Does A Florida Court Have Jurisdiction To Dissolve A Same-Sex Marriage?

A Florida appellate court heard argument today on the following question: Whether a Florida court has jurisdiction to dissolve a same-sex marriage, even though Florida law prohibits same-sex marriage. The case is Oliver v. Stufflebeam (No. 12-2159). The oral argument video will be available in the Third District Court of Appeal's video archives sometime tomorrow. Search the case number to pull up the video.

The basic facts: Sarah Oliver and Heather Stufflebeam got married in Iowa, where same-sex marriage is legal. They then moved to Florida. Sometime after that, they didn't want to be married anymore. The trial court denied their request for dissolution.

I'll try to get my hands on the briefs in the case. But based on the argument, it appears that the appellant is not challenging the constitutionality of Florida's same-sex marriage ban. (Other Florida cases raise that issue). The appellant simply argues that the same-sex ban does not bar Florida courts from dissolving same-sex marriages. (Appellee agrees; both parties are seeking the divorce).

The relevant statutory provision, Section 741.212(1), states:

Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.

(my emphasis). That same statute goes on to forbid same-sex marriage in Florida. See Section 741.212(3). The text of the statute says nothing about "divorce." It's simply a "no-Full-Faith-and-Credit" provision for foreign same-sex marriages. The question, then, is whether a court "recognizes" a same-sex marriage by dissolving it. I think the intuitive answer is "No."

Part of the appellant's argument is that the dissolution does not implicate any of the "benefits of marriage." If it did, Florida law would likely not permit the dissolution. (Or so I gather from the argument; I don't know what provision of Florida law talks about "benefits"). At argument, Judge Rothenberg and appellant's counsel had an exchange during which counsel argued that divorce is not a benefit of marriage; Judge Rothenberg disagreed. On one hand, divorce doesn't sound much like a "benefit"; it's just a failed marriage. On the other, a couple that divorces gets the "benefit" of a public forum for resolution of its very private dispute. So, for instance, a court will divvy up property, award alimony and child support, etc. The court is an arbiter, and perhaps it's fair to say that the parties receive the benefit of an arbiter's decisions.

Another potential problem with the parties' position is that it would require a trial court to evaluate a same-sex marriage to determine whether it is "irretrievably broken." That act might constitute a recognition of the marriage.

A collateral, procedural wrinkle in the case is whether the court can reach the constitutional issues, assuming it rejects the parties' statutory interpretation. My reading of the procedural posture is that the parties waived the constitutional arguments. In arguing to the contrary, Appellee pointed out during argument that the briefs say that a contrary statutory interpretation would raise constitutional concerns; but that isn't the same as saying that a statute is in fact unconstitutional. Rather, the parties simply supported their statutory argument by raising the canon of constitutional avoidance. 

Below, the trial court apparently refused to entertain the parties' constitutional arguments. But the parties did not request review of that decision.

A final note: There was apparently no amicus in the case who argued against jurisdiction. That position is completely unrepresented. Which means that the court is charged with crafting those arguments itself. The Florida Rules of Appellate Procedure do not contain a provision allowing a court to appoint amici. I'm not aware of any Supreme Court rule that allows SCOTUS to appoint amici, but that Court sometimes does appoint counsel to represent an unrepresented position. See The Affordable Care Act Cases (SCOTUS appointed Robert Long to argue that the litigation was precluded by the Anti-Injunction Act).

Scalia's Textualism

Justice Scalia's adherence to textualism requires that he not resort to extra-textual sources when interpreting a statute. Chiefly, he refuses to look at legislative history. That explains why--although he joined today's majority opinion in Octane Fitness--he expressly did not sign onto footnotes 1-3, which cite to legislative history and historical sources. (Thanks to T.N. and/or the Volokh Conspiracy for this point). 

But apparently Justice Scalia's jurisprudential views don't bar him from looking at all extra-textual sources. Here is a paragraph from his dissent in EPA v. Eme Homer City Generation, L.P.:

The statute’s history demonstrates that “significantly” is not code for “feel free to consider compliance costs.” The previous version of the Good Neighbor Provision required each State to prohibit emissions that would “prevent at­tainment or maintenance by any other State of any [NAAQS].” 91 Stat. 693 (emphasis added). It is evident that the current reformulation (targeting “any air pollutant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS]”) was meant simply to eliminate any implication that the polluting State had to be a but-for rather than merely a contributing cause of the downwind nonattainment or maintenance problem—not to allow cost concerns to creep in through the back door. 

Slip. op., 5 (Scalia, J., dissenting) (my emphasis).

So Scalia will look at a “statute’s history” (that is, the evolution of a single statute through its many amendments over time). I’m not sure, however, why this would be any more legitimate than looking at legislative history. Textualists shun legislative history because, among other reasons, a committee report doesn’t speak for the entire Congress that later passed the bill. Likewise, a Senator’s floor statements likely aren’t representative of what many other senators thought about a bill or the problem the bill was meant to address. In the view of textualists, only when a majority of the individual members of Congress coalesce to pass into law the particular language of a bill do we have a clear indication of what Congress intended.

Justice Scalia might argue that statutory history is made of laws that Congress actually agreed upon; so his basic theory of why the text is primary might support looking at statutory history: The proof of legislative intent is what the legislature actually said, i.e., the plain text. True, but that still doesn’t matter because when we interpret a statute, we ask what that particular Congress meant; statutory history, by definition, looks at what previous Congresses meant to say.  

The best support for statutory history is the theory that when Congress amends a statute by removing old text and adding new text, it did so intentionally. Meaning, it thought the old text was bad or didn’t work. The new text is the stuff the new Congress thought should be there.

Yet that’s as speculative as looking at the legislative history. If Justice Scalia were willing to couple statutory history with legislative history--which might explain exactly why the new language was substituted for the old--the statutory history could be useful. But then it would really just be “legislative history.”

And I say that statutory history is extra-textual because the text is no longer on the books. It is therefore unlike a typical context-based argument, which looks elsewhere in the U.S. Code for clues about a statute's meaning. (Ex. If you want to know what Congress means when it used the words "tangible objects" in Provision A, you could look to Congress's use of "tangible objects" in Provision B and read those provisions in pari materia). Finally, as Scalia himself pointed out in Reading Law, a prior Congress has no authority to bind the present Congress.

Perhaps someone has an idea for reconciling Justice Scalia’s textualism with his actual practice in Eme Homer City Generation.

Scalia's Excellent Dissent in Navarette And Some Thoughts On Anonymous Tips

The Court's decision in Navarette this week took significant steps  to roll back its prior anonymous tip doctrine. There are numerous faults in the majority opinion, each of which Justice Scalia lays bare in his dissent (joined by Ginsberg, Sotomayor, and Kagan).

In a very fine piece of legal writing, this paragraph was especially good. Scalia discusses the majority's belief that a drunk driver who notices that police are tailing him can somehow sober up enough over the next five minutes so as to drive like a person not impaired:

Resisting this line of reasoning, the Court curiously asserts that, since drunk drivers who see marked squad cars in their rearview mirrors may evade detection simply by driving “more careful[ly],” the “absence of additional suspicious conduct” is “hardly surprising” and thus largely irrelevant. Ante, at 10. Whether a drunk driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence of alcohol. I subscribe to the more traditional view that the dangers of intoxicated driving are the intoxicant’s impairing effects on the body—effects that no mere act of the will can resist.

Slip op., 9 (Scalia, J., dissenting) (my emphasis).  

I recommend reading the entire opinion, especially for those criminal defense lawyers who will need to craft anonymous tip arguments in the wake of Navarette.

* * *

I'll note, however, that I think this turn in the law was inevitable. Since J.L., the courts have operated under the dubious assumption that a person who phones 9-1-1 is unaccountable because his identity cannot be confirmed. The majority opinion in large part does away with this assumption.

The anonymous tip doctrine has been rife with these sorts of assumptions. Why, for instance, did we assume pre-Navarette that a person who gave his name to a dispatcher was suddenly more reliable than before he gave his name? The whole basis of the anonymous tip doctrine is that we cannot trust a tipster, who very well may have a mischievous motive for the tip. That  being the case, why would we believe that the name the tipster gives is in fact his real name? Of course, we must rely on such assumptions because otherwise no 9-1-1 tip could ever alone suffice for reasonable suspicion. 

At any rate, Navarette signals that the doctrine is unraveling; to the detriment of defendants and the privacy of the public, as Justice Scalia points out.

Appellate Briefing Convention: Paragraph Numbering Of Distinct Arguments In Briefs

I've noticed more and more that appellate practitioners are adopting the following briefing convention: Using numbered paragraphs to indicate that the paragraph or paragraphs that follow deal with a distinct argument. You can find examples of this convention in any SCOTUS brief filed by the Solicitor General (take, for instance, the briefs in Fernandez v. California and United States v. Burrage).

The convention isn't being used only at the SCOTUS level, either. The lawyers in SmithKline Beecham Corp. v. Abbott Laboratories put it to good effect in their brief arguing for rehearing en banc by the Ninth Circuit. See Br. at 11-14. And Neal Katyal recently filed a brief on behalf of Google (also seeking en banc review in the Ninth Circuit) that relies on the convention extensively. 

Here's how it works: If you've got a two or more distinct arguments that properly fall within the same subheading and that aren't complex or different enough to warrant their own headings, tag the first paragraph of each argument with either a number or letter. The tag gets indented, just as with any other paragraph. You'll decide whether the tag is a number or a letter based on what sort of heading you'd create if you'd instead chosen that route; if the next-level-down header was going to be "1. Next-Level-Down Header," then you'll instead tag your paragraph with a "1." Or if the next-level-down header was going to be a letter, then you'll use an "A.", "B.", "C.", and so on.  

You'll occasionally even read a brief that stacks the numbering and lettering the same way that advocates usually stack their pointheaders and subheaders. So a brief might give a header, then tag the first paragraph as "1. A." The "B." paragraph then follows a few paragraphs later, followed eventually by the "2." paragraph.

* * *

The convention apparently goes back a ways. In 1992, for example, the American Psychological Association filed an amicus brief in Planned Parenthood v. Casey that separately numbered its arguments. See Br. at 6-8. I don't know where the convention originated, but I do know that the convention is principally being used by the Solicitor General's Office and those lawyers in private practice who once worked within that Office.

I like the convention and use it myself. It's particularly helpful when a subheading of the brief contains a number of separate arguments, but you don't want to muddy the flow of the brief with additional sub-subheadings. That's especially true when those sub-subheadings would only contain a few paragraphs anyways. So the numbering lends the brief a clean, readable feeling while still guaranteeing that the brief is logically ordered and that the distinct arguments are readily accessible by a reader who wants to go back and take another look at a specific point you made. 

The convention also comports with our lawyerly instinct to obsessively categorize and label our arguments. That is, we're always trying to put our arguments into neat little boxes. By paragraph-numbering the arguments in a brief, you can effectively label each "box."

The only problem with the convention is that it's not widely used. Some readers might find it jarring to be confronted by paragraph numbering that they're not accustomed to seeing. And that jarring feeling could easily detract from the reading experience, thus eliminating any benefit the convention might otherwise have given you. 

As a general rule, I'd think that the more sophisticated the appellate court, the better off you are using the convention. If you're not arguing in the Supreme Court, I don't know where that leaves you.

Beating The Obvious Plain Text Argument

In a follow-up post to the Scalia meme, what do you when the plain text of a statute appears to hurt you? 

Jeff Fisher and Thomas Scott Thompson had to deal with this problem in their cert petition in T-Mobile South LLC v. City of Roswell. In short, their client T-Mobile South complains that a local government failed to abide by the "in writing" requirement of Section 322(c)(7)(B)(iii) of the Communications Act of 1934 when it denied T-Mobile South's application for a personal wireless facility. The local government issued a written denial that did not list any reasons for the denial. The text of the statute provides that any decision by a state or local government denying a request to place, construct, or modify a personal wireless facility “shall be in writing and supported by substantial evidence contained in a written record.”

The Eleventh Circuit held that the local government's simple, written denial of T-Mobile South's application satisfied the plain text of Section 322(c)(7)(B)(iii). Fisher and Thompson recognized that they too had to begin with the text of the statute. There's simply no way around that. But they frame the textual analysis to suggest that the textual inquiry isn't as simple as the other side would have you believe.

The first paragraph in their textual analysis:

We begin with text, and with this Court’s familiar admonition that “[s]tatutory interpretation is a holistic endeavor.” Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (internal quotation marks and citation omitted). Thus, each statutory term should be construed “not in isolation, but ‘in its proper context.’” Porter v. Nussle, 534 U.S. 516, 527 (2002) (quoting McCarthy v. Bronson, 500 U.S. 136, 139 (1991)). Indeed, “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme – because . . . only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Ass’n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988).

Pet. for Writ of Cert. at 22 (my emphasis).

That paragraph is a great example of turning a negative into a positive. To the extent that the other side's plain text argument could be neutralized, Fisher and Thompson accomplished that. 

They then built their own plain text argument on the combined phrases "in writing and supported by substantial evidence contained in the record." That latter phrase requires, in their view, that the local government point to the "substantial evidence" in its written decision. Four circuits agree with that approach, whereas the Eleventh Circuit stands with only the Fourth Circuit. 

I think that the Eleventh and the Fourth have it right, at least based on plain text of Section 322(c)(7)(B)(iii). The better reading of the "supported by substantial evidence" language is that that support must simply be "contained in the record." Which is precisely what the text says. 

I haven't read the Brief in Oppositon. Hopefully the local government fires back with something like: "The answer to this question begins--and ends--with the text." 

What Would Scalia Do?

I finally got around to generating this meme. For the textualist in all of us:

Certworthiness As A Legal Proposition

If you're a Supreme Court clerk in his first month on the job, who now faces the daunting task of reading all those cert petitions and recommending some to the full Court for consideration, what would be helpful to you in deciding which petitions to recommend? Well, obviously the usual stuff that everybody knows about: A circuit split; a question of national importance; a well-known name on the cover of the petition. But you'd probably feel a lot more confident in your recommendation memo if you knew that the Court had previously granted a case where a circuit split was even less severe than in the current case.

Here's what Jeff Fisher said in the Wurie petition:

The issue has now been thoroughly ventilated. Numerous federal appellate and state supreme court decisions have explored the legal arguments arising from searching cell phones seized during arrests. Indeed, at least nine such decisions have already been issued – most with dissenting opinions – and some dedicating dozens of pages to the issue. See supra Part I.B. (By comparison, when the Solicitor General recommended, and this Court granted, certiorari in United States v. Jones, 132 S. Ct. 945 (2012), involving the propriety of warrantless GPS tracking, there were only four such opinions on the issue. See Pet. for Writ of Cert. at 20-23, Jones, 132 S. Ct. 945 (No. 10-1259).) These courts now openly acknowledge the increasing division. See, e.g., United States v. Wurie, ___ F.3d ___, 2013 WL 2129119, at *5 (1st Cir. May 17, 2013); United States v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012); Smallwood v. State, 113 So. 3d 724, 733 n.5 (Fla. 2013); People v. Diaz, Pet. App. 47a n.17 (Cal. 2011). The First Circuit recently refused to consider the issue en banc, with two judges deeming such a rehearing pointless and calling instead for this Court to resolve the issue. United States v. Wurie, ___ F.3d ___, 2013 WL 3869965 (1st Cir. July 29, 2013). 

See Pet. for Writ of Cert. at 16-17.

Fisher treated certworthiness as though it were a legal proposition for which you might cite precedent. It was a bright idea.

Oh, and the Wurie petition was granted.

Hobby Lobby Wasn't Such A Great Plaintiff, As It Happens

During last week's Supreme Court argument in the Hobby Lobby/Conestoga Wood Specialties, Justice Sotomayor remarked that the lawyers in the case had "picked great plaintiffs." See Oral Argument Tr. at 19. At the time, she didn't seem particularly pleased with that fact. And she certainly didn't mean it as a compliment. More, really, of an inconvenience for members of the Court that didn't agree with the plaintiffs' position.

Later events have called the "great plaintiffs" moniker into question: Earlier this week, Mother Jones broke the news that Hobby Lobby is invested in a number of companies that manufacture the very contraceptive products that Hobby Lobby finds so offensive. 

In fairness to Hobby Lobby, it appears that those investments were bundled up in mutual funds that invested in the offending companies. And it's not as though Hobby Lobby management chose the offending companies; that's a task that they entrusted to their investment managers. But still -- Hobby Lobby could have ensured that none of those offending companies met with its money by employing an investment firm that specializes in "faith-based investing."

I can only imagine Paul Clement and Viet Dinh sitting around the Bancroft office, rueing this news together. Yet it's hard to imagine that this will have any impact on the legal proceedings, at least at the Supreme Court stage. Facially, it looks quite bad; but none of this is part of the trial record. The appropriate place to further develop this, er, development, is in the trial court. (The government's appeal was taken from the Tenth Circuit's decision reversing the district court's decision to deny the preliminary injunction; the district court has since granted the preliminary injunction and stayed further proceedings. See Resp. Br. at Cert. Stage, at 13, n.10)