Tuesday, May 20, 2014

ProtectMarriage.com v. Bowen (9th Cir. - May 20, 2014)

For federal courts scholars, this is a neat discussion of standing.  But at 50 pages, unless you're fascinated by mootness issues, the debate between Judges Milan Smith and Wallace is probably, well, moot.

To be fair, though, the standing issue arises in the context of Proposition 8.  That's the biggest pitch in favor of reading this otherwise technical opinion.  The question is whether it's unconstitutional for the state to make public donors to that Proposition.  You can readily understand the arguments of both sides.  The disclosure proponents say the state has a legitimate anti-corruption and electoral interest in letting the public know who is funding ballot measures.  The disclosure opponents say that it allows contributors to be harassed and thus burdens their right to associate and participate in elections.

But the majority says that dispute's moot since the names here have already been disclosed for five years, and nothing can take that back.  Judge Wallace, by contrast, agrees, but argues that the capable of repetition yet evading review exception applies.

Beyond this doctrinal debate, there are two tiny portions of both opinions that bear brief mention.  First, in the majority opinion, Judge Smith says that in light of the prevailing mootness principles, "we advise courts to exercise the utmost caution at the early stages of actions concerning the disclosure of sensitive information, and to consider this 'mootness Catch-22' when assessing whether the denial of preliminary relief will likely result in irreparable harm."  The latter statement seems right, but not necessarily the former.  Whether there's effective appellate review surely affects the irreparable harm inquiry.  But even though I too care deeply about the compelled disclosure of sensitive information, apart from the irreparable injury point, it seems too far to say that courts must "exercise the utmost caution" in preliminary injunction disputes involving such data.  There's no "thumb on the scale" in such cases; rather, the usual rules (assess the likely success on the merits, etc.) would seem to properly apply.  The fact that mootness might preclude appellate review is (I agree) a good reason to grant an injunction if you think the plaintiff is likely to succeed on the merits.  But if you think they're unlikely to succeed on the merits, the fact that mootness might prevent timely review doesn't seem all that relevant to me (beyond the preexisting irreparable injury point), especially since most of these cases are affirmed on the merits anyway.

Now, I'd totally agree with Judge Smith if what he was saying was that in scheduling motions for preliminary relief, courts should "exercise the utmost caution".  That seems indisputably right, and an entirely proper thing to consider in light of the Ninth Circuit's mootness holding.  This case is a perfect example.  There was a pending statutory deadline to disclose names.  Plaintiff filed suit and requested preliminary relief.  But if such relief was denied, the plaintiff might well be compelled to disclose this information, and this would make any appeal of the injunction ruling moot.

In light of this fact, rather than setting the hearing on the motion for a preliminary injunction on the very last (or next-to-last) day before the disclosure was due -- which district courts are notorious for doing -- the much better course would be to set the hearing (if at all possible) a week or two earlier.  That would enable the plaintiff to effectively file a quick notice of appeal and request for a stay with the Court of Appeals in an effort to avoid the mootness problem.  (And if such an early hearing wasn't possible because the plaintiff unjustifiably delayed filing the lawsuit until right before the deadline, well, that's their fault, so the fact that mootness might negate effective appellate review in the event plaintiff's motion is denied doesn't bother me exceptionally much.)

But Judge Smith's "utmost caution" line doesn't read that way.  It sounds like it's talking about assessing the merits, not procedural scheduling.  Which is not, I think, the right way to think about these things.  At least as far as "utmost caution" is concerned.

The other tangential point that merits brief mention is the last footnote of Judge Wallace's dissent.  Which consists of a very long discussion (albeit in a footnote) of something that is entirely irrelevant to the appeal, but that Judge Wallace includes because he's clearly not happy about the fact that the California Attorney General decided not to defend Proposition 8 on appeal, so he feels like (1) saying so, and (2) suggesting that California pass legislation requiring the Attorney General to support such laws in the future.

The footnote's more than a little out of place.  Yes, it's perhaps a little bit of "background" (of a sort) about the dispute.  But even for someone like me -- who's on record as worried about related standing issues -- it is nonetheless a bit much.  That debate's already been fully played out in appeals that directly involved and raised that issue.  Reaching to to say the same thing in a case in which it's relevant only as "background" just seems too much of a stretch.  Especially when the footnote consists of four paragraphs and spans two pages of the dissent.

Better, I think, to simply let the "tangent" go and focus on the appeal at hand.