisoner would have a very hard time proving that they have a right under the First Amendment to litigate in court. It will be difficult for an inmate to successfully overcome the burdensome environment and requirements of the grievance system, and giving little or no deference to the claim under the narrow interpretation makes success for inmates nearly impossible. The Department of Justice has proven this point in the aforementioned CCJ study, revealing that when grievance systems are discombobulated and lack the respect of prison administration, the result is mistreated and dissatisfied inmates who have no faith in their rights as imprisoned Americans.252 Inmates who are discouraged with the grievance system, who do not understand the grievance system, or who are prevented from addressing their grievances are ultimately losers under the PLRA, which was enacted both to protect inmates and eradicate “frivolous claims.”253 Investigations of Illinois state prisons prior to the enactment of the PLRA reveal grievance system policy concerns still evident in today’s post-PLRA prisons. Meritorious claims disappear in Illinois prison grievances system, never to be adequately resolved by the persons in charge of addressing them, and never to be given fair review by courts adopting a narrow view of the right to petition. These internal issues in prison grievance systems demonstrate the limited ability to exercise the right to petition in prisons and the necessity for a broader scope of constitutionally protected claims to be brought to court. Until prison officials can respect that inmates have the right to seek review of prison conditions and guard conduct and a strict fair grievance procedure that can be instilled, a narrow interpretation will not suffice.

252 See generally DOJ Letter, supra note 194. 253 See 42 U.S.C. § 1997e.

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With the broad interpretation of the right to petition, courts are sufficiently bridging the gap between inadequate grievance systems and the difficulties inmates face when trying to bring a claim in courts with a narrow interpretation. When an inmate brings a claim of retaliation for exercising his right to petition, or the filing of grievances in his prison, he will have a quicker turnaround for addressing the issue if the court has given the right to petition a broader scope. This does not mean exhaustion requirements under the PLRA need to be entirely thrown out. However, it is important that the PLRA be amended to include more reasonable requirements for inmates in these secluded prison environments. If the PLRA can be redrafted to contain uniform, strict requirements of prison administrations and their employees, this could lead to a better-run grievance system and environment for people who, although are inmates, should not completely lose those rights afforded to them by the United States Constitution. Prisons are labeled as environments where poor conditions and mistreatment can be acceptable because they are responsible for housing criminals who have committed offenses against society. “Wh ile society no longer demands that inmates leave prisons changed for the better, it is both counterproductive and inhumane for inmates to leave prisons in much worse shape than when they entered.”254 While the negative attitude towards inmates is hard to eradicate, a strong effort on the part of Illinois prison administrations and the legislative body can assure that the actual intentions of the First Amendment are fulfilled, and that all persons are guaranteed these rights regardless of societal standing.

254 Adams, supra note 251, at 275.

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