ROGER WILLIAMS UNIVERSITY LAW REVIEW VOLUME TEN FALL 2004 NUMBER ONE TABLE ...

ROGER WILLIAMS UNIVERSITY LAW REVIEW VOLUME TEN

FALL 2004

NUMBER ONE

TABLE OF CONTENTS ARTICLES Both Sides of the Coin: A Decade of Parallel Proceedings and Enforcement of Judgments in Transnational Litigation …………………………………………………………….Louise Ellen Teitz Treating Spiritual and Legal Counselors Differently: Mandatory Reporting Laws and the Limitations of Current Free Exercise Doctrine…………………………………………………...Andrew A. Beerworth Rhode Island’s Public Importance Exception for Advisory Opinions: The Unconstitutional Exercise of a Non-Judicial Power………………………………………………………………….Thomas R. Bender NOTES AND COMMENTS Fit to be Tried: Bypassing Procedural Safeguards to Involuntarily Medicate Incompetent Defendants to Death…………………………………………..………. Cameron J. Jones . Mandatory Voir Dire Questions in Capital Cases: A Potential Solution to the Biases of Death Qualification…………………..………………………….……Jesse Nason Results Above Rights? The No Child Left Behind Act’s Insidious Effect on Students with Disabilities…………………………………………………..………Matthew R. Plain

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Articles Both Sides of the Coin: A Decade of Parallel Proceedings and Enforcement of Foreign Judgments in Transnational Litigation Louise Ellen Teitz*

[A] rule which permitted parallel proceedings would avoid a “race to file” but in its place would be an equally troubling “race to judgment”. If neither action is stayed, the advantage goes to the first party to obtain judgment in its favour because the other jurisdiction would be expected to respect that judgment. Permitting parallel proceedings to continue would encourage a litigation strategy in which each side would attempt to expedite its own action while prolonging in any way possible the other party=s action through endless motions or other delaying tactics. In other words, allowing parallel proceedings to continue would not avoid entirely the problem of a “race to the courthouse” but would simply push the problem back a stage in the * Professor of Law, Roger Williams University Ralph R. Papitto School of Law, Bristol, Rhode Island. The author gratefully acknowledges the invaluable research assistance of Kathryn Windsor. Portions of this article appear in Louise Ellen Teitz, Developments in Parallel Proceedings: Globalization of Procedural Responses, 38 INT’L LAW. 303 (2004) and Louise Ellen Teitz, Parallel Proceedings – Sisyphean Progress, 36 INT’L LAW. 423 (2002). Copyrights 2004 and 2002 American Bar Association and Louise Ellen Teitz. Reprinted with Permission. © 2004 Louise Ellen Teitz. All Rights Reserved.

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proceedings.1 It seems to me that in this day of exceedingly high costs of litigation, where no comity principles between nations are at stake in resolving a piece of commercial litigation, courts have an affirmative duty to prevent a litigant from hopping halfway around the world to a foreign court as a means of confusing, obfuscating and complicating litigation already pending for trial in a court in this country.2 Just over ten years ago, a new undertaking in private international law was being inaugurated at the Hague in the form of a treaty on the enforcement of foreign judgments in the Hague Conference on Private International Law (Hague Conference), an inter-governmental organization composed of over 50 countries.3 In an attempt to gain greater respect for U.S. judgments abroad, especially in an era of increasing international trade and commerce, the United States government in 1992-93 encouraged the Hague Conference to negotiate a multilateral convention on foreign judgments. In this article I consider the problems of concurrent proceedings in multiple countries over the last decade in the context of the complementary developments in the enforcement of foreign judgments during the same period. While multiple proceedings and enforcement of judgments have taken independent journeys, both have traveled toward a convergence which attempts to harmonize problems of multiple proceedings within the context of enforcing judgments.4 I. INTRODUCTION

As the world has become smaller, the number of parallel pro-

1. Westec Aerospace Inc. v. Raytheon Aircraft Co., [1999] 67 B.C.L.R. 3d 278, 289 (B.C. Ct. App. 1999) (Rowles, J.A.). 2. China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 40 (2d Cir. 1987) (Bright, J., dissenting). 3. The Hague Conference on Private International Law (Hague Conference) is devoted to harmonizing private international law and working towards concluding international treaties in this area. See infra Part VII.A-B. 4. This conjunction of parallel proceedings and enforcement of judgments is seen in attempts to harmonize concepts of lis pendens on one hand, and forum non conveniens, or declining jurisdiction, on the other. See generally DECLINING JURISDICTION IN PRIVATE INTERNATIONAL LAW (J.J. Fawcett ed., 1995).

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ceedings has been expanding. Increasing globalization of trade has both multiplied the number of parallel proceedings and the number of countries whose courts are facing the challenge of concurrent jurisdiction.5 The proliferation of multiple proceedings has led to a variety of approaches,6 especially in U.S. courts, which reflect the doctrinal inconsistencies in analyzing multiple proceedings, often with tools developed for purely domestic use.7 Thus one finds analogies to state-state, state-federal, and federal-federal models. These divergent methods highlight the increasing need for U.S. courts to adopt a uniform response to parallel proceedings involving a foreign forum. During the last decade, the problems of parallel proceedings and related issues have gained increasing attention within the context of transnational litigation and dispute resolution. The attempts to negotiate a worldwide convention on jurisdiction and enforcement of foreign judgments at the Hague8 have highlighted this dilemma, as discussed below. Similarly, attempts to rationalize and federalize enforcement of foreign judgments within the 5. See discussion infra Part IV.A. 6. See LOUISE ELLEN TEITZ, TRANSNATIONAL LITIGATION 233-50 (1996 & Supp. 1999) [hereinafter TRANSNATIONAL LITIGATION]; Louise Ellen Teitz, Taking Multiple Bites of the Apple: A Proposal to Resolve Conflicts of Jurisdiction and Multiple Proceedings, 26 INT’L LAW. 21, 28-48 (1992) [hereinafter Teitz, Taking Multiple Bites]. 7. For a discussion of the incorrect reliance on domestic precedent in an international context, see Posner v. Essex Ins. Co., 178 F.3d 1209, 1222-24 (11th Cir. 1999), discussed in Louise Ellen Teitz, International Litigation; Parallel Proceedings and the Guiding Hand of Comity, 34 INT’L LAW. 545, 546-47 (2000). 8. There is extensive literature on the Hague jurisdiction and judgments negotiations and drafts. See generally SAMUEL P. BAUMGARTNER, THE PROPOSED HAGUE CONVENTION ON JURISDICTION AND FOREIGN JUDGMENTS: TRANS-ATLANTIC LAWMAKING FOR TRANSNATIONAL LITIGATION (2003); LAW AND JUSTICE IN A MULTISTATE WORLD: ESSAYS IN HONOR OF ARTHUR T. VON MEHREN (James A.R. Nafziger & Symeon C. Symeonides eds., 2002)[hereinafter LAW AND JUSTICE]; Kevin M. Clermont, Jurisdictional Salvation and the Hague Treaty, 85 CORNELL L. REV. 89 (1999); Linda J. Silberman, Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention Be Stalled?, 52 DEPAUL L. REV. 319 (2002); Arthur T. von Mehren, Enforcing Judgments Abroad: Reflections of the Design of Recognition Conventions, 24 BROOK. J. INT’L L. 17 (1998) [hereinafter von Mehren, Enforcing Judgments Abroad]; Arthur T. von Mehren, Recognition and Enforcement of Foreign Judgments: A New Approach for the Hague Conference?, 57 LAW & CONTEMP. PROBS. 271 (1994) [hereinafter von Mehren, Recognition and Enforcement].

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United States, particularly those by the American Law Institute (ALI),9 have had to address the issue of parallel proceedings.10 Meanwhile across the Atlantic, the problem of parallel proceedings within the context of internal judicial integration under the Brussels Convention11 and now the Brussels Regulation12 has reached the European Court of Justice which has been attempting to reconcile European law with the national law of common-law jurisdictions that include the doctrines of antisuit injunctions and discretionary dismissals.13 Even if there is currently no harmoni9. See INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT (Tentative Draft No 2, 2004) [hereinafter INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT]. Professors Lowenfeld and Silberman, both from the NYU School of Law, are the reporters. See Linda J. Silberman & Andreas F. Lowenfeld, A Different Challenge for the ALI: Herein of Foreign Country Judgments, an International Treaty, and an American Statute, 75 IND. L.J. 635 (2000). 10. INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT, supra note 9, at § 11. The ALI draft statute specifically acknowledges the connection between parallel proceedings and forum non conveniens, being entitled “Declination of Jurisdiction When Prior Action Is Pending.” See discussion infra Part VII.C. 11. See Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1968, 1990 O.J. (C 189) 2 [hereinafter Brussels Convention]. 12. The Brussels Convention was replaced by EU Regulation 44/2001 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Mar. 1, 2002, 2001 O.J. (L 12) 1, amended by, 2002 O.J. (L 225) 1 [hereinafter Brussels Regulation]. Denmark is not under the regulation and continues to follow the Brussels and Lugano Conventions. See Brussels Convention, supra note 11; Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988, 1988 O.J. (L 319) 9 [hereinafter Lugano Convention]. 13. This article does not focus on efforts of judicial integration in the European Union (EU) except as they relate specifically to parallel proceedings, lis pendens, and declining jurisdiction in connection with recognition and enforcement of judgments. For a discussion of antisuit injunctions and the Brussels Convention/Regulation, see Clare Ambrose, Can Anti-Suit Injunctions Survive European Community Law?, 52.2 INT=L & COMP. L.Q. 401 (2003). The article discusses Turner v. Grovit, an English case discussed infra at Part V, in which the European Court of Justice addressed the issue of the use of an injunction to restrain proceedings in abuse of process within the context of the Brussels Convention. Turner v. Grovit, [2002] 1 W.L.R. 107 (H.L. 2001), preliminary reference made, Case C-159/02, [2003] ECR ____, [2004] 1 Lloyd’s Rep. 216, judgement of the full court, [2004] ECR 00 (27 Apr. 2004), [2004] 2 Lloyd=s Rep. 169; see also Richard Fentiman, Ousting Jurisdiction and the European Conventions, in 3 THE CAMBRIDGE YEARBOOK OF EUROPEAN LEGAL STUDIES , 107 (Alan Dashwood et al. eds., 2001); Trevor C. Hartley, How to Abuse the Law and (Maybe) Come Out on Top: Bad-Faith Proceedings under the Brussels Jurisdiction and Judgments Convention, in

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zation internationally of the treatment of parallel proceedings, a heightened awareness of its connection with judgment enforcement represents a significant step forward. On the reverse end of a lawsuit, the inability to enforce judgments from one forum in another forum also creates multiple proceedings.14 There is neither a constitutional nor federal statutory requirement to give full faith and credit to a foreign judgment, as opposed to a sister state judgment.15 Rather, the enforcement of foreign judgments within the United States is largely a matter of state law16 and is basically controlled by common law except in those states that have adopted the Uniform Foreign MoneyJudgments Recognition Act (the Uniform Act).17 More than half of the states have currently adopted some version of the Uniform Act, although the states vary in the exceptions to recognition, including the requirement of reciprocity which currently is demanded only in eight states.18 The ALI is presently drafting a statute that would federalize the recognition and enforcement of foreign judgments within the United States19 and that would impose a reciprocity requirement.20 These efforts would help create a

LAW AND JUSTICE, supra note 8, at 73 [hereinafter Hartley, How to Abuse the Law]. 14. See generally TRANSNATIONAL LITIGATION, supra note 6, at 251-292; see discussion infra Part VI. 15. U.S. CONST. art. IV, § 1 (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”). 16. Federal courts in diversity jurisdiction, which is generally the basis for jurisdiction of suits involving foreign parties, apply state law for recognition and enforcement under the Erie doctrine. See Hunt v. BP Exploration Co. (Libya), 492 F. Supp. 885, 892 (N.D. Tex. 1980); Somportex, Ltd. v. Philadelphia Chewing Gum Corp., 318 F. Supp. 161, 164 (E.D. Pa. 1970), aff’d, 453 F.2d 435 (3d Cir. 1971). See discussion infra Part VI. 17. 13 U.L.A. 263 (1986) [hereinafter UFMJRA]. The Act has a narrow scope, covering only money judgments, leaving the remainder for common law development. The National Conference of Commissioners on Uniform State Laws (NCCUSL) is currently working on updating and amending the UFMJRA. See Uniform Law Commissioners, at http://www.nccusl.org/ Update/. 18. See infra note 234. 19. INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT, supra note 10; see discussion infra Part VII.C. 20. Id. at § 7. The reciprocity requirement is controversial. It was the focus of much of the debate at the May 2004 ALI annual meeting, where a mo-

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consistent approach, making “importing” of foreign judgments turn in part on the treatment of U.S. judgments abroad. Nor can one easily or freely “export” U.S. judgments for enforcement abroad since the United States is not a party to any multilateral convention enforcing foreign civil judgments. In contrast, certain countries, such as the members of the European Community and the European Free Trade Association (EFTA), have worked to provide free movement of foreign judgments by reducing divergent treatment of jurisdiction and enforcement of judgments.21 The Hague Conference on Private International Law has been working on a convention since 1992 that would establish standards for jurisdiction and for subsequent recognition of judgments. The proposed convention was one that would not only treat recognition and enforcement of judgments but also establish the bases of jurisdiction that would be acceptable for enforcement. The jurisdictional component of the convention proved to be the more problematic in negotiations because there are significant and controversial differences among countries as to acceptable bases of jurisdiction. U.S. notions of doing-business and tag jurisdiction, and our emphasis on the relationship of the defendant=s activities to the forum, differ from personal jurisdiction concepts elsewhere. The process has continued for the last decade without resolution due to a multitude of factors ranging from disagreement over basic concepts of adjudicative jurisdiction, differences in the treatment of consumers, problems arising from the internet and e-commerce, and the increasing internal integration of judicial process within the European Community.22 A decision was

tion to delete the reciprocity portion of section 7 failed. See Actions Taken With Respect to Drafts Submitted at 2004 Annual Meeting (American Law Institute, Fall 2004), at http://www.ali.org. 21. See generally Brussels Convention, supra note 11; Brussels Regulation, supra note 12; Lugano Convention, supra note 12; see also RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS OUTSIDE THE SCOPE OF THE BRUSSELS AND LUGANO CONVENTIONS (Gerhard Walter & Samuel P. Baumgartner eds., 2000). 22. See Hague Conference on Private International Law, International Jurisdiction and Foreign Judgments in Civil and Commercial Matters (Hague Conference), Some Reflections on the Present State of Negotiations on the Judgments Project in the Context of the Future Work Programme of the Conference, Prel. Doc. No. 16 (Feb. 2002) [hereinafter Hague Conf. Prelim. Doc. No. 16], available at http://www.hcch.net/e/workprog/jdgm.html (last visited Oct. 7, 2004); Hague Conference, The Impact of the Internet on the Judgments

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made after 2001 to put a comprehensive convention on hold and instead to tackle a smaller project.23 As discussed in more detail below, these recent attempts to negotiate a scaled-back convention that would address choice of court clauses in the commercial context offer significant hope for progress in enforcing foreign judgments resulting from consensual agreements and provide certainty to businesses in selecting fora for resolution of subsequent disputes. In the process, this commercial choice of court convention also offers a lis pendens solution to parallel litigation contrary to forum selection clauses. II. PARALLEL PROCEEDINGS – WHAT GOES AROUND COMES AROUND

At first blush one might question the relationship of parallel proceedings and enforcement of judgment in the international context. Yet if one views the process of litigation as a chronological timeline, one of the crucial questions driving initial filing considerations is the possibility of, and potential problems with, enforcing any resulting judgment at the end of the suit.24 Along the way,

Project: Thoughts for the Future, Prel. Doc. No. 17 (Feb. 2002) (prepared by Avril D. Haines) [hereinafter Hague Conf. Prelim. Doc. No. 17], available at http://www.hcch.net/e/workprog/jdgm.html (last visited Oct. 7, 2004); Hague Conference, Reflection Paper to Assist in the Preparation of a Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, Prel. Doc. No. 19 (Aug. 2002) (prepared by Andrea Schulz) [hereinafter Hague Conf. Prelim. Doc. No. 19], available at http://www.hcch.net/e/workprog/jdgm.html (last visited Oct. 7, 2004); Hague Conference, The Relationship Between the Judgments Project and Other International Instruments, Prel. Doc. No. 24 (Dec. 2003) (prepared by Andrea Schulz) [hereinafter Hague Conf. Prelim. Doc. No. 24], available at http://www.hcch.net/e/workprog/jdgm.html (last visited Oct. 7, 2004); see also Fausto Pocar, The Drafting of a World-Wide Convention on Jurisdiction and the Enforcement of Judgments: Which Format for the Negotiations in The Hague?, in LAW AND JUSTICE, supra note 8, at 191. 23. Commission I on General Affairs and Policy of the Nineteenth Diplomatic Session met in April 2002 and decided “to move to an interim informal process, exploring new ways of negotiating. . . .” Hague Conf. Prelim. Doc. No. 19, supra note 22, at ¶¶ 5-15; Letter of Hans van Loon, Secretary General of the Hague Conference, Convocation Special Commission on Judgments, 1-9 December 2003 (August 19, 2003) (copy on file with author). For the latest draft of the Choice of Court Convention, as well as the older and more ambitious drafts, see the Hague Conference on Private International Law=s website, at http://www.hcch.net/e/workprog/jdgm.html. 24. See generally TRANSNATIONAL LITIGATION, supra note 6, at 101-05; see discussion infra Part VI.

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one may have to reevaluate both the choice of initial forum and potential enforcement several times during the litigation process based on decisions and actions of the opposing party. Indeed one factor determining initial filing or subsequent strategy might be the existence of an earlier-filed action in another forum or a subsequently filed defensive action in another forum. Parallel proceedings exist because of concurrent jurisdiction, both adjudicative and prescriptive.25 Problems of enforcement of foreign judgments arise in part from differing notions of adjudicative and prescriptive jurisdiction. Thus, when Country B is faced with the issue of enforcing a judgment from Country A, it must consider whether Country A, the rendering forum, had an acceptable basis for personal jurisdiction and whether it had the power to regulate the particular conduct. Often Country B is faced with this problem while there is still ongoing litigation or arbitration of the same or related matter, in Country B or in Country C, a third unrelated country. Alternatively, Country B has to decide which of more than one judgment it should recognize. Thus, the same problems motivating parties to file more than one proceeding also impact eventual enforcement. The response of other countries to parallel proceedings is expressed under various doctrines which govern the enjoining of party participation in foreign proceedings or the staying of pending proceedings. Countries that are signatories of the Brussels Convention, now the Brussels Regulation, or the Lugano Convention adopt a strict lis pendens rule that jurisdiction generally rests with the court first obtaining jurisdiction, and other litigation is stayed “until such time as the jurisdiction of the court first seised is established.”26 The Regulation leaves no discretion for the court to defer in favor of another court, other than the one first seized under the Regulation (or Convention).27 The lack of shared standards for parallel proceedings – 25. Adjudicative jurisdiction refers to personal jurisdiction, or the court=s power over a person or entity. Prescriptive jurisdiction refers to a state or country=s ability “to make its law applicable to the activities, relations, or status of persons, or the interest of persons in things. . . .” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 401 (1987) [hereinafter RESTATEMENT]. 26. Brussels Regulation, supra note 12, art. 27(1). 27. Brussels Convention, supra note 11, art. 21. See discussion infra Part V.

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stay/defer, enjoin the parties from acting in the other suit, or continue both independently – within the United States and internationally, allows parallel proceedings to thrive and creates subsequent problems of enforceability. At the root of the problem are the fundamental differences in attitudes toward parallel proceedings and judicial discretion. How a legal system chooses to treat multiple proceedings is illustrative of its attitudes about “comity.” Comity is an implicit concern in both parallel proceedings and enforcement of judgments. Although the classic definition of comity in the United States is derived from Hilton v. Guyot,28 an 1895 Supreme Court case dealing with enforcement of judgments, the concept comes into play as well when a court is forced to consider how to react to parallel proceedings.29 Two of the potential responses – one court deferring to another or both courts continuing – reflect a willingness to accord some comity to the foreign sovereign=s courts. Thus any attempt to reach an agreement about enforcing judgments will also have to consider the treatment of parallel proceedings, either as part of the jurisdiction provisions or as part of the consideration of the basis for nonrecognition at the time of enforcement, or at both times. A. Origins and Responses to Parallel Proceedings Given the increasingly transnational character of daily transactions, litigants are considerably more likely to find themselves embroiled in simultaneous proceedings in two or more locations, one of which might even be cyberspace.30 Varied circumstances can result in duplicative litigation in multiple forums, either simultaneously or successively. There is also the possibility that the second forum is not a court but an arbitral tribunal. Parallel proceedings result from a myriad of causes, not only concurrent jurisdiction. The availability of different procedural systems encourages forum shopping, even when one action has already been filed. U.S. courts offer extensive discovery, jury trials, and the possibility of large damage awards, encouraging parties to

28. 159 U.S. 113 (1895). See generally Joel R. Paul, Comity in International Law, 32 HARV. INT=L L.J. 1 (1991). 29. This assumes the system has no mandatory lis pendens rules. 30. See Louise Ellen Teitz, Parallel Proceedings: Moving into Cyberspace, 35 INT=L LAW. 491, 493-95 (2001) [hereinafter Teitz, Moving into Cyberspace].

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bring actions in the United States.31 Similarly, the existence of different underlying substantive law and forum bias for its own law also encourage filing suit on “home ground,” even if suit is already filed elsewhere. Parallel proceedings may also be purely vexatious, intended to increase the burdens on an opponent and the cost and time of litigating. Regardless of the reasons for the multiple proceedings, there are three possible responses: (1) stay or dismiss the domestic action; (2) enjoin the parties from proceeding in the foreign forum (referred to as an antisuit injunction); or (3) allow both suits to proceed simultaneously, with the likely attendant race to judgment. The proliferation of multiple proceedings has led to a variety of approaches, both here and abroad, which are reflected in U.S. decisions. Often the analyses, developed purely for domestic use, for responses (2) and (3) are intertwined; when a request for response (2) is denied, response (3) is the usual result. Thus, the rules for allowing parallel proceedings and issuing antisuit injunctions are reverse images. There are of course variations on these responses, both among foreign countries and within the United States.32 The approach traditionally urged in U.S. courts as to litigation in multiple forums has been to allow parallel proceedings to continue simultaneously: “[P]arallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in one which can be pled as res judicata in the other.”33 International litigation dispersed in multiple countries is treated as analogous to lawsuits in different states within the United States. It is impossible to consolidate actions in two states or in two countries without first departing from one system, either through dismissal or stay. Once

31. “As a moth is drawn to the light, so is a litigant drawn to the United States.” Smith Kline & French Labs. Ltd. v. Bloch, [1983] 1 W.L.R. 730 (C.A. 1982) (Lord Denning, MR). 32. For example, a court may dismiss an action rather than stay it. The response to a forum non conveniens motion in a U.S. federal court is dismissal. In some states, such as California, the response is a stay. 33. Laker Airways, Ltd. v. Sabena Belgian World Airlines, 731 F.2d 909, 926-27 (D.C. Cir. 1984); see also Scheiner v. Wallace, 832 F. Supp. 687, 693 (S.D.N.Y. 1993), dismissed by, sanctions disallowed, 860 F. Supp. 991 (S.D.N.Y. 1994) (“general rule of comity requires domestic court to exercise jurisdiction concurrently with foreign court”).

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one suit has reached judgment, the prevailing party generally seeks to foreclose further action in the remaining suit.34 While this approach works within the United States where the constitutional guarantee of full faith and credit extends to a sister state’s judgment, there is no international equivalent to the Full Faith and Credit Clause. First to judgment does not mean first to enforcement. In the international arena, when a party seeks to enforce the judgment from the first-finished suit in the second country, relitigation may be necessary, at least when the rendering forum is the United States and the enforcing forum is outside the United States. A second potential response to parallel proceedings is to defer to another forum, either (1) staying the pending action until an action in another forum is resolved or (2) dismissing the pending action, with or without conditions, in favor of an action pending in another forum. Generally, the basis for requesting a stay is the inconvenience, practical or financial, of litigating in several locations. Indeed, in American practice, parties often join the motion to dismiss for forum non conveniens with an alternative motion to stay.35 American courts have shown inconsistency in their willingness to defer to courts of other sovereigns. The difficulty arises in deciding whether to categorize parallel proceedings between a U.S. court and a foreign court as analogous to the state/federal, state/state or federal/federal relationship,36 since there are different precedents for each relationship.37 34. See, e.g., Scheiner, 832 F. Supp. at 693. 35. Some U.S. federal courts have treated motions to stay pending foreign proceedings as equivalent to, or together with, motions to dismiss for forum non conveniens. See, e.g., Philadelphia Gear Corp. v. Philadelphia Gear Corp. de Mexico, 44 F.3d 187 (3d Cir. 1994). The assumption that staying an action allows the result in the foreign action to control is only partially correct since it does not take into consideration the ultimate issue of recognition and enforcement of judgments and the location of assets that might be used to satisfy the judgment. 36. Compare, e.g., Neuchatel Swiss Gen. Ins. Co. v. Lufthansa Airlines, 925 F.2d 1193, 1195 (9th Cir. 1991) (rejecting notion that a federal court owes greater deference to foreign courts than state courts), with Brinco Mining, Ltd. v. Federal Ins. Co., 552 F. Supp. 1233, 1242-43 (D.D.C. 1982) (treating standard as same as between two federal courts). See, e.g., AAR Int=l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 518 (7th Cir. 2001); Posner v. Essex Insurance Co., 178 F.3d 1209 (11th Cir. 1999); Szabo v. CGU Int=l Ins., PLC, 199 F. Supp. 2d 715 (W.D. Ohio 2002). 37. See General Electric Co. v. Deutz AG, 270 F.3d 144, 150, 152 (3d Cir.

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This is particularly true when the federal court chooses to defer or declines to proceed. When the federal court has jurisdiction but chooses not to exercise it in deference to another proceeding, usually that of a state, this discretionary refusal implicates the doctrine of abstention. However, when the federal court defers to a court of another country rather than a state, the argument is generally couched in terms of “comity.”38 While comity initially was considered in connection with recognition and enforcement of a foreign judgment, amounting to giving extraterritorial effect to another sovereign’s laws, its use has been extended to a general concept of “courtesy.” Comity then becomes a basis for a federal court to abstain from acting, including refusing to enjoin parallel proceedings,39 and has become enmeshed in the federal abstention case law, reflecting another attempt to squeeze transnational litigation problems into the existing mold of domestic lawsuits. A stay in favor of proceedings in a foreign court is discretionary, based on the inherent power of the court to control its own docket.40 The basis for a stay in federal court has often been tied explicitly to judicial efficiency41 and to the impact on the system, 2001); see also Advantage Int=l Mgmt. v. Martinez, No. 93 Civ. 6227 (MBM), 1994 WL 482114 (S.D.N.Y. Sept. 7, 1994): Although the Supreme Court has not addressed specifically the criteria that courts should consider when determining the propriety of staying or dismissing a federal action in deference to another lawsuit pending in a foreign jurisdiction, courts faced with this issue have articulated a standard premised, in part, on analogous Supreme Court precedent concerning the contemporaneous exercise of jurisdiction by federal courts, or by federal and state courts. See, e.g., Caspian Invs., Ltd. v. Vicom Holdings, Ltd., 770 F. Supp. 880, 884 (S.D.N.Y. 1991) (citing Colorado River, 424 U.S. at 817). Id. at *2. 38. Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). The Supreme Court defined comity as follows: “Comity,” in the legal sense, is neither a matter of absolute obligation . . . nor of mere courtesy and good will . . . . But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws. Id. See generally Paul, supra note 28. 39. See discussion infra Part II.B. 40. See, e.g., Landis v. North Am. Co., 299 U.S. 248, 254 (1936); Trujillo v. Conover & Co. Communications, 221 F.3d 1262, 1264 (11th Cir. 2000). 41. One court explained the relationship this way:

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at least in the case of abstention under the Colorado River42 doctrine. In Colorado River, a purely domestic case, the Supreme Court acknowledged that federal courts had a “virtually unflagging obligation . . . to exercise the jurisdiction given them,”43 but proceeded to provide a checklist of factors to be balanced to determine if the case fell within one of the limited circumstances in which federal courts should abstain in “the presence of a concurrent state proceeding for reasons of wise judicial administration. . . .”44 In its subsequent refinement and limitation of Colorado River, the Supreme Court has characterized the paramount concern in that case as “‘[the] avoidance of piecemeal litigation. . . .’”45 Under the Colorado River doctrine, a court looks to see if either forum has jurisdiction over the property at issue: In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction [federal/state], a federal court may also consider such factors as the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums . . . [no] other

Numerous factors bear on the propriety of staying litigation while a foreign proceeding is pending. They include pragmatic concerns such as the promotion of judicial efficiency and the related questions whether the two actions have parties and issues in common and whether the alternative forum is likely to render a prompt disposition. Also relevant are considerations of fairness to all parties or possible prejudice to any of them. A third group of concerns relates to comity between nations. When as in this case the foreign action is pending rather than decided, comity counsels that priority generally goes to the suit first filed. Ronar, Inc. v. Wallace, 649 F. Supp. 310, 318 (S.D.N.Y. 1986) (citations omitted). Other cases have provided different formulations for the test to determine whether to grant a stay. See, e.g., Dragon Capital Partners L.P. v. Merrill Lynch Capital Servs., Inc., 949 F. Supp. 1123 (S.D.N.Y. 1997); Continental Time Corp. v. Swiss Credit Bank, 543 F. Supp. 408, 410 (S.D.N.Y. 1982) (adding temporal sequence to the factors in I.J.A., Inc. v. Marine Holdings, Ltd., 524 F. Supp. 197 (E.D. Pa. 1981)). 42. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). 43. Id. at 817. 44. Id. at 818-19. 45. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16 (1983) (quoting Colorado River, 424 U.S. at 819).

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factor is necessarily determinative.46 Some federal cases reflect hostility to relying on Colorado River to stay cases in favor of foreign proceedings. For example, the Ninth Circuit, in a recent case it described as “an ordinary commercial dispute over the loss of cargo,” reversed the district court’s granting of a stay pending the outcome of proceedings in Switzerland because the circuit court found no “exceptional circumstances” to justify abstention.47 Relying on cases that involve state/federal disputes, the court emphasized that “conflicting results, piecemeal litigation, and some duplication of judicial effort is the unavoidable price of preserving access to . . . federal relief.”48 The court then reasoned that the foreign aspect was “immaterial,” and that “no greater deference” was owed to foreign courts than state courts.49 In contrast to the Ninth Circuit’s approach, the U.S. District Court for the District of Columbia determined that a foreign court, in this case a Canadian one, was owed the same degree of deference as another federal court.50 The court applied the Colorado River test, stating that “the concerns that federalism normally presents for a diversity court are not implicated in this case.”51 In dismissing, the court relied on “international comity” and a “wellfounded aversion to forum shopping on an international scale,” as well as application of the Colorado River factors.52 A recent District Court decision within the Sixth Circuit is also typical of the attempt to fit purely domestic doctrine into international proceedings. The court, facing reverse parallel declaratory actions in connection with uninsured motorist insurance, refused to abstain in favor of the London action, relying on Colo-

46. Colorado River, 424 U.S. at 818 (citations omitted). 47. Neuchatel Swiss Gen. Ins. Co. v. Lufthansa Airlines, 925 F.2d 1193, 1194-95 (9th Cir. 1991). 48. Id. at 1195 (quoting Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1979), cert. denied, 469 U.S. 872 (1984)). 49. Id. (emphasis added). 50. Brinco Mining, Ltd. v. Federal Ins. Co., 552 F. Supp. 1233, 1240 (D.D.C. 1982). The court stated two facts for support: (1) the other forum was Canada, which was also a common-law country; and (2) the plaintiff was trying to use the U.S. court to circumvent proceedings it had originally brought in its own country. Id. 51. Id. 52. Id. at 1242.

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rado River abstention: “The same principles which govern parallel state and federal proceedings apply to parallel proceedings in a foreign court.”53 The court proceeded to apply the eight factors from Moses Cone, another domestic precedent, giving strong weight to the ability of the English insurer to litigate in the United States, the lack of “exceptional circumstances” to justify abstention, and a comment by the English judge that should Ohio law be determined to govern, the Ohio proceedings should deal with matters of Ohio law.54 B. Comity and International Abstention in the Last Decade A decade ago, federal courts, led by the Eleventh Circuit, began espousing a new doctrine of deference described as “international abstention,” a term reflecting the inconsistent precedents. This doctrinal approach – while similar to “comity” as used by some courts, such as those in the Second Circuit55 – takes its roots initially from the federal abstention doctrine involving federal and state proceedings. In one of the first major international abstention cases, Turner Entertainment Co. v. Degeto Film GmbH,56 the Eleventh Circuit, in a later-filed reverse breach of contract suit, deferred to pending German litigation in connection with proceedings involving a license agreement concerning television broadcasts. The court acknowledged a duty to exercise jurisdiction, but proceeded to consider the two lines of precedent, and to create an 53. Szabo v. CGU Int=l Ins., PLC, 199 F. Supp. 2d 715, 719 (S.D. Ohio 2002) (citing AAR Int=l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 518 (7th Cir. 2001)). 54. Id. at 720-21. 55. See, e.g., Rapture Shipping, Ltd. v. Allaround Fuel Trading B.V., No. 03 Civ. 738 (JFK), 2004 WL 253339 (S.D.N.Y. Feb. 10, 2004) (holding that pursuant to the principles of comity, the judgment of a Netherlands court would be honored); Aquinda v. Texaco, Inc., 945 F. Supp. 625 (S.D.N.Y. 1996) (dismissing on grounds of international comity and forum non conveniens a class action brought by Ecuador residents against a U.S. oil company for damages caused by oil exploration), vacated, Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998) (dismissing for forum non conveniens subject to condition of Texaco=s consent to jurisdiction in Ecuador), remanded to Aquinda v. Texaco, Inc., 142 F. Supp. 2d 534 (S.D.N.Y. 2001) (holding that because Texaco had submitted to jurisdiction in Ecuador, and the strong presumption for plaintiff=s forum was overcome by private and public factors favoring the alternative forum, Texaco=s motion to dismiss on forum non conveniens grounds was granted), aff=d, 303 F.3d 470 (2d Cir. 2002). 56. 25 F.3d 1512 (11th Cir. 1994).

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international abstention doctrine: This circuit has never considered the question of “international abstention.” In other federal courts, at least two distinct but very similar approaches to international abstention have developed. Both have lifted criteria for analysis from case law concerning concurrent jurisdiction between federal and state courts. . . . These two sets of principles overlap to a large extent, and we find both lines of cases helpful to our analysis. Taking the two approaches together, courts have sought to fashion principles that will promote three readily identifiable goals in the area of concurrent international jurisdiction: (1) a proper level of respect for the acts of our fellow sovereign nations – a rather vague concept referred to in American jurisprudence as international comity; (2) fairness to litigants; and (3) efficient use of scarce judicial resources.57 The court also considered fairness, which was composed of three elements: (1) order of filing; (2) convenience of the forum; and (3) possible prejudice to the parties resulting from abstention.58 A similar result was reached in the later Eleventh Circuit case, Posner v. Essex Insurance Co.,59 where the court rejected the argument that the Supreme Court=s decision in Quackenbush v. Allstate Insurance Co.60 was relevant to domestic cases. In Quack-

57. Id. at 1518. 58. Id. at 1521-22. 59. 178 F.3d 1209, 1222-24 (11th Cir. 1999). 60. 517 U.S. 706 (1996). Some federal courts, especially the district courts, appear to have hastily seized upon the language in Quackenbush about the ability of a federal court to dismiss only in cases of equitable relief, and therefore these courts have emphasized the need to “stay” as opposed to “dismiss” the pending United States litigation. For an interesting discussion of the issue of applying Quackenbush in the international context and the need for a stay, rather than a dismissal, see 767 Third Avenue Assocs. v. Consulate General of the Socialist Fed. Republic of Yugoslavia, 60 F. Supp. 2d 267, 278-82 (S.D.N.Y. 1999), in which the District Court stayed litigation involving a dispute over rented diplomatic offices in connection with the disintegration of Socialist Federal Republic of Yugoslavia as a non-justiciable political question: The deference that is necessary here is deference to an executive branch foreign policy determination, which itself is a policy of defer-

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enbush, the Supreme Court surveyed the domestic abstention doctrines and held that federal courts had the power to dismiss or remand only in equitable relief cases.61 In Posner, a Florida individual and majority shareholder of SMC, a privately held Maryland corporation, sued Essex, a Bermuda insurer that was owned 35% by SMC and 65% by Salem, a Pennsylvania corporation of which Posner owned 49%. The suits alleged a variety of claims, including financial mismanagement and breach of contract, in connection with failure to pay claims on insurance policies. Essex, after denying the claims, filed a declaratory judgment action in Bermuda on the validity of the insurance policies. The district court dismissed all claims in the United States on grounds of personal jurisdiction or international abstention.62 In reviewing the portion of the lower court=s action dismissing in favor of the parallel Bermuda litigation, the Eleventh Circuit addressed the plaintiff=s argument that Quackenbush removes the discretion of the district court to abstain in a nonequitable claim, the sort at issue here:63 “Read in the proper context . . . the Supreme Court’s admonition that courts generally must exercise their non-discretionary authority in cases over which Congress has granted them jurisdiction can apply only to those abstention doctrines addressing the unique concerns of federalism.”64 Finding that Quackenbush did not control in the realm of international litigation and that Turner was the controlling precedent, the Eleventh Circuit then applied the three Turner factors to decide what to do in relation to an earlier-filed Bermuda action. The court reviewed the basis for abstention, finding that the Bermuda forum was competent, that it was fair to allow the earlier-filed Bermuda action to proceed, but modified the dismissal to a stay.65 The Elevence to ongoing international efforts. The principles underlying the choice of a stay over a dismissal apply equally when the deference motivating abstention bases not on constitutional federalism and federal-state comity, but instead, as here, on constitutional separation of powers and national-international comity. Id. at 282. 61. Quackenbush, 517 U.S. at 731. 62. Posner, 178 F.3d at 1213-1214. 63. Id. at 1222-1223. 64. Id. at 1223. 65. Id. at 1224. The Court stated: With respect to the first factor, international comity, the district

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enth Circuit, although abstaining in favor of parallel foreign litigation, correctly acknowledged that domestic abstention doctrines are inapplicable to relationships “between federal courts and foreign nations (grounded in the historical notion of comity).”66 The Eleventh Circuit has continued to create a jurisprudence that recognizes the differences between domestic and international litigation, as illustrated by the decision in Posner.67 Comity as the basis for staying U.S. litigation in deference to foreign litigation, especially when the foreign suit was filed first, has become an increasingly acceptable approach during the last decade, even in light of the intervening Quackenbush decision. The doctrine of international abstention explicitly incorporates “comity” through the first factor of “proper respect.”68 Courts have continued to cobble together a collection of factors to consider when deciding whether to abstain in the international context. Courts have begun to realize the “overarching concerns for a federal court facing concurrent international jurisdiction including demonstrating a proper level of respect for the acts of other sovereign nations, ensuring fairness to litigants, and efficiently using scarce judicial resources.”69 In another example during the decade, Goldhammer v. Dunkin= Donuts, Inc.,70 involving proceedings in two common-law focourt found no evidence that the Bermuda court was not competent to hear the claims or would not use fair and just proceedings . . . . The district court also noted that the insurance “policies are governed by Bermuda law, and their underwriter Essex, is a Bermuda corporation”. . . . As the district court recognized, the second and third Turner factors – fairness and judicial resources – also counsel in favor of abstention. With respect to fairness, the facts that Essex filed a year before the commencement of this case, and allowing both actions to proceed risks inconsistent judgments, outweigh any convenience that the parties might enjoy in the Florida forum. Finally . . . they . . . involve significantly common issues and parties. Id. 66. Id. at 1223; see also Linear Products, Inc. v. Marotech, Inc., 189 F. Supp. 2d 461, 464-68 (W.D. Va. 2002). 67. See, e.g., Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312 (11th Cir. 2004); Seguros Del Estado, S.A. v. Scientific Games, Inc., 262 F.3d 1164 (11th Cir. 2001). 68. Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 1994). 69. Nat=l Union Fire Ins. Co. of Pittsburgh, Pa. v. Kozeny, 115 F. Supp. 2d 1243, 1247 (D. Colo. 2000). 70. 59 F. Supp. 2d 248 (D. Mass. 1999).

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rums,71 a District Court in the First Circuit also considered defendant=s motion to dismiss the U.S. lawsuit in favor of an earlierfiled English action. The court put together a “roster of relevant factors” for ruling on the motion, taken from earlier cases in several courts,72 including: (1) similarity of parties and issues (here minimal differences); (2) promotion of judicial efficiency (“not dispositive,” but a “key factor”); (3) adequacy of relief in the alternative forum (here Dunkin’ Donuts U.K. claims that it will lose its Massachusetts unfair and deceptive trade practices claim); (4) fairness and convenience of the parties, counsel, and witnesses (equal here); (5) possibility of prejudice (consideration of different procedures available); and (6) temporal sequence of filing.73 The court=s analysis in Goldhammer is interesting in its incorporation of significant aspects of a forum non conveniens analysis – specifically reducing the “fairness” factor to convenience of the parties, counsel, and witnesses – and analyzing procedural differences in discovery available in the United States, as opposed to what amounts to the “alternative forum,” here England.74 The impor71. Id. at 249-50. In both concurrent litigation cases and forum non conveniens cases, the significance of a common legal tradition receives some weight, even when unstated: “Because the United States and England share the same common law heritage, deference to British proceedings is consistent with notions of international comity.” Id. at 254-55. 72. Id. at 252. Many of the factors appear in Caspian Investments, Ltd. v. Viacom Holdings, Ltd., 770 F. Supp. 880, 884 (S.D.N.Y 1991). The facts and analysis are also similar to Dragon Capital Partners L.P. v. Merrill Lynch Capital Services., Inc., 949 F. Supp. 1123 (S.D.N.Y. 1997). See Louise Ellen Teitz, International Litigation, Parallel Proceedings: Treading Carefully, 32 INT’L LAW. 223, 225 (1998) [hereinafter Teitz, Treading Carefully] (discussing the relevant factors of Dragon Capital). 73. Goldhammer, 59 F. Supp. 2d. at 252-53; see also Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 115 F. Supp. 2d at 1247-49 (discussing the individual factors); see also AAR Int=l, Inc. v. Vacanes Heliades S.A., 100 F. Supp. 2d 875, 878 (N.D. Ill. 2000) (citing Finova Capital Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898-99 (7th Cir. 1999)), rev’d, 250 F.3d 510 (7th Cir. 2001), cert. denied, 534 U.S. 995 (2001); Sabre, Inc. v. Air Canada, Inc., No. 3-02-CV-2016-L, 2002 U.S. Dist. LEXIS 23697, at *8 (N.D. Tex. Dec. 9, 2002) (providing a list of factors to weigh in considering forum non conveniens). 74. In response to Dunkin’ Donuts U.K.’s concerns that it could not take pre-trial depositions in England, the court commented on the new procedural rules in England as yet untried: “As the federal courts grapple with controlling discovery costs and English courts look to expand discovery rights, soon the key difference between the two systems might be in the wigs.” Goldhammer, 59 F. Supp. 2d at 254 n.1.

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tance of comity, especially when there is a shared “common law heritage” is stressed at several points:75 “[N]otions of international comity are at an apex when parties inject themselves into the economy of another nation for profit, particularly one as close as Great Britain, and then try to extricate themselves from its jurisdiction.”76 These cases illustrate the confusion and conflicting treatment of parallel proceedings by U.S. courts involving American and foreign courts. In addition, they demonstrate the use of “comity” as a basis for abstaining, thus deferring to another forum, as opposed to being used as justification for allowing parallel proceedings in both forums to continue.77 Staying parallel proceedings even when 75. Id. at 254-55. 76. Id. at 255-56. In MLC (Bermuda) Ltd. v. Credit Suisse First Boston Corp., 46 F. Supp. 2d 249 (S.D.N.Y. 1999), another case involving multiple proceedings in the United States and England, the federal court for the Southern District of New York applied similar factors, taken also in part from Caspian Invs., Ltd. v. Viacom Holdings, Ltd., 770 F. Supp. 880, 884 (S.D.N.Y 1991), to dismiss the U.S. action in deference to the pending prior proceedings in London. The court in MLC actually adds a factor not usually seen in an analysis of whether to stay or dismiss in deference to parallel litigation – the plaintiff=s choice of forum – which the court here states “is entitled to much less weight when it is made after the filing of a concurrent action arising out of the same series of transactions.” MLC, 46 F. Supp. 2d at 254. The consideration of plaintiff=s choice of forum is generally reserved for forum non conveniens and personal jurisdiction analysis. The court also seems to suggest that whenever there are two suits, only one should proceed – the other court should, it is assumed, defer: “[D]ismissal will likewise promote judicial economy. Where a single court is capable of fairly and competently adjudicating an entire controversy, there is little reason to divide the task between two courts.” Id. For an interesting comparison, one can look at the English proceeding involving a portion of this litigation in the Commercial Court in London, where the court issued a limited antisuit injunction as to certain claims, which were then eliminated from the U.S. complaint. Credit Suisse First Boston (Europe) Ltd. v. MLC (Bermuda) Ltd., [1999] 1 Lloyd=s Rep. 767, 779-83 (Q.B. 1998). 77. See, e.g., Advantage Int’l Mgt., Inc. v. Martinez, No. 93 Civ. 6227 (MBM), 1994 WL 482114, at *4 n.2 (S.D.N.Y. Sept. 7, 1994) (citing Colorado River, 424 U.S. at 817-18). The Court explained this concept: Courts use the terms comity and, to a lesser extent, international abstention, to refer to the doctrine of judicial deference to pending foreign proceedings . . . although neither of these terms technically is appropriate. Comity refers to deference to another sovereign’s definitive law or judicial decision, see Hilton v. Guyot, . . . not to its preliminary decision to enact a law or issue a judgment. Abstention is a jurisdiction limiting doctrine relevant only to a limited category of

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the parties and issues are not identical has been approved by several courts when the court foresees the ability to use the first judgment to preclude further litigation.78 The longer the litigation has been proceeding when the second suit is filed and the stage that the initial litigation has reached appear to be decisive factors when ruling on a motion to stay the parallel proceeding. Courts are reluctant to allow a party to use a late-filed subsequent action to frustrate ongoing proceedings. When the second suit is filed in the United States, courts are more willing to defer to the foreign proceeding, and more reluctant to enjoin the continuation of the foreign proceeding. Throughout the last decade then one finds more and more courts, when faced with parallel proceedings, staying or dismissing the U.S. action, especially if it is the later-filed suit, viewing this as an appropriate response to concurrent jurisdiction and one dictated by both judicial efficiency and a growing awareness of “comity.” In addition, one finds more and more courts acknowledging the need for developing jurisprudence for parallel international cases apart from that used for domestic situations of litigation because of the failure of domestic precedent to incorporate the added concerns of foreign sovereigns. III. ANTISUIT INJUNCTIONS DURING THE DECADE

Enjoining parties from proceeding in another forum, the third possible response to parallel litigation, is clearly the most abrasive. Injunctions therefore are and should be difficult to obtain. While the injunctive relief sought is technically against the parties rather than the foreign court, the impact is often the same and the offense to the other court’s jurisdiction and sovereignty is as obvious.79 During the last decade, an increasing number of courts advocated restraint in the granting of antisuit injunctions, not only

cases concerning constitutional adjudication and state-federal relations. Id. 78. See, e.g., Herbstein v. Breutman, 743 F. Supp. 184 (S.D.N.Y. 1990); Black & Decker Corp. v. Sanyei Am. Corp., 650 F. Supp. 406 ( N.D. Ill. 1986). 79. Cf. Kaepa, Inc. v. Achilles Corp., 76 F.3d 624 (5th Cir. 1996). Here the Fifth Circuit found specifically that the dispute was essentially private and the antisuit injunction granted by the district court did not “[trample] on notions of comity.” Id. at 627.

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in the United States but abroad as well, in most cases, other than perhaps defamation cases. Federal courts in the United States deciding whether to enjoin parallel proceedings in foreign forums generally divide into two camps:80 the First, Second, Third, Sixth and D.C. Circuits that follow the Laker “sparingly used” approach;81 and the Fifth, Seventh, and Ninth Circuits that use the more liberal approach.82 Assuming that the suits involve the same parties and that the resolution of the case in the enjoining court would be dispositive of

80. For a thorough discussion of the two approaches to antisuit injunctions, see George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation, 28 COLUM. J. TRANSNAT’L L. 589 (1990); Note, Antisuit Injunctions and International Comity, 71 VA. L. REV. 1039 (1985). For an interesting analysis of parallel proceedings circuit by circuit, see Margarita Trevino de Coale, Stay, Dismiss, Enjoin, or Abstain? A Survey of Foreign Parallel Litigation in the Federal Courts of the United States, 17 B.U. INT=L L.J. 79 (1999); Trevor C. Hartley, Comity and the Use of Antisuit Injunctions in International Litigation, 35 AM. J. COMP. L. 487 (1987); Russell J. Weintraub, Parallel Litigation and Forum-Selection Clauses, in LAW AND JUSTICE, supra note 8. For the Canadian perspective on antisuit injunctions and parallel proceedings, see JEFFREY TALPIS, “IF I AM FROM GRAND-MERE, WHY AM I BEING SUED IN TEXAS?” RESPONDING TO INAPPROPRIATE JURISDICTION IN QUEBECUNITED STATES CROSSBORDER LITIGATION (2001). For the use of antisuit injunctions in the U.K., see ADRIAN BRIGGS & PETER REES, CIVIL JURISDICTION AND JUDGMENTS §§ 5.33-5.50 (3d ed. 2002). A negative declaration can also be used in lieu of an antisuit injunction. See generally Andrew S. Bell, The Negative Declaration in Transnational Litigation, 111 LAW Q. REV. 674 (1995). 81. Laker Airways, Ltd. v. Sabena Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984). The case itself provides a lengthy history of the litigation, as well as a description of proceedings in England. Id. at 917-21. See also British Airways Bd. v. Laker Airways [1984] 3 W.L.R. 413; see generally Gary B. Born, Recent British Responses to the Extraterritorial Application of United States Law: The Midland Bank Decision and Retaliatory Legislation Involving Unitary Taxation, 26 VA. J. INT’L L. 91 (1985); Aryeh S. Friedman, Laker Airways: The Dilemma of Concurrent Jurisdiction and Conflicting National Policies, 11 BROOK. J. INT’L L. 181 (1985); Daryl Libow, Note, The Laker Antitrust Litigation: The Jurisdictional “Rule of Reason” Applied to Transnational Injunctive Relief, 71 CORNELL L. REV. 645 (1986). 82. The liberal standard of enjoining parallel proceedings in cases of duplicative litigation is illustrated by the Fifth and Ninth Circuit approaches, especially in In re Unterweser Reederei, GmbH, 428 F.2d 888 (5th Cir. 1970). See also The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972); Seattle Totems Hockey Club, Inc. v. National Hockey League, 652 F.2d 852, 855-56 (9th Cir. 1981). The approach is also described as consisting of the five factors enumerated in American Home Assurance Co. v. Ins. Corp. of Ireland, Ltd., 603 F. Supp. 636, 643 (S.D.N.Y. 1984).

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the action, courts look to see if there is an exception to the general rule favoring concurrent litigation. The Laker approach recognizes exceptions when the injunction is necessary (1) to protect the enjoining court’s jurisdiction or (2) to protect important public policy of the forum. “[D]uplication of parties and issues alone is not sufficient to justify the issuance of an antisuit injunction.”83 The liberal standard of enjoining parallel proceedings in cases of duplicative litigation, as illustrated by the Fifth, Seventh, and Ninth Circuit approaches, accords less weight to comity and more to whether the litigation is vexatious or would result in Ainequitable hardship,@ and would Atend to frustrate and delay the speedy and efficient determination of the cause.@84 During the last ten years, this Circuit split has continued. One can compare a recent Seventh Circuit case85 with a recent Third Circuit case86 to see the differences in approach and philosophy. The Seventh Circuit is aligned with the more liberal approach where duplication of parties and issues is a sufficient basis for an antisuit injunction. The Seventh Circuit=s opinion reflects an emphasis on efficiency, while that of the Third Circuit gives greater weight to comity and respect for foreign sovereigns and their judicial systems. In Allendale Mutual Insurance Co. v. Bull Data Systems,87 a subsidiary of a French computer manufacturer, whose parent was a French corporation ninety percent of whose stock was owned by the French government, obtained worldwide insurance coverage from Allendale, a U.S. insurance company and its British subsidiary, FMI. A subsequent fire of suspicious origin destroyed a warehouse of computers in France valued at about $100 million. The insurance companies, responding to a claim of loss, sought a declaratory judgment in federal court in Illinois that the fire was committed by arson of the insured and therefore was outside the policy, or that if there was no arson, then coverage would be limited to the specific policy of FMI. Bull Data filed its own suit in Illinois against Allendale and the insurance broker. In 83. Laker, 731 F.2d at 928 (citing Compagnie des Bauxite de Guinea v. Ins. Co. of N. Am., 651 F.2d 877, 887 (3d Cir. 1981)). 84. Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 627 (5th Cir. 1996) (citing Unterweser Reederei Gmbh, 428 F.2d at 890, 896). 85. Allendale Mut. Ins. Co. v. Bull Data Sys., 10 F.3d 425 (7th Cir. 1993). 86. General Electric Co. v. Deutz AG, 270 F.3d 144 (3d Cir. 2001). 87. 10 F.3d 425 (7th Cir. 1993).

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addition, it instituted separate proceedings against FMI in the Commercial Court of Lille, France, arguably the court with exclusive jurisdiction over suits seeking enforcement of insurance policies governed by the French insurance code. Allendale and FMI subsequently asked the French court to stay its proceedings pending a criminal investigation by a French magistrate which they had sought the stay was granted.88 In the midst of discovery in the American suit, Bull Data filed a motion to lift the stay and proceed in the French court. The Seventh Circuit found the timing peculiar, given that the French magistrate’s investigation of the fire was allegedly “on the verge of completion.”89 Not surprisingly, Allendale then moved in Illinois for a preliminary injunction against Bull Data’s continuing to litigate in the French Commercial Court, which was granted by the U.S. district court, and affirmed by the Seventh Circuit, despite that: (1) the fire occurred in France; (2) most of the evidence was in French and located in France; and (3) one insurance policy specifically called for application of the French insurance code.90 In granting the injunction, the Seventh Circuit placed great weight on the arbitrator-like nature of the French tribunal and what it viewed as the French court’s insufficient experience and resources to handle a complex case91 – a rather chauvinistic view of international transactions. In keeping with its narrow viewpoint, the court refused to accord any weight to comity, stating that its analysis required, unlike the stricter Laker approach, at least some evidence that “the issuance of an injunction really would throw a monkey wrench, however small, into the foreign relations of the United States.”92 The court added: When we say we lean toward the laxer standard we do not mean that international comity should have no weight in the balance . . . . The difference between the two lines of cases has to do with the inferences to be drawn in the absence of information. The strict cases presume a threat to international comity whenever an in-

88. 89. 90. 91. 92.

See id. at 426-27. Id. at 427. Id. at 426-27. Id. at 429-31. Id. at 431.

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junction is sought against litigating in a foreign court.93 Yet, the court belittled the amicus brief of the Commission de Controle des Assurances, the French agency that regulates the insurance business in that country, and then suggested that “[w]e are given no indication, moreover, that the French commission is authorized to speak for the French state.”94 Ultimately, the Seventh Circuit placed great weight on the American plaintiff’s need for a U.S. forum, as well as the major shortcomings the court perceived in the French “court.”95 The court admitted that if the FMI policy were construed as containing an arbitration clause requiring dispute resolution in the Commercial Court of Lille, it would have been forced to uphold the clause. The court maneuvered away from that restriction, saying that Bull Data had not asserted the arbitration clause and instead had been content to litigate its dispute in Illinois federal court, until it suddenly tried to reactivate the French suit.96 Such an undercurrent of strategic litigation, designed to harass the opposing party, receives greater weight in the Seventh Circuit than in the stricter Second and D.C. Circuits, where comity outweighs vexatiousness.97

93. Id. 94. Id. at 432. 95. Emphasizing the plaintiff’s need, the court said: “we don’t think the ‘strict’ cases would refuse to weigh against such a threat [sic] substantial U.S. interests. Groupe Bull is French, but Allendale is American, and the United States has an interest in protecting its citizens, including its corporate citizens, from trumped-up multi-million dollar claims.” Id. 96. The court explained this point: The injunction merely prevents a French company from seeking to revive a dormant proceeding before an arbitral tribunal in France. The only concern with international comity is a purely theoretical one that ought not trump a concrete and persuasive demonstration of harm to the applicant for the injunction, if it is denied, not offset by any harm to the opponent if it is granted. Id. at 432-33. 97. One recent Fifth Circuit case, Kaepa, Inc. v. Achilles Corp., 76 F.3d 624 (5th Cir. 1996), affirmed the district court’s grant of an antisuit injunction, without security, in connection with a mirror image lawsuit filed in Japan by the defendant in the U.S. litigation. The court, finding that the case was basically a private contract dispute, refused to “give greater deference to comity” and continued to adhere to the position it had taken in earlier cases and that followed by the Ninth and Seventh circuits. Id. at 625, 627. The court continued: “[w]e decline, however, to require a district court to genuflect

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The Laker approach gained a majority when the Third Circuit in 2001 officially aligned itself with the “more restrictive standard” after hinting at the importance of comity within the transnational litigation context in several earlier cases.98 In General Electric Co. v. Deutz AG,99 the Court of Appeals reversed the district court=s order enjoining the defendant=s efforts in English courts to enforce the right to arbitration on the basis of comity, and in the process rejected an argument that an important public policy, “the sanctity of the jury verdict,” would be threatened without the injunction.100 In Deutz, GE entered into a joint venture contract with Moteren-Werke Mannheim AG, a German corporation, to design and manufacture diesel engines for locomotives. Under the contract, Moteren-Werke=s parent, Deutz AG, would guarantee the obligations (of design) of the subsidiary. When the joint venture fell apart and Deutz refused to provide additional funding, GE brought suit in federal court in Pennsylvania for breach of contract. Deutz, besides challenging personal jurisdiction, also asserted that the contract required arbitration. In July 1999, while the suit was pending in the district court, Deutz sought to arbitrate before the International Arbitration Association in London. The district court, meanwhile, ruled that there was personal jubefore a vague and omnipotent notion of comity every time that it must decide whether to enjoin a foreign action.” Id. at 627. The dissent, by Judge Emilio Garza, outlines the arguments against antisuit injunctions and in favor of international comity and the approach now used in the First, Second, Third, Sixth and D.C. Circuits, providing a passionate plea for comity: International comity represents a principle of paramount importance in our world of ever increasing economic interdependence. Admitting that “comity” may be a somewhat elusive concept does not mean that we can blithely ignore its cautionary dictate. . . . Amicable relations among sovereign nations and their judicial systems depend on our recognition, as federal courts, that we share the international arena with co-equal judicial bodies, and that we therefore act to deprive a foreign court of jurisdiction only in the most extreme circumstances. Id. at 629 (Garza, J. dissenting). 98. See, e.g., Compagnie Des Bauxites de Guinea v. Ins. Co. of North America, 651 F.2d 877 (3d Cir. 1981), aff’d, 456 U.S. 694 (1982); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979) (applying comity in connection with prescriptive jurisdiction in antitrust case); Armstrong World Indus., Inc. v. Sommer Allibert, S.A., No. Civ. 97-3914, 1998 WL 195938 (E.D. Pa. April 13, 1998). 99. 270 F.3d 144 (3d Cir. 2001). 100. Id. at 159, 162.

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risdiction and submitted to a jury the issue of whether the contract language provided for arbitration. The jury found that Deutz was not entitled to arbitration. In April 2000, before the arbitration panel issued a decision, Deutz petitioned the High Court in London to enjoin GE from continuing to litigate in federal court in Pennsylvania, which the English court declined to do. At the end of July 2000, after the London court had refused to enjoin GE and before the arbitral panel=s decision, GE convinced the district court in the United States to do what the London court had refused to do – issue an antisuit injunction, here with the parties reversed, and enjoin Deutz from resorting to the High Court in the future. In November 2000, the arbitration panel held that GE and Deutz had not agreed to arbitrate this dispute, closing the circle.101 The Third Circuit, although finding that Deutz was not entitled to compel arbitration under the contract, reversed the antisuit injunction, in the process clearly joining with those Circuits following a Laker, stricter approach to granting antisuit injunctions:102 “The circumstances here were not so aggravated as to justify interference with the jurisdiction of the courts of another sovereign state, and there is no indication that the English courts would have prevented General Electric from arguing the res judicata effect . . . of the . . . [district court] order.”103 In addition, the English High Court had already refused to issue an injunction against GE and had given no indication that it was likely to issue one. Finally, the Third Circuit rejected the argument that the public policy of the forum – the importance of a jury verdict – was threatened by the parallel litigation.104 Indeed, GE=s position would insulate any jury findings from challenge in any way out101. 102. 103. 104.

Id. at 149. Id. at 148-49, 160-62. Id. at 159. Id. The court stated: Although the jury unquestionably has a more important role in the American jurisprudential system than in that of any other nation, its verdict is neither infallible nor immune from judicial scrutiny. We have been cited to no authority that endorses enjoining proceedings in a foreign court on the grounds that an American jury verdict might be called into question.

Id.

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side the United States and would also undermine related arbitral tribunals, especially where there are issues of arbitrability. The Third Circuit in Deutz repeatedly acknowledges that parallel litigation involving international proceedings is different from purely domestic litigation, and thus the precedent should reflect different values, particularly comity. The court looks at its own international cases and goes to great pains to show deference to the English High Court=s ruling: “Our jurisprudence thus reflects a serious concern for comity. . . . This is not an aggravated case that calls for extraordinary intervention, nor is it sufficient that the ruling of the arbitral panel might have jeopardized the district court=s jurisdiction.”105 The Third Circuit=s unwillingness to accept a jury fact determination in a civil case as an essential public policy of the forum is an acknowledgment that not all litigation will or need follow the American model. The Third Circuit=s opinion represents one of the very positive steps during the last decade toward realization of the significant differences between parallel proceedings which are wholly domestic and parallel proceedings that involve a foreign action, thus implicating different values and comity concerns. In March 2004, the First Circuit rejected the liberal approach and aligned itself with the “conservative” approach, although with some reservations.106 In Quaak et al. v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren,107 a securities fraud class action litigation against KPMG, the accounting firm and its Belgium office, the appellate court affirmed the district court=s granting of an injunction in connection with parallel proceedings in Belgium.108 The district court=s decision is a classic use of an antisuit injunc105. Id. at 161-62. 106. In re Lernout & Hauspie Secs. Litig, 2003 U.S. Dist. LEXIS 22466 (D. Mass. Dec. 12, 2003), aff=d sub. nom., Quaak et al. v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11 (1st Cir. 2004). We reject the liberal approach. We deem international comity an important integer in the decisional calculus – and the liberal approach assigns too low a priority to that interest. In the bargain, it undermines the age-old presumption in favor of concurrent parallel proceedings – a value judgment that leaves us uneasy – and presumes that public policy always favors allowing a suit pending in an American court to go forward without any substantial impediment. Quaak, 361 F.3d at 17. 107. 361 F.3d 11 (1st Cir. 2004). 108. Id. at 13-14.

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tion to protect the court=s own jurisdiction and to prevent circumvention of important forum public policies, here the vindication of investor claims for securities fraud violating U.S. law.109 The investors sued KPMG in federal court in Massachusetts and, as part of discovery, the court ordered production of audit work papers by KPMG-Belgium in their custody by December 1, 2003. Rather than seeking review of the discovery order, KPMG-Belgium instead went into Belgium court three days before the documents were to be produced. On November 27, Thanksgiving Day, it sought an ex parte order from the Belgian court to enjoin plaintiffs from enforcing the U.S. discovery order, with a significant penalty of one million Euros against each plaintiff for attempting enforcement of the U.S. order. The Belgian court denied the ex parte application but scheduled a hearing for December 16, 2003.110 On December 1, when the documents were to have been produced under the U.S. court order, KPMG-Belgium instead provided the plaintiffs with a fax of the motion it had filed in Belgium three days before. The plaintiffs, obviously not happy with this turn of events, then sought their own antisuit injunction in the U.S. court. Relying on Laker, the U.S. court looked at the traditional tests for injunctive relief – the equitable aspects – and found that KPMG-Belgium never contested U.S. jurisdiction and that the plaintiffs would face irreparable injury. The court also rejected KPMG-Belgium=s primary argument that it would face criminal penalties in Belgium if it turned over the confidential documents.111 Ultimately, the court rejected KPMG-Belgium=s claim of “inability to comply” with the U.S. court=s discovery order as a pretext and granted the antisuit injunction.112 The First Circuit, reviewing for abuse of discretion, articu-

109. In re Lernout, 2003 U.S. Dist. LEXIS 22466, at *21 (“I issue this order with reluctance because the Belgian courts and law must be treated with great respect. Nonetheless, KPMG-Belgium=s end-run on this Court=s jurisdiction and on the federal securities laws cannot be tolerated.”). 110. Id. at *20. 111. Id. at *16-21. 112. This argument and the U.S. court=s response is similar to that seen in cases following Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522 (1987), which used a balancing of the plaintiffs= attempts to get the documents by other means, the importance of the papers for the litigation, the likelihood of harm to the defendant and the efforts to avoid that harm.

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lated its standards for the granting of an antisuit injunction, focusing on the standards set in Laker, and emphasized that it did not view Laker as creating only two bases for injunctions, but rather as an analysis that put great weight on comity:113 In an increasingly global economy, commercial transactions involving participants from many lands have become common fare. This world economic interdependence has highlighted the importance of comity . . . . This predictability, in turn, depends on cooperation, reciprocity, and respect among nations. That helps to explain the enduring need for a presumption – albeit a rebuttable one – against the issuance of international antisuit injunctions.114 The First Circuit found that the district court=s injunction, to protect its jurisdiction, was necessary and equitable under the circumstances: “In this case, the district court acted defensively to protect its own authority from an interdictory strike and we are confident that, in doing so, the court kept the balance steady and true.”115 Thus, the granting of the antisuit injunction here reinforces an approach that stresses a comity analysis, not only in the granting of injunctions but throughout the discovery process and the entire proceedings, and reflects a significant recent trend towards acknowledging the need for respect for other legal systems. IV. IMPORTANT TRENDS OF THE LAST DECADE IN PARALLEL PROCEEDINGS

Reviewing the developments in the last ten years, one can find some trends emerging in the treatment of parallel proceedings that suggest what may happen in the next decade. Throughout the decade there has been a strong strain of cases reflecting an increasing awareness of the role of comity and a willingness to defer to a foreign proceeding. One sees more open recognition of the interconnected and interwoven nature of commercial litigation in a global economy.

113. Quaak et al. v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 18 (1st Cir. 2004). 114. Id. at 19. 115. Id. at 22.

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A. Cyberspace Multiple lawsuits involving the internet have posed significant problems, initially in terms of prescriptive jurisdiction, especially in defamation and trademark-related cases.116 There is an increasing likelihood of litigation seeking to enforce local domestic laws on foreign-based websites, along with reactive litigation to enjoin the proceeding or the enforcement of any order. The underlying problem, concurrent jurisdiction, will continue to spawn parallel proceedings as long as there are not internationally agreed norms for conduct and control of cyberspace. The cyberspace cases tend to break into two groups: those involving issues of free speech and defamation torts, and those involving issues of intellectual property, especially trademark and domain name. The cases in the second category are in many ways the creation and byproduct of the internet.117 Before the internet, the scope of a trade name was more limited, usually to the physical geographic area nearby or at most nationally. For example, the name “Crate and Barrel” in Ireland might not confuse purchasers about the source if the internet didn=t create the possibility of users confusing the Dublin store with the Chicago-based chain in the United States.118 But the internet and “Google” searches know no national borders so that the new technology has made it possible to create confusion in trade names and trademarks not previously possible in a bricks and mortar world.119 (1) Trademark and Domain Names The confusion in trademark and intellectual property rights is exacerbated by the multiple regulations concerning the use and 116. See Teitz, Moving Into Cyberspace, supra note 30, at 491-42; Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181 (N.D.Cal. 2001), rev=d, 379 F.3d 1120 (9th Cir. 2004). 117. See, e.g., Millennium Enters., Inc. v. Millennium Music, L.P., 33 F. Supp. 2d 907, 921-23 (D.Or. 1999) (analyzing whether internet contacts with the forum state constituted sufficient minimum contacts for personal jurisdiction). 118. Euromarket Designs, Inc. d/b/a Crate & Barrel v. Crate & Barrel Ltd., 96 F. Supp. 2d 824, 828-29 (N.D. Ill. 2000). The parallel English litigation is Euromarket Designs, Inc. v. Peters and Crate & Barrel Ltd., [2000] E.T.M.R. 1025 (Ch. 1999) (Eng.). 119. See, e.g., Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 451 (3d Cir. 2003).

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registration of domain names under ICANN.120 ICANN provides its own mandatory Uniform Domain-Name Dispute Resolution Policy (UDRP) for certain types of claims, generally described as “cybersquatting” or bad faith hijacking of a domain name.121 Although ICANN and its authorized dispute resolution providers are not part of a court system, the UDRP procedure is yet another body where there is the potential for parallel and inconsistent proceedings. This is especially true since the United States enacted its own independent statute concerning cybersquatting, the Anticybersquatting Consumer Protection Act (ACPA),122 which provides for federal court subject matter jurisdiction123 and damages.124 Since a court is not bound by any ICANN determination,125 there is the distinct possibility of having two inconsistent results: “Unlike traditional binding arbitration proceedings, UDRP proceedings are structured specifically to permit the domain-name registrant two bites at the apple.”126 The result of the ICANN process is generally self-executing in that the domain name is transferred. On the other hand, the U.S. case law that is developing in connection with domain name registration is that it is a “res,” located at the place of registration which in the United States has generally been Virginia.127 Thus two different “sover120. The Internet Corporation for Assigned Names and Numbers (ICANN) at http://www.icann.org (last visited October 5, 2004). 121. Uniform Domain Name Dispute Resolution Policy (UDRP), at http://www.icann.org/dndr/udrp/policy.htm (last visited October 5, 2004). This policy does not apply to all types of domain names, especially those in the country code level. For a study of the types of dispute resolution used by some levels, see Questionnaire on Member States’ Experiences with ccTLDs, at http://www.itu.int/ITU-T/studygroups/com02/surveys_cctld.html (last visited October 5, 2004). For example, “.co.U.K.” uses a process administered by Nominet that differs from the ICANN process. See Nominet.u.k., About the Dispute Reolution Service, at http:// www.nominet.org.U.K./ DisputeResolution/AboutTheDrs/ (last visited October 5, 2004). 122. 15 U.S.C. § 1125(d) (2004) [hereinafter ACPA]. 123. Id. § 1121. 124. Id. § 1125(d)(2)(d). 125. UDRP, supra note 121, ¶ 4(k) (“The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent . . . the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution. . . .”). 126. Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 381 (2d Cir. 2003). 127. See, e.g., Barcelona.com, Inc. v. Excelentisimo Ayuntamiento De Barcelona, 330 F.3d 617 (4th Cir. 2003) (finding jurisdiction proper in Virginia because the plaintiff=s domain name was registered in that state); America

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eigns,” two different standards, two different remedies and two different results raise issues of parallel proceedings.128 A recent lower court case out of the Fourth Circuit, GlobalSantaFe Corp. v. Globalsantefe.com,129 illustrates the extent of the multiple proceedings possible within the context of cybersquatting – actions in Virginia, ICANN, and a Korean court. More significantly, the case also raises conflicting determinations of adjudicative jurisdiction – in this case in rem jurisdiction, which exists over the domain name itself through the location of the registry. The case involved an action against the domain holder of “globalsantefe.com,” a Korean entity who registered the domain name with a Korean registrar, Hangsang, on September 4, 2001.130 Less than one day earlier, Global Marine Inc. and Santa Fe International Corp., trademark holders of their individual names, announced a planned merger to be known as GlobalSantaFe Corp. These U.S. corporations subsequently filed suit under the ACPA, claiming that the registration by the Korean registrar, Hangsang Systems, Inc., infringed their domain name and sought to have the domain name transferred to them. The sole basis for jurisdiction was statutory under the ACPA for in rem jurisdiction over the domain name.131 VeriSign, Global Registry Services – the registry for top-level “.com” domain names – is based in Virginia. In fact, the implications of in rem jurisdiction are noted by the court when it suggests that U.S. courts could eventually have no basis for jurisdiction or no ability to cancel registration of a domain name if the registries are not in the United States.132 In this case, HangOnline, Inc. v. Aol.Org, 259 F. Supp. 2d 449, 451 (E.D. Va. 2003) (finding in rem jurisdiction was proper because the domain name registry was located in that district); cf. Globalsantafe Corp. v. Globalsantafe.com, 250 F. Supp. 2d 610, 615 (E.D.Va. 2003) (directing that in rem jurisdiction under the ACPA is appropriate only if there is no personal jurisdiction in any other district). 128. Courts in the Third and Fourth Circuits have explicitly refused to be bound by UDRP determinations. See, e.g., Barcelona.com, Inc., 330 F.3d at 626 ( giving no deference to an UDRP decision); Dluhos v. Strasberg, 321 F.3d 365, 373-74 (3d Cir. 2003) (making a de novo review). 129. 250 F. Supp .2d 610 (E.D. Va. 2003). 130. The original registration was by Jongsun Park who transferred it to Fanmore Corp., whose contact was Jong Ha Park. Id. at 613. 131. Id. at 617 n.16. 132. Id. at 623-24. The court elaborated: The current ability to assert jurisdiction over a large number of domain names in this district pursuant to the ACPA hinges on two fac-

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sang tendered to the court the domain name on December 20, 2001. Ultimately, the now merged trademark holders obtained a default judgment under the ACPA and an order to Verisign to transfer the domain name to them. The domain name holder, Park, not accepting the jurisdiction of the Virginia federal court over the domain name, filed an application in Korea to enjoin Hangsang from transferring the domain name under the U.S. court order. Several months later, on September 17, 2002, the Korean court granted the injunction, finding that the Virginia federal court did not have jurisdiction.133 Like many parallel proceedings, the actions are often the result of differing notions of the scope of personal jurisdiction. And like many parallel proceedings, the result is two conflicting orders – in this case, one from the Korean court ordering the Korean registrar, Hangsang, not to transfer the domain name, and one from the U.S. court, ordering the Registry, VeriSign, to cancel the domain name. Thus the Registry found itself facing conflicting orders. Unlike many of the contemporary parallel proceedings sagas, the U.S. district court=s opinion considers the international comity implications and issues of abstaining or deferring to the Korean action. The court relies on the Princess Lida doctrine, a doctrine derived from a 1939 Supreme Court case.134 Like many wholly domestic precedents, it has been expanded to cover domestic and foreign litigation, establishing a straight “first in time” rule for jurisdiction over the “res.” Unfortunately, the court=s discussion of the application of the first in time rule and the Korean court=s decision illustrates the fundamental differences in the bases for jurisdiction. The question in part is whether jurisdiction over the domain name should be determined by where the registrar is or where the registry is, and where the “res” or domain name is lo-

tors, (i) the location of VeriSign within this district and (ii) the current popularity of the “.com” and “.net” top-level domain names. . . . [A] desire to avoid United States jurisdiction may cause foreign registrants to choose to use domain names within their respective country code top-level domains, whose registries are located in and operated by the foreign countries . . . . The result may be an increasing number of domain names registered out of reach of United States jurisdiction . . . . Id. 133. Id. 134. Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456 (1939).

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cated.135 In fact, the case is an example of the attempts to expand traditional notions of “property” and personal jurisdiction to cover intangibles located in cyberspace. Here, since the trademark holders had won the race for the res (domain name), the court decides it would be inappropriate to recognize the foreign court order.136 The court then gives lipservice to an obligation to consider “the important question of comity among nations.”137 Ultimately, the court decides comity is not required because (1) it only applies to “current” proceedings and the proceedings are not current as judgment has entered; (2) the Korean action was deliberately designed to block the U.S. action; and (3) the forum has a significant interest in protecting its own trademark holder=s rights.138 In the end, the court=s strongest argument for refusing to abstain is “that Judgment supports significant public policies under United States law”139 of trademark, and after all, the U.S. court had jurisdiction first – at least under U.S. jurisdiction theories. It is clear that there is a distinct possibility of conflicting results today, and this is even more likely to occur as more country codes are opened up and more registrars are involved in more countries.140 Because of the nature of the internet, parallel proceedings are also likely in the future to include consumers who may or may not also be acting as small business enterprises. The role of consumers and the different mandatory law applicable to them was one of the significant stumbling blocks to the negotiations of a comprehensive worldwide treaty on jurisdiction and enforcement of judgments at the Hague,141 and continues to create issues for aspects 135. GlobalSantaFe, 250 F. Supp. 2d at 625 n.42. 136. Id. at 625 (citing Sec. & Exch. Comm=n v. Banner Fund Int=l, 211 F.3d 602, 611-12 (D.C. Cir. 2000)). 137. Id. at 626. 138. Id. 139. Id. 140. The most recent addition to providers is the Asian Domain Name Dispute Resolution Centre (ADNDRC) which was approved on February 28, 2002. ICANN, Approved Providers for Uniform Domain-Name DisputeResolution Policy, at http://www.icann.org/dndr/udrp/approved-providers.htm (last visited Oct. 8, 2004). ICANN also states that the UDRP has been adopted by the following registrars: “.aero,” “.biz,” “.com,” “.coop,” “.info,” “.museum,” “.name,” “.net,” and “.org” top-level domains. ICANN, Uniform Domain-Name Dispute-Resolution Policy, at http://www.icann.org/udrp/ (last visited Oct. 8, 2004). 141. See Hague Conf. Prelim. Doc. No. 17, supra note 22; see generally

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of the smaller choice of court convention.142 Many of the small business issues are intertwined with intellectual property concerns and arise in connection with the scope of coverage of the convention. Small business and nonprofit organizations – as users of licenses and other forms of intellectual property – often within the context of the internet are concerned with jurisdiction and enforcement of judgments, but frequently only as a result of their resistance to underlying substantive law issues, such as validity of non-negotiated contracts made online.143 Thus often the stumbling blocks to enforcement are also the causes of parallel proceedings. (2) Speech Regulation Conflicting regulations of commercial activities and speech are clearly leading to parallel litigation as evidenced by Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme,144 which is illustrative of this new wave of parallel litigation that involves the regulation of conduct occurring on the internet. Cases such as Yahoo, Gutnick,145 and Harrods146 reflect the uncertain reach of prescriptive jurisdiction in cyberspace. Of the three cases, Yahoo is both the best-known and the most problematic. The Yahoo reverse declaratory judgment suit in federal court in California starkly pitted French anti-Nazi speech regulation against U.S.

INTERNET, WHICH COURT DECIDES? WHICH LAW APPLIES? PROCEEDINGS OF THE INTERNATIONAL COLLOQUIUM IN HONOUR OF MICHEL PELICHET (Katharina Boele-Woelki & Catherine Kessedjian eds., 1998) [hereinafter INTERNET, WHICH COURT DECIDES?]; WHO RULES THE NET? A NEW GUIDE TO NAVIGATING THE PROPOSED RULES OF THE ROAD FOR CYBERSPACE (Adam Thierer & Clyde Wayne Crews, eds., 2003). 142. See Stratton Shartel, Hague Delegates Find Consensus, Narrow Disputes, as Diplomatic Conference Nears, 9 ELEC. COMMERCE AND LAW REP. 450 (May 12, 2004); Stratton Shartel, Hague Delegates Revise Choice of Court Convention, but Some Concerns Remain, 8 ELEC. COMMERCE AND LAW REP. 1134 (December 17, 2003). 143. See INTERNET, WHICH COURT DECIDES?, supra note 141, at 80-81; Hague Conf. Prelim. Doc. No. 17, supra note 22, at ¶ 8. 144. Yahoo!, Inc. v La Ligue Contre Le Racisme et L=Antisemetisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001), rev=d, 379 F.3d 1120 (9th Cir. 2004). 145. Gutnick v. Dow Jones & Co., (2001) V.S.C. 305, appeal dismissed, Dow Jones & Co., Inc. v. Gutnick, (2002) 194 A.L.R. 433 (Austl.). 146. Dow Jones & Co. v. Harrods Ltd., 237 F. Supp. 2d 394 (S.D.N.Y. 2002), aff=d, 346 F.3d 357 (2d Cir. 2003). The parallel English litigation is Harrods Ltd. v. Dow Jones & Co., Inc., [2003] EWHC 1162 (Eng. 2003).

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First Amendment protections.147 Although the underlying substantive issue has been addressed within the context of enforcing foreign defamation judgments,148 the addition of the criminal sanction149 and the use of cyberspace raise new issues, including the ability to block access within the limits of new technology. The first Yahoo suit was filed in Paris150 by two groups – the Union of Jewish Students and LICRA, the International League against Racism and Antisemitism – seeking to enforce French laws that forbade the sale of Nazi-related goods, in this case through Yahoo=s U.S.-based portal.151 In addition, they sought to compel Yahoo to pay penalties for violating the French Penal Code in the amount of 100,000 Francs per day for every day that Yahoo continued to violate the law.152 In May 2000 the French court required Yahoo to block French users from accessing the Nazirelated goods on the U.S. website, Yahoo.com, and found that the selling or displaying of Nazi material “was a threat to the public order.”153 The Paris court appointed a panel of experts to determine the validity of Yahoo=s claim that it was not feasible techno-

147. See Yahoo!, 169 F. Supp. 2d at 1192-93. 148. See, e.g., Matusevitch v. Telnikoff, 877 F. Supp. 1, 4 (D.D.C. 1995) (mem.) (applying Maryland Uniform Foreign-Money Judgments Recognition Act); Abdullah v. Sheridan Square Press, Inc., No. 93 Civ. 2515, 1994 WL 419847, at *1 (S.D.N.Y. May 4, 1994) (mem.); Bachchan v. India Abroad Publ’ns Inc., 585 N.Y.S.2d 661 (Sup. Ct. 1992); see generally TRANSNATIONAL LITIGATION, supra note 6, at 271-73. 149. A French court indicated that it would bring criminal actions against Yahoo and its former president, with an initial trial date set for May 7, 2002. League Against Racism & Antisemitism – LICRA & Yahoo! Inc., T.G.I., Paris, 20 Nov. 2000, Interim Order No. RG: 00/05308, 4 [hereinafter LICRA], translation available at http://www.cdt.org/speech/international/ 001120yahoofrance.pdf. If found guilty, the former president could have been sentenced to up to five years in prison as well as fined. On February 11, 2003, the charges were dropped. Kerry Shaw, French Court Rejects Suit Against Yahoo, NEW YORK TIMES, Feb. 12, 2003, at C9. 150. LICRA, supra note 149. The initial injunction was issued on 22 May 2000. Id. at 2. 151. Id. at 4. (stating that “the simple act of displaying such objects in France constitutes a violation of Article R645-1 of the Penal Code and therefore a threat to the public order.”). 152. Id. at 20. 153. Id. at 2-4. Yahoo! Inc., a California-based corporation, has a French subsidiary, Yahoo France, that operates a server in France but has not violated the French penal code since it does not display links to Nazi-related web sites. Id. at 18-20.

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logically or financially to block French users from its servers in the United States. In November 2000, the Paris court, relying on the reports of some of the experts, upheld the determination that Yahoo must comply within three months of the order or face fines of 100,000 Francs per day.154 In response to the Paris suit, Yahoo filed a second suit in federal court in San Jose, California, seeking a declaratory judgment that the French judgment was not enforceable in the United States and that the French court lacked jurisdiction to control Yahoo=s U.S.-based website.155 Since Yahoo had no significant assets in France, any attempt to enforce the French fines would probably require an action in the United States where Yahoo had assets. The district court ultimately determined that it had personal jurisdiction over the defendants, that the controversy was not moot and that the possibility of enforcement was real.156 The district court went to great pains to stress what it viewed as the purpose of the U.S. action: “Rather, the purpose of the present action is to determine whether a United States court may enforce the French order without running afoul of the First Amendment. . . . [A] United States court is best situated to determine the application of the United States Constitution.”157 Rejecting the defendants= request for abstention, the district court granted summary judgment for Yahoo and found that enforcing the judgment would be inconsistent with the First Amendment. In so doing, it relied heavily on earlier cases refusing to enforce British libel judgments.158 The court indicated that this holding applied even if Yahoo had the technological ability to block access as required by the French court. In passing, the court suggested that the constitu154. Id. at 20. 155. The complaint in the United States, Yahoo! Inc. v. La Ligue Contre Racisme et L=Antisemetisme, C00-21275 PVT ADR (N.D. Cal. December 21, 2000) is available at www.cdt.org/speech/international/ 001221yahoocomplaint.pdf. The case is also discussed in Mylene Mangalindan & Kevin Delaney, Yahoo! Ordered to Bar the French From Nazi Items, WALL ST. J., Nov. 21, 2000, at B1. The suit also sought an injunction to prevent French Anti-Semitism advocacy groups from trying to enforce the French judgment in the United States. Yahoo! Inc., C00-21275 PVT ADR at 12, 13. 156. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L=Antisemetisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001). 157. Id. at 1191-92. 158. Id. at 1192-93.

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tional protection of speech might trump any treaty or convention in connection with speech that originated in the United States.159 The Ninth Circuit, after more than a year and a half of deliberations, reversed the District Court=s decision.160 The court held that it did not have personal jurisdiction over the French defendants.161 By deciding the case on personal jurisdiction grounds, the court left open many questions regarding the regulation of the internet. In the interim, the French court dismissed the criminal charges that had been filed against Yahoo and its former CEO.162 Yahoo has since instituted policies restricting content that is “hateful or racially, ethnically or otherwise objectionable,” and also requiring compliance with all applicable foreign laws.163 Who regulates conduct in cyberspace and what happens in the realm of concurrent jurisdiction are far from settled. While there may be no international judgments convention in place as yet,164 for the multinational corporation the Yahoo litigation is but a harbinger of what is to come when the local laws conflict with U.S. values and policies. A significant part of the litigation will turn on who controls the cyberspace in which the conduct is occurring. Electronic commerce that travels across the unmarked boundaries of cyberspace has generated high profile disputes as multiple jurisdictions try to regulate and control cyberspace. The attempt to subject the users of cyberspace to the laws of competing jurisdictions results in inconsistent regulation reflecting different legal values and cultures, and a friction that was more theoretical than real in an everyday context ten years ago. Areas such as defamation, intellectual property, and securities law are ripe for friction among courts. The recent Australian suit against the Dow Jones

159. Id. at 1193 (“Absent a body of law that establishes international standards with respect to speech on the Internet and an appropriate treaty or legislation addressing enforcement of such standards to speech originating within the United States, the principle of comity is outweighed by the Court=s obligation to uphold the First Amendment.@). 160. The case was argued before the Ninth Circuit in December 2002. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L=Antisemetisme, 379 F.3d 1120, 1120, 1127 (9th Cir. 2004). 161. Id. at 1126-27. 162. The charges were dropped on February 11, 2003. See supra note 149. 163. See Yahoo Terms of Service, No. 6 Member Conduct, at http://docs.yahoo.com/info/terms/ (last visited October 8, 2004). 164. See discussion infra Part VII.A.

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for defamation based on the internet publication of an article from the Wall Street Journal165 is likely to recur, raising the question of where a defamation actually occurs and whether an internet publisher is liable wherever an article can be downloaded or accessed. The amount of parallel litigation generated by issues of concurrent prescriptive jurisdiction is likely to increase exponentially, especially in cyberspace and areas where there is a lack of consensus on underlying substantive law and value, unless jurisdiction can be limited by the effects doctrine, targeting and disclaimers?166 B. Forum Selection Clauses A second trend in parallel proceedings that has continued to emerge is the number of cases that involve proceedings outside of or contrary to a choice of court or choice of forum clause. Sometimes the alternative forum is an arbitral tribunal. Many of the cases raise questions of interpretation and scope of the clauses, especially in connection with multiple parties who may not be part of the underlying contractual transaction. Chosen courts may be asked to restrain parties from continuing other proceedings; nondesignated courts may be asked to stay actions in deference to the designated forum. The trouble arises when the two courts involved disagree in interpretation, scope, or validity of the forum selection clause. The new Hague Conference Draft Choice of Court convention seeks to reduce some of this parallel litigation, as discussed in Part VII. This dilemma of varying interpretations or standards of substantive validity is one inherent in any transnational dispute on choice of forum clauses and is one that will need to be addressed in any Hague Conference Choice of Court convention.167

165. Dow Jones & Co., Inc. v. Gutnick, (2002) 194 A.L.R. 433 (Austl.) (affirming lower court=s decision that the statements the plaintiff (Gutnick) complained of were published in Victoria when downloaded by the Dow Jones subscribers, therefore the defamation occurred in Victoria and Victoria was not an inappropriate forum). 166. The effects doctrine has been used recently in domestic internet defamation cases, especially by the Fourth Circuit. See, e.g., Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002) (finding that to assert jurisdiction for a web site posting, the plaintiff must show an intent to target and focus on a certain group of readers). 167. See discussion infra Part VII.B. A convention on choice of court can define its own standards of substantive validity, or it can rely on a choice of law rule for determining validity which in turn may incorporate national law.

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One recent case illustrates the potential for parallel proceedings when different courts disagree about the interpretation or scope of an arbitration clause. The litigation on both sides of the Atlantic in the Armco cases168 snaked its way through the United States and English courts to a decision by the House of Lords.169 The final English appellate opinion illustrates the statesmanlike use of comity to defuse the escalating proceedings, while providing some protection for the English defendant in the New York forum. The Armco cases arise out of a management buy-out headed by Mr. Donohue and Mr. Atkins of a group of English insurance companies (BNIG) owned by Armco and some of its subsidiaries. The negotiators for Armco in the buy-out were Mr. Rossi and Mr. Stinson. Armco alleged that Donohue, Rossi, Stinson, and later Atkins, “the group of four,” conspired to defraud Armco and its subsidiaries of millions of dollars through a complex scheme that involved buying the insurance companies through Wingfield, a New Jersey corporation that allegedly was secretly owned by Rossi and Stinson, then Armco executives. Armco claimed that as part of the fraudulent scheme, the group persuaded Armco to inject extra money into the failing English insurance companies and to sign contracts in connection with the sale that contained English exclusive jurisdiction clauses. Armco brought suit against the group of four and additional corporate conspirators170 in the Southern District of New York to recover funds from the fraudulent scheme, alleging common law fraud, conversion, breach of fiduciary duty and RICO violations. Several other suits were filed against Donohue and others in Hong Kong, New Jersey and Singapore. Some of the defendants filed motions to dismiss for lack of 168. The U.S. proceeding is Armco, Inc. v. North Atl. Ins. Co. Ltd., 68 F. Supp. 2d 330 (S.D.N.Y 1999). The English proceedings are under the name Donohue v. Armco Inc. The lower court opinion is reported at [1999] 2 Lloyd=s Rep. 649 (Q.B. 1999) (Aikens, J., dismissing application for an antisuit injunction). The Court of Appeals decision is reported at [2000] 1 Lloyd=s Rep. 579 (C.A. 2000) (granting the antisuit injunction). 169. The House of Lords decision is reported at [2001] U.K.H.L. 64 (H.L. 2001), [2002] 1 Lloyd’s Rep. 425. 170. The cases in both the United States and England involved multiple parties, both individual and corporate, some of whom were not made parties to the exclusive jurisdiction clauses or contracts and some of whom were named in one claim or one forum and not another. This summary attempts to simplify the complex facts and focus on the underlying suit/antisuit injunction. See Armco, 68 F. Supp. 2d at 340.

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personal jurisdiction, improper venue, and forum non conveniens. The defendants specifically challenged the filing of suit in breach of the English exclusive jurisdiction clauses contained in the transfer and sale agreements.171 In the subsequent English proceedings, Donohue sought to enjoin the U.S. litigation as vexatious and oppressive as evidenced by its being in breach of the exclusive jurisdiction clauses. Rossi, Stinson, and several of the related corporate entities created for the sale and purchase, including Wingfield, applied to join as “coclaimants” in the English antisuit proceedings. They are referred to by the English appellate courts as “PCCs.” The English trial court found that the exclusive jurisdiction clauses, although valid, only bound some of the parties and that the claims in the New York lawsuit were based on a pre-existing conspiracy, and therefore did not arise out of the contracts and were largely outside the exclusive jurisdiction clauses. 172 The court also found that the proceedings against Donohue in New York were neither vexatious nor oppressive, England was not the “natural forum” for the litigation and the other co-claimants also were not entitled to an injunction.173 The English parties, defendants in the United States, appealed the denial of the antisuit injunction in England.174 In the interim, the District Judge in the New York federal court proceeding denied the motions to dismiss based on personal jurisdiction, improper venue, and forum non conveniens. The court agreed with the plaintiffs that exclusive jurisdiction clauses did not cover the pending litigation and were unenforceable because

171. The only parties to the three agreements at issue on the Armco side were AFSIL, AFSEL, and AFSC, with Armco Inc. succeeding to the rights and obligations of AFSEL (two other members of the Armco group, APL and NNIC, were not parties). Similarly, on the Donohue side, CISHL, Wingfield, Mr. Donohue, and Mr. Atkins were the only parties to the agreements, meaning that Mr. Rossi and Mr. Stinson and their companies were not parties to the agreements or to the exclusive jurisdiction clauses. Donohue, [2001] U.K.H.L. 64 at ¶ 7. 172. Donohue, [1999] 2 Lloyd=s Rep. at 664-65. 173. Id. at 664. 174. The courts on both sides of the Atlantic also spent significant time discussing the interrelationship of both the Armco conglomerate of companies and the individual and corporate defendants, particularly in connection with which parties were signatories to contracts and which were bound by the exclusive jurisdiction clauses. This analysis was also relevant in proceedings in both New York and London to the question of duplication of litigation.

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induced by fraud. In denying the forum non conveniens motion, the district court relied specifically on the intervening English trial court opinion to demonstrate that the United States had a greater interest in the action.175 The next stage for the proceedings was back in England before the Court of Appeal, which reversed the lower trial court and issued an antisuit injunction against the Armco entities from proceeding in New York.176 Besides Donohue individually there were the PCCs (two individuals and four corporations). The PCCs, hanging on Donohue=s coattails, were also ultimately granted an injunction. Even though all but one were not parties to any exclusive jurisdiction clause, they were considered necessary and proper parties for the English proceedings. The Court of Appeal injunction included these parties “to give effect to the exclusive jurisdiction clauses and to ensure trial in England of the issues arising out of or connected with the management buy-out between all the parties involved.”177 The court determined that the New York proceedings were within the scope of the exclusive jurisdiction clause. Contrary to the lower court=s approach of looking at the most appropriate place for the litigation, when there is an exclusive jurisdiction clause there has to be a strong reason not to grant an antisuit injunction since it is considered “prima facie oppressive and vexatious to litigate elsewhere than in the agreed forum.”178 The final act of this litigation was in the House of Lords which reversed the Court of Appeal. The Lords first reviewed the decision of the Court of Appeal to include in the antisuit injunction not only Mr. Donohue, but the PCCs who had not been party to the exclusive jurisdiction clauses. The Lords clarified the principles controlling the grant of an injunction as established in other case law that an injunction is only available when justice requires, and will only restrain vexatious or oppressive foreign litigation. In ad-

175. Armco, 68 F. Supp. 2d at 341 (“Although trial in England would be an adequate alternative forum, the court concludes that the relevant private and public factors indicate that litigating this case in the United States is completely appropriate.”). 176. Donohue v. Armco Inc., [2000] 1 Lloyd’s Rep. 579, 594 (C.A. 2000). 177. Donohue v. Armco Inc., [2001] U.K.H.L. 64, ¶ 15 (H.L. 2001), [2002] 1 Lloyd’s Rep. 425, 430. 178. Donohue, [2000] 1 Lloyd’s Rep. at 589.

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dition, the foreign forum must not be the natural home for the litigation. The court also must look to see what injustices there might be to both parties, including whether the defendant (here the plaintiff in the foreign action) will be deprived of advantages in the foreign forum to which he is entitled. Applying these principles, the House of Lords found that England was not the natural forum for the proceedings, and as to these defendants, the New York litigation was neither vexatious nor oppressive.179 The House of Lords then addressed the grant of the antisuit injunction as to Donohue alone and the case law controlling the discretion to enforce exclusive jurisdiction clauses either through staying or restraining: [W]here parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it. Whether a party can show strong reasons, sufficient to displace the other party=s prima facie entitlement to enforce the contractual bargain, will depend on all the facts and circumstances of the particular case.180 After reviewing numerous cases that involved multiple parties and claims that were outside exclusive jurisdiction clauses, coupled with the emphasis on avoiding inconsistent judgments, the House of Lords turned to specific facts. Donohue had the right as to the Armco entities with whom he had exclusive jurisdiction clauses to expect not to be sued in New York, and even more critically, not to be subject to RICO claims that would be possible in New York but not in England. The other PCCs, however, were fair game for the Armco entities to pursue “any claim they choose in any convenient forum where they can found jurisdiction,” including New York.181 Similarly, some of the Armco entities not bound by the exclusive jurisdiction clauses could pursue Donohue where 179. Donohue, [2001] U.K.H.L. 64 at ¶ 20. In addition, the House of Lords considered “another more technical objection” that of jurisdiction, and decides that “[i]t would be wrong in principle to allow these PCCs to use Mr. Donohue=s action as a Trojan horse in which to enter the proceedings when they could have shown no possible ground for doing so in their own right.” Id. at ¶ 21. 180. Id. at ¶ 24. 181. Id.

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he could be found, and the Armco entities bound could pursue him on claims outside the exclusive jurisdiction clauses – all of which appear to have found jurisdiction in New York and could proceed even if an antisuit injunction were issued. The House of Lords denied the injunction but added a condition that Mr. Donohue may not be sued for RICO claims or “multiple or punitive damages,” and that Mr. Donohue could claim that the sale and purchase agreement was governed by English law:182 I am driven to conclude that great weight should be given to it . . . . [T]he interests of justice are best served by the submission of the whole dispute to a single tribunal which is best fitted to make a reliable, comprehensive judgment on all matters in issue. A procedure which permitted the possibility of different conclusions by different tribunals, perhaps made on different evidence, would in my view run directly counter to the interests of justice.183 Thus, the House of Lords allows the goal of “submission of the whole dispute to a single tribunal” for “a comprehensive judgment” in the interests of justice to override enforcement of an exclusive jurisdiction clause, at least when there are multiple parties and claims that are appropriately litigated in a foreign forum.184 The result encourages courts to avoid granting antisuit injunctions which will simply result in encouraging conflicting judgments, but also counsels courts to attempt to shape some compromise where possible to protect the contractual expectations of parties. In contrast to the balanced approach of the House of Lords in the Armco litigation, the Seventh Circuit in AAR International, Inc. v. Vacances Heliades S.A.185 again demonstrated its resistance to “comity” by reversing the lower court=s abstention order and enforcing a “permissive forum selection clause.”186 The District Court

182. Id. at ¶ 36. The actual undertaking includes two other entities, Wingfield and CISHL. Id. at ¶¶ 31-32. 183. Id. at ¶ 34. 184. Id. 185. 250 F.3d 510 (7th Cir. 2001). 186. Id. at 525-27. See, e.g., Allendale Mut. Ins. Co. v. Bull Data Sys., 10 F.3d 425 (7th Cir. 1993); see discussion supra Part III.

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had granted a motion to abstain in favor of two, possibly three, proceedings in Greece concerning the lease of an airplane and dismissed the U.S. reverse image case.187 Following the Colorado River188 and Moses Cone189 domestic precedents of abstention “for wise judicial administration,” the lower court applied a “laundry list of factors,”190 but put heavy weight on the repetitive nature of the actions and the satisfactory alternative forum in Greece.191 The Seventh Circuit unfortunately turned first to domestic precedent, even though the cases involved foreign litigation as well.192 The court disagreed with the lower court=s determination that the U.S. and Greek actions were parallel and that the Greek actions would likely dispose of the claims in the U.S. action. By reading the requirement of Moses Cone to mean it would be a “serious abuse of discretion” if there is any doubt as to the actions being parallel, the Seventh Circuit found a basis to reverse.193 The appellate court decided that the lower court improperly balanced the abstention factors.194 The Seventh Circuit found that the lower court put “undue weight on the inconvenience of the federal forum for the [Greek] appellees, and did not adequately consider the in-

187. AAR Int’l, Inc. v. Vacances Heliades S.A., 100 F. Supp. 2d 875, 878 (N.D. Ill. 2000). 188. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). 189. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983). 190. AAR Int’l, Inc., 100 F. Supp. 2d at 878. The District Court stated: The Seventh Circuit directs me to consider a laundry list of factors: (1) the identity of the court that first assumed jurisdiction over the property; (2) the relative inconvenience of the federal forum; (3) the need to avoid piecemeal litigation; (4) the order in which the respective proceedings were filed; (5) whether federal or foreign law provides the rule of decision; (6) whether the foreign action protects the federal plaintiff=s rights; (7) the relative progress of the federal and foreign proceedings; and (8) the vexatious or contrived nature of the federal claim. Id. (citing Finova Capital Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898-99 (7th Cir. 1999). For a discussion of the lower court opinion in Finova, see Teitz, Treading Carefully, supra note 72, at 404-05. 191. AAR Int’l, Inc., 100 F. Supp. 2d at 878 (“[T]he most economical use of my time is to let the Greek courts handle it.”). 192. Id. at 517-18. 193. Id. at 520. 194. Id. at 522-23.

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convenience of the Greek forum for AAR.”195 The Circuit further found that the district court did not weigh properly the nonexclusive Illinois jurisdiction clause and the irrevocable waiver of objection to Illinois as an inconvenient forum contained in the lease, and thus there was a basis for reversal even under the abuse of discretion standard.196 This clause then is a heavy weight in the Seventh Circuit=s eyes in refusing to abstain in the face of parallel litigation, such that AAR ultimately appears to receive from this non-exclusive clause the benefits that would otherwise be accorded only to an exclusive jurisdiction clause. Cases like Armco and AAR that result from differences in the interpretation and enforcement of forum selection clauses serve to highlight the need for the multilateral choice of court convention currently being negotiated in The Hague.197 The convention would enforce forum selection clauses much the way the New York Convention198 assures that agreements to arbitrate are enforceable. Even when parties attempt to pre-ordain the location of later disputes in transnational transactions, the inability to enforce that agreement without litigation nullifies the value of a choice of forum clause and removes the predictability and allocation of costs for which the parties bargained. A convention that enforces exclusive choice of court clauses as well as the resulting judgments will go a long way toward providing some certainty and encouraging consensual choice of forum in global business. V. EUROPEAN APPROACHES TO INTEGRATING COMMON-LAW THEORIES OF PARALLEL PROCEEDINGS

During the last several years, there have been several cases in Europe that have involved issues of parallel proceedings. Four recent cases before the European Court of Justice reflect the problems arising from increased judicial cooperation under the Brussels Regulation. Specifically, the difficulty arises from attempts to integrate the common-law doctrines of antisuit 195. Id. at 522. 196. Id. at 523. 197. See discussion infra Part VII. 198. New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997 (codified at 9 U.S.C. §§ 201, 208 (2004)) [hereinafter New York Convention].

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injunctions and forum non conveniens into European law.199 Both the Brussels Regulation and its predecessor Brussels Convention contain lis pendens provisions which come into effect when the first court of a member state is seised; any other member state=s courts must stay proceedings “until such time as the jurisdiction of the court first seised is established.”200 This strict “first in time” approach under the Brussels Convention was challenged and upheld in a case decided in 2003 by the European Court of Justice when one of the parties filed suit contrary to a choice of court clause and in a country where the legal proceedings were exceptionally slow. In Erich Gasser GmbH v. MISAT Srl,201 an Austrian clothing company sold clothes to an Italian company, with invoices having an exclusive choice of jurisdiction clause for an Austrian court. Following a dispute between the parties, the Italian buyer brought suit in Rome, seeking a declaration that the contract had been terminated and also seeking damages. The seller subsequently brought suit in Austria under the forum selection clause for payment on the outstanding invoices. The Austrian court, on its own motion, stayed proceedings under the then Brussels Convention Article 21.202 Reference was made to the European Court of Justice (ECJ) for a ruling whether the Austrian court had to stay all proceedings until the court first seised had declared it had no jurisdiction under Article 21 because of the exclusive Austrian choice of court clause.203 Gasser and the U.K. government argued that choice of court clauses should be “encouraged” since they “contribute to legal certainty in commercial relationships.”204 The reasons given in part by the ECJ for rejecting these arguments focus on the need to avoid the possibility of irreconcilable judgments at all costs between the courts of member states and

199. For a discussion of antisuit injunctions and the Brussels Convention/Regulation, see Ambrose, supra note 13. 200. Brussels Regulation, supra note 12, at art. 27. 201. Case C-116/02, [2003] ECR ____ (9 Dec. 2003). 202. Id. at ¶ 15; see also Brussels Convention, supra note 12, at art. 21. 203. Eric Gasser, [2003] ECR ____ at ¶ 19. 204. Id. at ¶ 31. The U.K. had proposed to avoid the risk of irreconcilable judgments the court first seised “whose jurisdiction is contested in reliance on an agreement conferring jurisdiction must stay proceedings until the court which is designated by that agreement, and is the court second seised, has given a decision on its own jurisdiction.” Id. at ¶ 33.

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the “legal certainty sought by the Convention.”205 The ECJ also rejected the arguments of the U.K. government about the potential for abuse through filing in the wrong forum to delay the proceedings. Indeed in this case, proceedings in the derogated court, Italy, take “excessively long.”206 Gasser argued that in such a case, the courts of the State second seised should be entitled to rule on the question of jurisdiction rather than wait for the nonchosen but first seised court to rule that it has no jurisdiction. The ECJ insisted on a very literal reading of Article 21: 68. It is not compatible with the philosophy and the objectives of the Brussels Convention for national courts to be under an obligation to respect rules on lis pendens only if they consider that the court first seised will give judgment within a reasonable period. .... 72. Second, it must be borne in mind that the Brussels Convention is necessarily based on the trust which the Contracting States accord to each other=s legal systems and judicial institutions. . . It is also common ground that the Convention thereby seeks to ensure legal certainty by allowing individuals to foresee with sufficient certainty which court will have jurisdiction.207 Gasser suggests the potential for abuse by deliberately stalling litigation in violation of a choice of court clause. Contrary to the ECJ=s laudatory comments about certainty, Gasser has the potential to nullify the value of an exclusive choice of court clause, making certainty the captive of procedural maneuvers. In the end, the fastest runner to the courthouse may triumph over party autonomy and contractual choice. The ECJ also considered the implications for European law of parallel proceedings in two member states when one state is a common-law jurisdiction. This time the question in Turner v. Grovit208 concerned the use of an antisuit injunction to stop pro205. Id. at ¶ 51. 206. Id. at ¶ 33. 207. Id. at ¶¶ 68-72. 208. [2002] 1 W.L.R. 107 (H.L. 2001), preliminary reference made, Case C159/02, [2003] ECR ____, [2004] 1 Lloyd’s Rep. 216, judgment of the full court, [2004] ECR 00 (27 Apr. 2004), [2004] 2 Lloyd’s Rep. 169; see Hartley, How to

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ceedings filed or threatened to be filed in another member state that constituted an abuse of process, when the defendants were alleged to be acting “in bad faith with the intent and purpose of frustrating or obstructing proceedings properly before the English courts.”209 The case highlights fundamental differences in the treatment of parallel proceedings in certain circumstances in common-law countries and civil law countries. Turner, a British national, went to work in Spain. Following an employment dispute, he asked to terminate the contract and returned to London where he brought an action for a form of unfair dismissal in the Employment Tribunal, London. Meanwhile, the employer had instituted proceedings in Spain seeking damages against Turner. Turner then asked the English High Court to issue an antisuit injunction against the defendants from continuing the proceedings in Spain. The English court issued the injunction for a short period of time but refused to renew the order.210 Turner then sought and received an injunction from the English Court of Appeal which viewed the proceedings in Spain as being for the sole purpose of intimidating Turner, and therefore an abuse of process, warranting injunctive relief.211 The House of Lords referred the matter to the ECJ in December 2001 to determine if the antisuit injunction was inconsistent with the Brussels Convention.212 The defendants, as well as the German and Italian governments, urged that the antisuit injunction was irreconcilable with the Brussels Convention. The Advocate General=s preliminary opinion213 determined that the Convention “must be interpreted as precluding the judicial authorities of a Contracting State from issuing orders to litigants restraining them from commencing or continuing proceedings before judicial authorities of other Contracting States.”214 In reaching this result that reinforced the lis pendens provisions in the Brussels Convention in favor of the court first Abuse the Law, supra note 13. 209. Id. at ¶ 18. 210. Id. at ¶ 11. 211. Id. at ¶ 12. 212. Id. at ¶ 18. 213. The Advocate General issued an opinion on 20 November 2003. Case C-159/02, Turner v. Grovit, [2003] ECR ____ (20 Nov. 2003), [2004] 1 Lloyd’s Rep. 216. 214. Id. at ¶ 38.

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seised, the Advocate General made reference to case law in other common-law jurisdictions, including the United States, and suggested that the Convention=s structure did not allow for antisuit injunctions: 30. The arguments against compatibility with the Convention put forward in the course of these preliminary proceedings stem from the idea that one of the pillars of the international instrument is the reciprocal trust established between the various national legal systems, upon which the English restraining orders would seem to cast doubt. 31. That view seems to me to be decisive. [] European judicial cooperation, in which the Convention represents an important landmark, is imbued with the concept of mutual trust, which presupposes that each State recognizes the capacity of the other legal systems to contribute independently, but harmoniously, to the stated objectives of integration.215 The ECJ, following this approach in its final opinion issued on April 27, 2004, left no room for national law to continue, at least where the proceedings are in two member states. 216 This result of a strong lis pendens when both parties are nationals of the community, along with Gasser, increases the pressure to be the first to file. The decision also encourages vexations filings to wrest jurisdiction away from the otherwise natural forum. Owusu v. Jackson217 raises the next question: What about when parties are from third countries, not members of the European Union? Is forum non conveniens still viable under the Brussels regime? Owusu also introduces the issue of multiple parties since only one of the defendants is from a member state and the other five are domiciled in Jamaica. Mr. Owusu, an English domiciliary, was injured at the beach while on holiday in Jamaica. He brought suit in tort in England against multiple parties, all but

215. Id. at ¶¶ 30-31. 216. Turner v. Grovit, [2004] ECR 00 (27 Apr. 2004), [2004] 2 Lloyd’s Rep. 169 (Judgment of the Full Court). 217. [2002] I.L.Pr. 45 (C.A. 2002), preliminary reference made, Case C281/02, Owusu v. Jackson, [2003] ECR ____.

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one of whom were Jamaican limited liability companies, for failing to warn of dangers of a submerged sand bank. He also brought suit for breach of contract against the English company from whom he rented the villa. The English lower court judge found that Jamaica was the appropriate forum for the proceedings for several reasons and, but for the Brussels Convention precluding staying the action against the one English defendant he would have done so.218 Since he could not stay the suit against the English defendant he would not want to stay as to the other defendants because then two different courts, one in England and one in Jamaica, would try the same factual issues and might reach conflicting results and thus conflicting judgments. To avoid the parallel litigation, he refused to stay any of the proceedings in London. The decision was appealed to the Court of Appeal which subsequently made a reference to the ECJ based on the mandatory requirements of Article 2 of the Brussels Convention requiring suit in the domicile of a defendant from a member state.219 This is contrary to the national law which allowed the exercise of discretionary power in the form of forum non conveniens when the parties were from non-contracting states and the potential parallel litigation did not involve another member state. The English court, in referring the matter to the ECJ, recognized that the issue of forum non conveniens and the relationship to mandatory provisions of the Brussels Convention/Regulation as applied to defendants from nonmember states inherently raises the potential of parallel proceedings and the issue of what response is permissible, at least when courts of third countries are involved.220 The ECJ 218. Id. at ¶ 20. 219. Case C-281/02, Owusu v. Jackson, [2003] ECR ____. 220. Id. at ¶¶ 59–63. The Court of Appeal noted: 45. The present case is concerned with the doctrine of forum conveniens, when applied as between a member state and a non-member state. But it might just as easily have been concerned with the doctrine of lis alibi pendens, or “prorogation of jurisdiction,” . . . or any of the other situations for which the Brussels Convention provides discretionary or mandatory exceptions. . . . If article 2 is mandatory, then a defendant domiciled in England must be sued in England in all such cases even if the Convention would allow or require the action to be brought in the courts of another member state if a domiciliary of another member state was involved. Id. at ¶ 45 (citation omitted).

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has yet to act in Owusu but its decision will no doubt affect parallel proceedings issues – either indirectly through forum non conveniens dismissals/stays, or directly through lis pendens – for those actions that involve a member state that, under its national law, allows discretionary dismissals or antisuit injunctions, such as the U.K., and a third country. European law on parallel proceedings is now having a direct impact on U.S. corporations who have foreign subsidiaries and do business abroad. In American Motorist Insurance Co. (AMICO) v. Cellstar Corp.221 the English court=s discretion to dismiss was limited by Convention/Regulation since one of the two defendants was a U.K. subsidiary of a U.S.-based company. Cellstar, a U.S. corporation with its principal place of business in Texas, obtained an insurance policy from AMICO, an Illinois insurance company doing business in Texas. The insurance policy was to cover Cellstar=s global business of providing wireless communication equipment which it carried out through subsidiaries. The insurance policy for “global transportation,” issued by AMICO=s Texas office, was to cover Cellstar and its subsidiaries worldwide against losses of cell phones in transit in connection with sales operations in seventeen countries. The litigation related to a claim for about one million pounds for a loss in March 2000 for shipments made by Cellstar=s U.K. subsidiary (CUK) to other locations in Europe.222 After AMICO denied coverage, demand was made by CUK and Cellstar in the United States. In response, AMICO filed suit in London a week later for a negative declaration against CUK and Cellstar. Cellstar subsequently filed suit in Dallas against AMICO for wrongful failure to settle the claim, eventually joining other incidents of loss as well. AMICO did not seek to stay the Texas litigation, which would probably have not been granted, but eventually joined CUK as a third party in the Texas suit.223 By suing CUK, the U.K. subsidiary, in England, AMICO was able to get jurisdiction under the Brussels Convention/Regulation for an insurance policy issued in Texas by a Texas insurer to a Texas corporation to cover its foreign subsidiaries. In the U.K. liti-

221. American Motorists Ins. Co v. Cellstar Corp., [2003] I.L.Pr. 22 (C.A. 2003). 222. Id. at ¶ 2. 223. Id.

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litigation seeking a negative declaration of nonliability, AMICO tried to have Cellstar joined as a necessary party and claimed that the worldwide insurance policy was governed by English law. The lower court in the U.K., after determining that English law would not govern the insurance policy, found that Texas was therefore the appropriate forum for the resolution of the dispute and stayed the action against CUK.224 AMICO argued on appeal that the lower court was without authority under the Brussels Convention to exercise discretion and stay the action against CUK. Thus the court was faced with an issue similar to Owusu, of whether, in light of the mandatory terms of the Brussels Convention/Regulation that establish where an English-domiciled corporation may be sued, an action in a member state can be stayed in favor of an action in a third country which is the “forum conveniens.” The appellate court found that the entire insurance policy was subject to Texas law, and that at a minimum Cellstar should not be a party to suit in London, but that suit should be in Texas.225 The court recommended a reference to the ECJ of the issue of staying the action against CUK in favor of proceedings in Texas,226 again raising the issue of whether the discretionary doctrine of staying or dismissing parallel litigation that is vexatious or brought in an inconvenient forum can co-exist under the Brussels Regulation when the alternative forum is a nonmember state. Although the case is a continent away, the implications of the ECJ cases are significant for U.S. companies with foreign subsidiaries in Europe who may find themselves litigating in several forums and no longer able to get out of the litigation in Europe. When one combines the ability to seek negative declaratory actions with the lis pendens and the loss of the discretionary ability to dismiss in favor of foreign litigation in the appropriate forum under the Regulation, one finds the result is multiple proceedings. Although the insurance contract in AMICO was to cover losses in Europe and of foreign subsidiaries, Cellstar would not necessarily anticipate that an insurance policy bought in Texas and from a Texas insurer would force it or its subsidiary to be sued in the U.K. if it subsequently had a disputed claim for coverage. The ul-

224. 225. 226.

Id. at ¶ 4. Id. at ¶¶ 48, 50-51. Id. at ¶¶ 49, 51.

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timate result is the increased likelihood of having to litigate on two continents if a corporation has a European subsidiary and is sued. This at least suggests the possibility of vexatious litigation whenever a U.S. company is sued in Europe by joining a European subsidiary or necessary party – much the way a plaintiff in a U.S. court can avoid removal to federal court in a nonfederal question case by joining a nondiverse party.227 Cases that an English court might previously have stayed, now will have to continue if the ECJ construes the Brussels Regulation narrowly, in keeping with the Gasser and Turner decisions, to foreclose the operation of national law when the other litigation is pending in the court of a third country. VI. ENFORCING FOREIGN JUDGMENTS IN THE U.S.

Enforcement and recognition of judgments, although chronologically the last concern in litigation, is one of the first considerations in initiating a lawsuit. Indeed the ability to enforce a judgment and the potential for prejudgment relief may ultimately control the initial decisions of whether and where to sue. As discussed earlier, there is no constitutional provision requiring recognition of foreign judgments,228 nor any multilateral agreement to which the United States is a party. Rather, the state or federal court is free to accord “comity” to the foreign judgment, a concept frequently cited but rarely explained in any way other than by 227. Perhaps the best known example of this is World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), where the anecdotal basis for joining Seaway and World-Wide was to keep the defendants from removing to federal court and out of the more favorable jury pool in the state court. 228. See supra note 15. There is no requirement under the Constitution for giving full faith and credit to a foreign judgment. Nor does the Full Faith and Credit Statute control foreign judgments. See U. S. CONST. art. IV, § 4; 28 U.S.C. § 1738 (2004). The United States does have some Treaties of Friendship with individual countries which elevate judgments from the particular country to the status of a sister state judgment. See, e.g., Treaty of Friendship, Commerce, and Navigation Between the United States of America and The Republic of Korea, Nov. 7, 1957, U.S.–Korea, 8 U.S.T. 2217; Treaty of Friendship, Commerce and Navigation Treaty Between the United States of America and the Kingdom of Greece, Aug. 3, 1957, U.S.–Greece, 5 U.S.T., 1829. These treaties, under the Supremacy Clause, preempt contrary state law. See Choi v. Kim, 50 F.3d 244 (3d Cir. 1995) (elevating Korean judgment to status of sister state); Vagenas v. Continental Gin Co., 988 F.2d 104, 106 (11th Cir. 1993) (elevating Greek judgment to status of sister state).

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quoting the major Supreme Court opinion on the recognition of a foreign judgment, Hilton v. Guyot,229 a one hundred year old case involving the recognition of a French judgment. In Hilton, the Supreme Court established the basic contours of the common-law comity approach to recognition of foreign judgments.230 In a five to four decision, the Supreme Court ultimately refused recognition to the French judgment because of the lack of reciprocity in that France would not enforce a similar U.S. judgment. Hilton, by negative implication, lists the potential defenses to recognition: (1) lack of a full or fair trial; (2) lack of subject matter jurisdiction; (3) lack of personal jurisdiction; (4) trial under a system lacking impartiality or due process; (5) prejudice in the legal system or court; 229. 159 U.S. 113 (1895). 230. Id. at 163-64. The Court announced: No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call “the comity of nations.” Although the phrase has been often criticized, no satisfactory substitute has been suggested. “Comity,” in the legal sense, is neither a matter of absolute obligation . . . nor of mere courtesy and good will . . . . But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws. .... When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in a foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that, by the principles of international law, and by the comity of our own country, it should not be given full credit and effect. Id. at 163-64, 205-06; see id. at 202-03.

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and (6) fraud in procuring the judgment. The only significant deviation from Hilton is the subsequent deletion of a requirement for reciprocity; indeed, the majority of those cases relying on Hilton fail to discuss any reciprocity requirement.231 The parameters for granting comity to a foreign judgment set out in Hilton, with the exception of the reciprocity requirement, continue to dominate our thinking on treatment of foreign judgments in both federal and state courts. Even though the recognition and enforcement of judgments within the United States is largely a matter determined by state law, recognition and enforcement is subject to federal constitutional standards that may serve to invalidate foreign judgments.232 A foreign judgment may not be recognized or enforced if it violates due process. Today, there are three basic approaches followed by federal and state courts, all of which to some extent derive from the tenets established by Hilton. First, some courts rely strictly on a common-law approach, derived from Hilton, but usually without the reciprocity requirement. Others use a statutory approach, applying the Uniform Foreign Money-Judgments Recognition Act.233 This Uniform Act, first adopted by the National Conference of Commissioners on Uniform State Laws in 1962, has been enacted in some version by more than half the states.234 Although its 231. See, e.g., de la Mata v. Am. Life Ins.. Co., 771 F. Supp. 1375, 1382-83 (D. Del. 1991), aff’d without opinion, 961 F.2d 208 (3d Cir. 1992); Pilkington Bros. v. AFG Indus., Inc., 581 F. Supp. 1039, 1043-44 (D. Del. 1984). Both of these cases are federal courts construing state law. 232. See ENFORCING FOREIGN JUDGMENTS IN THE UNITED STATES AND UNITED STATES JUDGMENTS ABROAD 1-20 (Ronald A. Brand ed., 1992); Robert B. von Mehren, Enforcement of Foreign Judgments in the United States, 17 VA. J. INT=L LAW 401, 401-403, 408-410 (1977); Robert E. Lutz, Enforcement of Foreign Judgments, Part I: A Selected Bibliography on the United States’ Enforcement of Judgments Rendered Abroad, 27 INT’L LAW. 471 (1993); Robert E. Lutz, Enforcement of Foreign Judgments, Part II: A Selected Bibliography of Enforcement of United States Judgments in Foreign Countries, 27 INT’L LAW. 1029 (1993). 233. UFMJRA, supra note 17. 234. The following states have enacted the UFMJRA: Alaska, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Virginia, and Washington. The District of Columbia and the Virgin Islands have also adopted it. Uniform Law Commissioners, UFMJRA, at http://www.nccusl.org/ Update/uniformact_factsheets/uniformacts-fs-ufmjra.asp (last visited Dec. 12,

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direct application is to foreign judgments for money only, states that have adopted it often look to it for guidance in treating nonmoney foreign judgments.235 The third approach is the Restatement (Third) of Foreign Relations Law of the United States (Restatement (Third)) which is similar to the earlier Uniform Act, but covers a broader category of judgments including judgments “establishing or confirming the status of a person, or determining interests in property.”236 Both the Restatement (Third) and the Uniform Act provide for a foreign judgment meeting certain requirements to be treated like a sister-state judgment entitled to full faith and credit.237 The absence of a uniform national ap2004). 235. See, e.g., Milhoux v. Linder, 902 P.2d 856 (Colo. Ct. App. 1995). 236. RESTATEMENT, supra note 25, at § 481. The Restatement (Third) incorporates many of the Hilton defenses involving fairness, due process, and jurisdiction, and adds defenses such as conflicting judgments and those contrary to an express forum selection agreement, but not a reciprocity requirement. Id. at § 482. Of these defenses, there are only two mandatory grounds for nonrecognition: lack of personal jurisdiction and lack of due process in the rendering jurisdiction. Id. The six discretionary grounds for nonrecognition comprise: (1) lack of subject-matter jurisdiction; (2) lack of notice; (3) fraud; (4) public policy of the United States or the forum state; (5) conflicting final judgments; and (6) a contrary contractual choice of court. Id. Comment h to section 482 suggests that the contractual choice of court includes selection of an arbitral tribunal. Id. § 482 cmt. h. For a comparison of the Restatement (Third) and the Uniform Act, see Ronald A. Brand, Enforcement of ForeignMoney Judgments in the United States: In Search of Uniformity and International Acceptance, 67 NOTRE DAME L. REV. 253, 265-80 (1991). 237. RESTATEMENT, supra note 25, at § 481 cmt. c; UFMJRA, supra note 17, at § 3. The UFMJRA establishes a presumption of recognition and enforcement “in the same manner as the judgment of a sister state which is entitled to full faith and credit.” UFMJRA, supra note 17, at § 3. The defenses to recognition are similar to those of the Restatement (Third), with the burden of proof being placed on the party attempting to avoid recognition. Id. The Act contains three grounds for mandatory recognition: lack of due process, personal jurisdiction, or subject matter jurisdiction. Id. at § 4 (a). The grounds for discretionary nonrecognition comprise: (1) lack of notice; (2) fraud in the judgment; (3) public policy; (4) conflicting judgments; (5) a contrary forum selection clause; and (6) a seriously inconvenient forum. Id. § 4 (b). This last category is not available under the Restatement (Third). RESTATEMENT, supra note 25, at § 482 (2). Of the adopting states, some have made all grounds for nonrecognition mandatory. See, e.g., GA. CODE ANN. § 9-12-114 (1993); MASS. GEN. LAWS. ANN. ch. 235, § 23A (West 2000). Moreover, eight adopting states have added a reciprocity requirement, which is discretionary in seven of those states. See FLA. STAT. ANN. § 55.605 (West 1994 & Supp. 2004) (discretionary); GA. CODE ANN. § 9-12-114 (1993) (mandatory); IDAHO CODE § 10-1404 (Michie 2004) (discretionary); ME. REV. STAT. ANN. tit 14, §

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proach to recognition and enforcement of judgments has hampered parties in securing judgments that will be enforceable abroad. In addition, the lack of homogeneity makes it difficult to enforce foreign judgments here, especially when the enforcing forum requires reciprocity. VII. A DECADE OF NEGOTIATIONS AT THE HAGUE For the last decade, the Hague Conference on Private International Law (Hague Conference)238 has been laboring to create a multilateral convention on jurisdiction and the enforcement of judgments, which of necessity would address parallel litigation and the potential for inconsistent judgments.239 The Hague Conference=s undertaking in 1992–93 to work on a general convention on the recognition and enforcement for foreign judgments was generated largely by the suggestion of the United States.240 The U.S., not a party to any bilateral or multilateral convention on the enforcement of foreign judgments, sought to find a means for private parties to enforce foreign judgments outside of the United States without relitigation and to “level the playing field” for litigants in the U.S.241 The convention was designed to help the 8505 (West 2003) (discretionary); MASS. GEN. LAWS. ANN. ch. 235, § 23A (West 2000) (mandatory); N.C. GEN. STAT. § 1C-1804 (2003) (discretionary); OHIO REV. CODE ANN. § 2329.92 (West 2004) (discretionary); TEX. CIV. PRAC. & REM. CODE ANN. § 36.005 (Vernon 1997) (discretionary). 238. The Hague Conference=s treaties on aspects of international litigation such as The Taking of Evidence Abroad, and the Service of Documents Abroad are well known, as it is pioneering work in the area of family law. See, e.g., Hague Conference, Convention of the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature, March 18, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 1231, available at http://www.hcch.net/e/conventions /index.html (last visited Dec. 12, 2004); Hague Conference, Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters, opened for signature November 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (entered into force October 7, 1972), available at http://www.hcch.net/e/conventions/index.html. (last visited Dec. 12, 2004). 239. See supra note 8. See generally http://hcch.e-vision.nl/index_en.php. 240. See BAUMGARTNER, supra note 8, at 1; von Mehren, Recognition and Enforcement, supra note 8, at 271; Peter Nygh, Arthur=s Baby: The Hague Negotiations for a World-Wide Judgments Convention, in LAW AND JUSTICE, supra note 8, at 151, 152. 241. See generally Peter Trooboff, Ten (and Probably More) Difficulties in Negotiating a Worldwide Convention on International Jurisdiction and Enforcement of Judgments: Some Initial Lessons, in A GLOBAL LAW OF JURISDICTION AND JUDGMENTS: LESSONS FROM THE HAGUE 263 (John J. Barcelo

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“middle class litigant,”242 not just the large multinational corporations who already could afford to resolve their transnational disputes with arbitration. U.S. litigants often found it much harder to enforce U.S. judgments abroad than the reverse situation for non-U.S. judgments seeking to be enforced in the United States. The initial suggestion of the U.S. was a mixed convention, the idea of Arthur von Mehren,243 where there would be three lists of jurisdictional bases and the corresponding recognition.244 The white grounds were acceptable bases under the convention, black grounds were unacceptable, and a gray list was where national law would continue but recognition was not required under the convention.245 Many member states who had little trouble having their judgments recognized and enforced in the United States viewed the negotiations as a way to cut-back on what they viewed as exorbitant aspects of U.S. personal jurisdiction, including general doing business jurisdiction, activity-based jurisdiction and tag jurisdiction. A. The Comprehensive Jurisdiction/Judgments Draft Much has been written about the history of the negotiations and the problems that plagued it, from an initial 1999 draft that was a copy of the Brussels Convention to the 2001 Interim Draft that was a consensus version with multiple options and 201 footnotes.246 Many of the obstacles to the conclusion of a comprehensive jurisdiction and judgments convention to which the United States would be a party were not apparent at the beginning of the

& Kevin M. Clermont eds., 2002). 242. Peter Trooboff, a member of the U.S. delegation, frequently used this expression in advocating for a comprehensive judgments convention. See id. at 263. 243. See generally von Mehren, Enforcing Judgments Abroad, supra note 8. 244. See id. at 283-84. 245. See id. 246. The 2001 draft text of the Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, an interim text, was drawn up at Part One of the Nineteenth Diplomatic Session, which was held from 6-22 June 2001. Hague Conference, Summary of the Outcome of the Discussion in Commission II of the First Part of the Diplomatic Conference, June 6–22, 2001 (prepared by the Permanent Bureau and the Co-reporters), available at http://www.hcch.e-vision.nl/upload/wop/jdgm2001draft_e.pdf. (last visited Dec. 12, 2004).

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decade when negotiations began but arose much later, including the rise of the internet and electronic commerce, the role of the consumer and the increased integration of the European Community.247 The documents of the Hague Conference itself point out many of the problems. Part of the problem at the Hague Conference is similar to that currently occurring within the European Union with its attempts to accommodate both civil and common-law traditions. But unlike the European Union, the Hague Conference has no ECJ or its equivalent to settle disputes or harmonize interpretations, nor is there a common trade goal. While this lack of shared values or goals among the Hague Conference members has made drafting a treaty difficult, one of the best examples of the blending of legal traditions is the crafting of Articles 21 and 22, those dealing with lis pendens and forum non conveniens. The common law tradition allows discretion to decline jurisdiction, in contrast to the civil law tradition. This same difficulty in melding the two systems, as mentioned earlier, is illustrated by the current litigation within the European Community involving whether the discretionary doctrines of forum non conveniens and antisuit injunctions survive the Brussels Regulation with its strict lis pendens and defined grounds for jurisdiction.248 The Hague delegates managed to reach a compromise between the civil and common law traditions, evidenced by the balance achieved in the complementary articles concerning lis

247. Following the June 2001 diplomatic session, there were informal meetings among different member nations exploring ways to continue the work on the Judgments Convention. For a discussion of the state of the negotiations, see Hague Conf. Prelim. Doc. No. 16, supra note 22. Two other documents on the Hague Conference website, both produced by Avril D. Haines, provide insight into the problems the Conference has faced, especially in connection with the internet and also the problems related to choice of court agreements. See Hague Conf. Prelim. Doc. No. 17, supra note 22.; Hague Conference, Choice of Court Agreements in International Litigation: Their Use and Legal Problems to Which They Give Rise in the Context of the Interim Text, Prel. Doc. No. 18 (Feb. 2002) (prepared by Avril D. Haines) [hereinafter Hague Conf. Prelim. Doc. No. 18], available at http://www.hcch.net/e/workprog/jdgm.html (last visited October 7, 2004); see also Fausto Pocar, The Drafting of a World-Wide Convention on Jurisdiction and the Enforcement of Judgments: Which Format for the Negotiations in The Hague?, in LAW AND JUSTICE, supra note 8. 248. See discussion supra Part VI.

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pendens and forum non conveniens. The 2001 Interim Draft provides for a lis pendens based on first filed or “seised,” but allowing the potential for declining jurisdiction in favor of a “clearly more appropriate forum.” Thus the objectionable aspect of the Brussels Convention/Regulation of creating a race to file is tempered by considerations of appropriateness and convenience. Similarly, the potential for broad discretionary declining of jurisdiction is limited to a specific time period and specific elements of convenience, but also tied to the potential for subsequent enforcement.249 B. The Choice of Court Convention After a stalemate in 2001 in connection with producing a comprehensive jurisdiction and judgments convention to which the U.S. would be a party, some country members of the Hague Conference called for a scaled-back convention that might provide limited relief while not addressing some of the controversial areas involving consumers, electronic commerce, and intellectual property. Beginning in October 2002, an Informal Working Group met to attempt to draft a less inclusive convention, ultimately coming up with a draft of a choice of court agreements convention after three meetings. The hope was to produce a choice of court/forum

249. For a discussion of forum non conveniens and the balance with lis pendens, especially in relation to the Hague Convention 1999 and 2001 drafts, see Ronald A. Brand, Comparative Forum Non Conveniens and the Hague Convention on Jurisdiction and Judgments, 37 TEX. INT=L L.J. 467 (2002). Professor Brand has been a member of the U.S. delegation to the Hague Conference for the Jurisdiction and Judgments Convention, and has noted: The common elements of forum non conveniens doctrine throughout the common law world have been incorporated into the rules found in Article 22 of the Interim Text of a Hague Convention on jurisdiction and foreign judgments. . . . At the same time, this provision is balanced against the lis pendens rules found in Article 21. The combination integrates elements of predictability found in the civil law lis pendens approach with the search for equitable results that underlies the common law forum non conveniens doctrine. . . . Articles 21 and 22 of the Interim Text provide a constructive focus for comparative analysis and set the stage for progress in the world of parallel litigation. Id. at 495. See also Stephen B. Burbank, Jurisdictional Equilibration, the Proposed Hague Convention and Progress in National Law, 49 AM. J. COMP. L. 203 (2001).

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convention250 that would enforce forum selection clauses and resulting judgments, much as the New York Convention does with arbitration clauses and subsequent arbitral awards. Although only a small piece of the puzzle of a judgments convention, a large portion of multiple proceedings is generated by actions contrary to forum selection clauses or actions to enforce forum selection clauses. A choice of court convention could have a positive impact not only on dispute resolution but also on transactional planning, providing enforcement for exclusive choice of court clauses as well as for the resulting judgments. In a survey of practitioners conducted by the ABA Section of International Litigation and Practice in October-November 2003, over 98% of those responding indicated that a convention on choice of court agreements would be useful for their practice. Over 70% indicated that a convention would make them “more willing to designate litigation instead of arbitration” in their contracts.251 The Hague Conference on Private International Law has since produced a significant draft of an Exclusive Choice of Court Agreements Convention. A full Special Commission was held in December 2003, and a second one in April 2004, from which emerged the most recent draft, Working Document No. 110 E (Revised), available at the Hague Conference=s website.252 Although the earlier drafts had called for jurisdiction and a lis pendens for exclusive choice of court clauses, they also provided for recognition and enforcement of non-exclusive clauses as well. The current draft addresses only exclusive choice of court clauses in international cases, as defined in Article 1(2).253 The draft convention 250. See Hague Conf. Prelim. Doc. No. 16, supra note 22, at n.4. 251. The survey is a product of the ABA Working Group on the Hague Convention on Choice of Court Agreements, which is co-chaired by Louise Ellen Teitz and Janis H. Brennan, a partner at Foley, Hoag LLP in Washington, D.C. Douglas Earl McLaren at Bechtel SAIC Company LLC also helped to develop the survey. Help was also provided by the D.C. Bar Association and the Association of the Bar of the City of New York. The survey was based on the draft text prior to the December 2003 Special Commission which provided some coverage for non-exclusive choice of court agreements. 252. Hague Conference, Special Commission on Jurisdiction, Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, Work. Doc. No. 110 E (Revised) (Apr. 2004) [hereinafter Working Doc. No. 110 E (Revised)], available at http://www.hcch.net/e/workprog/jdgm.html. (last visited Dec. 12, 2004). 253. Id. at art. 1.

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would enforce exclusive forum selection clauses under Article 5 unless the agreement is “null and void” under the law of the chosen court. A nonchosen, or derogated court, under Article 7 would be required to suspend or dismiss its proceedings unless the agreement was null and void under the law of the chosen court, there was a lack of capacity under the law of the court seised, or “giving effect to the agreement would lead to a very serious injustice or would be manifestly contrary to fundamental principles of public policy.”254 The April 2004 draft flags several policy issues that need further clarification.255 The United States had hoped to use language parallel to the New York Convention but the ground of “very serious injustice” is similar to the current Supreme Court standard for substantive invalidity of “unreasonable or unjust” in The Bremen v. Zapata Off-Shore Co.256 Other policy decisions are becoming more divisive in connection with the recognition and enforcement provisions and potential reasons for non-enforcement. Recognition and enforcement of 254. Id. at art. 7: Article 7 Obligations of a court not chosen If the parties have entered into an exclusive choice of court agreement, any court in a Contracting State other than that of the chosen court shall suspend or dismiss the proceedings unless B a) the agreement is null and void under the law of the State of the chosen court; b) a party lacked the capacity to enter into the agreement under the law of the State of the court seised; c) giving effect to the agreement would lead to a very serious injustice or would be manifestly contrary to fundamental principles of public policy of the State of the court seised; d) for exceptional reasons, the agreement cannot reasonably be performed; or e) the chosen court has decided not to hear the case[, except where it has transferred the case to another court of the same State as permitted by Article 5, paragraph 3 b)]. Id. (citations omitted). 255. See Id. at art. 7 nn.3-6; see also Hague Conference, Draft Report, Preliminary Document No. 26, Preliminary Draft Convention on Exclusive Choice of Court Agreements, Prel. Doc. No. 26, at ¶¶ 54-55 (Dec. 2004) (prepared by Masato Dogauchi & Trevor C. Hartley), [hereinafter Prelim. Doc. No. 26], available at http://hcch.e-vision.nl/upload/wop/jdgm_pd26e.pdf (last visited December 7, 2004). 256. 407 U.S. 1 (1972).

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a judgment that results from an exclusive choice of court clause designating a member state may be refused generally only if the agreement is null and void, the party lacked capacity, the defendant did not have sufficient notice, the judgment was obtained by fraud, the recognition would be “manifestly incompatible” with public policy, or the judgment is inconsistent with another judgment.257 Thus, there is the opportunity for review of the validity of 257. Working Doc. No. 110 E (Revised), supra note 252, at art. 9. Article 9 Recognition and enforcement 1. A judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognized and enforced in other Contracting States in accordance with this Chapter. Recognition or enforcement may be refused only on the following grounds a) the agreement was null and void under the law of the State of the chosen court, unless the chosen court has determined that the agreement is valid; b) a party lacked the capacity to enter into the agreement under the law of the requested State; c) the document which instituted the proceedings or an equivalent document, including the essential elements of the claim, i) was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant entered an appearance and presented his case without contesting notification in the court of origin, provided that the law of the State of origin permitted notification to be contested, or ii) was notified to the defendant in the requested State in a manner that violated the public policy of that State; d) the judgment was obtained by fraud in connection with a matter of procedure; e) recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State; or f) the judgment is inconsistent with a judgment given in a dispute between the same parties in the requested State, or it is inconsistent with an earlier judgment given in another State between the same parties and involving the same cause of action, provided that the earlier judgment fulfils the conditions necessary for its recognition in the requested State[under an international agreement], and provided that the inconsistent judgment was not given in contravention of this Convention. [1 bis. Paragraph 1 shall also apply to a judgment given by a court of a Contracting State pursuant to a transfer of the case from the chosen court in that Contracting State as permitted by Article 5, para-

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the exclusive forum selection clause three times: by the chosen court when it takes jurisdiction, by the non-chosen court when it must suspend or dismiss proceedings contrary to the exclusive forum selection agreement, and by the enforcing court at the time of recognition and enforcement of the judgment. The draft now indicates that the determination of validity is to be made under the law of the court chosen, but the non-chosen court and the enforcing court still have the possibility in rare cases to apply their public policy. One addition in the December 2003 Special Commission was a damage provision that, contrary to the U.S. position, would allow a reduction in certain cases not only for awards of noncompensatory damages or punitive damages, but also for compensatory damages that are “grossly excessive.”258 The “grossly excessive language,” added near the end of the Special Commission, follows language that was in the 2001 draft. However, in the context of a comprehensive judgments convention covering tort actions, this provision was a compromise of interests. In the smaller contractual choice of court convention, the provision makes no sense when parties have contractually chosen the forum to hear their dispute. Indeed, the addition of Article 10(2)(a) (now Article 15), initiated by Canada, makes the convention less attractive for businesses who might again favor arbitration since there is no similar provision for reduction of awards under the New York Convention and there is the possibility in some cases for punitive noncompensatory damages to be upheld in full. The potential review and recognition is continued in the April 2004 draft, now as Article 15. In addition, the April 2004 draft includes several categories of exclusions: asbestos related matters added by Canada,259 and natural resources and joint ventures items added by China.260 Brackets and footnotes, currently up to Number 18, have crept graph 3 b).] Id. (citations omitted). 258. Hague Conference, Special Commission on Jurisdiction, Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, Work. Doc. No. 49 E (Revised), art. 10 (Dec. 2003) (copy on file with author). Note that as a result of several additions and revisions to this December 2003 draft, Article 10 has been renumbered as Article 15. Working Doc. No. 110 E (Revised), supra note 252, at art. 15. 259. Working Document No. 110 E (Revised), supra note 252, at art. 20. 260. Id. at art. 20 n.15.

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into the newest draft, especially in connection with issues related to intellectual property. The simple, short initial draft, modeled on the New York Convention, is becoming more complex with more special interests added and more areas where consensus is lacking. Thus the attempt to parallel the New York Convention has been sabotaged. Nonprofit organizations continue to voice concerns with the non-negotiated contracts and their potential inclusion in the convention when commercial, a problem that ultimately reflects dissatisfaction with the underlying substantive contract law that validates contract formation in these circumstances. The current draft of the convention does not include an independent standard of substantive validity but incorporates a choice of law of the chosen court. The final diplomatic conference, tentatively scheduled for June 2005, will need to address several unresolved issues. There are still several areas to be worked out or refined including: scope; coverage of intellectual property and the Aincidental question”; relationship to other regional conventions (particularly the European Union), or what is called Adisconnection”261; relationship of lis pendens and stays to actions and judgments from courts of contracting and noncontracting states; bases for refusal to recognize choice of court agreements and judgments; and the treatment of damage awards. There is also the question of how the convention should handle wholly domestic transactions for purposes of both jurisdiction and enforcement, and what constitutes “wholly domestic.” For example, do we want a judgment resulting from a contract between a New York buyer and California seller, with a California choice of court, to be enforced under the convention should the buyer manage to move all of its assets out of the United States? Of course, the problem will be that the buyer would move all the assets not to another contracting country, but to some offshore noncontracting country. The convention would enforce forum selection clauses and resulting judgments, much as the New York Convention does with arbitration clauses and subsequent arbitral awards. The convention has the potential to offer increased certainty and subsequent 261. For a discussion of some of these issues of disconnection, see Hague Conf. Prelim. Doc. No. 24, supra note 22.

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enforceability for consensual commercial transactions. From the standpoint of parallel proceedings, the draft convention, or one similar, offers the possibility of reducing a significant amount of parallel litigation through the enforcing “stick” of a modified lis pendens provided in Article 7, and the “carrot” of enforcement in Article 9, if not contrary to an exclusive choice of court clause. Reducing the friction generated from these cases discussed above would go a long way to reduce the number and need for parallel litigation and to provide predictability in planning transactions.262 C. The American Law Institute and Other Efforts The American Law Institute (ALI) has undertaken a project to federalize the enforcement of judgments with a proposed statute containing a modified lis pendens provision, tied to subsequent enforceability of a judgment. The International Jurisdiction and Judgments Project was begun originally to produce implementing legislation for a Hague Conference comprehensive jurisdiction and judgments convention, but as the Hague project stalled, the ALI=s work has continued forward as a proposed federal statute, The Foreign Judgments Recognition and Enforcement Act (FJREA).263 Section 11 of the draft, “Declination of Jurisdiction When Prior Action is Pending,” adopts a basic lis pendens principle that presumes the first-filed matter, either here or abroad, should proceed, if that judgment would be entitled to recognition under the FJREA, which includes a reciprocity provision under Section 7.264 The U.S. court would stay or dismiss the second-filed U.S. action, unless the foreign action was based on jurisdictional grounds not 262. There is still considerable work to be done on the problem of chosen and nonchosen courts in the 2004 Draft. See Prelim. Doc. No. 26, supra note 255, at ¶¶ 146-52, 172-76. 263. See INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT, supra note 9. 264. See id. at §§ 7, 11. A reciprocity requirement has been controversial. Scholars have criticized this reciprocity requirement that was included in Hilton v. Guyot, 159 U.S. 113 (1895). See, e.g., Andreas F. Lowenfeld, Nationalizing International Law: Essay in Honor of Louis Henkin, 36 COLUM. J. TRANSNAT=L L. 121, 128 (1997) (“The Supreme Court in Hilton v. Guyot was wrong in insisting on reciprocity.”); Richard H.M. Maloy & Desamparados M. Nisi, A Message to the Supreme Court: The Next Time You Get a Chance, Please Look at Hilton v. Guyot; We Think It Needs Repairing, 5 J. INT=L LEGAL STUD. 1, 2 (1999) (arguing that the Supreme Court should reject reciprocity for enforcing foreign judgments).

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recognized under the FJREA or was subject to certain defenses. These defenses generally follow those enumerated in the Uniform Foreign Money-Judgments Recognition Act265 and in Hilton v. Guyot.266 Section 11 also provides grounds for a court to decline to defer to another first-filed foreign action. A U.S. court could decide not to defer to a foreign action although first-filed where: (1) the U.S. forum was the “more appropriate forum”; (2) the foreign action was vexatious or frivolous; or (3) for “other compelling reasons.” Section 11 works in tandem with the nonrecogntion provisions by providing for discretionary nonrecognition of a foreign judgment when a prior action is pending in the United States. Article 11 is designed “to create an incentive for a foreign court to decline jurisdiction in favor of a prior U.S. proceeding.”267 In addition, Section 5 also provides for discretionary nonrecognition of antisuit injunctions. Thus the ALI proposed statute would bring coherence to this area of jurisprudence and provide a rule that encouraged suit in the most appropriate forum by offering a lis pendens.268 This lis pendens would also encourage parties to avoid vexatious litigation or litigation filed to frustrate suit in the most appropriate forum by allowing a court to refuse to enforce a foreign judgment obtained in a later filed foreign action, or one that was designed to preempt litigation in the more appropriate U.S. forum, such as through an antisuit injunction or negative declaration.269 265. UFMJRA, supra note 17. 266. 159 U.S. 113, 205-06 (1895). See discussion supra Part VI. 267. INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT, supra note 9 at § 11 cmt. k. 268. See Andreas F. Lowenfeld, Forum Shopping, Anti-suit Injunctions, Negative Declarations, and Related Tools of International Litigation, 91 AM. J. INT=L L. 314, 319-20 (1997). 269. The ALI Statute builds on and perfects concepts like those in the the International Law Association=s project covering both forum non conveniens and parallel proceedings. See generally INT’L LAW ASS’N, LEUVEN/LONDON PRINCIPLES ON DECLINING AND REFERRING JURISDICTION IN CIVIL AND COMMERCIAL MATTERS (2000), at http://www.ilahq.org.; CONFLICT OF JURISDICTION MODEL ACT (1987), reprinted in Teitz, Taking Multiple Bites, supra note 6. The International Law Association project covers both forum non conveniens and parallel proceedings. Efforts to harmonize approaches to parallel proceedings from a procedural standpoint could lead to a more consistent and predictable, as well as less abrasive, method of handling parallel proceedings and reduce the costs to parties and judicial systems. See Stephen B. Burbank, Jurisdictional Equilibration: The Proposed Hague Convention

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Differences in approach to parallel litigation as well as differences in jurisdiction “are a permanent source of conflict between the courts of different nations and often hinder the recognition and enforcement of foreign judgments.”270 The ALI Judgments Project is a concrete means to reduce multiple proceedings, encouraging parties to sue once and in the most appropriate forum by both offering the carrot of a lis pendens and using the stick of denial of recognition of a judgment resulting from a violation. Indeed, as with the Hague Conference judgments projects, the ALI project as well recognizes the need to address parallel litigation and inappropriate forum in any coherent effort to codify recognition and enforcement.271 VIII. CONCLUSION

Global forum shopping with parallel proceedings has become a worldwide problem, requiring more than unilateral actions. The last decade has shown the increasing need for a consistent jurisprudence in the United States and elsewhere to deal with multiple proceedings, antisuit injunctions and deference to other courts. The work at the Hague on a Choice of Court Convention and the ALI International Jurisdiction and Judgments Project with an explicit lis pendens reflect attempts to address aspects of multiple proceedings. These varied and multiple approaches to transnational litigation offer the promise of harmonization in several areas, and thus hope for the attendant reduction in the amount of concurrent litigation and friction it generates. The global efforts on many fronts to harmonize approaches to parallel proceedings from a procedural standpoint could lead to a more consistent and predictable, as well as less abrasive, method of handling parallel proceedings, and help reduce the costs to parties and Progress in National Law, 49 AM. J. COMP. LAW 203, 204 (2001). 270. Rolf Stürner, Some European Remarks on a New Joint Project of the American Law Institute and UNIDROIT, 34 INT’L LAW. 1071, 1073 (2000) (discussing the ALI/UNIDROIT Principles and Rules of Transnational Civil Procedure.) 271. The European Commission, in conjunction with the Brussels Regulation, has focused more on the issues of judicial cooperation within the Community and with third countries. The integration of European law with the common-law and civil law origins also has an impact on the continued existence of parallel proceedings and antisuit injunctions when one or more of the litigants is a member state.

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and to judicial systems. Unfortunately, in the United States there is a continuing attempt to squeeze the parallel proceedings problem into the shoes of domestic doctrines, shoes that are both too small and too old to fit the larger needs of transnational dispute resolution.

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Treating Spiritual and Legal Counselors Differently: Mandatory Reporting Laws and the Limitations of Current Free Exercise Doctrine Andrew A. Beerworth∗

If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice. Justice O’Connor1 INTRODUCTION

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”2 It is, at least at this juncture, a well settled principle of Free Exercise jurisprudence that, while the freedom of religious belief ∗ J.D. cum laude, Roger Williams University School of Law; B.A. 2000, The University of Vermont; Assoc. Attorney, Martinous Law Associates, Ltd. I would like to thank Professor Edward J. Eberle for his valuable comments on earlier drafts of this article. I would also like to thank my wife, Julia, and my parents, Mary and Steven Beerworth, for their love and support. Finally, I am very grateful to the members of the Roger Williams University Law Review Editorial Board, especially Todd Barton, Kathryn Windsor and Cameron Jones, for their accomplished editorial insight and laudable respect for artistic autonomy. 1. Employment Div. v. Smith, 494 U.S. 872, 894 (1990) (O’Connor, J., concurring). 2. U.S. CONST. amend. I.

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is absolute, the freedom to follow the dictates of conscience into the realm of conduct may be sharply circumscribed.3 The origins of this idea date back to Reynolds v. United States,4 in which the Court afforded no constitutional protection for religiously inspired action in contravention of duly enacted polygamy laws. 5 To permit judicial meddling with the governmental power to shape and order human behavior, the Reynolds Court reasoned, would “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”6 Sherbert v. Verner7 and its progeny8 theoretically undermined the Reynolds philosophy by erecting a strict scrutiny regime for religious conduct incidentally burdened by regulations of general applicability.9 However, the stark pattern of unsuccessful free exercise claims advanced outside the narrow unemployment compensation context is a testament to the Court’s undeniably diluted application of heightened scrutiny and its duplicitous adher-

3.

See Smith, 494 U.S. at 879. The Smith Court stated: Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. Id. (quoting Minersville Sch. Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594595 (1940)); Sherbert v. Verner, 374 U.S. 398, 403 (1963) (“[T]he Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles . . . . ”); Braunfeld v. Brown, 366 U.S. 599, 603 (1960) (“[T]he freedom to act, even when the action is in accord with one’s religious convictions, is not totally free from legislative restrictions.”); Reynolds v. United States, 98 U.S. 145, 164 (1878) (“Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive or good order.”). 4. 98 U.S. 145 (1878). 5. Id. at 165-66. 6. Id. at 167. 7. 374 U.S. 398 (1963). 8. E.g., Frazee v. Ill. Dep’t of Employment Sec., 489 U.S. 829 (1989); Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987); United States v. Lee, 455 U.S. 252 (1982); Thomas v. Review Bd., 450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972). 9. Yoder, 406 U.S. at 406-07 (demanding a showing of a “compelling state interest” and a lack of “alternative forms of regulation” in order to justify “substantial infringement of religious liberties”).

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ence to the belief/conduct distinction of Reynolds.10 Employment Division v. Smith,11 therefore, is probably rightly regarded as merely a formal recognition of the Court’s timehonored abhorrence of constitutionally protected “lawlessness” – of the religious citizen becoming, in a sense, her own lawgiver due to some religious tenet or sacramental rite. To assuage this fear, the Court in Smith explicitly abandoned the strict scrutiny test, opting instead for a rational basis test for all facially neutral and generally applicable laws.12 In the immediate post-Smith era, there was much lamentation over the draconian implications of a rule relegating the Free Exercise Clause to the function of policing only those laws rife with religious animus.13 But now that the tide of criticism against Smith has subsided somewhat, many commentators have directed their attention to the protective nuances of Smith, particularly the nondiscrimination idea implicit in the neutrality and general applicability requirements.14 Smith has been characterized largely as safeguarding a right against disparate treatment: when lawmakers decide to carve out secular exceptions in order to alleviate a secular burden of some sort, Smith may provide a window or trigger to strict scrutiny for claimants seeking a corresponding religious exception.15 Accordingly, Smith enforces a basic rule couched in the idiom of equal protection: The

10. Of the plethora of free exercise claims brought, the Court has recognized only one. See Yoder, 406 U.S. at 234 (1972) (invalidating compulsory school-attendance policy as applied to Amish parents objecting on religious grounds to send their children to school). 11. 494 U.S. 872 (1990). 12. Id. at 878-79. The Court explained: We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate . . . . Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ Id. (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)). 13. Infra Part II. 14. Infra Part I. 15. See Christopher C. Lund, A Matter of Constitutional Luck: The General Applicability Requirement in Free Exercise Jurisprudence, 26 HARV. J.L. & PUB. POL’Y 627, 638 (2003).

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law must treat similar religious and secular conduct equally in order to pass constitutional muster. Smith left some major questions unanswered as to the meaning and scope of the neutrality and general applicability requirements, and Church of the Lukumi Babalu Aye v. City of Hialeah,16 handed down three years after Smith, offered little in the way of elucidation. Lukumi stands for the general proposition that a law burdening only religious conduct is neither neutral nor of general application.17 However, Lukumi merely reaffirmed the intuitively obvious: that specifically applicable laws are not generally applicable. The Court in Smith essentially said as much when it opined that a prohibition on “bowing down before a golden calf” would “doubtless be unconstitutional.”18 The more fruitful inquiry, however, is whether a law applicable to a broad class of secular and religious entities with only a single exemption for a particular form of non-religious conduct would violate the rule of Smith. Until the Court confronts a more difficult fact-pattern than that presented in Lukumi – one involving a generally, though not universally, applicable law – the precise contours of the Free Exercise Clause will likely remain indiscernible. Certain state mandatory reporting laws on child abuse and neglect provide a useful backdrop against which one might explore the reach of the Smith/Lukumi regime.19 These laws are variegated as to who must report, what information must be reported, and in what manner the reports must be made. All fifty states currently have clergy-communicant privilege statutes that have been (1) completely preserved, (2) partially suspended or (3) wholly suspended for purposes of either (a) the reporting duty or (b) the admissibility of evidence in proceedings initiated pursuant to their respective reporting laws, or (c) both the reporting duty and the admissibility of evidence.20 A majority of jurisdictions, 16. 508 U.S. 520 (1993). 17. See id. at 543 (“The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.”) (emphasis added). 18. 494 U.S. at 877-78. 19. For a brief discussion on this topic, see Andrew Beerworth, Religion in the Marketplace: Establishments, Pluralisms, and the Doctrinal Eclipse of Free Exercise, 26 T. JEFFERSON L. REV. 333, 380, 383 (2004). 20. Infra Part IV.

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particularly in the wake of the Catholic Church abuse scandal, have imposed a reporting duty on clergy members in addition to a litany of secular agents, such as social workers, physicians, psychiatrists, firefighters and child care providers. Many of these states have expressly left the clergy-communicant privilege intact while imposing stringent reporting duties on a host of secular entities. Several of them, however, have destroyed the clergy-communicant privilege while simultaneously preserving the attorney-client privilege. This article examines the constitutional implications of reporting statutes that fall into this latter category. Mandatory reporting schemes have been hotly debated in contexts other than free exercise. Issues related to the efficacy of mandatory reporting laws have been amply discussed elsewhere,21 and are beyond the scope of this article. Instead, this article attempts to analyze the constitutionality of certain reporting laws utilizing the neutrality and general applicability requirements that steer current free exercise doctrine. The unique design of reporting laws that treat spiritual and legal counselors differently furnishes an optimal crucible for measuring the sensitivity of the nondiscrimination principle to unjustifiable disparities in treatment. The Court has left several tell-tale signs in the post-Smith era that the Free Exercise Clause has been whittled down to protect against only those laws abounding with animus, and not necessarily against those laws that contain more subtle prejudices, or more finely drawn devaluations of the reasons for engaging in religious conduct.22 All things considered, the nondiscrimination rule appears extremely limited; thus, there may be renewed cause to believe the rule of Smith should be seriously reevaluated. Or at least that is the burden of this article. This article consists of five sections. Section I examines the strict scrutiny exceptions to the Smith rule of rational basis review for generally applicable laws that incidentally burden certain forms of religiously motivated conduct. Furthermore, Section I examines the philosophical bases of the majority opinion in Smith 21. See generally Victor I. Vieth, Passover in Minnesota: Mandatory Reporting and the Unequal Protection of Abused Children, 24 WM. MITCHELL L. REV. 131 (1998); Steven J. Singley, Comment, Failure to Report Suspected Child Abuse: Civil Liability of Mandatory Reporters, 19 J. JUV. L. 236 (1998). 22. Infra Part V.

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from the standpoint of its principal author, Justice Scalia. Section II of this article discusses the ostensible meaning of the neutrality and general applicability requirements in Smith and Lukumi. Section III examines two Third Circuit decisions, Fraternal Order of Police v. Newark23 and Tenafly Eruv Association, Inc. v. Borough of Tenafly,24 that provide credible bases for extending the nonpersecution principle well beyond the facts of Lukumi. Section IV provides an overview of mandatory reporting laws at the statelevel, compares the attorney-client and clergy-communicant privileges, and proposes a cogent methodology for assessing the constitutionality of mandatory reporting laws consistent with current free exercise doctrine. Section V analyzes the impact of the newly minted Locke v. Davey25 on the Court’s free exercise doctrine, a case that could likely result in even greater governmental burdens upon religiously motivated conduct. Finally, the conclusion of this article argues that a free exercise challenge to the various mandatory reporting laws that abrogate the clergy-communicant privilege while preserving the attorney-client privilege may prompt the Court to reexamine, or at least qualify, the rational basis test established in Smith. I. SMITH AND THE RESIDUAL EXCEPTIONS TO RATIONAL BASIS REVIEW

Smith arose from the denial of unemployment benefits to members of the Native American Church for engaging in the sacramental ingestion of peyote in violation of an employment policy and Oregon’s “controlled substance” prohibition.26 The religious claimants sought an exemption under the Oregon law based on the Sherbert standard whereby only a “compelling state interest”27 and a lack of “alternative forms of regulation”28 could justify “substantial infringement”29 on religious exercise. Because illegal traffic in peyote was virtually nonexistent,30 the State’s health and safety reasons for denying a narrow exemption for its sacramental 23. 170 F.3d 359 (3d Cir. 1999). 24. 309 F.3d 144 (3d Cir. 2002). 25. 124 S. Ct. 1307 (2004). 26. Smith, 494 U.S. at 874. 27. Sherbert v. Verner, 374 U.S. 398, 406 (1963). 28. Id. at 407. 29. Id. 30. See Smith, 494 U.S. at 916 (Blackmun, J., dissenting) (“There is . . . practically no illegal traffic in peyote.”).

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use could scarcely have been deemed “compelling.” But Justice Scalia, authoring the majority opinion in Smith, dodged heightened scrutiny altogether and altered the doctrinal landscape: “[T]he right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”31 The Court thereby refused “to breathe into Sherbert some life beyond the unemployment compensation field.”32 In addition to claims arising in unemployment compensation systems of “individualized exemptions” that utilize a “good cause” standard for eligibility,33 strict scrutiny analysis after Smith applies only to “governmental regulation of religious beliefs as such,”34 free exercise challenges involving a “hybrid-right,”35 laws requiring the “compelled expression”36of certain beliefs, and to laws prohibiting religiously motivated behavior that fail the neutrality/general applicability test.37 31. Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263, n.3 (1982) (Stevens, J., concurring in judgment)). 32. Id. at 884. 33. Id. (quoting Bowen v. Roy, 476 U.S. 693, 708 (1986)). 34. Id. at 877 (quoting Sherbert v. Verner, 374 U.S. 398, 402 (1963)). 35. Id. at 881. The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press (citations omitted), or the right of parents . . . to direct the education of their children. Id. 36. Id. (“Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion.”). 37. See id. at 878-80. Smith has also been interpreted as preserving “church autonomy” or institutional decisions involving religious property and personnel. See id.at 877 (“The government may not . . . lend its power to one or the other side in controversies over religious authority or dogma.”); see also, Ira C. Lupu, The Case Against Legislative Codification of Religious Liberty, 21 CARDOZO L. REV. 565, 576 (1999). Lupu explained: [N]o court in the last decade has held [Smith] to have undermined the pre-existing constitutional principles of church autonomy in matters of property or personnel . . . . [D]espite Title VII’s generally applicable ban on sex discrimination in employment, Smith will not require the Catholic Church or

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A. The Hybrid-Right Exception Smith supposedly carved out a strict scrutiny niche for “hybrid-right” situations in which a free exercise claim is bound to a constitutionally protected “communicative activity or parental right.”38 Scalia, however, made no attempt in Smith to explain the logic of a rule conditioning religious liberty on the fortuitous collision of free exercise and another colorable constitutional claim. In the post-Smith era, the freewheeling hybrid-right exception has left the lower federal courts hopelessly perplexed, and most of them have given the exception little or no credence.39 Justice Souter has identified the ineluctable flaw of the hybrid-right exception: If a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule . . . . But if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in what Smith calls the hybrid cases to have mentioned the Free Exercise Clause at all.40 Scalia concluded in Smith that the communal ingestion of peyote is not sufficiently communicative or expressive to trigger the hybrid exception.41 Conversely, religiously impelled antigovernment epithets would be entitled to the utmost constitutional protection quite apart from any free exercise dimension. In theory, then, the hybrid-right exception may cover a hitherto uncharted middle ground between the donning of a yarmulke or the Orthodox Jewish congregations to allow women into the clergy. Id. 38. Smith, 494 U.S. at 882. 39. See Jonathan B. Hensley, Comment, Approaches to the Hybrid-Rights Doctrine in Free Exercise Cases, 68 TENN. L. REV. 119, 138 (2000) (“Only a few . . . decisions have earnestly tried to make sense of the vague dicta in Smith about hybrid situations. . . . ”). 40. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 567 (1993) (Souter, J., concurring). 41. Smith, 494 U.S. at 882 (“The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.”).

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ingestion of peyote, and outright religious speech.42 In Wisconsin v. Yoder,43 one of the decisions that Scalia distinguished on the “hybrid-right” basis,44 the Court recognized that “there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability.”45 Thus, the hybrid-exception is perhaps rightly regarded as an insincere and inartful attempt to distinguish undesirable precedent.46 Practically speaking, few courts and commentators consider the hybrid-right exception to be a viable route for proponents of religious liberty.47 As such, it is a remnant of Smith bereft of any real vigor. B. The “Hollow Freedom” of Religious Belief The Court has consistently proclaimed the fundamentality of religious belief, affording it the utmost protection.48 Fortunately, this absolutist ethos emerged from Smith completely unscathed.49 Perhaps the most enduring conceptual nexus between the Religions Clauses has been the “inviolable citadel of the individual heart and mind,”50 which is besieged both when the machinery of government is used to impose a religious orthodoxy on its citizens (such as laws favoring theistic prayer),51 and when the government discriminates on the basis of religious viewpoint.52 Religious 42. See Beerworth, supra note 19, at 372. 43. 406 U.S. 205 (1972). 44. Smith, 494 U.S. at 881. 45. Yoder, 406 U.S. at 220 (emphasis added). 46. Ira C. Lupu, Employment Division v. Smith and the Decline of Supreme Court-Centrism, 1993 BYU L. REV. 259, 267 (1993). 47. See Timothy J. Santoli, Note, A Decade After Employment Division v. Smith: Examining How Courts are Still Grappling with the Hybrid-Rights Exception to the Free Exercise Clause of the First Amendment, 34 SUFFOLK U. L. REV. 649, 672 (2001). 48. See, e.g., Sherbert v. Verner, 374 U.S. 398, 402 (1963) (“The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such.”); Braunfeld v. Brown, 366 U.S. 599, 603 (1960) (“[T]he freedom to hold religious beliefs and opinions is absolute.”). 49. See Smith, 494 U.S. at 877 (“The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.”). 50. Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 226 (1963). 51. See Lee v. Weisman, 505 U.S. 577, 592 (1992). 52. See Smith, 494 U.S. at 877 (“It would be true . . . that a State would

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conscience, unlike religious conduct, is constitutionally impervious to governmental coercion. The revered status of religious conscience, however, has often been of little avail from the standpoint of the believer. In Lyng v. Northwest Indian Cemetery Protective Ass’n,53 the Court upheld the Forest Service’s road-building and timber-harvesting project on government land that had been a sacred site of the centuriesold Yurok, Tolowa and Karok religions.54 The Court acknowledged the fact that road construction over the hallowed parcels posed an “extremely grave” threat to Native American religious practices,55 but consolingly reminded the religious claimants of their inviolable freedom to believe.56 As Justice Brennan so eloquently wrote in his Lyng dissent: “that freedom amounts to nothing more than the right to believe that their religion will be destroyed.”57 So long as the body is not at liberty to obey the spiritual dictates of the mind, the oft-touted liberty of conscience is what Brennan termed a “hollow freedom”58 for many religious citizens. Under Smith, religiously motivated conduct is not entitled to heightened scrutiny unless the claimant can show that its legal proscription is not neutral or not generally applicable.59 This belief/conduct distinction is akin to the speech/conduct distinction in free speech jurisprudence and weakens the Free Exercise Clause in two major respects. First, such a distinction flies directly in the face of the plain meaning60 and original understanding61 of the be ‘prohibiting the free exercise of [of religion]’ if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display.”). 53. 485 U.S. 439 (1988). 54. Id. at 446. 55. Id. at 451. 56. Id. at 453. 57. Id. at 477 (Brennan, J. dissenting). 58. Id. (“The safeguarding of such a hollow freedom . . . fails utterly to accord with the dictates of the First Amendment.”); see Beerworth, supra note 19, at 370. 59. Smith, 494 U.S.at 879. 60. See id., 494 U.S. at 893 (O’Connor J., concurring) (“Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must be at least presumptively protected by the Free Exercise Clause.”). 61. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S 520, 575-576. In his concurrence, Justice Souter stated: There appears to be a strong argument from the Clause’s

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Free Exercise Clause. On a purely textual plane, the Clause encompasses religious belief and conduct, thereby requiring (at a minimum) a rigorous balancing test presumptively protecting religiously impelled action, irrespective of a law’s character.62 Second, the belief/conduct dichotomy relegates the Clause to the function of protecting religion in its expressive manifestations, thereby placing religion under the rubric of free speech. Equating religion with speech in this manner has led to a kind of doctrinal conflation whereby free exercise has been eclipsed by the distinctly free speech hallmarks of viewpoint neutrality63 and expressive association.64 This doctrinal conflation (or confusion), though protective of religious belief, “undermines our commitment to the idea that there is something unique and distinctive about religion in life and in constitutional law.”65 C. Neutrality and General Applicability: Free Exercise as Equal Protection All laws that fail the neutrality or general applicability requirements “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.”66

development in the First Congress, from its origins in the post-Revolution state constitutions and pre-Revolution colonial charters, and from the philosophy of rights to which the Framers adhered, that the Clause was originally understood to preserve a right to engage in activities necessary to fulfill one’s duty to one’s God, unless those activities threatened the rights of others or the serious needs of the State. Id. (Souter, J., concurring). See generally Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990) (arguing that the Free Exercise Clause was originally understood as protecting action as well as belief, namely through mandatory exemptions from generally applicable laws); Beerworth, supra note 19, at 373. 62. See Smith, 494 U.S. at 877. 63. See Rosenberger v. Rectors & Visitors of the Univ. of Va., 515 U.S. 819, 845-46 (1995) (holding that exclusion of a student religious magazine from university program covering printing costs of similar nonreligious publications constituted viewpoint discrimination under the Free Speech Clause). 64. See Widmar v. Vincent, 454 U.S. 263, 273-77 (1981) (holding unconstitutional, on an expressive association rationale, a university policy excluding student religious groups from an “open forum” on campus). 65. Alan Brownstein, Protecting Religious Liberty: The False Messiahs of Free Speech Doctrine and Formal Neutrality, 18 J.L. & POL. 119, 184 (2002). 66. Lukumi, 508 U.S. at 531-532.

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The Court in Lukumi recognized that general applicability – the animating theme of free exercise doctrine – leads inexorably to a distinctly “equal protection mode of analysis.”67 Indeed, the Court’s opinion in Lukumi is replete with equal protection allusions, particularly as it grapples with problems of overbreadth68 and underinclusion.69 The Free Exercise Clause is cast as a bulwark against “unequal treatment”70 and an antidote for the “evil” of a “prohibition that society is prepared to impose upon [a religious minority] but not upon itself.”71 Justice Scalia, the creator of the general applicability rule as applied within the free exercise context,72 offered two illustrations of the protective dynamic of free exercise doctrine after its permutation in Smith: the Free Exercise Clause, he conceded, would compel invalidation of a ban on the “casting of ‘statues that are to be used for worship purposes,’”73 and a prohibition on prostrating oneself before a golden calf.74 These hypothetical enactments, however, are patently violative of long-established free exercise and equal protection principles.75 The Carolene Products philosophy contemplated application of “a more searching judicial inquiry” for “statutes directed at particular religious, or national, or racial minorities.”76 The Warren Court, in particular, realized the necessity of utilizing a heightened scrutiny standard when the Madisonian model of pluralistic bargaining collapsed under com-

67. Id. at 540. 68. See id. at 538 (“We also find significant evidence of the ordinances’ improper targeting of Santeria sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends.”). 69. See id. at 543 (finding the ordinances “underinclusive” for the ends of public health and preventing cruelty to animals because “[t]hey fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does.”). 70. Id. at 542 (quoting Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 148 (1987) (Stevens, J., concurring in judgment)). 71. Lukumi, 508 U.S. at 545 (quoting Florida Star v. B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J., concurring in part and concurring in judgment)). 72. For Scalia’s discussion on the general applicability rule, see Smith, 494 U.S. 878-82. 73. Smith, 494 U.S. at 877-878. 74. See id. at 878. 75. See McDaniel v. Paty, 435 U.S. 618, 626 (1978); Fowler v. Rhode Island, 345 U.S. 67, 69 (1953). 76. United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938) (citations omitted) (emphasis added).

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mon prejudices against certain racial, ethnic and religious groups.77 Thus, religion was treated as a suspect class for Fourteenth Amendment purposes well before Smith, quite apart from its explicit protection within the First Amendment. Lukumi places religion-specific classifications on par with race-specific classifications – both of which are to be strictly scrutinized using equal protection analysis78 – and the Free Exercise Clause becomes something of a constitutional tautology.79 Under the race model, disparate treatment challenges to facially neutral laws must show a “racially discriminatory intent or purpose.”80 But just as “disproportionate impact . . . is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution,”81 so it is that the Lukumi model for religion requires proof of a discriminatory intent or purpose.82 Both models permit inferences of a discriminatory purpose “from the totality of the relevant facts,”83 or “from both direct and circumstantial evidence.”84 In the end, Smith and Lukumi do not add any protections to the Free Exercise Clause; they simply allow judicial enforcement of a preexisting bare essential, namely the “fundamental nonpersecution principle.”85 And, it seems, the Equal Protection Clause is the preferable means by which to enforce it. Consequently, the Free Exercise Clause has become a platitudinous provision devoid of any independent potency.

77. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 79-81 (1980); Beerworth, supra note 19, at 359. 78. The Court has held that even benign religion and race-specific classifications violate principles of formal neutrality and equality. See Bd. of Ed. v. Grumet, 512 U.S. 687, 690 (1994) (invalidating a pro-religious gerrymander delegating school district authority to a sect of Hasidic Jews under the Establishment Clause); cf. Adarand Constr., Inc. v. Pena, 515 U.S. 200 (1995) (holding, on equal protection grounds, that all governmental race based “affirmative action” policies must survive “strict scrutiny”). 79. See Beerworth, supra note 19, at 377. 80. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). 81. Washington v. Davis, 426 U.S. 229, 242 (1976). 82. See Lukumi, 508 U.S. at 540. 83. Davis, 426 U.S. at 242. 84. Lukumi, 508 U.S. at 540. 85. Id. at 523.

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D. Smith and the Scalian Conception of Judicial Discretion Smith allows democratic majorities to prohibit religious practices to their liking so long as the prohibition is generally applicable.86 The religious citizen has been lost in the vicissitudes of judicial process because there is no qualitative difference to her between a persecutory law and a generally applicable one. Under either scheme, she is forced to render to Caesar that which most emphatically belongs to God. As Justice O’Connor reminded the Court in Smith, “[a] person who is barred from engaging in religiously motivated conduct . . . is barred from exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reasons, only by members of that religion, or by all persons.”87 Smith, however, is justifiable on some levels. Scalia voiced a valid concern in Smith that a continued weak application of the “compelling interest” test in free exercise cases could spill over into other contexts, such as for content-based restrictions on speech or race-specific classifications, producing a kind of crossdoctrinal dilution.88 Scalia also expressed a profound distaste for discretionary balancing tests: “[I]t is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.”89 What Scalia might have found so “horrible” was the prospect of judges masking their predilections and prejudices toward certain religions (or religion generally) in easily manipulated and nebulous balancing 90 tests. The discretion to judge the relative weight of competing interests (religious and governmental) is also the discretion to dis-

86.

Smith, 494 U.S. at 890. The Court stated: It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

Id. 87. Id. at 893 (O’Connor, J., concurring). 88. See id. at 888 (“[W]atering down [the compelling state interest test] would subvert its rigor in the other fields where it is applied.”). 89. Id. at 889 n.5. 90. See Beerworth, supra note 19, at 377-78.

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criminate, especially against religious practices that offend prevailing social mores. The specter of judicially imposed value judgments, along with the oft-repeated fear of promoting “a system in which each conscience is a law unto itself,”91 led Scalia to the solution of “leaving accommodation to the political process.”92 The Smith majority’s preference for legislative accommodation of religious liberty meshes nicely with Scalia’s broader judicial philosophy. Scalia has forcefully advocated the “democratic government” solution in other areas in which certain “liberty interests” are at stake. For example, he has sharply criticized the “undue burden” standard used in the Court’s abortion jurisprudence as an “amorphous”93 and “inherently standardless” inquiry that “invites the . . . judge to give effect to his personal preferences about abortion.”94 As with religion, he has proposed a “state-by-state resolution”95 of the abortion matter because the “permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”96 Advancing a similar argument against a constitutionally recognized liberty interest to refuse life-sustaining medical treatment, Scalia has expounded a theory of democratic government and of the role of the federal judiciary: Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me. This Court need not, and has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so it will destroy itself.97 Smith effectively incorporates this Scalian conception of judi91. Id. at 890. 92. Id. 93. Planned Parenthood v. Casey, 505 U.S. 833, 985 (1992) (Scalia, J., dissenting). 94. Id. at 992. 95. Id. at 995. 96. Id. at 979. 97. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 300-01 (1990) (Scalia, J., concurring) (emphasis added).

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cial discretion by giving the content of the Free Exercise Clause to the “democratic majority,” subject only to the strictures of the Equal Protection Clause. Scalia concedes that this concept tolerates some modicum of “irrationality and oppression” as an “unavoidable consequence of democratic government.”98 In the context of religion, “those religious practices that are not widely engaged in” are placed “at a relative disadvantage”99 because religious minorities lack the political capital necessary to procure exemptions from generally applicable laws. As noted above, Scalia advances a very convincing argument for judicial restraint in the context of reproductive rights and the right to die, both of which have arisen under the broader right to privacy rubric. He asserts that any detached observer armed with the text or original understanding of the Due Process Clause is forced to conclude that the Constitution is inscrutably silent even with regard to the threshold question of whether there is some “right to privacy” in the first place.100 Of course, this argument cannot be tenably advanced against the right to practice one’s religion free from governmental intrusion, a right anchored more cognizably in the text and history of the Constitution. It is one thing to decry the dubious exegetical vacuum that is substantive due process analysis, but it is quite another to ignore rights explicitly rooted in the constitutional text.101 Of course, religious freedom falls within this latter category. The Smith majority glossed over this important distinction and granted the majoritarian process considerable latitude in an area in which the Constitution quite unequivocally maintains that the free exercise of religion is to be prohibited by “no law.” On the battleground of Smith, Scalia’s textualist creed clashed irreconcilably with his “restraintist” convictions, and the impulse to cabin judicial discretion prevailed over his usual preference for textual fidelity.

98. 99. 100.

Smith, 494 U.S. at 890. Id. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 39 (1997). 101. See Michael W. McConnell, Religious Participation in Public Programs: Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 136 (1992).

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II. DEFINING THE CONCEPTS OF NEUTRALITY AND GENERAL APPLICABILITY

The Court in Smith gave little meaningful content to the concepts of neutrality and general applicability. But Smith is illuminating in at least two respects. First, the so-called “generally applicable” Oregon drug prohibition itself contained an exception for substances prescribed by a medical practitioner.102 The fact that the Oregon law was not free from exceptions, considered alongside the fact that peyote had no medicinal value, raises the question of just how closely related a nonreligious exception must be to a prohibition on religious exercise in order to fail the general applicability test. The Smith Court made no effort to determine whether the sacramental use of peyote undermined health and safety concerns any more or less than the medicinal use of other hallucinogenic drugs.103 Would an exception premised on the medicinal usefulness of peyote have furnished such a basis? More questions spring from this seemingly inessential feature of Smith. For instance, can a single nonreligious exception ever fail the Smith test, or must there be several exceptions cut into a law for it to shed its generally applicable character? Or is the thrust of Smith that a law becomes constitutionally suspect upon a finding that a nonreligious exemption actually thwarts the purported governmental interests in regulating similar, but religiously motivated, conduct? Second, the Court in Smith seemed to relate the necessity of heightened scrutiny to the type of regulatory scheme at issue. Among the Court’s reasons for confining the compelling interest standard to the unemployment compensation context was that the “good cause” standard for determining compensation benefits eligibility “‘created a mechanism for individualized exemptions.’”104 In such a context-dependent and potentially value-laden exemption system, a state “may not refuse to extend that system to cases 102. See Smith, 494 U.S. at 874. 103. Id. The Oregon statute under review in Smith defined a “controlled substance” as “a drug classified in Schedules I through V of the Federal Controlled Substances Act.” ORE. REV. STAT. § 475.005(6) (1987) (citing 21 U.S.C. §§ 811-812). However, the statute provided a general exemption for substances “prescribed by a medical practitioner.” Id. § 475.992(4). 104. Smith, 494 U.S. at 884 (quoting Bowen v. Roy, 476 U.S. 693, 708 (1986)).

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of ‘religious hardship’ without compelling reason.”105 The Court couched the unemployment compensation cases in terms of general applicability106 but failed to indicate whether individualized exemption systems are illustrative or exhaustive of the types of laws that are not generally applicable under Smith. It would not be extravagant to maintain that the general applicability requirement might be so limited as to insulate categorical exemptions from ready constitutional challenges.107 Indeed, at least two federal circuit courts have concluded that the non-discrimination principle of Smith does not apply to regulatory schemes containing “objectively-defined categories” of selection. 108 A. The “Easy” Case of Lukumi Lukumi involved four city ordinances drafted for the specific purpose of prohibiting sacrificial animal slaughter, a central ritual of the Santeria religion.109 In a concurring opinion, Justice Blackmun (in conjunction with Justice O’Connor) pointed out that the Lukumi case was “an easy one to decide.”110 As the Court concluded, the “ordinances by their own terms target [Santeria] religious exercise”111 and “it is only conduct motivated by religious conviction that bears the weight of the governmental restrictions.”112 In other words, Lukumi involved a form of outright persecution, not merely unconscious prejudice. The Court stated that the “minimum requirement of neutrality is that a law not discriminate on its face.”113 Although the

105. Id. 106. See id. 107. Am. Friends Serv. Comm. v. Thornburgh, 951 F.2d 957, 961 (9th Cir. 1991). 108. Id.; Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 701 (10th Cir. 1998) (holding that Sherbert is inapplicable in the absence of “a system of individualized exceptions that give rise to the application of a subjective test.”). 109. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 526-28 (1993). 110. Id. at 580 (Blackmun, J., concurring) (“It is only in the rare case that a state or local legislature will enact a law directly burdening religious practice as such. Because respondent here does single out religion in this way, the present case is an easy one to decide.”) (emphasis added). 111. Id. at 542. 112. Id. at 547 (emphasis added). 113. Id. at 533.

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Court noted the “strong religious connotations” of certain language referring to “ritual” and “sacrifice,” textual analysis alone was a thin reed upon which to build a case for a religion-specific classification.114 Declaring that “the effect of a law in its real operation is strong evidence of its object,”115 the Court plunged into the circumstances surrounding the enactments and their functional effect to infer invidious motivation.116 The willingness of the Court in Lukumi to go beyond purely textual analysis sheds some light on the meaning of the neutrality requirement: facial discrimination is a sufficient but not a necessary condition for application of strict scrutiny. Although the Court conflates the twin Smith requirements to a considerable degree in Lukumi,117 neutrality seems to entail textual analysis as well as substantive review to ferret out animus, with particular attention directed at the overinclusive attributes of a given classification.118 Gleaning from the “events preceding their enactment” that “the ordinances were enacted ‘because of,’ not merely ‘in spite of,’ their suppression of Santeria religious practice,” the Court deduced that they were “not neutral.”119 Lukumi suggests the general applicability test is really one of “fit” between legislative means and ends. The Court revealed the discordant relationship between the classifications drawn by the ordinances and their purported objectives: [The city] claims that [the ordinances] . . . advance two

114. Id. at 533-34. 115. Id. at 535. 116. Id. at 534-35 (“The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances.”). 117. See id. at 531 (“Neutrality and general applicability are interrelated, and . . . failure to satisfy one requirement is a likely indication that the other has not been satisfied.”). 118. See id. at 542. The Court held: [The]ordinances are not neutral because the ordinances by their own terms target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense. Id. (emphasis added). 119. Id. at 540.

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If the general applicability test is essentially a hunt for underinclusiveness, then strict scrutiny is triggered by secular exceptions that actually frustrate legislative ends in a roughly commensurate or more deleterious manner when compared to religiously inspired conduct that is subject to the law.121 The ordinances in Lukumi exempted secular and kosher slaughter even though such conduct threatened the asserted interests in public health and in the prevention of animal cruelty.122 Santeria animal sacrifice was analogous in all relevant respects to the exempted forms of animal slaughter; thus, the Court found sufficient evidence of “discriminatory treatment”123 in the apparent devaluation of religious reasons for engaging in animal slaughter (or conversely, in the excessive overvaluation of secular reasons for doing so). Indeed, the ordinances in Lukumi were doubly flawed in terms of fit. They were overinclusive as well in proscribing Santeria slaughter “even when it [did] not threaten the city’s interest in the public health.”124 The substantially overinclusive and underinclusive attributes of the ordinances, coupled with the traditional practice of judicial minimalism,125 allowed the Court to duck the more cumbersome task of fine-tuning the general applicability doctrine: “[W]e need 120. Id. at 543. 121. See Richard F. Duncan, Free Exercise is Dead, Long Live Free Exercise: Smith, Lukumi and the General Applicability Requirement, 3 U. PA. J. CONST. L. 850, 867 (2001). 122. Lukumi, 508 U.S. at 536-37. 123. Id. at 537-39. 124. Id. at 538-39. 125. See Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39 (1885). [T]he Court . . . is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Id.

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not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.”126 Thus, there are essentially two free exercise maxims to take from Lukumi. The first is that the neutrality test contemplates the use of circumstantial evidence. The second is that “[l]egislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”127 In Lukumi, the distinction drawn between religious and secular animal slaughter was constitutionally irrelevant, and therefore infirm, because these forms of slaughter posed virtually identical threats to animal cruelty and public health interests.128 So, perhaps Lukumi reveals that the touchstone of the neutrality and general applicability requirements is that a law must not be underinclusive in exempting certain secular conduct that frustrates legislative purposes to a comparable or greater degree than would an exemption for religious conduct.129 If this is so, the nondiscrimination rule of Smith presupposes some dissonance between the exceptions and the proffered legislative goals. The Lukumi Court applied strict scrutiny because the myriad nonreligious exceptions produced an anti-religious gerrymander of “substantial, not inconsequential,” underinclusion.130 But again, it seemed an “easy case” decided on the narrowest of grounds. However, the Lukumi Court did not explain what sorts of underinclusive classifications were “inconsequential,” nor did it identify a point at which underinclusion became consequential enough to become constitutionally problematic. The Lukumi Court was somewhat ambivalent as to whether the general applicability requirement extends beyond individualized exemption systems. The Lukumi Court remarked concerning one of the ordinances: “because it requires an evaluation of the particular justification for the [animal] killing, this ordinance represents a system of ‘individualized governmental assessment of the reasons for the relevant conduct.’”131 On the other hand, only 126. 127. 128. 129. 130. 131.

Lukumi, 508 U.S. at 543. Id. at 547 (emphasis added). See id. at 543-45. See Beerworth, supra note 19, at 379. Id. at 543 (emphasis added). Id. at 537 (quoting Employment Div. v. Smith, 494 U.S. 872, 884

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one of the four ordinances fit this mold and the Court later stated, “categories of selection are of paramount concern when a law has the incidental effect of burdening a religious practice.”132 Because the Court in Lukumi relied on categorical exceptions for fishing within the city, for exterminations of mice and rats within the home, for medical science experiments, and for euthanasia of certain animals,133 the neutrality and general applicability requirements most likely extend to categorical exemption systems as well. Indeed, “[w]holesale secular exceptions make the law even less generally applicable than individualized secular exceptions.”134 III. THE THIRD CIRCUIT’S INTERPRETATION OF NEUTRALITY AND GENERAL APPLICABILITY

In two recent cases, the Third Circuit Court of Appeals has interpreted the non-persecution principle of Lukumi fairly broadly. In Fraternal Order of Police v. City of Newark,135 two Islamic police officers fulfilled a religious obligation to grow their beards136 and were subsequently reprimanded pursuant to an internal order prohibiting full beards, goatees, and other facial hair growth aside from mustaches and sideburns.137 The order contained two exceptions: one for undercover officers and another for sufferers of pseudo folliculitis barbae (PFB), a medical condition endemic to African and Arab-Americans with curly facial hair.138 PFB occurs, if at all, when shaving sharpens stubble that eventually grows back into the skin; abstention from shaving allows facial hair to grow to lengths at which PFB is no longer possible.139 The Newark Police Department asserted interests in uniformity, discipline and esprit de corps.140 The undercover officer excep(1990)). 132. Id. at 542 (emphasis added). 133. Id. at 543-44. 134. Douglas Laycock, The Supreme Court and Religious Liberty, 40 CATHOLIC LAW. 25, 32 (2000). 135. 170 F.3d 359 (3d Cir. 1999). 136. Id. at 360-61 (“The refusal by a Sunni Muslim male who can grow a beard, to wear one is a major sin . . . the penalties will be meted out by Allah.”). 137. See id. at 360. 138. See id. 139. See Lund, supra note 15, at 647. 140. See Newark, 170 F.3d at 366.

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tion to the no-beard policy did not threaten these goals because “undercover officers ‘obviously are not held out to the public as law enforcement personnel.’”141 The medical exemption, however, inescapably jeopardized the “uniform appearance” rationale. “[T]he medical exemption raises concern,” the Court stated, “because it indicates that the Department has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not.”142 The Department attempted to tie “uniformity of appearance” to the public interest in a “sense of security in having readily identifiable and trusted public servants.”143 The Court summarily rejected this argument, saying that “[u]niformed officers, whether bearded or clean-shaven, should be readily identifiable.”144 But the strength of the stated interests was beside the point because the religious and medical exemptions posed similar threats to the proffered objectives of the order. In other words, the central problem was one of tailoring, not of interest. The secular/religious distinction, because inexplicable in relation to the purpose of the order, appeared to be rooted in a desire “to suppress manifestations of the religious diversity that the First Amendment safeguards.”145 The order’s underinclusiveness in favor of secular conduct was therefore sufficient to trigger heightened scrutiny.146 Newark is a consistent, albeit broad, interpretation of Lukumi. The Court in Newark acknowledged the “individualized exemption” rule implicit in Smith and Lukumi, but noted that the overarching concern in those cases “was the prospect of the government’s deciding that secular motivations are more important than religious motivations.”147 The Newark Court went on to reason, “this concern is only further implicated when the government does not merely create a mechanism for individualized exemptions, but instead, actually creates a categorical exemption for in-

141. Id. 142. Id. 143. Id. 144. Id. 145. Id. at 367. 146. The court applied an intermediate level of scrutiny “since this case arose in the public employment context.” Id. at 366 n.7. 147. Id. at 365.

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dividuals with a secular objection but not for individuals with a religious objection.”148 Moreover, the no-beard policy did not solely target religious conduct by exempting all (or even most) secular motivations for shaving. Indeed, the single problematic secular exemption was sufficient to invoke the nondiscrimination principle of Smith. Recall the Lukumi Court’s statement that antireligious gerrymanders “fall well below the minimum standard” laid out in Smith.149 Newark synthesized Smith and Lukumi in a way that highlighted the thrust of general applicability. In distinguishing the facts in Newark from those in Smith, the Third Circuit opined that Oregon’s medical prescription exception to the drug prohibition did “not necessarily undermine Oregon’s interest in curbing the unregulated use of dangerous drugs,”150 whereas the secular and kosher animal slaughter exceptions in Lukumi – like the PFB exception in Newark – plainly frustrated the respective regulatory goals.151 Newark also illuminates the brittle logic upon which Smith rests.152 For example, the Islamic officers were granted an exemption from the no-beard policy because a medical exemption for the skin condition, PFB, had previously been made.153 However, the medical exemption would not have existed in the first place had the occurrence of PFB in the city been minimal or nonexistent. That is, the religious claimants could not have prevailed had the climate and demographics of the city in which they were employed not been conducive to the prevalence of PFB.154 A favorable outcome depended on the fortuitous existence of some significant secular burden that prompted the creation of a secular exemption. Had an identical fact-pattern arisen in Alaska or Wisconsin where PFB is virtually nonexistent, there would have been no secular exemption and, by extension, no victory for religious liberty.155 The departmental order would have remained generally applicable.

148. Id. 149. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993). 150. Newark, 170 F.3d at 366. 151. See id. 152. Lund, supra note 15, at 649. 153. Newark, 170 F.3d at 366. 154. Lund, supra note 15, at 647-48. 155. Id.at 647-49.

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In Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly,156 the Third Circuit continued to interpret neutrality and general applicability in a relatively expansive manner. Tenafly involved a facially neutral town ordinance prohibiting “any sign or advertisement, or other matter upon any pole, tree, curbstone, sidewalk or elsewhere, in any public place, excepting such as may be authorized by this or any other ordinance of the Borough.”157 In practice, however, the town had “tacitly or expressly granted exemptions from the ordinance’s unyielding language for various secular and religious – though never Orthodox Jewish – purposes.”158 By municipal order, the Orthodox Jewish residents of Tenafly were prohibited from attaching lechis – “thin black strips made of the same plastic material as, and nearly identical to, the coverings on ordinary ground wires”159 – to town utility poles. According to ancient religious practice, lechis demarcate the boundaries of an eruv, a space within which Sabbath observers may transport objects on Yom Kippur or the Sabbath.160 Without a well-defined eruv, Orthodox Jews who use strollers, wheelchairs, walkers and canes are unable to leave their homes and attend synagogue.161 Reaffirming the Newark doctrine that “government officials . . . contravene the neutrality requirement if they exempt some secularly motivated conduct but not comparable religiously motivated conduct,” the Court invalidated the ordinance.162 From the drab house numbers and lost animal signs to the more obtrusive holiday displays, church directional signs, and orange ribbons . . . the Borough has allowed private citizens to affix various materials to its utility poles. Apart from their religious nature, the lechis are comparable to the postings the Borough has left in place. If anything, the lechis are less of a problem because they are so unobtrusive; even observant Jews are often unable

156. 309 F.3d 144 (3d Cir. 2002). 157. Id. at 151 (quoting TENAFLY, N.J., ORDINANCE 691 art. VIII § 7 (1954)). 158. Id. at 167 (emphasis added). 159. Id. at 152. 160. Id. at 152. 161. Id. 162. Id. at 165-66.

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ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 to distinguish them from ordinary utility wires.163

The town contended that the lechis were intended to be permanent fixtures, but the Court determined that at least the “house numbers nailed to utility poles are intended to be permanent.”164 Thus, the various secular and would-be Orthodox Jewish exceptions frustrated the town’s interest in monolithic, fixturefree utility poles to at least a comparable degree, thereby implicating the nondiscrimination principle. Tenafly is perhaps most notable, however, for its holding that “[u]nder Smith and Lukumi . . . there is no substantial burden requirement when government discriminates against religious conduct,”165 and concomitantly, that there is no “compulsory” practice requirement. 166 In other words, the Free Exercise Clause applies with equal force to even the slightest burden on even an “optional” religious practice, so long as there is a “sincere desire” to engage in that practice.167 As to the suspension of the “substantial burden” requirement, Tenafly is a particularly ambitious exposition of free exercise doctrine because the vast majority of federal circuit courts have retained the requirement as an indispensable component of the Smith-Lukumi methodology.168 IV. STATE MANDATORY REPORTING LAWS ON CHILD ABUSE

All fifty States have enacted statutes preserving the clergycommunicant privilege in some form or another. But when news reports surfaced of Catholic clergy having engaged in and presided over the sexual abuse of children for decades, public outrage and strenuous pleas for accountability pervaded the political climate. In the Boston Archdiocese alone, law enforcement officials catalogued 789 victims of abuse by Catholic priests and church workers over the last sixty years, and the actual number of victims is estimated to exceed 1,000.169 As the anti-clerical clamor intensi-

163. Id. at 167. 164. Id. at 167-68. 165. Id. at 170. 166. Id. at 171. 167. Id. 168. See id. at 170-71 & n.31. 169. Christopher R. Pudelski, Comment, The Constitutional Fate of Mandatory Reporting Statutes and the Clergy-Communicant Privilege in a PostSmith World, 98 NW. U.L. REV. 703, 712-13 (2004).

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fied, many state legislatures returned to the drawing boards with an eye toward bringing clergy within the scope of their mandatory reporting laws.170 The jurisdictions that have decided to impose a general reporting duty on clergy have had to further decide whether to extend the duty to confidential communications with parishioners, or to retain the clergy-communicant privilege and thereby avoid a direct conflict between God and Caesar. Current mandatory reporting laws address this societal problem vis-à-vis clergy in at least three manners. One approach has been to preserve the clergy-communicant privilege in full, either by an explicit privilege-preservation clause,171 or by omitting clergy members from veritable laundry lists of mandatory reporters with no catchall clause.172 A second and widely shared strategy has been to include clergy in the laundry list of professionals who have a duty to report.173 A third approach has been either to omit clergy from a list of reporters and bring them within the purview of the law through inclusion of an “any person” catchall phrase, or to eschew the laundry-list approach altogether for a sweeping reporting requirement applicable to “any person.”174

170. See id. at 704. 171. See ARK. CODE ANN. § 12-12-507 (Michie 2003); FL. STAT. ANN. § 39.204 (West Supp. 2004); IDAHO CODE § 16-1619 (Michie 2001); LA. CHILD. CODE ANN. art. 603 (West 2004); ME. REV. STAT. ANN. tit. 22, § 4011-A (West 2004); MD.CODE ANN., FAM. LAW § 5-705 (2003); MINN. STAT. ANN. § 626.556 (West 2003 & Supp. 2004); MONT. CODE ANN. § 41-3-201 (2003); N.M. STAT. ANN. § 32A-4-3 (Michie 2004); OR. REV. STAT. § 419B.010 (2003); UTAH CODE ANN. § 62A-4a-403 (2000); VT. STAT. ANN. tit. 33 § 4913 (Supp. 2003). 172. See ALASKA STAT. § 47.17.020 (Michie 2003); GA. CODE ANN. § 19-7-5 (2003); HAW. REV. STAT. § 350-1.1 (2002); IOWA CODE § 232.69 (2002); KAN. STAT. ANN. § 38-1522 (2002); N.Y. SOC. SERV. LAW § 413 (McKinney 2003); OHIO REV. CODE ANN. § 2151.421 (West 2004); S.D. CODIFIED LAWS § 26-8A-3 (Michie 2003); VA. CODE ANN. § 63.2-1509 (Michie 2002); WASH. REV. CODE § 26-44.030 (West 2004). 173. See ARIZ. REV. STAT. § 13-3620 (West 2003); CAL. PENAL CODE § 11165.7 (West 2004); COLO. REV. STAT. § 19-3-304 (2003); CONN. GEN. STAT. ANN. § 17A-101 (West 2004); 325 ILL. COMP. STAT. 5/4 (Supp. 2004); MASS. GEN. LAWS ANN. ch. 119, § 51A (West 2003 & Supp. 2004); MICH. COMP. LAWS ANN. § 722.623 (West Supp. 2004); MISS. CODE ANN. § 43-21-353 (1999 & Supp. 2003); MO. ANN. STAT. § 210.115 (West 2004); N.D. CENT. CODE § 5025.1-03 (1999); 23 PA. CONS. STAT. ANN. § 6311 (West 2001 & Supp. 2004); S.C. CODE ANN. § 20-7-510 (LAW. CO-OP. 2002); TEX. FAM. CODE ANN. § 261.101 (Vernon 2002). 174. See DEL. CODE ANN. tit. 16, § 903 (2003); IND. CODE ANN. § 31-33-5-1 (West 1999); KY. REV. STAT. ANN. § 620.030 (Michie 1999); NEB. REV. STAT. §

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100 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 Concerns of a constitutional magnitude arise in the differential treatment of the legal and clerical privileges because some reporting laws expressly and fully preserve the attorney-client privilege while completely or partially abrogating the clergycommunicant privilege.175 Complete abrogation of the clergycommunicant privilege means that both “spiritual advice” and confessional communications are vitiated for purposes of reporting and for purposes of evidentiary admissibility in proceedings involving allegations of child abuse or neglect.176 Reporting laws that completely abrogate the clergy-communicant privilege, while fully preserving the attorney-client privilege, represent the apogee of unequal treatment. Other reporting laws achieve a slightly lower degree of inequality either by (1) completely preserving the attorney-client privilege and only partially preserving the clergycommunicant privilege,177 or by (2) partially abrogating the attorney-client privilege and completely abrogating the clergycommunicant privilege.178 Partial abrogation entails a suspension of the privilege in either the reporting or evidentiary context. A. North Carolina and Tennessee North Carolina’s reporting statute seemingly imposes a generally applicable duty to report on “any person or institution who has cause to suspect that any juvenile is abused, neglected . . . or has died as the result of maltreatment.”179 However, a subsequent section of the statute declares: “No privilege shall be grounds for any person or institution to report . . . even if the knowledge or suspicion is acquired in an official professional capacity, except when the knowledge or suspicion is gained by an attorney from 28-711 (1995); NEV. REV. STAT. ANN. 202.882 (Michie 2001); N.J. STAT. ANN. § 9:6-8.10 (West 2002); OKLA. STAT. ANN. tit. 10, § 7103 (West 2004); TENN. CODE ANN. § 37-1-403 (2001); WIS. STAT. § 48.981 (West 2003); WYO. STAT. ANN. § 14-3-205 (Michie 2003). 175. See N.C. GEN. STAT. § 7B-310 (2003); N.H. REV. STAT. ANN. § 169-C:32 (2001); R.I. GEN. LAWS § 40-11-11 (1997); TENN. CODE ANN. § 37-1-614 (2003); W. VA. CODE ANN. § 49-6A-7 (Michie 2001). 176. See Norman Abrams, Addressing the Tension Between the ClergyCommunicant Privilege and the Duty to Report Child Abuse in State Statutes, 44 B.C. L. REV. 1127, 1149-50 (2003). 177. See, e.g., § 325 ILL. COMP. STAT. ANN. 5/4 (2004); ALA. CODE § 26-14-10 (2004). 178. See, e.g., TEX. FAM. CODE § 261.202 (Vernon 2002). 179. N.C. GEN. STAT. § 7B-301 (2004).

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that attorney’s client.”180 The statute further provides that “[n]o privilege, except the attorney-client privilege, shall be grounds for excluding evidence of abuse, neglect, or dependency in any judicial proceeding.”181 The Tennessee reporting statute also includes a catchall provision requiring “any person” with knowledge or suspicion of child abuse to report such information to state authorities.182 Moreover, the Tennessee reporting law unambiguously abolishes the clergycommunicant privilege by voiding the privileged quality of communication between any professional person and his client, and “any other privileged communication except that between attorney and client” for reporting and evidentiary purposes.183 Thus, both North Carolina and Tennessee have achieved complete abrogation of the clergy-communicant privilege on the one hand, and complete preservation of the attorney-client privilege on the other. B. Rhode Island, New Hampshire and West Virginia Rhode Island has opted for a catchall clause in order to bring clergy within the purview of the reporting duty.184 It has completely vitiated the privileged quality of communications between “any professional person and his or her patient or client, except that between attorney and client.”185 New Hampshire specifically lists any “priest, minister, or rabbi”186 as mandated reporters and suspends, for reporting and evidentiary purposes, all professional privileges “except that between attorney and client.”187 West Virginia includes clergy in an exhaustive list of mandated reporters that does not include attorneys.188 A subsequent provision of the statute eviscerates the “privileged quality of communications . . . between any professional person and his patient or his client, except that between attorney and client.”189 Due to shoddy drafting, it is more difficult to determine the extent to which West Virginia 180. 181. 182. 183. 184. 185. 186. 187. 188. 189.

Id. § 7B-310. Id. TENN. CODE ANN. § 37-1-605(a) (2001). Id. § 37-1-614 (2001). See R.I. GEN. LAWS § 40-11-3 (2004). Id. § 40-11-11. N.H. REV. STAT. ANN. § 169-C:29 (2003). Id. § 169-C:32 (2003). W. VA. CODE § 49-6A-2 (2003). Id. § 49-6A-7.

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102 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 has suspended the clergy-communicant privilege. The statute declares abrogation “in situations involving suspected or known child abuse and neglect.”190 This language is certainly broad enough to encompass both the reporting duty and issues of evidentiary admissibility in proceedings related to child abuse, but its notable lack of specificity renders its scope ambiguous. Rhode Island, New Hampshire and West Virginia have preserved the attorney-client privilege and abolished all other privileges between “any professional person and his or her patient or client.” If construed narrowly, the clergy-communicant privilege might survive such abrogation clauses. On the other hand, these statutes obligate clergy to report information relating to child abuse, and they do so in the absence of either a partial or complete privilege-preservation clause. Although susceptible to more than one interpretation, these laws may be properly interpreted as completely eviscerating the clergy-communicant privilege.191 C. Alabama, Illinois and Texas Like many other states, Alabama designates “members of the clergy”192 as mandated reporters along with a host of secular agents such as physicians, dentists, school teachers and officials, law enforcement officials, pharmacists, social workers, day care workers, mental health professionals and “any other person called upon to render aid or medical assistance to any child.”193 Attorneys are not listed and do not seem to be implicated by the profession-specific catchall clause. The Alabama statute thereafter proclaims: “The doctrine of privileged communication, with the exception of the attorney-client privilege, shall not be ground for excluding any evidence regarding a child’s injuries or the cause thereof in any judicial proceeding.”194 The statute does, however, exempt members of the clergy from the reporting duty insofar as the relevant information is “gained solely in a confidential com-

190. Id. 191. See Abrams, supra note 176, at 1140; see also Shawn P. Bailey, Note, How Secrets are Kept: Viewing the Current Clergy-Penitent Privilege Through a Comparison with the Attorney-Client Privilege, 2002 B.Y.U. L. REV. 489, 499 (2002). 192. ALA. CODE § 26-14-3(a) (2004). 193. Id. 194. Id. § 26-14-10.

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munication.”195 By fully preserving the attorney-client privilege and only partially abrogating the clergy-communicant privilege, Alabama has settled for a slightly smaller quantum of differential treatment. Like Alabama, Illinois has preserved the attorney-client privilege in its entirety while chipping away considerably at the clergycommunicant privilege. A shrewdly worded section suspends the “privileged quality of communication between any professional person required to report and his patient or client” with respect to the reporting duty.196 The statute designates “any member of the clergy” as a reporter but omits any reference to attorneys.197 Although the evidentiary dimension of the clergy-communicant privilege remains intact,198 attorneys are free to use their professional privilege as a shield against the reporting duty and the admissibility of evidence in court proceedings. The Texas scheme explicitly cancels both the attorney-client and clergy-communicant privilege with respect to the reporting duty.199 However, it also states “evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client.”200 Thus, Texas has opted for full abrogation of the clergy-communicant privilege and only partial abrogation of the attorney-client privilege. Though all of the foregoing reporting laws vary in language, structure and degree of differential treatment, none seem to satisfy even the baseline requirement of facial neutrality as defined in Smith and Lukumi. It is beyond all doubt that reporting laws exist for the purpose of detecting and eradicating child abuse. Nevertheless, several statutes contain prefatory clauses in which governmental interests, moral truisms and policy aims are specifically cataloged. For example, Kentucky’s statute proclaims: Children have certain fundamental rights which must be protected and preserved, including but not limited to, the rights to adequate food, clothing and shelter; the right to 195. 196. 197. 198. 199. 200.

Id. § 26-14-3(f). § 325 ILL. COMP. STAT. ANN. 5/4 (West 2004) (emphasis added). Id. Id. TEX. FAM. CODE § 261.101(c) (Vernon 2004). Id. § 261.202.

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104 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 be free from physical, sexual or emotional injury or exploitation; the right to develop physically, mentally, and emotionally to their potential; and the right to educational instruction and the right to a secure, stable family.201 The protection of children from physical harm or death is indubitably an interest of the highest order in our society. Basic rights of self-preservation, personal security and individual autonomy comprise the core justification for the very existence of a social contract.202 But the admittedly “compelling” nature of the governmental interest in preventing child abuse is really inapposite here. Rather, the determinative inquiry is whether lawmakers have decided that legal counselors are so prized as to overcome the imperative of protecting children whereas similarly situated spiritual counselors are not. The constitutionality of mandatory report-

201. K.Y. REV. STAT. ANN. § 620.010 (Michie 2002). 202. See, e.g., U.S. CONST. PREAMBLE: We the People of the United States, in Order to form a more perfect Union, establish domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Id. (emphasis added); see also THOMAS HOBBES, LEVIATHAN, reprinted in MODERN POLITICAL THOUGHT: READINGS FROM MACHIAVELLI TO NIETZSCHE 189 (David Wootton ed., 1996): A commonwealth is said to be instituted, when a multitude of men do agree, and covenant, every one, with every one, that whatsoever man, or assembly of men, shall be given by the major part, the right to present the person of them all, (that is to say, to be their representative) every one, as well he that voted for it, as he that voted against it, shall authorize all the actions and judgments, of that man, or assembly of men, in the same manner, as if they were his own, to the end, to live peaceably amongst themselves, and be protected against other men. Id.; JOHN LOCKE, SECOND TREATISE OF GOVERNMENT, reprinted in, MODERN POLITICAL THOUGHT: READINGS FROM MACHIAVELLI TO NIETZSCHE 341 (David Wootton ed., 1996): The only way, whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community, for their comfortable, safe, peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. Id.

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ing laws should turn on whether they are “narrowly tailored” to advance their laudable goals. In order to sharpen this analysis, it is important first to briefly compare the attorney-client and clergy-communicant privileges. D. The Clergy-Communicant Privilege All fifty states have secured some form of clergy-communicant privilege through statutory law.203 These privilege statutes are driven primarily by a respect for free exercise and church autonomy principles.204 Although only the Roman Catholic, Lutheran, Latter-day Saints and Eastern Orthodox churches recognize the formal sacrament of confession,205 many statutes protect not only “penitential” communications but also “counseling” or “spiritual advice” communications, which include any confidential communication made by the communicant to a clergy member in his capacity as a spiritual advisor.206 Moreover, the majority of statutes provide that the privilege survives the death of the communicant.207 It is noteworthy that the religious profundity of maintaining a scrupulous code of confidentiality is considerably greater for the Catholic priest than for the Presbyterian minister. If the minister reveals a communication imparted to him in confidence, he may invite the ire of his congregation and forfeit his ministerial position within a particular community of faith.208 The Catholic Church, on the other hand, has unwaveringly treated the confessional relationship as sacrosanct.209 Indeed, the Sacrament of Reconciliation is one of the seven sacramental pillars of the Catholic 203. Supra Part IV. 204. Bailey, supra note 191, at 519-20. 205. See id. at 502; R. Michael Cassidy, Sharing Sacred Secrets: Is it (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege, 44 WM. & MARY L. REV. 1627, 1641 (2003). 206. J. Michael Keel, Comment, Law and Religion Collide Again: The Priest-Penitent Privilege in Child Abuse Reporting Cases, 28 CUMB. L. REV. 681, 689 (1998) (“[M]any of the statutes broaden the scope of the privileged communications between the priest and the penitent by extending the privilege to communications made to a minister during a counseling session.”). 207. See Cassidy, supra note 205, at 1639. 208. See Shannon O’Malley, Note, At All Costs: Mandatory Child Abuse Reporting Statutes and the Clergy-Communicant Privilege, 21 REV. LITIG. 701, 711 (2002). 209. See id. at 712.

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106 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 Church; it “relieves the burden of individual sinfulness and draws one closer to the life and mission of the Church – the mystical body of Christ.”210 As admonished by ancient Canon Law: Let the priest be absolutely aware that he does not by word or sign or by any manner whatsoever in any way betray the sinner. . . . For whoever shall dare to reveal a sin disclosed to him in the tribunal of penance we decree that he shall be not only deposed from the priestly office, but that he shall also be sent into the confinement of a monastery to do perpetual penance.211 Mandatory reporting laws that abrogate spiritual codes of confidentiality clearly implicate free exercise rights. Presently, the Code of Canon Law of the Catholic Church states: “The sacramental seal is inviolable; accordingly, it is absolutely wrong for a confessor in any way to betray a penitent, for any reason whatsoever, whether by word or in any other fashion.”212 According to this spiritual law, “the priest has no mortal remembrance of what has been confessed, but rather possesses knowledge meant solely for God’s ears.”213 Violation of the seal is a “crime” against the Church and a sin against God, and the penalty prescribed in most cases is automatic excommunication – a permanent alienation from the Church and from God Himself.214 Because reporting laws essentially render certain spiritual and civil obligations mutually antagonistic, they constitute a discernible burden on church autonomy and religious exercise.215 The evidentiary privilege has roots in utilitarian legal thought that justifies nondisclosure on the grounds that confidential communication between clergy and communicant is crucial to the 210. See Anthony Merlino, Comment, Tightening the Seal: Protecting the Catholic Confessional from Unprotective Priest-Penitent Privileges, 32 SETON HALL L. REV. 655, 695 (2002). 211. R.S. Nolan, The Law of the Seal of Confession, in 13 THE CATHOLIC ENCYCLOPEDIA 649 (Charles G. Herbermann et al. eds., 1912). 212. 1983 CODEX IURIS CANONICI c.983, 1, 2. 213. See Merlino, supra note 210, at 746-47. 214. Id. at 703-04. 215. See Keel, supra note 206, at 702-703 (“[T]he clergyman . . . could adhere to his religious beliefs and accept the criminal penalties levied against him, or he could obey the law by turning his back upon his religious convictions. This choice essentially pressures the clergyman to forego his religion to comply with government mandates.”).

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maintenance of an important and socially desirable relationship. With respect to the fiduciary relationship between clergy and communicant, “the injury that would inure to the relation by the disclosure of the communications [is] greater than the benefit thereby gained for the correct disposal of litigation.”216 The costbenefit balance is struck in favor of preserving the privilege “because the cost of a privilege (measured in undiscoverable evidence) would not properly include information that would not exist but for that privilege.”217 Because it is widely believed that the confidentiality guarantee facilitates the communicant’s admissions, the cost side of the equation must include only volunteered information, or information that would likely have been relayed to clergy in the absence of the privilege.218 Outside the reporting context, countervailing societal (and constitutional) considerations have outweighed interests in the availability of evidence and the “truth” seeking function of the accusatorial system. The privilege is also invaluable to the communicant. Roman Catholics must make a full confession at least once annually.219 Christian eschatology holds that failure to obtain absolution or do penance for one’s sins before death is met with the prospect of eternal damnation.220 Thus, the Sacrament of Penance is valued both for its inherent sanctity and for its edifying effect on the penitent. Cardinal Bevilacqua has explained that, “[w]ere the Sacrament rendered difficult or odious to the faithful they would be deterred from approaching it, thereby undermining the Sacrament itself to the great spiritual harm of the faithful, as well as to the entire Church.”221 Even in denominations that do not recognize sacramental confessions, the maintenance of a private clergypenitent relationship is integral to one’s eternal salvation. C.S.

216. 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2285 (John T. McNaughton ed. 1961). 217. Bailey, supra note 191, at 505. 218. Id. 219. CATECHISM OF THE CATHOLIC CHURCH § 1457 (Doubleday, 1995). 220. E.g., Matthew, 3:11-12 (“I baptize you with water for repentance, but the one who is more powerful than I is coming after me. . . . His winnowing fork is in his hand, and he will gather his wheat into the granary. But the chaff he will burn with an unquenchable fire.”). 221. Cardinal Anthony Bevilacqua, Confidentiality Obligation of Clergy from the Perspective of Roman Catholic Priests, 29 LOY. L. A. L. REV. 1733, 1736 (1996).

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108 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 Lewis, the great scholar, writer, and Christian apologist, defined the “clergy” as “those particular people within the whole Church who have been specially trained and set aside to look after what concerns us as creatures who are going to live forever.”222 If one accepts Lewis’ foundational premise that we are eternal creatures, it is difficult to imagine any relationship in the temporal world that would be of greater importance than that between a spiritual counselor and his communicant. E. The Attorney-Client Privilege Unlike the statutorily protected clergy-communicant privilege, the attorney-client privilege has common-law origins.223 Otherwise, the two privileges are very similar. Like the clergycommunicant privilege, confidentiality is “essential” to the maintenance of the attorney-client relationship.224 It is difficult to imagine that a client would reveal criminal wrongdoings in the absence of the privilege, so “the loss of evidence is more apparent than real.”225 Moreover, abrogation of the privilege would have a chilling effect on communication because attorneys would inform their clients of an abuse-exception, thereby undermining the goal of full and candid disclosure.226 The efficacious operation of the American legal system is said to depend on “sound legal advice or advocacy” which, in turn, “depends upon the lawyer’s being fully informed by the client.”227 Like many clergy-communicant privilege statutes, the Federal Rules of Evidence assure the posthumous application of the attorney-client privilege because “full and frank communication . . . promote[s] broader public interests in the observance of law and the administration of justice.”228 Furthermore, just as the clergy-

222. C.S. LEWIS, MERE CHRISTIANITY 75 (1952) (Fontana Books, 1960). 223. See Bailey, supra note 191, at 509. 224. WIGMORE, supra note 216, at § 2285. 225. Swidler & Berlin v. United States, 524 U.S. 399, 408 (1998) (“[T]he loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place.”). 226. See Robert P. Mosteller, Child Abuse Reporting Laws and AttorneyClient Confidences: The Reality and the Specter of Lawyer as Informant, 42 DUKE L.J. 203, 230-32 (1992). 227. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 228. Swidler & Berlin, 524 U.S. at 403 (citation omitted).

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communicant privilege is buttressed by concerns for church autonomy, rights-based justifications of the attorney-client privilege strongly discourage interference with client autonomy and control over private information.229 Perhaps most importantly, the privilege is afforded a measure of constitutional protection as a prerequisite to the exercise of the Sixth Amendment right to the effective assistance of counsel.230 Thus, like the clergycommunicant privilege, the attorney-client privilege implicates interests of a constitutional caliber. However, there is one significant distinction between these two evidentiary privileges: the attorney-client privilege contains a “crime-fraud exception” where “the client’s purpose is the furtherance of a future intended crime or fraud.”231 In order to fall within the exception, however, the client must attempt to use the attorney’s expertise for some prospective criminal or fraudulent act.232 The clergy-communicant privilege, on the other hand, does not contain such an exception as it is generally held to be absolute in coverage.233 Privilege statutes would presumably respect the uncompromising tenor of canon law in even the most compelling exigencies. F. A Modest Proposal for Protecting Religion Smith and Lukumi may be regarded as poles on each end of the largely uncharted spectrum of general applicability. On one end, Smith suggests that the mere existence of a single nonreligious exception does not implicate the nondiscrimination principle.234 On the other end, Lukumi intimates that the existence of

229. See Mosteller, supra note 226, at 266. 230. See id. at 270-71. 231. CHARLES TILFORD MCCORMICK, MCCORMICK ON EVIDENCE § 95 (John W. Strong et. al. eds., 4th ed. 1992). 232. See Mosteller, supra note 226, at 246. 233. See Merlino, supra note 210, at 748 (“In short, the Catholic Church defends sacramental confession with absolutism that is foreign to and in direct conflict with state laws that are quite stingy in privileging certain communications in order to further the truth-seeking function of legal tribunals.”). 234. The Oregon controlled substance statute provided an exemption for substances “prescribed by a medical practitioner.” Employment Div. v. Smith, 494 U.S. 872, 874 (1990). Nonetheless, the Court refused to provide an exemption for the religious use of peyote. Id. at 888-90.

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110 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 myriad nonreligious exceptions does implicate the nondiscrimination principle.235 If the creation of the neutrality and general applicability requirements inaugurated no more than a jurisprudence of exemption head-counting, then the task of identifying the point at which a law becomes sufficiently discriminatory would be susceptible of arbitrary line-drawing. As Newark illustrates, there is good reason to conclude that the doctrinal analyses of Smith and Lukumi do not turn on the quantity of exceptions alone, provided that a law is not entirely exceptionless. Rather, the Third Circuit’s decision in Newark characterizes these seminal decisions as encapsulating the more substantive inquiry of whether there is a (1) nonreligious (or secular) exception that (2) damages the governmental interest in the challenged law in a way that is (3) similar to or greater than some analogous religious activity that is prohibited.236 The facially discriminatory character of the foregoing reporting laws obviates a survey of circumstantial evidence, even though their legislative histories may very well reveal visceral policy judgments lurking behind the statutory language. Violation of the general applicability requirement flows automatically from a violation of facial neutrality. The classic gerrymander could conceivably fail the former test and satisfy the latter, but no law that is non-neutral on its face can possibly function neutrally in practice.237 Reporting laws that abrogate the clergy-communicant privilege and preserve the attorney-client privilege are problematic under a broad formulation of Lukumi because they prohibit certain religious conduct but do not pursue the objective of protecting children with respect to virtually identical nonreligious conduct. The proposition that attorneys may conceal crucial information with impunity establishes an exception inimical to the governmental interest in protecting children. Moreover, the only relevant difference between the attorney-client and clergycommunicant privileges as they relate to the governmental interest is that the former does not protect communications of intent to 235. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 536-37 (1993). 236. See Fraternal Order of Police v. City of Newark, 170 F.3d 359, 365-66 (3rd Cir. 1999). 237. Lukumi, 508 U.S. at 558 (Scalia, J., concurring).

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commit a future criminal act, whereas the latter admits of no such exception.238 However, the client must actually intend to enlist lawyerly acumen in the pursuit of such an act for the communication to lose its privileged status.239 Though perhaps foreseeable, the scenario of a client using legal advice as a tool for inflicting a future act of violence upon a child seems highly improbable. And even if such attempts occurred with alarming frequency, the governmental interests could be achieved by a narrower means that burden clergy members to a far lesser degree. For example, an explicit statutory retention of a qualified clergy-communicant privilege – one that contains a similar “dangerous person” exception – would satisfy the “narrow tailoring” prong of strict scrutiny analysis.240 In light of the governmental objectives to ensure the “health and welfare” of children and to “make the home safe for children by enhancing the parental capacity for good child care,”241 the only other relevant difference between spiritual and legal counselors in this context actually supports the retention of the clergycommunicant privilege: While the attorney will address the client’s legal concerns, the member of the clergy will address the moral or spiritual well-being of the penitent. Although the attorney will facilitate an efficient and fair disposition of any legal problems, she is not likely to concern herself with the underlying causes of the behavior that made legal representation necessary in the first place. In contrast, the cleric specifically addresses the underlying causes to

238. See Michael J. Mazza, Note, Should Clergy Hold the Priest-Penitent Privilege, 82 MARQ. L. REV. 171, 186 (1998) (“The priest-penitent privilege has generally been considered absolute, prohibiting any revelation of the protected communication, unlike the other evidentiary privileges with their numerous exceptions.”). 239. MCCORMICK, supra note 231, at § 95 (“[I]t is settled under modern authority that the privilege does not extend to communications between attorney and client where the client’s purpose is the furtherance of a future intended crime or fraud.”). 240. See generally Cassidy, supra note 205, at 1696-97 (arguing that members of the clergy should be required to disclose information of a penitent’s intention to commit a future crime involving serious bodily injury or death). 241. CONN. GEN. STAT. § 17a-101 (2003).

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112 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 help the penitent overcome them.242 The penitent is encouraged to mitigate the harm caused by his transgressions, which may include the return of stolen items, compensation (monetary or otherwise) for injuries, or an admission of culpability to the proper authorities. In sum, the confessional relationship “promotes the reparation and atonement the legal system seeks to achieve on behalf of society.”243 In comparison, attorneys work zealously and indefatigably to rid their clients of legal encumbrances, whereas clergy members strive to inculcate moral virtue and transform the penitent into a spiritually rejuvenated and law-abiding citizen. Rather than impede the disclosure, detection and punishment of child abuse, a robust clergycommunicant privilege may actually effectuate these ends. Discriminatory reporting laws are not teeming with pernicious desires to persecute members of the clergy. The underinclusion of these statutes is not as substantial as in Lukumi because the burden falls not only on religious, but countless other secular entities as well. These laws are more likely the result of a semiconscious devaluation of religion – a subtle yet persistent proclivity that must be exposed and uprooted.244 Justice Kennedy has astutely observed: Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.245 The disparities in treatment may be partly explained by the fact that many legislators are attorneys who naturally (albeit wrongly) tend to value the attorney-client privilege more than the clergy-communicant privilege. Legislators may simply fold under constituent pressure to suspend evidentiary privileges and decide, amid cacophonous criticism, to strike the political bargain in favor

242. Bailey, supra note 191, at 511. 243. See Merlino, supra note 210, at 743 (emphasis added). 244. See Beerworth, supra note 19, at 383. 245. Bd. of Trustees v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring).

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of their own profession.246 At a time when public sentiment toward clerical personnel is less than favorable, lawmakers stand to win popularity points by simply tossing out the clergy-communicant privilege altogether rather than retaining or qualifying it. The Third Circuit in Newark applied the non-discrimination principle of Lukumi beyond the extreme instance in which lawmakers decide to inflict particularized harm on a discrete and insular religious minority.247 If the cornerstone of refurbished free exercise doctrine is underinclusion, then some reporting laws do not pass constitutional muster. In fact, the very presence of the attorney-client privilege exception renders the law unconstitutional per se, because an exception that is patently inconsistent with the legislative purpose compels a finding that the law could be more narrowly tailored to further that purpose.248 There is more than one way to comply with Smith and Lukumi in the reporting context. A state could either remove the secular exception entirely (making the statute generally applicable), or allow an equivalent exception for religiously motivated conduct (removing the free exercise burden altogether). Even a reporting law that exempts only the clergy-communicant privilege would not likely present Establishment Clause problems,249 particularly if the privilege would enable religious organizations to define and carry out their own doctrine free from governmental interference.250 The overall tenor of the Lukumi opinion gives proponents of a more expansive Free Exercise Clause reason to hold out some hope.251 On the other hand, Lukumi could be confined to those

246. See Bailey, supra note 191, at 522-23. 247. See Fraternal Order of Police v. City of Newark, 170 F.3d 359, 360 (3rd Cir. 1999). 248. See Lukumi, 508 U.S. at 546 (finding that the fact that the “proffered objectives are not pursued with respect to analogous nonreligious conduct . . . suffices to establish the invalidity of the ordinances.”). 249. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) (rejecting an Establishment Clause challenge to a Title VII exemption for religious organizations and stating that “[w]here . . . government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption come packaged with benefits to secular entities.”). 250. See id. at 339. 251. Lukumi, 508 U.S. at 547 (“The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its

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114 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 rare instances in which lawmakers engage in extreme undervaluation or persecution of religion.252 Even assuming, arguendo, that strict scrutiny applies not only to underinclusive individualized exemption systems but also to “categories of selection,” serious concerns abound.253 It is uncertain how the Court would wrestle with legislation like mandatory reporting statutes that contain far fewer and more principled secular exceptions.254 Despite the disparate treatment in such laws, they contain only one exception that is amply supported in common law, constitutional law, and public policy. If the Court rejects the Tenafly reasoning and reaffirms either a “substantial burden” or “compulsory” practice requirement (or both), many non-Catholic clergy members may not successfully assert free exercise challenges despite serious problems of underinclusion. Recall that most clergy-communicant privilege statutes protect “spiritual advice” communications so as to extend the confidentiality guarantee to all religions.255 The Catholic priest must

practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.”). 252. Locke v. Davey, 540 U.S. ____; 124 S. Ct. 1307, 1314-15 (2004) (distinguishing the suppression of Santeria worship in Lukumi from the decision of state officials to deny funding under a state scholarship program to a student seeking a degree in “devotional theology”); see also Davey v. Locke, 299 F.3d 748, 762 (9th Cir. 2002). The dissent in that opinion stated: [In Lukumi], the challenged ordinances were the rare but quintessential example of laws that directly prohibit certain religious practices . . . Nothing could have more clearly prohibited the church members’ religious exercise than these criminal sanctions: their choice was to practice their religion upon threat of persecution. In contrast, Davey’s decision to pursue a degree in theology carries no such ominous retribution . . . I do not find any guidance in Lukumi beyond the criminal ordinances at issue there as to what might constitute an impermissibly burdensome law prohibiting religious exercise. Id. (McKeown, J., dissenting). 253. Lukumi, 508 U.S. at 542. 254. See Kenneth D. Sansom, Note, Sharing the Burden: Exploring the Space Between Uniform and Specific Applicability in Current Free Exercise Jurisprudence, 77 TEX. L. REV. 753, 768 (1999). 255. See supra note 206 and accompanying text. In contrast, Delaware has preserved the clergy-communicant privilege only insofar as the communication takes place in a “sacramental confession.” DEL. CODE ANN. tit. 16, § 909 (2003). Although such a provision raises non-establishment concerns because of its limited applicability, this issue is beyond the scope of this article.

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assiduously conceal confessional communications as a matter of religious obligation. On the other hand, to compel disclosure of information gathered in a spiritual advice setting is not to force clergy to transgress a tenet of their faith. That is, there is no religiously imposed oath to secrecy in the non-sacramental setting, or at least it could be described as less than compulsory.256 For these reasons, the burden placed on a large class of clergy may not be deemed “substantial.” Unless Tenafly is followed in this regard, a constitutional challenge to reporting laws will be difficult to mount successfully for those religions that do not recognize the formal sacrament of confession. V. LOCKE V. DAVEY: ANOMALY OR PRESAGE?

This term, the Court altered the Smith/Lukumi calculus, though “the decision may be properly regarded as an unusually narrow one.”257 Locke v. Davey258 involved a Washington state scholarship program for academically gifted students who attended either a public or private (including religiously affiliated) postsecondary institution, provided the institution was duly accredited.259 In accordance with a provision in the state constitution prohibiting public funding for “any religious worship, exercise or instruction . . . ,”260 the scholarship program explicitly excluded any student who sought a “degree in theology.”261 As a matter of federal constitutional law, it is nearly axiomatic that public financial aid to a student seeking a degree in theology does not violate the Establishment Clause.262 Locke, therefore, posed the question of whether a state, pursuant to its own non-establishment provision, could essentially overprotect its taxpayers’ “freedom of conscience” without running afoul of the federal Free Exercise Clause.263 256. See Abrams, supra note 176, at 1144. 257. Beerworth, supra note 19, at 383. 258. 540 U.S. ____, 124 S. Ct. 1307 (2004). 259. Id. at 1309-10. 260. Id. at 1312 n.2 (quoting WASH. CONST. art. I, § 11). 261. Id. at 1310. 262. See Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481, 489 (1986) (upholding against an Establishment Clause challenge a state tuition grant for a blind student who planned to use the funds at a Christian college in preparation for the ministry). 263. Locke, 124 S. Ct. at 1312 & n.2.

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116 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 The Ninth Circuit had invalidated the scholarship program under Lukumi, holding that religion had been facially targeted for unfavorable treatment and that “the State’s own antiestablishment concerns were not compelling.”264 Writing the opinion for the majority in Locke, Chief Justice Rehnquist reversed and declared: “there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.”265 Rehnquist then plunged into state constitutional history and uncovered evidence supporting the prerogative of the state to prevent the procurement of tax funds to support ministerial endeavors.266 As such, the State’s antiestablishment interests were deemed “historic and substantial.”267 The Court’s emerging jurisprudential philosophy of permissible accommodation had evidently created the requisite “play in the joints”268 between the Religion Clauses in which the states could protect nonestablishment interests not guaranteed by the federal Establishment Clause. However, one might argue that going above the minimum federal floor as to the Establishment Clause means going well below the minimum federal floor as to the Free Exercise Clause. Accordingly, then, Locke cabined Lukumi in some potentially cataclysmic respects. First, the Court refused to attach a presumption of invalidity to the scholarship program even though the program violated the facial neutrality requirement by isolating the study of theology for disfavored treatment. The Court reasoned that application of strict scrutiny was inappropriate because nothing in the “history or text” of the State Constitution or the scholarship program “suggests animus towards religion.”269 Rather, the disparate treatment at issue in Locke was “of a far milder kind” than that at issue in Lukumi. 270 The Court justified the religion-specific classification on what seemed like rational basis grounds, stating that “training for religious professions and training for secular professions are not fungible.”271 Of course, Santeria animal sacrifice and secular modes of butchery are not 264. 265. 266. 267. 268. 269. 270. 271.

Id. at 1311. Id. See id. at 1313-14. Id. at 1315. Id. at 1311. Id. at 1315. Id. at 1312. Id. at 1313.

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fungible either. They are just very similar. Like the study of history and the study of religion, the minute differences between these forms of slaughter cannot justify gaping disparities in treatment. Beyond animus, the Court intimated that heightened scrutiny applies to a law that is not neutral or generally applicable and either: (1) imposes criminal or civil penalties on a religious practice, (2) excludes ministers from participation in the political community, or (3) puts students to a choice between their religious convictions and the receipt of a government benefit.272 Apparently, a desire to obtain a degree in theology did not constitute a religious conviction. The Court also noted the “relatively minor burden” placed on scholars seeking degrees in theology as an additional reason to avoid the stringent Lukumi test. 273 Fortunately, mandatory reporting laws remain constitutionally problematic even under Locke inasmuch as they are both facially nonneutral and impose criminal and civil penalties on a religious sacrament. In a strange twist, Justice Scalia’s dissent in Locke adhered most faithfully to Lukumi and railed against any further narrowing of the Free Exercise Clause. Applying the baseline requirement of facial neutrality, Scalia asserted that “[n]o field of study but religion is singled out for disfavor” in this “generally available public benefit.”274 Far from demanding a “special benefit to which others are not entitled,”275 scholars who sought devotional degrees sought “only equal treatment”276 in the disbursement of a public benefit. In contrast with the majority, Scalia asserted that the State had a compelling interest only in avoiding actual Establishment Clause violations.277 Since the prospect of such a violation was nonexistent in these circumstances, the differential treatment of religious and secular academic degrees was impermissible under Lukumi. Scalia chastised the majority for essentially limiting the protections of the Free Exercise Clause to cases involving animus toward religion: The Court does not explain why the legislature’s motive 272. 273. 274. 275. 276. 277.

See id. at 1312-13. Id. at 1315. Id. at 1316 (Scalia, J., dissenting). Id. Id. See id. at 1318 n.2.

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118 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 matters, and I fail to see why it should . . . It is sufficient that the citizen’s rights have been infringed . . . We do sometimes look to legislative intent to smoke out more subtle instances of discrimination, but we do so as a supplement to the core guarantee of facially equal treatment, not as a replacement for it.278 Scalia also scolded the Court for weighing the religious burden under laws that fail Smith’s minimum facial neutrality requirement: “[B]eing singled out for special burdens on the basis of religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial. The Court has not required proof of ‘substantial’ concrete harm with other forms of [facial] discrimination, and it should not do so here.”279 In sum, the Court in Locke suspended the facial neutrality requirement of Smith, confined Lukumi to animus toward religion and imposed a “substantial burden” requirement even for challenges to facially discriminatory laws (in opposition to Tenafly). Read broadly, Locke not only confines Lukumi to its facts, but also emasculates the very precedent that supports the nonpersecution principle, at least insofar as facial discrimination triggers heightened scrutiny.280 On the other hand, Locke can be understood as merely the latest pronouncement that the Bill of Rights protects only negative, rather than positive, liberties. The Court has recognized that the Free Exercise and Due Process Clauses carve out freedoms from government interference, not entitlements to government assistance.281 The Court in Locke alluded to 278. Id. at 1319. 279. Id. at 1318-19 (citations omitted). 280. See McDaniel v. Paty, 435 U.S. 618, 629 (1978) (invalidating a state constitutional provision facially disqualifying clergy from sitting in the legislature). 281. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 (1989) (holding that the Due Process Clause contains no affirmative right to governmental assistance, even where such assistance would have prevented the physical abuse of a child); Lyng v. Northwest Indian Cemetery Protective Ass’n., 485 U.S. 439, 451 (1988) (“the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”); Harris v. McRae, 448 U.S. 297, 316-17 (1980) (upholding, against a due process and equal protection challenge, the denial of federal funding for abortions on the grounds that “[t]he financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the

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this distinction between negative and positive liberties in its justification of the exclusionary scholarship program: “The State has merely chosen not to fund a distinct category of instruction.”282 Scalia emphasizes the free exercise dimension of exclusionary educational aid programs and asserts that, “if the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.”283 The facial neutrality shibboleth that guided the Court in Smith and Lukumi was suddenly and casually cast aside in Locke. Perhaps it was the price paid for judicial solicitude of local “antiestablishment interests” not recognized by the federal Constitution.284 At bottom, Scalia and the Locke majority sharply diverge on the fundamental doctrinal question of whether the inclusion of religion in educational aid programs is merely permissible under the Establishment Clause or mandatory under the Free Exercise Clause. The crux of Locke is that the invocation of antiestablishment liberties not protected under the Establishment Clause trumps liberty interests (namely, the interest in not being singled out for disfavored treatment) otherwise protected under the Free Exercise Clause. Even if Locke is readily distinguishable as an “educational aid” or “positive rights” exception to free exercise methodology, its weak characterization of Lu285 kumi portends a further diminution of religious liberty. CONCLUSION

In the post-Smith era, the Free Exercise Clause has been hailed a “leaner, meaner religious-liberty-protecting machine.”286 Its leanness is readily observable, but its ferocity has yet to be tested by the right fact pattern. If, in fact, newly refurbished Free Exercise doctrine has any teeth, States that exempt attorneys from mandatory reporting requirements must either provide a correspondingly protective exemption to clergy or extend the legal duty to attorneys as well as to clergy in an effort to comport with the apparent mandate of Smith. If the Free Exercise Clause is to product not of governmental restrictions on access to abortions, but rather of her indigency.”). 282. Locke, 124 S. Ct. at 1313 (emphasis added). 283. Id. at 1317 (Scalia, J., dissenting). 284. Id. at 1313. 285. See Beerworth, supra note 19, at 384. 286. Duncan, supra note 121, at 883.

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120 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 be of any practical use to the religious citizen, the narrow tailoring analysis must develop a keen sensitivity to the subtlest devaluation of religion in regulatory schemes. Clerical personnel comprise the engine of many mainstream institutional faiths that boast scores of followers. It would be remiss, however, to assume a priori that clergy have the ability to marshal veritable armies of parishioners to their side whenever the political tide turns unfavorably against them. Recall that Rhode Island has enacted a reporting statute that preserves the attorney-client privilege, yet presumably abolishes the clergycommunicant privilege in full. If the religious liberties of clergy are insecure in one of the most Catholic states in the nation – a state steeped in the life and thought of Roger Williams,287 with a rich historical legacy of spearheading the national commitment to religious pluralism288 – how secure can these liberties be else287. Having been banished from the Massachusetts Bay Colony in 1635 for expressing vehement opposition to a law compelling church attendance and monetary contribution, Roger Williams fled into a wilderness now known as Providence. Edward J. Eberle, Roger Williams’ Gift: Religious Freedom in America, 4 ROGER WILLIAMS U. L. REV. 425, 433 (1999). Williams influenced the governmental structure and principles of the Providence colony and helped to shape the first legislation in the Western world that safeguarded the “liberty of conscience” for all believers. PATRICK T. CONLEY, RHODE ISLAND CONSTITUTIONAL DEVELOPMENT, 1636-1775: A SURVEY 7, reprinted from RHODE ISLAND HISTORY XXVII (April and June, 1968). Under Williams’ influence, “the complete freedom of mind and conscience from all civil bonds” became the “actual reason and purpose of the state’s existence.” SANFORD H. COBB, THE RISE OF RELIGIOUS LIBERTY IN AMERICA: A HISTORY 423 (Burt Franklin 1970) (1902). 288. Throughout the eighteenth century, Rhode Island was known throughout the New England colonies for its “unsavory reputation for religious radicalism and libertinism.” THOMAS J. CURRY, THE FIRST FREEDOMS: CHURCH AND STATE IN AMERICA TO THE PASSAGE OF THE FIRST AMENDMENT 9091 (1986).Unlike most New England colonies, Rhode Island had no established church. Id. As such, Rhode Island law required that “all ministers be supported by voluntary contributions.” Id. During the infancy of the Republic, Rhode Island was counted among the few states in which the utmost level of constitutional protection for religious conduct was extended to all persons; it became one of only three states to grant exemptions from military conscriptions to Quakers, Mennonites and other groups who voiced religious objections to the bearing of arms. See McConnell, supra note 101, at 1468. Additionally, Rhode Island enacted an act in the 1790s, entitled “Relative to Religious Freedom and the Maintenance of Ministers”, declaring: [N]o man shall be compelled to frequent or support any religious worship, place or ministry whatsoever; nor shall be enforced, restrained, molested, or bothered in his body or goods,

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where? It seems as though reporting laws such as this demonstrate that clergy are no less a religious minority than Santeria worshippers. As Scalia so poignantly remarked in his Locke dissent: Most citizens of this country identify themselves as professing some religious belief, but . . . those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry are a far narrower set. One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction.289 It is perhaps tempting to take solace in Professor Douglas Laycock’s remark that “[j]ust as it is better to light a candle than to curse the darkness, so it is better to develop the exceptions than to curse the adverse holdings.”290 Application of this treasured adage to free exercise doctrine suggests that a hard-nosed pragmatic strategy of limiting Smith’s potential breadth is preferable to assailing its core premises outright. The prominence of this view in academic and juristic circles may be partly explained by the fact that, in the fourteen years since Smith was decided, no solid coalition on the Court has formed to overrule it.291 But even if we avert our eyes from the glaring frailties of Smith, there are no ironclad assurances that future doctrinal development will expand, rather than severely limit, the narrow exception to the Smith rule as recognized in Lukumi. However narrow or anomalous Locke may seem, it is a useful tool for those who favor greater restraints on religious liberty. Faced with such ominous uncertainty, perhaps we would do better nor shall otherwise suffer on account of his religious opinion or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. PATRICK T. CONLEY, DEMOCRACY IN DECLINE: RHODE ISLAND’S CONSTITUTIONAL DEVELOPMENT 1776-1841, 173 (1977). One historian has described this statute as a “vigorous reaffirmation of Rhode Island’s long-standing commitment to the principles of religious liberty and church-state separation.” Id. 289. Locke, 124 S. Ct. at 1320 (Scalia, J., dissenting). 290. Laycock, supra note 134, at 57. 291. Presently, only Justices O’Connor, Souter, and Breyer have expressed a willingness to seriously reconsider or overrule Smith. City of Boerne v. Flores, 521 U.S. 507, 544-45, 565-66 (1997).

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122 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:73 to heed the poet’s plea and “not go gentle into that good night” but rather “rage, rage against the dying of the light.”292 Such staunch opposition to Smith may prove more efficacious in restoring the Free Exercise Clause to its rightful function as a palladium – rather than a crumbling colonnade – of religious liberty in our constitutional democracy. Despite disagreements over strategy, most agree that Smith painted a jurisprudential picture that depicts a setting sun for a freedom vital to many. A duly brought free exercise challenge to discriminatory reporting laws would elicit a more definite answer to the critical question of just how dark the canvass will become.

292. DYLAN THOMAS, Do Not Go Gentle Into That Good Night, in THE COLLECTED POEMS OF DYLAN THOMAS 128 (New Directions 1971) (1939).

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Rhode Island’s Public Importance Exception for Advisory Opinions: The Unconstitutional Exercise of a Non-Judicial Power Thomas R. Bender*

INTRODUCTION

“[W]hile [the] unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon [a supreme court’s] exercise of power is [its] own sense of self-restraint.”1 That sense of selfrestraint promotes “confidence in the men and women who administer the judicial system [which] is the true backbone of the rule of law”2 – a confidence that is both a “public treasure,” and “a vitally necessary ingredient of any successful effort to protect basic liberty.”3 The Rhode Island State Constitution confers two distinct powers upon the state’s highest court and the justices appointed to it. The court itself owns a “judicial power,” while the individual justices are endowed with a separate “advisory power,” permitting them to render nonbinding legal advice to the two remaining branches of the state government. This article is concerned with the advisory power conferred by article 10, section 3 of the Rhode

* B.A., University of Rhode Island, 1979; J.D., Washington and Lee University School of Law, 1982. Mr. Bender is a partner in the firm of Hanson Curran LLP in Providence, RI where he practices appellate litigation. 1. United States v. Butler, 297 U.S. 1, 78-79 (1936) (Stone, J., dissenting). 2. Bush v. Gore, 531 U.S. 98, 128 (2000) (Stevens, J., dissenting). 3. Id. at 157-58 (Breyer, J., dissenting).

123

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124 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 Island Constitution, which declares: “The judges of the supreme court shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly.”4 The broad question posed herein is whether the justices have exercised the necessary “sense of self restraint” in determining the limits of the advisory power conferred by the State Constitution. The more specific query is whether the justices have the constitutional authority, as they reasserted most recently in In re Advisory Opinion to the Governor (Casino),5 to render an advisory opinion under the “public importance” exception they have described. The answer to both questions, it seems clear, is no. The advisory power, unique to only a small handful of states,6 challenges the separation of powers and the independence of the judiciary. It possesses the potential to empower the legislature to engage the justices in the cause of directing or influencing the executive’s exercise of its constitutional duties, and for the executive to do likewise with regard to the legislature’s exercise of its own constitutional duties. In the 1960’s, the justices met this challenge, however, by narrowly construing the phrase “any question of law” to limit their obligation to answer questions involving interbranch disputes.7 Since that time they have consistently maintained that the phrase “any question of law”, when construed in light of the separation of powers, obliges them to answer questions from the legislature only with respect to proposed or pending legislation, and from the governor only with respect to enacted legislation he or she has a present constitutional duty to implement.8 In that way the justices may assist both branches in the exercise of their own constitutional duties, but may not be used by the governor to regulate the legislature when it is considering legislation, or by the legislature to regulate the governor’s execution of the laws. It is the thesis of this article, however, that the justices’ judicial interpretation of “any question of law” not only limits their obligation to answer questions not falling within that interpreta4. R.I. CONST. art. X, § 3. 5. 856 A.2d 320 (R.I. 2004). 6. See Pascal F. Calogero, Jr., Advisory Opinions: A Wise Change for Louisiana and its Judiciary?, 38 LOY. L. REV. 329, 336-38 (1992). 7. See Opinion to the Governor, 191 A.2d 611, 614 (R.I. 1963). 8. See In re Advisory Opinion to the Governor (Casino), 856 A.2d at 324.

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tion, but also necessarily limits their constitutional authority to answer them. The Rhode Island Constitution is the source of all power devolving to the judiciary. Article 10, section 3 is the source of the justice’s authority to render advice.9 No one would seriously argue that in the absence of the advisory clause the justices could step out of their judicial robes and offices, and in their capacity as individual citizens licensed to practice law, give legal advice and opinions to the governor or the legislature regarding the legality of their actions or legislation.10 And, in point of fact, they do not purport to do so. The justices consider briefs, take the bench, hear argument and issue written advisory opinions specifically in their capacity as judicial officers under the authority of article 10, section 3. Consequently, they may only exercise this power if authorized by that section, and they may only advise on questions to which the advisory clause pertains. By interpreting the phrase, “shall give their written opinion upon any question of law,” to limit the questions they are obliged to answer, the justices have also limited the questions they are constitutionally authorized to answer. The same separation of powers considerations that limit their obligation to provide advisory opinions should limit their constitutional authority to provide them as well. It seems, however, the justices do not see it that way. In recent years, they have asserted that the textual interpretation they have given to “any question of law” limits only their obligation to provide advice, and constitutes a mere procedural limitation they

9. R.I. CONST. art. X, § 1. 10. Aside from the separation of powers issues implicated by a justice, as a member of the Court and an officer of the judicial branch, acting as legal counsel for either the Governor or General Assembly, the Code of Judicial Conduct prohibits a judge from practicing law, R.I. SUP. CT. R. art. VI, canon 4(G); conducting his or her “extra-judicial activities” in a manner that would “cast reasonable doubt on the judge’s capacity to act impartially as a judge,” R.I. SUP. CT. R. art. VI, canon 4(A)(1); unnecessarily displaying a “premature judgment,” R.I. SUP. CT. R. art. VI, canon 3(B)(5)(iii); and participating in a case where he or she has “served as a lawyer in the manner in controversy.” R.I. SUP. CT. R. art. VI, canon 3(E)(1)(b). In the absence of the advisory clause, the justice would be giving legal advice concerning a matter that could very well later come before him or her in his or her judicial capacity. Except in the limited circumstances of the advisory clause, both systemic constitutional considerations and ethical considerations would prohibit a justice of the court from providing legal counsel to either the executive or legislative branches.

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126 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 can waive if the question is of significant public importance.11 In short, the justices have asserted their textual interpretation limits only the justices’ obligation, not their authority. I will argue that the fashioning of a discretionary “public importance” exception is an internally inconsistent interpretation of both the text of article 10, section 3 and the justices’ own prior opinions, and that on every occasion the justices issue an advisory opinion pursuant to that exception they act outside their constitutional authority; that is, they themselves engage in an unconstitutional exercise. I will respectfully suggest the justices reexamine the constitutional and interpretative foundation for the public importance exception and discard it. No discretionary advisory authority can plausibly issue from the constitutional text, and fidelity to both the constitution and its reasonable judicial interpretation are issues of the greatest public importance. This article begins with a brief explanation of the two distinct powers the Rhode Island Constitution confers on the Rhode Island Supreme Court and its justices. I. JUDICIAL POWER VS. ADVISORY POWER

Article 10, section 1 of the Rhode Island Constitution states “[t]he judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly may, from time to time, ordain and establish.”12 The language is virtually identical to the first sentence of Article III, Section 1 of the United States Constitution,13 but the text of the federal constitution goes on to specifically limit the judicial power to cases and controversies.14 Although the Rhode Island Constitution does not explicitly place a case or controversy limitation on the exercise of judicial power, the Rhode Island Supreme Court long ago concluded the “whole idea of judicial power” is limited to the power to 11. See In re Advisory Opinion to the Governor (Casino), 856 A.2d at 32425. 12. R.I. CONST. art. X, § 1 (emphasis added). 13. U.S. CONST. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”). 14. U.S. CONST. art. III, § 2; see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (“The Constitution’s caseor-controversy limitation on federal judicial authority, Art. III, §2, underpins both our standing and our mootness jurisprudence.”).

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apply laws to “cases and controversies” within the court’s jurisdiction.15 In G. & D. Taylor & Co. v. Place16, the court stated: Indeed, laws and courts have their origin in the necessity of rules and means to enforce them, to be applied to cases and controversies within their jurisdiction; and our whole idea of judicial power is, the power of the [courts] to apply the [laws] to the decision of those cases and controversies.17 The case or controversy concept defines and limits the proper exercise of judicial power, and “is used to embrace a number of related but different problems of judicial authority, including the requirement of a concrete dispute between adversaries, standing, ripeness, mootness and limitations relating to political questions.”18 Standing is the first step in the pathway to a case or controversy empowering a court to act in a judicial capacity. It is not only “an access barrier that calls for the assessment of one’s credentials to bring suit;”19 it is an access barrier calling for an assessment of the court’s credentials to exercise its constitutionally conferred judicial power.20 Standing entitles a party to an adjudication and empowers the court to adjudicate: “The essence of the question of standing is whether a party seeking relief has alleged a personal stake in the outcome of the controversy as to ensure concrete adverseness that sharpens the presentation of the issues upon which the court depends for an illumination of the questions presented.”21 Under Rhode Island law, standing exists to commence a suit and invoke the judicial power when the claimant al-

15. Sullivan v. Chafee, 703 A.2d 748, 752 (R.I. 1997) (citing G. & D. Taylor & Co. v. Place, 4 R.I. 324, 337 (1856)). 16. 4 R.I. 324 (1856). 17. Id. at 337 (emphasis added). The case or controversy requirement was more recently reaffirmed in In re Stephanie B., 826 A.2d 985, 999 (R.I. 2003): “This Court has previously concluded that ‘our whole idea of judicial power’ is entailed within the concept of courts applying laws to cases and controversies within their jurisdiction.” 18. Neely v. Benefits Review Bd., 139 F.3d 276, 279 (1st Cir. 1998) (citing ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 2.1, at 41 (1989)). 19. Associated Builders & Contractors of R.I., Inc. v. Dep’t of Admin., 787 A.2d 1179, 1185 (R.I. 2002) (quoting Blackstone Valley Chamber of Commerce v. Pub. Utils. Comm’n, 452 A.2d 931, 932 (R.I. 1982)). 20. See Blackstone Valley Chamber of Commerce, 452 A.2d at 932. 21. Id. at 933.

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128 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 leges “an injury in fact resulting from the challenged act.”22 The related concepts of “standing,” “case or controversy” and “judicial power” are all “built on a single basic idea – the idea of separation of powers.”23 They reflect the “overriding and timehonored concern about keeping the judiciary’s power within its proper constitutional sphere,” and counsel against a court acceding to the natural urge to proceed directly to the merits of important disputes and settle them simply for the sake of convenience and efficiency. 24 The constitutional elements of a court’s authority to exercise judicial power – such as a case or controversy – “are an essential ingredient of separation and equilibrium of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects.”25 In sum, constitutionally conferred judicial power does not permit advisory opinions; that is, decisions when there is no case or controversy presenting an injured party seeking redress for an injury. Advisory opinions are beyond the “judicial power.”26

22. Pontbraind v. Sundlun, 699 A.2d 856, 862 (R.I. 1997) (quoting R. I. Opthalmological Soc’y v. Cannon, 317 A.2d 124, 129 (R.I. 1974)). 23. Raines v. Byrd, 521 U.S. 811, 820 (1997). 24. Id. 25. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998). 26. The Rhode Island Supreme Court has relaxed the case or controversy requirement in the limited circumstances where a case has met the prerequisites of case or controversy when initiated, but has subsequently been rendered moot because “events occurring after the filing have deprived the litigant of a continuing stake in the controversy.” In re Christopher B., 823 A.2d 301, 319 (R.I. 2003) (quoting Cicilline v. Almond, 809 A.2d 1101, 1105 (R.I. 2000)). In that limited circumstance the court will adjudicate the case – that is, decide it as part of an exercise of its judicial power – despite its mootness when the issues are of “extreme public importance,” “capable of repetition,” but are likely to “evade judicial review.” In re Christopher B., 823 A.2d at 319; see also Fiore v. Town of South Kingstown, 783 A.2d 944, 946 (R.I. 2001); State ex. rel. Town of Middletown v. Anthony, 713 A.2d 207, 211 (R.I. 1998); Edward A. Sherman Publ’g Co. v. Goldberg, 443 A.2d 1252, 1256 n.6 (R.I. 1982); Morris v. D’Amario, 416 A.2d 137, 139 (R.I. 1980). Standing, however, “admits of no similar exception; if a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complaint to a [] judicial forum.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 191 (2000). Mootness and standing are distinct concepts. Where a party has no standing a court has no right to exercise the judicial power granted to it and the power does not extend to such a case. Where a case that has fulfilled the standing requirement has become moot because of post-filing circumstances, to abandon the case may prove more wasteful than frugal, and

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Unlike the federal and vast majority of state constitutions,27 the Rhode Island Constitution confers an additional power on the members of the court distinct from, and not included in, the judicial power. As previously stated, article 10, section 3 provides: “The judges of the supreme court shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly.”28 This constitutional grant of power has been characterized by the court as a “constitutional exception to the case and controversy predicate to the exercise of our judicial power.”29 In truth, it is not an exception permitting use of the court’s judicial power in the absence of a case or controversy; rather, it bestows a nonjudicial power in the absence of a case or controversy on each of the individual men and women sworn in as justices of that court – the power to render legal advice to the two remaining branches of government. When rendering such advise the justices speak in their “individual capacity as legal experts rather than Supreme Court justices,”30 and give non-binding advice which “carries no mandate.”31 The advisory opinion is “not an exercise of judicial power,”32 and is distinctly “extra-judicial.”33 would permit the challenged conduct to recur. See id. at 189, 191-92. Therefore, a court may still plausibly apply its judicial power to the controversy in limited circumstances. 27. Calogero, supra note 6, at 330 (“[N]ot sactioned by the vast majority of the fifty states or by the federal courts of the United States[, advisory] opinions are currently in use in eleven states.”). 28. R.I. Const. art. X, § 3. 29. Sullivan v. Chafee, 703 A.2d 748, 572 n.5 (R.I. 1997). 30. In re Advisory Opinion to the Governor (Casino), 856 A.2d 320, 323 (R.I. 2004). 31. Id. (quoting Opinion to the Governor, 174 A.2d 553, 554 (R.I. 1961)). 32. In re Advisory Opinion to the Governor (Casino), 856 A.2d at 323 (“[T]his opinion is not an exercise of judicial power . . . .”); Opinion to the Governor, 174 A.2d at 554 (“not an exercise of our judicial power”). 33. Calogero, supra note 6, at 338 (describing advisory opinions as an “extrajudicial exercise of power”); see also ALBERT R. ELLINGWOOD, DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 41-42 n.166 (1918) (noting support for the possibility that judges gave “extra-judicial advice” in colonial times); STEWART JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES, 2, 47 (1997); Note, Advisory Opinions on the Constitutionality of Statutes, 69 HARV. L. REV. 1302, 1303 (1956) (“Justices have characterized the advisory function as extrajudicial on the theory that they are acting individually as men learned in the law . . . .”); Note, The Case for an Advisory Function in the Federal Judiciary, 50 GEO. L.J. 785, 809 (1962) [hereinafter

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130 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 A. The Origins of the Advisory Power of Rhode Island Justices The justices of the Rhode Island Supreme Court have themselves noted that many authorities consider the advisory power incompatible with the judicial function.34 The separation of powers considerations defining and limiting the exercise of judicial power also challenge the exercise of the advisory power.35 How did the advisory power end up in a constitution ostensibly built on separation of powers and a defined judicial power? A partial explanation may be found in the English origins of the advisory clause which seeped into Rhode Island’s colonial and early state governmental organization – where there was no separation of powers, no independent judiciary, and no judicial review as we know it today – and in the struggle to enact a state constitution. The advisory opinion has its roots in English history. “By the th 14 century it was a well-established practice of the King’s Bench, a body of legally trained judges, to issue advisory opinions to the King and his Council” who exercised all three powers of government: legislative, executive, and judicial.36 While most royal inquiries concerned the King’s legislative and executive duties, some inquiries also required advice on matters that were due to come before the judges themselves:37 The judges [of the King’s Bench] were also required to act as counselors to the House of Lords, . . . called upon to render their advice when the House acted in either its judicial capacity, as final arbiter of cases arising before Parliament, or in its legislative capacity . . . render[ing] advice on existing law and on pending legislation.38 “In its early history the House of Lords summoned the judges at the beginning of each Parliament” to give advice on legal questions; the advice was nonbinding but virtually always followed by the Lords.39 Up to the time of the American Revolution, “both the

Note, Advisory Function] (describing the rendering of an advisory opinion as “a distinctly extrajudicial function”). 34. See Opinion to the Governor, 174 A.2d at 554. 35. Calogero, supra note 6, at 362. 36. Id. at 335. 37. Id. 38. Id. 39. Note, Advisory Function, supra note 33, at 787-88.

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King and the House of Lords regularly requested advice from the justices on judicial, as well as executive, and legislative matters.”40 By the middle of the 1600’s, English constitutionalism was premised on the theory of a “mixed” government,41 a theory quite different from the principle of separation of powers that would become the hallmark of American constitutionalism. The English Parliament was composed of the “three estates of the realm – Crown, Lords and Commons – who, together, represent[ed] the sovereignty of the people.”42 Each were thought to make a valuable and effective contribution to law-making, and “roughly corresponded to Aristotle’s ideal form of ‘mixed government,’ . . . each of which had virtues that would act as a check on the vices of the other.”43 “Because the entire realm was represented in it, Parliament was considered both ‘omnipotent’ and ‘omnicompetent’”44 with its own internal system of checks and balances.45 In this system the highest judicial power was in the House of Lords, not the King’s judges, and “[t]he Lords were ‘the supreme court of judicature in the kingdom, both for final appeals from lower courts and as the original court for trials of peers and impeachments.’”46 The advisory power, therefore, arose in the context of a constitutional system that did not separate judicial power from the legislative or executive power, and in which the ultimate judicial power rested not in the judges, but in the body that also exercised legislative power.47 The judges acted in the capacity of legal counselors to the persons exercising ultimate executive, legislative and judicial authority, and did not possess the power of judicial review over legislative and executive actions.48 Similar to the English system, “American colonial governments did not separate the legislative, executive and judicial functions” either, and “judges in the colonial structure were by their 40. Calogero, supra note 6, at 335. 41. JAY, supra note 33, at 22. 42. Matthew P. Harrington, Judicial Review Before John Marshall, 72 GEO. WASH. L. REV. 51, 55 (2003). 43. Id. at 58. 44. Id. 45. Id. at 61. 46. JAY, supra note 33, at 25 (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *56). 47. See id. at 52. 48. See Note, Advisory Function, supra note 33, at 807-08.

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132 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 very positions continually involved in the process of advising executive and legislative bodies.”49 Under the Royal Charter of 1663, Rhode Island was governed by a General Assembly consisting of a governor, a deputy governor and ten assistants elected annually.50 Those same men also constituted the colony’s highest court; thus, legislative and judicial functions were combined in the same body and the General Assembly exercised extensive control over the judicial affairs of the colony.51 In 1746 the governor and assistants were removed from the court and replaced by annually appointed justices, one chief and four associate justices.52 The judges could still be members of the General Assembly, however, and the General Assembly itself had the power to decide petitions praying for relief from decisions of the court, powers similar to those possessed by the English House of Lords.53 The petition process and the annual appointment of judges existed under the Charter throughout the colonial period and during statehood up until the establishment of the state’s first constitution in 1843.54 As the Rhode Island Supreme Court later noted in Gorham v. Robinson,55 under the Charter the General Assembly: had the power to remove any of the judges at any time; and, as to the principles of separation of powers and of the independence of the judiciary, we cannot see that they were given much recognition under a system of government in which all the judges of the highest court were annually elected by the General Assembly, which also claimed and, whenever it chose, exercised the power to adjudicate cases and to reverse the decisions and judgment of the [state’s highest court].56 Under the Charter, therefore, no “independent” judiciary ex-

49. JAY, supra note 33, at 52. 50. PATRICK T. CONLEY, DEMOCRACY IN DECLINE: RHODE ISLAND’S CONSTITUTIONAL DEVELOPMENT: 1776-1841 24 (1977). 51. PATRICK T. CONLEY, LIBERTY AND JUSTICE: A HISTORY OF LAWS AND LAWYERS IN RHODE ISLAND: 1636-1998 18-19, 21 (1998) [hereinafter CONLEY, LIBERTY AND JUSTICE]. 52. Id. at 21-22. 53. Id. 54. Id. at 22. 55. 186 A. 832 (R.I. 1936). 56. Id. at 841.

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isted under any meaningful definition of that term,57 nor was there any meaningful separation of powers.58 Consequently there was no real doctrinal or political discordance with the judges acting in an advisory capacity as opposed to a judicial capacity. The celebrated 1786 case of Trevett v. Weeden59 provides some evidence of Rhode Island’s high court judges’ practice of giving advice and counsel to the General Assembly. Public accounts of the trial persuaded the General Assembly that the justices had declared a statute unconstitutional and void, causing the General Assembly to summon the judges to appear to explain themselves.60 Contemporary accounts reported the testimony of one of the judges, Judge Howell: He observed that, the order by which the judges were before the House might be considered as calling upon them to assist in matters of legislation, or to render the reasons for their judicial determination, as being accountable to the legislature for their judgment. That in the former view, the court was ever ready, as constituting the legal counselors of the state, to render every kind of assistance to the legislat[ure], in framing new or repealing former laws: but that for reasons of their judgment upon any question judicially before them, they were accountable only to God and their own conscience.61 Howell freely admitted the judges could be called upon in the legislative process, a service which “fit precisely within the job description of a British judge commanded to assist the House of Lords in legislative affairs.”62 The idea that the judiciary would be subject to the control of the legislature, as reflected in Rhode Island’s Charter government, was not an exceptional or novel idea in the time immediately fol-

57. Id. 58. CONLEY, LIBERTY AND JUSTICE, supra note 51, at 244. 59. The case is unpublished. A brief account of the case is printed in James M. Varnum, The Case, Trevett Against Weeden: On Information and Complaint for Refusing Paper Bills in Payment for Butcher’s Meat in Market, at Par with Specie (1787). 60. Harrington, supra note 42, at 80. 61. JAY, supra note 33, at 55 (quoting The Case, Trevett against Weedon & Co. (Providence, John Carter, 1787)) (emphasis added). 62. Id.

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134 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 lowing the American Revolution. Although the doctrine of separation of powers would eventually become what James Madison would call “a first principle of free government,”63 professor and historian Gordon S. Wood has written that “Americans in 1776 gave only a verbal recognition to the concept of separation of powers in their Revolutionary constitutions, since they were apparently not concerned with a real division of departmental functions.”64 Some historians believe that separation of powers in the 1776 state constitutions meant “nothing more than a prohibition of plural office holding.”65 Wood goes on to explain: Despite John Adam’s warnings in his Thoughts on Government that “an upright and skillful administration of justice” required the judicial power “to be distinct from both the legislative and executive, and independent upon both,” most of the early constitution-makers had little sense that judicial independence meant independence from the people . . . . [C]onstitutional provisions giving control of the courts and judicial tenure to the legislatures actually represented the culmination of what the colonial assemblies had been struggling for in their eighteenth century contests with the Crown. The Revolutionaries had no intention of curtailing legislative interference in the court structure, and in fact they meant to increase it.66 According to Wood, “[t]he expanded meaning of separation of powers, . . . along with a new conception of judicial independence, had to await the experience of the years ahead.”67 In the years after 1776, concerns about “the effects of legislative sovereignty and [its] unanticipated excesses” caused the invocation of “the principle of separation of powers in order to unscramble what seemed to be a dangerous blurring of the three major functions of government,”68 and “[n]early all of the proposals for constitutional change being put forward in these years could be explained as a means of 63. GORDON S. WOOD, THE CREATION 1787 152 (Univ. N.C. Press 1969). 64. Id. at 153-54. 65. Id. at 156. 66. Id. at 161. 67. Id. 68. Id. at 451.

OF THE

AMERICAN REPUBLIC: 1776-

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separating the three functions of government.”69 Despite the evolution of the principle of separation of powers and the importance of an independent judiciary that may have been occurring in other parts of America at the time, however, Rhode Island’s Charter government resisted embracing that evolution. By 1841, however, “the omnipotence and adamancy of the legislature” – along with limited suffrage and increasing malapportionment – became grievances severe enough for the establishment of a new constitutional document.70 The “agitation [for reform eventually] prompted the General Assembly to authorize a constitutional convention” for November 1841.71 The reformers, however, “exhorted the adult male citizenry to disregard the landholding qualifications [for voting] and to go to the polls to elect delegates to a ‘People’s Convention,’ which would meet in October.”72 While the Landholders Convention authorized by the Charter government did not produce a draft constitution, the People’s Convention presented a proposed constitution to the white male population for ratification, regardless of whether they were landholders.73 It emphatically called for a separation of power between the legislature and the judiciary, and the independence of the judiciary, providing: Article III Of the Distribution of Powers 1. The powers of the Government shall be distributed into three departments, the Legislative, the Executive and the Judicial. 2. No person or persons connected with one of these departments shall exercise any of the powers belonging to either of the others, except in cases herein directed or permitted.

69. 70. 71. 72. 73.

Id. at 452. CONLEY, LIBERTY AND JUSTICE, supra note 51, at 205. Id. at 245. Id. at 246. Id.

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136 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 Article IV Of the Legislative Department 1. The Legislative power shall be vested in two distinct Houses, the one to be called the House of Representatives, the other the Senate, and both together the General Assembly. .... Article IX General Provisions 1. This Constitution shall be the supreme law of the State; and all laws contrary to, or inconsistent with the same, which may be passed by the General Assembly, shall be null and void. .... 4. No jurisdiction shall hereafter be entertained by the General Assembly in cases of . . . appeal from judicial decisions, nor in any other matters appertaining to the jurisdiction of Judges, and Courts of law. But the General Assembly shall confer upon the Courts of the State all necessary powers for affording relief in the cases herein named; and the General Assembly shall exercise all other jurisdiction and authority, which they have heretofore entertained, and which is not prohibited by, or repugnant to this Constitution. .... Article XI Of the Judiciary 1. The Judicial power of this State shall be vested in one Supreme Court, and in such other Courts, inferior to the Supreme Court, as the Legislature may, from time to

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time, ordain and establish.74 The new constitutional scheme envisioned by the People’s Constitution represented a dramatic departure from the Charter, providing for a clear separation of judicial and legislative power, and prohibiting the judiciary from exercising legislative powers and the General Assembly from exercising judicial power. Perhaps because of this clean break from the Charter’s melding of judicial and legislative power in the General Assembly, and the introduction of the separation of powers into Rhode Island’s constitutional scheme, the People’s Constitution made no provision for the justices to act as legal counselors to render advice to the coordinate branches of the proposed government. In response the Landholder’s Convention was reconvened and produced a draft of an alternative constitution, sometimes referred to as the Landholder’s or Freeman’s Constitution.75 Although this proposed constitution, drafted by a convention convened by the General Assembly, ostensibly called for a separation of powers, it effectively rejected separation of judicial and legislative power and instead proposed a continued co-mingling of those powers in the General Assembly as had been the practice under the Charter. This Freeman’s Constitution provided: Article Third (To be inserted) [Of the Distribution of Powers. Section 1. The powers of the government shall be distributed into three distinct departments: the Legislative, Executive and Judicial. Sec. 2. No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in cases herein expressly directed or permitted.]

74. R.I. CONST. art. III, §§ 2, 3; art. IV, § 1; art. IX, §§ 1, 4; art. XI, § 1 (Proposed Draft 1841), reprinted in 2 ELISHA R. POTTER, RHODE ISLAND CONSTITUTION (1843). These proposals were finally adopted by the Convention of the People. See POTTER, supra. 75. See CONLEY, LIBERTY AND JUSTICE, supra note 51, at 249-50.

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138 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 Article Fourth Of the Legislative Power Section 1. This Constitution shall be the supreme law of the State, and all laws enacted contrary thereto, shall be void. Sec. 2. The Legislative power, under this Constitution, shall be vested in two distinct Houses, or Branches, . . . the one to be styled the Senate, the other the House of Representatives; and both together, the General Assembly. .... Sec. 10. The General Assembly shall continue to exercise the judicial power, . . . and all other powers they have heretofore exercised not inconsistent with this Constitution. .... Article Eleventh Of the Judicial Power Sec. 1. The Judicial power of this state shall be vested in one Supreme Judicial Court, and in such other inferior Courts as the General Assembly may from time to time ordain and establish; .... Sec. 6. The Judges of the Supreme Judicial Court, shall in all trials instruct the Jury in the law, and it shall be the duty of said Judges, to give their opinions upon questions of law, when required by the Governor, or either House of the General Assembly.76 The Landholders’ proposed constitution essentially called for a continuation of the relationship the supreme court justices and 76. R.I. CONST., art. III, §§ 1, 2; art. IV, §§ 1, 2, 10; art. XI, §§ 1, 6 (Proposed Draft 1842), reprinted in 2 POTTER, supra note 74.

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the General Assembly had had under the Charter. The justices would not possess any independent power, ultimate judicial authority would remain in the General Assembly, and as a consequence the justices could, and would, continue to act as counselors rendering legal advice to the General Assembly as well as the Governor. After the Freeman’s Constitution was narrowly defeated at the polls, two rival governments were subsequently elected – one under the People’s Constitution and a “Law and Order” government under the Charter – which gave rise to a period of turmoil known as the Dorr Rebellion.77 When the Law and Order party prevailed, it convened another constitutional convention in the fall of 1842 which substantially framed the present constitution.78 That constitution was remarkable for its ambiguity with respect to the separation of judicial and legislative power, and the independence of the judiciary. Whereas the People’s Constitution and the Freeman’s Constitution took clearly opposed but clearly expressed positions on the appropriate political and governmental structure, the constitution that was ultimately enacted seems to have been deliberately ambiguous, leaving the question unresolved. The Law and Order Constitution provided: Article Third Of the Distribution of Powers The powers of government shall be distributed into three departments; the Legislative, Executive, and Judicial. Article Fourth Of the Legislative Powers Section 1. The Constitution shall be the supreme law of the State, and any law inconsistent therewith shall be void. The General Assembly shall pass all laws necessary to carry this Constitution into effect. Sec. 2. The Legislative power, under this Constitution, shall be vested in two Houses, the one to be called the 77. 78.

See CONLEY, LIBERTY AND JUSTICE, supra note 51, at 251-66. Id. at 266.

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140 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 Senate, the other the House of Representatives; and both together the General Assembly. .... Sec. 10. The General Assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution. .... Article Tenth Of the Judicial Power Section 1. The Judicial power of this State shall be vested in one Supreme Court, and in such inferior courts as the General Assembly may, from time to time, ordain and establish. .... Sec. 3. The Judges of the Supreme Court shall, in all trials, instruct the jury in the law. They shall also give their written opinion upon any question of law whenever requested by the Governor, or by either House of the General Assembly.79 The People’s Constitution specifically removed the ultimate judicial power from the General Assembly and placed it solely in the Supreme Court; it also provided for a clear demarcation between legislative and judicial power, and omitted the justices’ preconstitutional role as legal advisors to the executive and legislative elements of government.80 The Freeman’s, or Landholder’s, Constitution, however, specifically reserved ultimate judicial power to the General Assembly; in addition, it blurred the line between judicial and legislative power; and, not surprisingly, continued the justices’ obligation to act extra-judicially as legal advisors and counselors for the government.81 The constitution ul79. R.I. CONST. art. III; art. IV, §§ 1, 2, 10; art. X, §§ 1, 3 (Proposed 1842), reprinted in 2 POTTER, supra note 74. These provisions were adopted by the Convention assembled at Newport. See POTTER, supra. 80. See supra note 74 and accompanying text. 81. See supra note 76 and accompanying text.

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timately adopted in 1842, however, did not specifically address the General Assembly’s exercise of judicial power.82 While it clearly called for the separation of legislative and judicial power, it simultaneously permitted the General Assembly to continue to exercise all the powers it had previously exercised, and called for the justices to act in a non-judicial advisory capacity as they had under the pre-separation of powers Charter.83 Left open by the text was the question of whether the principle of separation of powers and the vesting of judicial power in the Supreme Court deprived the General Assembly of the judicial power it had “heretofore exercised”? There is evidence the General Assembly thought it did not. The first digest of laws enacted after the constitution became effective, the General Laws of 1844, contained an act modernizing the method of petitioning the General Assembly for review of decisions of the Court.84 Thus it seems evident the General Assembly was preparing to continue its preconstitutional position as the state’s ultimate appellate authority, and if it did, there would be nothing remarkable about continuing the justices’ advisory and counseling role or about them remaining in a role essentially subservient to a General Assembly – which could overrule their decisions as a court, or reject their advice as counselors. As we shall soon see, however, the Supreme Court itself viewed the new constitutional order, in particular the relationship of the judiciary and the legislators, quite differently. The tension between the command of separate powers with ultimate judicial power being in the supreme court, and the General Assembly’s view that it could continue to exercise judicial appellate power – eventually began its path to the Rhode Island Supreme Court in 1854 with the case of Taylor v. Place.85 The General Assembly had ordered a new trial for garnishees of a company indebted to another firm; prior to this order the courts had rejected a claim for a new trial.86 This exercise of judicial 82. See supra note 79 and accompanying text. 83. See id. 84. See Patrick T. Conley, Article VI, Section 4: A Case Study in Constitutional Obsolescence, 53 R.I. BAR J. 2, at 10. 85. See C. Peter Magrath, Samuel Ames: The Great Chief Justice of Rhode Island, in LIBERTY AND JUSTICE: A HISTORY OF LAW AND LAWYERS IN RHODE ISLAND: 1636-1998, 309 (Patrick T. Conley ed., 1998); Taylor v. Place, 4 R.I. 324, *1 (1856). 86. See id. at *12 n. 1.

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142 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 power was then challenged under the new constitution. The Supreme Court’s subsequent interpretation of the constitution’s separation of powers, in a decision authored by Chief Justice Ames, fundamentally altered the constitutional arrangement of judicial and legislative roles.87 Ames held that the General Assembly’s action constituted the exercise of judicial power, and that the constitution’s distribution of powers: was . . . made for the special purpose of depriving the general assembly of their long exercised judicial power, which, rightly or wrongly, that body had assumed under the Charter. . . . It was the assumption of judicial power by the general assembly, which must have been specially aimed at by this clause of distribution.88 Chief Justice Ames asserted that “[a]n independent, responsible judiciary is the only safeguard of our property, lives, and liberties,”89 and as historian Patrick Conley has written, “[t]he legislature acquiesced in this bold decision in 1857, when its new digest of general laws revised the petition process to exclude the traditional review of court cases.”90 Thus the separation of powers and independence of the judiciary were imbued with a significantly stronger character in the constitutional scheme. Given this invigoration of the separation of powers and the independence of the judiciary, the post-Taylor advisory power necessarily required a greater sensitivity to such concerns than did the pre-Taylor advisory power. In fact, it seems this was at least considered. On two occasions, first in 1899 and then in 1915, two separate commissions created by the General Assembly recommended numerous revisions to the state constitution which included, among other changes, a proposed revision to the advisory clause that would have given the justices discretion to decline to answer questions submitted to them.91 The revised clause would have provided: “The justices of the Supreme Court shall give their 87. 88. 89. 90. 91.

See Magrath, supra note 85, at 310. Taylor, 4 R.I. at *12 (emphasis added). Id. at *10. Conley, supra note 84, at 10. JOINT SPECIAL COMM. ON CONST. AMENDS. REPORT TO R.I. GEN. ASSEMBLY, at 27 (Jan. 1899) (on file with author); REPORT OF COMM’N TO CONSIDER THE AMEND. AND REVISION OF THE CONST., at 37 (Jan. 1915) (on file with author).

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written opinion upon any question of law whenever requested by the governor or by either house of the general assembly: provided, that they may decline to answer such questions as in their opinion they cannot properly decide.”92 The entire 1898 proposed revised constitution, however, was rejected by the electorate, and the proposed revisions of the 1915 draft constitution were never submitted to the voters.93 Nevertheless, the justices themselves would, over time, begin imposing limitations on the advisory power,94 and would give constitutional recognition to the tension caused by including a pre-separation of powers advisory function in a constitutional document premised on the separation of legislative, executive, and judicial power. B. The Rhode Island Justices’ Interpretation of the Constitutional Grant of Advisory Power The most notable limitations on the advisory power were conceived in the 1960’s to accommodate the separation of powers and its corollary, the independence of the judiciary. The limitations, however, eventually came to be focused only on the justices’ obligation to advise under article 10, section 3. As asserted earlier, however, the phrase “shall give their written opinion upon any question of law whenever requested”95 is not only the source of the justices’ obligation to act as legal advisors, it is also the source of their authority to do so. The source of both authority and obligation is plainly the same; authority and obligation are indivisible and coextensive. Where there is authority there is obligation; where there is obligation there is authority. In interpreting section 3, however, the justices have described when they are “constitutionally required”96 to give a written opinion to one of the coordinate branches, and limited their discussions to the “constitutional mandate”97 of article 10, section 3 and the circumstances 92. R.I. CONST. art. X, § 4 (Proposed Revision of 1899), reprinted in 2 POTTER, supra note74. 93. Conley, supra note 84, at 11. 94. See Mel A. Topf, The Jurisprudence of the Advisory Opinion Process in Rhode Island, 2 ROGER WILLIAMS U. L. REV. 207, 235-36 (1996). 95. R.I. CONST. art. X, § 3 (emphasis added). 96. In re Advisory Opinion to the Governor (Casino), 856 A.2d 320, 324 (R.I. 2004). 97. In re Request for Advisory Opinion from the Governor (Warwick Station Project), 812 A.2d 789, 790 (R.I. 2002).

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144 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 in which they are “constitutionally obligated”98 to give advisory opinions. Their power to advise extra-judicially and the obligation for them to do so, however, are two sides of the same coin; when the justices interpreted section 3 to limit and frame their obligation to give advisory opinions, they also limited and framed their constitutional authority to do so as well. The two seminal cases interpreting the constitutional text to include limits on the obligation to give advisory opinions, Opinion to the Governor99 and Opinion to the House of Representatives,100 demonstrate the proposition that obligation and authority are indivisible. In the 1963 Opinion to the Governor,101 the justices acknowledged the advisory power was a “peculiar obligation”102 distinct from the exercise of judicial power.103 The justices asserted it was included in the constitution “to enable the executive and legislative departments to more effectively discharge particular duties that are textually committed to them by the constitution.”104 The justices reasoned the framers of the provision must have believed effective legislative and executive performance “require[d] from time to time assistance from the judges of [the] court upon questions of law, assistance which the framers contemplated as being best provided through the device of an advisory opinion.”105 Consequently, when the advisory clause is “read in this light:”106 it becomes clear that the requirement that such an opinion be given “upon any question of law” was intended to be exclusory in effect. It was intended primarily to exclude the requirement that such opinions be given upon questions of law that do not challenge the consistency of law, enacted or proposed, with pertinent constitutional provisions. . . . [W]e are of the opinion that the pertinent constitutional provision [article 10, section 3] requires that the judges of this court furnish advisory opinions only 98. 1986). 99. 100. 101. 102. 103. 104. 105. 106.

In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1318 (R.I. 191 A.2d 611 (R.I. 1963). 208 A.2d 126 (R.I. 1965). 191 A.2d 611. Id. at 614. Id. at 613. Id. at 614 (emphasis added). Id. Id.

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with respect to the consistency with constitutional provisions of legislation enacted or proposed.107 Stated differently, the justices concluded the phrase “any question of law” was not intended by the framers to mean any question of law, but rather only questions of law concerning the constitutionality of proposed or enacted legislation. They reached this interpretation because of the separation of powers principle. The justices have reasoned that “article 5 of the Rhode Island Constitution provides for a tripartite form of government, stating: ‘The powers of the government shall be distributed into three departments: the legislative, executive and judicial,’”108 and the justices have adhered to the view that this separation of powers “is an integral element of the republican form of government.”109 It acts to limit one branch of government from “interfer[ing] impermissibly with the other’s performance of its constitutionally assigned function.”110 In the 1963 advisory, the justices concluded the advisory power must be interpreted so as to not disturb this fundamental characteristic of American constitutional government.111 The justices considered whether the questions propounded to them in that instance could reasonably be held “to come within the scope of sec. 2 of art. XII of the amendments.”112 In determining the scope of the state constitution’s advisory clause, the justices noted their “reluctance to subvert the principle of the separation of powers by translating the obligation to give advisory opinions upon request into a grant of authority to give such opinions where the inquiry is not such as to reasonably be within the purview of the constitutional provisions.”113 The justices believed limits on the advisory opinion clause were necessary because of its “obvious repugnance . . . to the principle of separation of pow107. Id. (emphasis added). 108. In re Advisory Opinion to the Governor (Ethics Comm’n), 612 A.2d 1, 15 (R.I. 1992). 109. Id. at 18; see also In re Advisory from the Governor, 633 A.2d 664, 674 (R.I. 1993). 110. In re Advisory Opinion to the Governor, 732 A.2d 55, 102 (R.I. 1999) (Flanders, J.) (quoting INS v. Chadha, 462 U.S. 919, 963 (1983) (Powell, J. concurring)). 111. Opinion to the Governor, 191 A.2d at 613. 112. Id. (emphasis added). Note that article III, section 2 the justices referenced in 1963 is now article X, section 3. 113. Id. (emphasis added).

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146 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 ers,”114 and that they had a “‘duty, in view of the separation of the executive, legislative and judicial departments of government, to abstain from [giving an advisory opinion] in any case which does not fall reasonably within the constitutional clause.’”115 Stated succinctly, the justices determined the text of article 10, section 3 was to be strictly construed in light of the fundamental principle marking both the federal and state constitutional systems – namely, the separation of powers – and that this limited the “grant of authority to give such opinions.”116 Two years later the same justices made explicit what was implicit in the separation of powers limitation. In the 1965 advisory Opinion to the House of Representatives117, the justices declared the purpose of the advisory clause – to assist the executive and legislative branches in the performance of their own constitutional duties – was both “narrow” and “substantially limited.”118 The justices warned “undue expansion of that purpose by judicial fiat” would have an “obvious adverse effect” on the “constitutional separation of powers” by injecting the justices into the governmental functions constitutionally committed to other branches of government.119 Considering the principle of separation of powers persuaded the justices that the scope of the constitutional advisory power was limited to rendering opinions to either House of the General Assembly only on proposed legislation, and to the executive branch only when the question concerned the constitutionality of legislation that was already enacted.120 In other words, the advisory clause authorized the court to give assistance to the legislature when it was considering whether to enact legislation, and to the executive when he or she was called to execute enacted legislation. Later justices would refine the interpretation of article 10, section 3 to explicitly state that its application to questions from the governor was also limited to occasions in which the statute at issue required implementation by the executive,121 and had 114. Id. at 614. 115. Id. (quoting To Certain Members of the Senate in the General Assembly, 191 A. 518, 520 (R.I. 1937)). 116. Id. at 613. 117. 208 A.2d 126 (R.I. 1965). 118. Id. at 127-28. 119. Id. at 127. 120. See id. at 127-28. 121. See In re Request for Advisory Opinion to the Governor (Rhode Island

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a bearing upon a present constitutional duty awaiting the executive’s performance.122 The justices have recognized that in light of these limitations it follows that neither the governor nor the legislature possess “standing to propound questions which are clearly the prerogative of the other.”123 That means the constitutional advisory clause does not permit justices to advise the governor concerning the constitutionality of proposed legislation being considered by the general assembly, or to advise either House of the General Assembly concerning the governor’s obligation to implement already enacted legislation. As interpreted by the justices, the purpose of the advisory clause permits the justices to provide advice to either the legislative or executive branch about the constitutionality of its own action, not about the actions of the other branch. It was not intended as a means for one branch to supervise the other.124 Questions from one branch seeking “advice” concerning how the remaining branch is fulfilling its constitutional duties “are almost always highly political;”125 the agenda of an advisory opinion is more political than adjudicatory because it is not brought by a private litigant challenging legislation that has brought them injury, but instead by one branch of government which is attempting to use the court to influence the other.126 Permitting such questions Ethics Comm’n–Separation of Powers), 732 A.2d 55, 59 (R.I. 1999) (citing In re Advisory from the Governor, 633 A.2d 664, 666 (R.I. 1993)). 122. See id. (citing In re Request for Advisory Opinion Regarding House Bill 83-H-5640, 472 A.2d 301, 302 (R.I. 1984)). Although this strict interpretation of the text of article 10, section 3 has only occurred in the context of “nonbinding” advisory opinions, the justices’ interpretation of the constitutional enabling language should be entitled to stare decisis, and in fact, subsequent justices have accorded the interpretation such status and overwhelmingly agreed with it. See Robert H. Kennedy, Advisory Opinions: Cautions About Non-Judicial Undertakings, 23 U. RICH. L. REV. 173, 182 & n. 31 (1989); see also In re Advisory to the Governor (Casino), 856 A.2d 320 (R.I. 2004); In re Request for Advisory Opinion from the Governor (Warwick Station Project), 812 A.2d 789, 790 (R.I. 2002); In re Advisory Opinion to the Governor, 732 A.2d at 59; In re Advisory Opinion to the House of Representatives (Impoundment of State Aid to Cities and Towns), 576 A.2d 1371, 1372 (R.I. 1990); In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1318-19 (R.I. 1986); Opinion to the Governor, 284 A.2d 295 (1971). 123. Advisory Opinion (Chief Justice), 507 A.2d at 1319; Opinion to the Governor, 284 A.2d at 296. 124. See Topff, supra note 94, at 406. 125. Kennedy, supra note 122, at 197. 126. Id. at 179.

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148 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 poses two dangers. First, it allows the legislature or the executive, with the assistance of the judiciary, to subtly interfere with the constitutional duties entrusted to a separate branch. Second, it embroils the justices in a political power contest generally “at the height of its political tension,”127 and “risks an appearance of an active political engagement that may be perceived as contrary to the work of an independent judiciary.”128 The justices recognized these dangers and limited the application of the advisory clause to neutralize them, and to preserve the integrity of both the separation of powers and independence of the judiciary. II. THE AUTHORITY AND OBLIGATION TO RENDER ADVISORY OPINIONS ARE COEXTENSIVE

Other than referring to the “grant of authority” to render advisory opinions in Opinion to the Governor,129 the justices have not explicitly acknowledged the coextensive nature of the authority and obligation to give advice to the coordinate branches. It is, however, a necessary corollary of strictly construing the phrase “any question of law.” The justices of New Hampshire’s, Maine’s and Massachusetts’s highest courts have been more explicit in acknowledging this inevitable proposition. The Maine State Constitution provides that its justices “shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required” by the coordinate branches.130 Both the New Hampshire and Massachusetts constitutions declare that the coordinate branches “shall have authority to require the opinions of the justices . . . upon important questions of law and upon solemn occasions.”131 Like Rhode Island’s constitutional clause, these provisions obligate the justices to provide advisory opinions. Unlike Rhode Island’s clause which obligates the justices to do so “upon any question of law,”132 these other provisions obligate the justices to do so only “upon important questions of law and upon solemn occasions.”133 Rhode Island justices have, however, placed an in-

127. 128. 129. 130. 131. 132. 133.

Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., concurring). Kennedy, supra note 122, at 197. 191 A.2d 611, 613 (R.I. 1963). ME. CONST. art. 6, § 3. N.H. CONST. pt. 2. art. 74; MASS. CONST. pt. 2, ch. 3, art. 2. R.I. CONST. art. X, § 3. See infra note 143 and accompanying text.

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terpretive gloss on the “any question of law” text that essentially limits its meaning to important questions and solemn occasions as they have defined them. But the New Hampshire, Maine and Massachusetts justices have also characterized the “important question of law” and “solemn occasions” qualifiers as limits, not only upon their duty to render advisory opinions, but upon their constitutional authority to do so as well. New Hampshire Supreme Court justices opine that their state constitution “empowers the justices of the supreme court to render advisory opinions . . . only in carefully circumscribed situations.”134 The Maine justices have acknowledged that the “on important questions of law” and “upon solemn occasions” qualifiers define the scope of the “constitutional authority” as well as duty to advise the Governor, the Senate, or the House of Representatives.135 When the Maine justices receive a request for advice they must first “determine whether [they] have the constitutional authority to answer the questions,”136 and “refrain from issuing an opinion that is . . . [not] within the constitutional grant of [the] advisory power.”137 The Maine justices once explained, in language that should apply in Rhode Island: Only subject to carefully confined conditions does the Maine Constitution give the Justices of the Supreme Judicial Court the extraordinary responsibility of rendering their opinion. . . . An advisory opinion, which represents the views of the individual Justices and is not the decision of the Supreme Judicial Court sitting as the Law Court, is constitutionally permissible only “on important questions of law, and upon solemn occasions.”. . . “[T]he boundaries set by the Constitution on our duty to furnish opinions are jurisdictional in nature and must be strictly observed in order to preserve the fundamental principle of

134. In re Opinion of the Justices, 824 A.2d 816, 818 (N.H. 2003) (emphasis added). 135. Opinion of the Justices, 460 A.2d 1341, 1345 (Me. 1982) (emphasis added). 136. Opinion of the Justices, 709 A.2d 1183, 1185 (Me. 1997) (citing Opinion of the Justices, 682 A.2d 661, 663 (Me. 1996); see also Opinion of the Justices, 674 A.2d 501, 502 (Me. 1996) (citing Opinion of the Justices, 623 A.2d 1258, 1261 (Me. 1993)). 137. Opinion of the Justices, 674 A.2d at 502.

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150 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 the separation of the judicial from the executive and legislative branches of government.”138 Massachusetts Supreme Judicial Court justices also recognize that the advisory clause in their state constitution is “[t]he source of the authority and the duty of the Justices to render advisory opinions.”139 The Massachusetts Constitution not only “define[s] the extent of the duty of the Justices to furnish opinions, but it also limits their right to express them. . . . The Justices must adhere strictly to the jurisdictional boundaries established . . . in order to safeguard the separation of powers embodied in art. 30 of the Massachusetts Declaration of Rights.”140 If no “solemn occasion” exists, as that term is interpreted by the justices, they “are constitutionally constrained from rendering an advisory opinion regardless of the importance of the particular questions.”141 They acknowledge that while “[t]here is always present the desire on the part of the Justices to comply with the request for an opinion . . . the duty of conformity to the meaning of [the] clause is a continuing one and cannot be avoided.”142 Justices on Massachuth setts’s Supreme Judicial Court in the 19 century stated: While it is our duty to render opinions in all those cases in which either branch of the legislature or the governor and council may properly require them, it is not the less our duty, in view of the careful separation of the executive, legislative, and judicial departments of the government, to abstain from doing so in any case which does not fall within the constitutional clause.143 Therefore, despite at least three of her sister states’ ready and continued observance of the distinction between the constitutional authority and obligation to render an advisory opinion, Rhode Is-

138. Opinion of the Justices, 460 A.2d at 1345-46 (emphasis added) (citations omitted). 139. Answer of the Justices to the Council, 291 N.E.2d 598, 599 (Mass. 1973). 140. Answer of the Justices to the Senate, 780 N.E.2d 444, 446 (Mass. 2002) (citations omitted) (emphasis added). 141. Answer of the Justices to the Acting Governor, 686 N.E.2d 444, 446 (Mass. 1997). 142. Answer of the Justices to the Senate, 780 N.E.2d at 446. 143. In re Power of the Legislature to Require Opinion, 24 N.E. 1086, 1087-88 (Mass. 1890) (emphasis added).

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land has declined, as of yet, to follow suit. III. RHODE ISLAND’S PUBLIC IMPORTANCE EXCEPTION

While some might debate whether the “any question of law” text of the advisory clause can legitimately be interpreted as narrowly as the justices have interpreted it,144 even in light of separation of powers considerations, if the construed limitations are accepted one would reasonably believe they are not only constitutional limits on the questions the justices are obliged to advise on, but limits on their constitutional authority to do so as well. If the question meets the criteria declared by the justices, they have both the authority and obligation to answer it. If it does not, they do not have either. One could reasonably believe the justices would adhere to the view that neither the text of the advisory clause nor the justices’ interpretation of it admit of any discretion. But the justices have in fact asserted a discretionary authority to answer questions falling outside of the constitutional parameters they themselves have declared. When article 10, section 3 was first interpreted in 1965 to apply only to both questions from either house of the General Assembly as to the constitutionality of proposed legislation, and from the Governor on the constitutionality of legislation already enacted, the justices counseled against “undue expansion” of the scope of the advisory power by “judicial fiat” because to do so it would have an “obvious adverse effect” on the constitutional separation of powers.145 The limitations were necessary to permit the command of the separation of powers of article 5 to constitutionally coexist with advisory power of article 10, section 3.146 In 1971 they opined they would “scrupulously avoid giving advisory opinions in circumstances not constitutionally mandated” because to 144. Former Justice Robert G. Flanders, Jr. has described the language of article 10, section 3 as “unequivocal, preemptory, and without qualification.” In re Advisory Opinion to the Governor (Rhode Island Ethics Comm’n – Separation of Powers), 732 A.2d 55, 74 (R.I. 1999) (Flanders, J.). He has opined that none of the limitations that other justices have gleaned from the text of the advisory section in light of the separation of powers principle “have any basis in the constitution.” In re Request for Advisory Opinion from the Governor (Warwick Station Project), 812 A.2d 789, 792 (R.I. 2002) (Flanders, J.). 145. Opinion to the House of Representatives, 208 A.2d 126, 127 (R.I. 1965). 146. See supra note 132 and accompanying text.

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152 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 do so “would amount to inexcusable gratuitousness.”147 The description “inexcusable gratuitousness” is perplexing. Rather than declaring they had no constitutional authority to act when a question propounded to them was outside the limitations imposed by their interpretation of the text, they instead claimed it would be gratuitous to act. Rather than clearly defining the limit of their authority, they left it opaque. This began the justices’ focus on the limits on their constitutional obligation to render an advisory opinion, while neglecting consideration of the limits of their constitutional authority to do so. They would “scrupulously avoid” giving advisory opinions on questions that did not meet the criteria they had set forth, not because it would be unconstitutional or beyond their constitutionally conferred advisory authority, but merely because it would be inexcusably gratuitous to do so. Thus, the justices chose language implying they had no obligation to render advice on questions that did not meet the constitutional parameters they had placed on the advisory authority, but refrained from explicitly declaring they had no constitutional authority to answer such questions. The subtle implication was that obligation and authority were severable, without explaining why or where their advisory authority then purported to come from. The severance of authority from obligation lay dormant for a time, but the implied assertion of an extra-constitutional discretionary power to advise began to bloom fifteen years later in In re Advisory Opinion (Chief Justice).148 At issue was a request for an advisory opinion regarding a resolution, proposed in the Senate, to vacate the seat held by the Court’s Chief Justice.149 The request for the advisory came, however, from the Governor, the Speaker of the House of Representatives and the Majority Leader of the Senate.150 The justices noted the Governor had no present constitutional duty awaiting performance,151 and consequently, his request was outside the scope of the advisory clause as it had been construed. They also noted both the request of the Speaker and of the Senate Majority Leader were brought by the leaders only, and were not the result of formal action taken collectively by either 147. 148. 149. 150. 151.

Opinion to the Governor, 284 A.2d 295, 296 (R.I. 1971). 507 A.2d 1316 (R.I. 1986) Id. at 1317. Id. at 1318. Id. at 1319.

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house of the General Assembly.152 Notwithstanding the fact that the justices had many years earlier opined that the advisory clause could be triggered only by the collective action of either house, they labeled this a mere “procedural deficienc[y] . . . in view of the fact that either branch of the Legislature could independently, by majority vote, propound the same question to this court.”153 Because the question concerned the legality of a proposed legislative action, and a request by either house of the general assembly would have substantively been within the scope of the constitutional advisory authority had the legislators followed through to make it a collective action, the justices declared they had the discretion to waive the “procedural” defect because of “the constitutional and public importance of the question propounded to [the] court.”154 As Chief Justice Weisberger later described, the request did involve the constitutionality of pending legislation and “[i]t was obvious that a request propounded by the leaders of both Houses of the General Assembly was technically defective but that such a question could have rapidly been transformed into a request by either House.”155 Accepting the presumption that the Majority Leader and Speaker’s wishes would have been rapidly granted by the Senate and the House, the deficiencies in In re Advisory Opinion (Chief Justice) may plausibly be described as procedural. A procedurally sufficient request by either house of the general assembly would have satisfied the substantive limitations the justices had placed on the reach of the advisory power. Thus, the discretion the justices determined they could exercise in In re Advisory Opinion (Chief Justice) was not a discretion to “waive” the advisory power’s substantive limitations in the name of public importance; it was simply a discretion to waive a procedural insufficiency when the substantive limitation would have been satisfied. The “procedural” appellation, however, would soon be inexplicably transported to the substantive limitations. Four years later, in In re Advisory Opinion to the House of 152. Id. 153. Id. 154. Id. at 1319-20. 155. In re Advisory Opinion to the House of Representatives (Impoundment of State Aid to Cities and Towns), 576 A.2d 1371, 1376 (R.I. 1990) (Weisberger, J., dissenting).

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154 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 Representatives (Impoundment of State Aid to Cities and Towns),156 a majority of the justices agreed to provide advice to the House because of the “public importance” of the question.157 However, as then Chief Justice Weisberger pointed out in a dissenting opinion: [T]he House of Representatives clearly propounds a question that has nothing to do with the constitutionality of pending legislation. The request seeks an advisory opinion concerning a duty to be performed by the Governor in respect to legislation already enacted. Such a question under our cases should not be answered pursuant to article X, section 3, of the 1986 Rhode Island Constitution or its predecessor article XII, section 2, of the Amendments to the Constitution of 1843. Any reply from this court to an advisory request made by the House of Representatives in respect to a duty to be performed by the Governor is particularly inappropriate in light of the undisputed fact that the Governor does not seek our advice on this question. Indeed, the Governor has filed a brief clearly indicating that he feels that at this time our answer to such a question propounded by the House of Representatives would be a violation of our precedents. With this position I wholeheartedly agree.158 The remaining justices relied on In re Opinion (Chief Justice) as the sole authority for waiving “procedural defects” in cases of public importance,160 effectively enlarging the procedural label to encompass the substantive limitations that had previously limited their constitutional authority to issue an advisory opinion. The justices did not discard the limitations, or repudiate the reasoning that led prior justices to interpret the text of the advisory clause to include them. Instead, they simply masked them with a label that would imply they were something they were not. As one former justice of the court might have said of such an effort, you 159

156. 576 A.2d 1371 (R.I. 1990). 157. Id. at 1372. 158. Id. at 1376 (Weisberger, J. dissenting). 159. 507 A.2d 1316. 160. In re Advisory Opinion to the House of Representatives (Impoundment of State Aid to Cities and Towns), 576 A.2d at 1372.

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can call a cat a dog, but that won’t make it bark.161 Nevertheless, the transmutation of the substantive limitations on the advisory powers, limitations intended to protect the principle of separation of powers, was now complete. The substantive interpretation of “any question of law,” to be limited to questions from either house of the General Assembly concerning the constitutionality of pending legislation, or to questions from the Governor concerning the constitutionality of existing statutes requiring his or her implementation, would subsequently be called mere “procedural infirmities”162 or “procedural deficiencies”163 that the justices had the discretion to waive. In effect, what had been constitutional boundaries on the justices’ authority to issue advisory opinions were now waivable. The justices elected to breach the wall previously erected to protect, enforce and strengthen the separation of powers, agreeing to offer advisory opinions to the Governor on legislation that was pending in the legislature164 and to the General Assembly on questions concerning previously enacted legislation that was then the constitutional responsibility of the Governor to execute.165 In sum, the justices elected to exercise a discretion to advise one branch about what the other branch was doing or should be doing, based on the justices’ assessment of the public importance of the question presented.166 The “public importance” exception reached its zenith, however, in the 2004 advisory opinion to the Governor concerning the constitutionality of the Casino Act.167 Although neither house of 161. See, e.g., Cohen v. Harrington, 722 A.2d 1191, 1195 (R.I. 1999) (Bourcier, J.) (“Labeling a cat a dog certainly will not cause a cat to bark.”); Peerless Ins. Co. v. Viegas, 667 A.2d 785, 789 (R.I. 1995) (Bourcier, J.) (“A plaintiff, by describing his or her cat to be a dog, cannot simply by that descriptive designation cause the cat to bark.”). 162. In re Advisory Opinion to the Governor (Casino), 856 A.2d 320, 324 (R.I. 2004). 163. In re Advisory Opinion to the Governor (Rhode Island Ethics Comm’n - Separation of Powers), 732 A.2d 55, 59 (R.I. 1999); In re Advisory from the Governor, 633 A.2d 664, 667 (R.I. 1993). 164. See In re Advisory Opinion to the Governor (Casino), 856 A.2d at 327; In re Advisory Opinion to the Governor, 732 A.2d at 59; In re Advisory From the Governor, 633 A.2d at 667. 165. See In re Advisory Opinion to the House of Representatives, 576 A.2d 1371, 1372 (R.I. 1990). 166. E.g., In re Advisory Opinion to the Governor (Casino), 856 A.2d at 324-25. 167. Id. at 320; see also The Rhode Island Gaming Control and Revenue

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156 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 the General Assembly sought the justices’ advice concerning the constitutionality of the Act, and the justices acknowledged the Governor had no present obligation to implement the legislation for which he sought an advisory opinion, that fact was merely a “procedural hurdle[ ] that must be cleared before [the court’s] duty to issue an advisory opinion [arose],” and this “procedural infirmit[y]” meant only that they were “not constitutionally required to issue an advisory opinion.”168 As other justices had done before them, they proceeded to issue an advisory opinion claiming the discretion to issue such an opinion upon any request raising “important constitutional or social questions,” discretion to be exercised on a “case by case basis” with no “clearly defined test” for when they would or should exercise it.169 The idea of constitutional limits on the authority to issue an advisory opinion was now completely divorced from the constitutional limits on the obligation to issue them. The parameters that, in the name of separation of powers, limited the “standing” of the legislative and executive branches to seek advice concerning the exercise of their own constitutional duties now only limited what questions the justices were obligated to answer, not their authority to answer them.170 No analysis, however, addressed the source of the justices’ authority to render non-judicial written advice to the legislature or the governor outside the parameters they had found in the constitutional text, and whether that authority was limited by article 10, section 3 and the separation of powers.171 What had been (and are) substantive constitutional limitations on the justices’ advisory power were now labeled mere procedural technicalities the justices could waive at their discretion, unfettered by any articulated standards as to when the discretion should be exercised. That is a long way from “shall give their written opinion upon any question of law whenever requested.”172 In fashioning the public importance exception, the justices focused exclusively on whether they should answer a question that

Act (Casino Act), 2004 R.I. Pub. Laws 594 (2004-S 2338 Substitute A as Amended). 168. Id. at 324 (first emphasis added). 169. Id. at 324-25. 170. See id. at 324. 171. See id. at 324-25. 172. R.I. CONST. art. X, § 3.

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does not come within their own interpretation of article 10, section 3, but not at all on whether they could answer such a question.173 The justices have effectively asserted that article 10, section 3 gives them the authority to answer all questions propounded by the Governor and the Legislature, but limits only the questions they are obligated to answer.174 In asserting this extraordinary interpretation of the advisory clause text, the justices offered no interpretive analysis or explanation, nor did they address the implications of their expansive view of extrajudicial advisory power on the principle of separation of powers.175 In a 1990 advisory opinion, Chief Justice Weisberger characterized the resort to the public importance exception as “inappropriate” and “a violation of our precedents.”176 He was respectfully restrained; the public importance exception is outside the Rhode Island Supreme Court justices’ constitutionally conferred authority and is a breach of “an inherent and integral element of the republican form of government:”177 the separation of powers. It is the unconstitutional exercise of the non-judicial power. IV. UNCONSTITUTIONAL AND DANGEROUSLY POLITICAL

As stated earlier with respect to limits on the judicial power, “a single basic idea – the idea of separation of powers,”178 reflects the “overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere,”179 and counsels against a court acceding to the urge to decide “the merits of [] important dispute[s] and to ‘settle’ [them] for the sake of convenience and efficiency.”180 Limits on a court’s authority to act “are an essential ingredient of separation and equilibrium of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain 173. See In re Advisory Opinion to the Governor (Casino), 856 A.2d at 324. 174. Id. 175. Id. at 324-25. 176. In re Advisory Opinion to the House of Representatives, 576 A.2d 1371, 1376 (R.I. 1990) (Weisberger, J., dissenting). 177. In re Advisory Opinion From the Governor, 633 A.2d 664, 674 (R.I. 1993). 178. Raines v. Byrd, 521 U.S. 811, 820 (1996) (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)). 179. Id. 180. Id.

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158 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 subjects.”181 These same considerations must apply with respect to limits on the advisory power as well. Past justices of the Rhode Island Supreme Court have in fact defined the constitutional limits to the exercise of the advisory power.182 Those limits flow from the idea of separation of powers – an idea that recognizes the limits of the court’s powers and restrains one branch from interfering with another’s exercise of its constitutional responsibilities.183 These limits must be respected even where the justices are urged, in the name of efficiency and convenience, to advise on important public and, virtually always, political disputes. Moreover, there are advantages to waiting to adjudicate the constitutionality of legislation in the usual exercise of the court’s constitutionally conferred judicial power rather than in the accelerated procedure of an advisory opinion. Waiting “serves ‘[t]he value of having courts function as organs of the sober second thought of the community appraising action already taken, rather than as advisers at the front line of governmental action at the stage of initial decision.’”184 “[R]espect for separation of powers requires the Judicial Branch to exercise restraint in deciding constitutional issues by resolving those implicating the powers of the three branches of Government as a ‘last resort.’”185 United States Supreme Court Justice David Souter has written in a somewhat different context that: The counsel of restraint . . . begins with the fact that a dispute involving only officials, and the official interests of those, who serve in the branches of the . . . Government lies far from the model of the traditional common-law cause of action at the conceptual core of the case-orcontroversy requirement. . . . [I]t is in substance an interbranch controversy. . . . Intervention in such a controversy would risk damaging the public confidence that is

181. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998). 182. See, e.g., Opinion to the House of Representatives, 208 A.2d 126, 12728 (R.I. 1965); Opinion to the Governor, 191 A.2d 611, 614 (R.I. 1963); see also supra Part I.B. 183. See Opinion to the House of Representatives, 208 A.2d at 127; Opinion to the Governor, 191 A.2d at 613-14. 184. JAY, supra note 33, at 5 (quoting Allen v. Wright, 478 U.S. 737, 750 (1984)). 185. Raines, 521 U.S. at 833 (Souter, J., concurring).

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vital to the functioning of the Judicial Branch.186 Waiting to resolve the constitutionality of a legislative act until a challenge is brought by a party from outside the government would, in Justice Souter’s view, “expose the Judicial Branch to a lesser risk [because deciding] a suit to vindicate an interest outside the Government raises no specter of judicial readiness to enlist on one side of a political tug-of-war.”187 Souter continued to explain that “just as the presence of a party beyond the Government places the Judiciary at some remove from the political forces, the need to await injury to such a plaintiff allows the courts some greater separation in time between the political resolution and the judicial review.”188 Over 180 years ago at a Massachusetts constitutional convention, Justice Story argued for removal of the advisory opinion provision from that state’s constitution because of the great danger that the justices would give opinions in circumstances “exclusively of a political character,” believing that such an obligation would be destructive of an independent judiciary.189 Advisory opinions are at odds with both the court’s constitutional exercise of judicial power and with the constitutional design of separation of powers, but it is, for better or worse, a constitutional obligation of the justices of the Rhode Island Supreme Court.190 In the 1960’s, however, the justices interpreted that obligation in a manner that took the separation of powers into consideration, making the advisory opinion fit more comfortably with the concepts of judicial power, an independent judiciary and separation of powers.191 These limitations permitted the justices to assist each of the coordinate branches by giving legal advice concerning the performance of their own constitutional duties, and removed any temptation for the Legislature to conscript the jus186. Id. 187. Id. at 833-34. 188. Id. at 834. 189. Opinion of the Justices of the Supreme Judicial Court Given Under the Provisions of Section 3 of Article VI of the Constitution, 343 A.2d 196, 200 n. 3 (Me. 1975) (quoting the Journal of Debate and Proceedings in the Massachusetts Constitutional Convention: 1820-1821 489-90 (1853)). 190. R.I. CONST. art. X, § 3. 191. See Opinion to the House of Representatives, 208 A.2d 126, 127 (R.I. 1965); Opinion to the Governor, 191 A.2d 611, 613-14 (R.I. 1963); supra Part I.B.

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160 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 tices into service in a dispute with the Governor, or for the Governor to likewise enlist them against the Legislature.192 As a result, the executive and legislative departments had access to the justices’ expert legal advice if they wanted their counsel. Both were prevented from interfering with the duties constitutionally committed to the other branch, and the Judiciary was permitted an important measure of independence and distance from political disputes between the other two constitutional departments. This constitutionally desirable, permissible and defensible interpretation of article 10, section 3 was accomplished by construing the constitutional phrase “any question of law . . . requested by the governor or by either house of the general assembly”193 in light of article 5’s separation of powers command. But that very same language is the only source of the justices’ authority to render advice to a coordinate branch of state government. They are not constitutionally authorized to render such advice outside of article 10, section 3, and whatever limitations their interpretation of its language places on their obligation to provide advice also apply to limit their constitutional authority as members of the judicial branch to render nonbinding, non-judicial advice to the Governor and the Legislature. If their interpretation of the text limits their obligation to respond, it also limits their authority to respond. If their interpretation places some questions beyond their constitutional obligation, it places those questions beyond their constitutional authority. The justices’ discretionary exercise of the “public importance” exception wholly ignores the question of the Court’s authority. While it effectively neutralizes the abilities of the other branches to conscript the justices into an inter-branch dispute, it is far worse that they voluntarily join such a battle and take sides. Even more troubling, no attempt is made to fit this purported discretionary authority into the justices’ prior interpretation of the constitutional text or its rationale, nor is such a fit readily imaginable. An appellate court: is limited in its interpretation of the constitution only by self-restraint responding to legal tradition and the claims of moral duty. . . . The legitimacy of judicial decrees de192. See Opinion to the Governor, 191 A.2d at 614. 193. R.I. CONST. art. X, § 3.

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pends . . . in considerable part on public confidence that the judges are predominantly engaged not in making personal political judgments but in applying a body of law.194 The “public importance” exception does not fit at all with the justice’s interpretation and definition of “any question of law.” Either a question meets the criteria for a question of law under article 10, section 3 as defined by the justices, or it does not. To effectively interpret any “question of law” to mean any question of law that meets the constitutional criteria the justices have declared and any other question the justices might think is important, risks the perception, true or not, of the justices “making personal political judgments” rather than applying a body of law in a judicial manner.195 Justice Rehnquist has written of the United States Supreme Court’s exercise of its judicial power: Much as “Caesar had his Brutus; Charles the First his Cromwell,” Congress and the States have this Court to ensure that their legislative Acts do not run afoul of the limitations imposed by the United States Constitution. But this Court has neither a Brutus nor a Cromwell to impose a similar discipline on it. While our “right of expounding the Constitution” is confined to “cases of a Judicial Nature,” we are empowered to determine for ourselves when the requirements of Art. III are satisfied. Thus, “the only check upon our own exercise of power is our own sense of self-restraint.” I do not think the Court, in deciding the merits of appellant’s constitutional claim, has exercised the self-restraint that Art. III requires in this case.196 The same could be said of the Rhode Island justices’ exercise of the advisory power of article 10, section 3 under the public importance exception. V. CONCLUSION

Advisory opinions, like all opinions, “are only as long and as

194. Topf, supra note 94, at 249. 195. Id. 196. Orr v. Orr, 440 U.S. 268, 300 (1979) (Rehnquist, J., dissenting) (citations omitted) (emphasis added).

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162 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:123 strong as the reasoning that props them up.”197 There is virtually no reasoning propping up the justices’ claim that the state constitution’s declaration – “[t]he judges of the supreme court shall give their written opinion upon any question of law whenever requested”198 – obligates them to answer some questions, but gives them discretion to answer others. If the “question[s] of law” referred to in article 10, section 3 are limited, as the justices have said they are, then both obligation and authority are limited. The public importance exception applies only when one branch of government seeks an advisory opinion about what the other branch should have done or should be doing. When the exception is exercised the justices voluntarily inject themselves into a highly political contest – the precise result the initial limitations were meant to avoid. The justices would be better off to interpret “any question of law” to mean any question of law without limitation, because then it would be their constitutional duty to participate in such a dispute, rather than their choice. Because of the nonbinding nature of advisory opinions, however, the justices “are at liberty to change their minds, to follow a different path in later cases . . . and to become better educated about what they themselves have said about the subjects addressed in these opinions when future matters arise concerning these same legal issues.”199 Although the justices, as members of the court of last resort and final arbiter of the meaning of the state constitution, have the power to continue to utilize the public importance exception, it is respectfully submitted they have not demonstrated the constitutional authority to do so. It has no place under the constitutional clause, and, therefore, in the state’s constitutional scheme. To continue to exercise a power with no discernable constitutional authorization in politically sensitive circumstances, no matter how valuable and useful it may be, risks the Court’s reputation for integrity and candor, and thus the public’s confidence – its most vital assets. That is too steep a price for the public importance exception. To borrow a phrase from the justices of the Commonwealth of Massachusetts, “[n]ot only does the Constitution define the extent 197. In re Advisory Opinion to the Governor, 732 A.2d 55, 110 (R.I. 1999) (Flanders, J.). 198. R.I. CONST. art. X, § 3. 199. Id.

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of the duty of the Justices to furnish opinions, but it also limits their right to express them,”200 and Justices are constitutionally obligated to respect those limits “in order to safeguard the separation of powers.”201 If the question falls without those limitations, “the [j]ustices are constitutionally constrained from rendering an advisory opinion regardless of the importance of the particular questions.”202 Fidelity to constitutional limitations on the exercise of power must be maintained even, and especially, by the judiciary; for if the judiciary will not, who will?

200. Answer of the Justices to the Senate, 780 N.E.2d 444, 446 (Mass. 2002). 201. Id. 202. Answer of the Justices to the Acting Governor, 686 N.E.2d 444, 446 (Mass. 1997).

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Notes and Comments Fit to be Tried: Bypassing Procedural Safeguards to Involuntarily Medicate Incompetent Defendants to Death INTRODUCTION

As increasing numbers of mentally ill patients find themselves within the criminal justice system coupled with the ready availability of antipsychotic medications capable of rendering these patients competent to stand trial, courts are charged with a duty to safeguard the rights of mentally ill defendants against the prosecutorial interests of the state. Specifically, courts must prescribe explicit standards and procedures for balancing a state’s prosecutorial interests with the liberty interests of those who are adjudged to be legally incompetent by virtue of a mental illness. Two recent cases coming out of the United States Court of Appeals for the Eighth Circuit have grappled with this precise dilemma. In United States v. Sell,1 a three judge panel of the Eighth Circuit held that the government could involuntarily medicate Charles Sell, a mentally incompetent defendant charged with a non-violent felony, with antipsychotic drugs for the sole purpose of restoring his competency to stand trial.2 Several months later the same court relied partly upon its decision in Sell to conclude that the State of Arkansas could involuntarily medicate a condemned mentally incompetent inmate to control his violent behavior, even though the medication would likely have the ancillary effect of

1. 282 F.3d 560 (8th Cir. 2002), vacated by 539 U.S. 166 (2003). 2. Id. at 572.

165

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166 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 rendering the inmate competent enough to be executed. 3 In both Sell and Singleton, the Eighth Circuit premised its holdings upon a fairly expansive interpretation of the United States Supreme Court’s doctrine concerning the limits secured by the Due Process Clause upon a state’s power to subject mentally ill inmates to unwanted psychiatric medication. Although the Supreme Court had addressed this issue on two prior occasions,4 the guidelines established for lower courts to follow were unclear, if 5 not contradictory. Accordingly, the Supreme Court reviewed the Eighth Circuit’s holding in Sell, concluding that involuntarily medicating a mentally incompetent defendant for the sole purpose of restoring trial competency does not, in principle, offend due process.6 However, because the Eighth Circuit paid too little attention to how involuntary medication would impact Sell’s ability to participate effectively in his own defense, the Supreme Court vacated the Eighth Circuit’s judgment, reinstated the district court’s involuntary medication order, and remanded the case for a thorough determination of how the potential side-effects of antipsychotic medication would affect Sell’s right to receive a fair trial.7 3. Singleton v. Norris, 319 F.3d 1018, 1025-27 (8th Cir. 2003). 4. See Riggins v. Nevada, 504 U.S. 127, 133-38 (1992) (distinguishing Washington v. Harper to hold that the forced administration of antipsychotic medication during the defendant’s trial violated rights guaranteed by the Sixth and Fourteenth Amendments); Washington v. Harper, 494 U.S. 210, 227 (1990) (holding that treatment of a prisoner with antipsychotic drugs against his will without judicial hearing did not violate substantive due process where the prisoner was found to be dangerous to himself or others and treatment was in the prisoner’s best medical interest). 5. See infra Part II.A.3. 6. See Sell, 539 U.S. at 179-80. The Supreme Court set out the standard as follows: [T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. Id. at 179. 7. Sell, 539 U.S. at 185-86; see infra Part I. In addition to the therapeutic benefits of relieving the acute symptoms of psychosis, many types of antipsychotic drugs are accompanied with severe and often debilitating side effects that can profoundly impact a patient’s ability to comprehend and ef-

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Although the Sell Court’s holding has (at least temporarily) prevented the government from medicating Sell, the decision may prove a hollow victory for those who fear that psychiatric medication will no longer be used primarily for therapeutic purposes, but rather as an instrument employed by the state solely in furtherance of its own prosecutorial interests. Indeed, these fears have been validated by the Supreme Court itself, as Sell unambiguously stands for the proposition that a state may, use psychiatric medication as a means of restoring trial competency,8 a purpose wholly unrelated to a mentally ill defendant’s need for treatment. Moreover, by virtue of the Supreme Court’s recent decision to deny certiorari in Singleton,9 the Court has granted the states carte blanche to treat Sell as a license to administer antipsychotic drugs to mentally incompetent condemned inmates for the sole purpose of carrying out a death sentence. This note argues that the Supreme Court’s opinion in Sell requires lower courts to apply a unique hybrid of intermediate and strict scrutiny in all cases involving the involuntary medication of criminal defendants who are mentally incompetent to stand trial by virtue of a treatable mental illness. Specifically, lower courts must entertain a four-part inquiry to balance a defendant’s interests with that of the state.10 This standard ultimately permits state officials to seek involuntary medication of mentally ill inmates by proffering purposes related to treatment as a pretext for medication when the ultimate purpose is simply to further the state’s prosecutorial interests. Part I of this Note will outline the procedural history of Sell leading up to its arrival in the Supreme Court. Part II will delineate the important distinction between the need to medicate mentally ill inmates and others in institutional settings who pose a fectively participate in the judicial process through which his fate will be decided. Harper, 494 U.S. at 229. The common side effects most relevant to the issue of preserving a defendant’s right to a fair trial are tardive dyskinesia (the involuntary movement of facial muscles), acute dystonia (severe involuntary spasms of the upper body, tongue, throat, or eyes), akathesia (motor restlessness or the inability to sit still), id. at 229-30, parkinsonism (involuntary tremor of limbs, slowed speech, and abnormal facial expressions), and severe sedation. Riggins, 504 U.S. at 142-43 (Kennedy, J., concurring). 8. See Sell, 539 U.S. at 179-80. 9. Singleton v. State, 540 U.S. 832 (2003). 10. See infra Part III.B.

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168 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 danger to themselves on the one hand, and the desire of prosecutors to use psychiatric drugs to restore trial competency so that the defendant may be convicted despite his or her true mental capacity on the other. Specifically, because courts must safeguard a pretrial detainee’s right to receive a fair trial, the Supreme Court’s case law prior to Sell strongly suggested that lower courts should subject all requests to medicate pretrial detainees to a stronger level of judicial scrutiny than in cases involving convicted inmates.11 Part III will analyze how the Supreme Court’s holding in Sell incorporates elements of both intermediate and strict scrutiny as the Court struggles to strike a compromise between the government’s interest in prosecuting serious crimes and an individual’s liberty interest in refusing unwanted medication. Additionally, Part III will demonstrate how the Sell Court obfuscates the essential distinctions between medicating inmates to mitigate their propensity for dangerousness and medicating solely for trial competency purposes. Finally, Part IV will assert that the Supreme Court has failed to prescribe uniform standards in measuring the competency of mentally ill inmates residing on death row. Because of the lack of uniform standards in measuring the competency of condemned inmates, lower courts may begin to expand the Court’s holding in Sell into a justification to medicate mentally incompetent condemned inmates for the sole purpose of restoring competency for execution. I. FACTS AND TRAVEL OF SELL V. UNITED STATES

In the spring of 1997, Dr. Charles Sell, a practicing dentist with an extensive history of mental illness, was indicted on multiple counts of Medicaid fraud and money laundering.12 After being diagnosed with a severe mental illness, a federal district court found that Sell was incapable of assisting in his own defense, thus declaring him incompetent to stand trial.13 During the course of his detention in a prison hospital, Sell’s psychiatrists concluded that he was in need of antipsychotic medication.14 Because Sell refused to accept any form of treatment for his mental illness, prison 11. See infra Part II.A. 12. Sell, 539 U.S. at 170. 13. United States v. Sell, 282 F.3d 560, 563 (8th Cir. 2002), vacated by 539 U.S. 166 (2003). 14. Id. at 563.

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officials initiated an administrative hearing in order to determine whether Sell could be involuntarily medicated.15 At the conclusion of the hearing, the reviewing psychiatrist approved the involuntary medication order upon concluding that Sell was “mentally ill and dangerous,” and that medication was necessary in order to restore Sell’s competency to stand trial.16 In August, 2000, a federal magistrate reviewed and affirmed the government’s order authorizing involuntary medication.17 Upon further review, however, a district court judge reversed the magistrate’s finding that Sell’s dangerousness justified involuntary medication, but nonetheless held that the government could medicate Sell for the sole purpose of restoring trial competency.18 In March, 2002, the Eighth Circuit affirmed the district court’s holding that the government could medicate Sell on the sole grounds of restoring trial competency.19 After concluding that the government’s interest in bringing Sell to trial outweighed his liberty interest to refuse unwanted medication,20 the Eighth Circuit held that the decision to medicate Sell was medically appropriate, and that the benefits of restoring Sell’s competency outweighed the potential risk that the side effects of antipsychotic drugs might impair his ability to participate effectively in his own defense at trial.21 The Supreme Court granted certiorari to examine the limited issue of whether the government could medicate Sell solely for the purpose of restoring his competency to stand trial for “non-violent offenses.”22 In the wake of the Eighth Circuit’s holding in Sell, the Supreme Court was faced with the task of determining the circumstances under which the government’s interest in prosecuting alleged crimes could, in theory, override an individual’s constitutional right to refuse unwanted medication under the Due Process Clause.23 Moreover, the Court was charged with the daunting task 15. Sell, 539 U.S. at 171. 16. Id. at 171-72. 17. Id. at 173. 18. Id. at 173-74. 19. Id. at 174. 20. Sell, 282 F.3d at 568 (defining the government’s interest in restoring Sell’s competency so that he may be brought to trial as “paramount”). 21. Id. at 570-72. 22. Sell, 539 U.S. at 175. 23. Id. at 177.

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170 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 of ascertaining the degree to which the administration of powerful antipsychotic drugs might impair Sell’s constitutional right to receive a fair trial.24 To comprehend these critical issues, one must first examine the Court’s prior case law concerning the constitutional limitations on a state’s power to medicate mentally ill patients within the context of the criminal justice system. II. INVOLUNTARY MEDICATION UNDER THE DUE PROCESS CLAUSE

A. Substantive Due Process Prior to Sell 25

1. Washington v. Harper

Because the Supreme Court has declared that all persons enjoy a significant liberty interest in avoiding unwanted medical treatment of any kind,26 the involuntary medication of the mentally ill must comport with the minimal standards of substantive due process.27 On the one hand, states are often justified in imposing treatment upon mentally disabled persons who are incapable of making rational decisions concerning their own medical treatment.28 In such cases, a state may certainly invoke its parens patriae power by imposing treatment upon a mentally ill person against his will to protect both the mentally ill person and the community from that person’s dangerous tendencies.29 On the other hand, the judiciary has historically played an essential role in ensuring that a state’s power to impose treatment upon the mentally disabled is used narrowly in the furtherance of public health and safety, and not simply to further some other hidden purpose.30 There are, however, instances where a mentally ill person’s need for treatment and a state’s police powers intersect, such as when a mentally ill person would pose a danger to himself or 24. See id. at 180. 25. Washington v. Harper, 494 U.S. 210 (1990). 26. Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 278 (1990). 27. See Harper, 494 U.S. at 221-22. 28. See Youngberg v. Romeo, 457 U.S. 307, 317 (1982). 29. Addington v. Texas, 441 U.S. 418, 426 (1979); see also Sell, 539 U.S. at 178. 30. See O’Connor v. Donaldson, 422 U.S. 563, 574 n.10 (1975) (“Where ‘treatment’ is the sole asserted ground for depriving a person of liberty, it is plainly unacceptable to suggest that the courts are powerless to determine whether the asserted ground is present.”).

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others if left untreated. In those instances, the state’s power to impose treatment is at its highest.31 The case of Washington v. Harper was the first in which the Supreme Court dealt with the issue of a state’s authority to involuntarily medicate a convicted inmate suffering from a severe mental illness.32 Harper involved the constitutionality of a state policy mandating involuntary medication for inmates “suffer[ing] from a ‘mental disorder,’” who were “‘gravely disabled’ or pose[d] a ‘likelihood of serious harm’” to themselves or others.33 Although the Court in Harper conceded that an inmate has “a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs,”34 the Court held that an inmate’s liberty interest could be outweighed by the state’s legitimate and important interest in maintaining safety and security within a penal institution.35 Moreover, while acknowledging the plethora of potentially harmful side effects commonly associated with most forms of antipsychotic medication, the Court concluded that involuntary medication was a far more appropriate method of controlling a mentally ill inmate’s behavior than the prolonged use of physical restraints or isolation.36 Therefore, the Court held that the Due Process Clause allows a state to involuntarily medicate a mentally ill inmate after finding that the inmate is “dangerous to himself or others and [that] the treatment is in the inmate’s medical interest.”37 The Court rejected Harper’s argument that the state “may not override his choice to refuse antipsychotic drugs” in the absence of a finding that he was incompetent to make rational decisions concerning his own treatment.38 Rather, because a state’s desire to medicate a dangerous, mentally ill inmate is “reasonably related to legitimate penological interests” in maintaining institutional safety,39 the Court held that Harper’s case was on point with prior cases in which the Court applied a rational basis test to decisions 31. 32. 33. 34. 35. 36. 37. 38. 39.

See id. at 582; Addington, 441 U.S. at 426. See Harper, 494 U.S. at 213. Id. at 215. Id. at 221. Id. at 225. Id. at 226-27. Id. at 227. Id. at 222. Id. at 224 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).

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172 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 made by state officials concerning the care and treatment of individuals confined in state institutions.40 Most significantly, the state’s interest in medicating Harper was at its highest because the prison regulation in question was exclusively applied to inmates who had become dangerous as a result of a mental illness, and the underlying rationale was solely to medicate inmates “for no purpose other than treatment, and only under the direction of a licensed psychiatrist.”41 Moreover, considering that prison officials face the uniquely perilous task of regulating a state’s prison population,42 the Harper Court concluded that an administrative panel composed of medical professionals would be more qualified than judges and lawyers to determine when an inmate is in need of involuntary medication.43 Reasoning that the administrative review conducted by medical decision makers that was warranted by the Harper prison policy was adequate to protect prison inmates’ due process interests,44 the Court refused to intervene because the decision to medicate Harper “was at all times consistent ‘with the degree of care, skill, and learning expected of a reasonably prudent psychiatrist . . . .’”45 46

2. Riggins v. Nevada

In contrast with Harper, in which the Court examined the circumstances under which a state could involuntarily medicate a convicted inmate,47 the Supreme Court was asked in Riggins v. Nevada to determine whether a state could prevent a pre-trial detainee charged with capital murder from discontinuing treatment for a mental illness so as to preserve his competency to stand trial.48 Because state officials never alleged that Riggins posed a

40. Id. at 224-25. 41. Id. at 226. 42. Id. at 225 (“There are few cases in which the State’s interest in combating the danger posed by a person to both himself and others is greater than in a prison environment, which, ‘by definition,’ is made up of persons with ‘a demonstrated proclivity for antisocial criminal, and often violent, conduct.’” (quoting Hudson v. Palmer, 468 U.S. 517, 526 (1984))). 43. Id. at 231. 44. Id. at 233. 45. Id. 46. Riggins v. Nevada, 504 U.S. 127 (1992). 47. Harper, 494 U.S. at 210. 48. Riggens, 504 U.S. at 132-33.

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danger to himself or others within his prison setting, the sole justification for forced medication was Nevada’s interest in preventing Riggins from rendering himself incompetent to stand trial by allowing his mental illness to go untreated.49 In deference to Nevada’s interest in prosecuting a capital offense, the Riggins Court opined that Nevada “might have been able to justify medically appropriate, involuntary treatment with the drug by establishing that it could not obtain an adjudication of Riggins’ guilt or innocence by using less intrusive means.”50 This was a profound statement. The Riggins Court seemed to postulate that the holding in Harper could conceivably be expanded to empower a state to medicate an inmate for a purpose completely unrelated to medical treatment or prison safety. The Court annunciated this possibility even though the prosecution had not proven that it could not obtain an adjudication of Riggins’ guilt or innocence by using less intrusive means in that particular case.51 Even more disturbing is the fact that the Court’s hypothetical expansion of Harper was completely unnecessary because the pertinent issue facing the Court was whether the side effects caused by the medication given to Riggins subjected him to unfair prejudice at trial.52 Unlike in Harper, where the state sought to medicate a convicted inmate, a state’s decision to medicate a pretrial detainee must be examined in relation to the detainee’s right to a fair trial.53 For example, in holding that the State had not proven that administration of antipsychotic medication was necessary to accomplish an essential state purpose, or that the “substantial probability of trial prejudice in [Riggins] was justified,”54 the Riggins Court was deeply concerned with the fact that the side effects of many common antipsychotic drugs can adversely affect an individual’s cognitive and communicative abilities so as to cast doubt upon the defendant’s ability to assist counsel, react to testimony, and to testify on his own behalf.55 Moreover, in his concurring 49. See id. at 130. 50. Id. at 135. 51. Id. 52. Id. at 133 (stating that “Riggins’ core contention [was] that involuntary administration of Mellaril denied him ‘a full and fair trial’”). 53. Id. at 140-41 (Kennedy, J., concurring). 54. Id. at 138. 55. Id. at 137-38; see also David M. Siegel et al., Old Law Meets New Medicine: Revisiting Involuntary Psychotropic Medication of the Criminal De-

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174 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 opinion, Justice Kennedy conveyed his fear that since many antipsychotic drugs can cause an individual to become lethargic and severely agitated, or to appear listless and apathetic, a jury may unfairly pass judgment upon a defendant solely on the basis of his drug-induced demeanor.56 Consequently, Justice Kennedy was highly skeptical that a state could ever justify the use of involuntary medication as an appropriate method to restore trial competency.57 As such, the Court was particularly disturbed by the trial court’s refusal to allow Riggins to discontinue treatment for his mental illness even in light of inconclusive expert testimony as to whether involuntary treatment was even necessary in maintaining Riggins’ competency to stand trial.58 Accordingly, the Court refused to defer to the trial court’s “laconic” finding that the state’s interest in preserving Riggins’ competency simply outweighed Riggins’ right to refuse medication.59 In sum, the necessity of preserving a pretrial detainee’s right to receive a fair trial juxtaposed with an already convicted inmates interest in refusing medication distinguishes Riggins from Harper. As such, the Harper Court had little reason to second guess the assertions made by Harper’s prison psychiatrists that the need to pacify his violent behavior with medication simply outweighed whatever unpleasant side effects he would experience. fendant, 2001 WIS. L. REV. 307, 326-27 (2001). 56. See Riggins, 504 U.S. at 142 (Kennedy, J., concurring); see also Siegel et al., supra note 55, at 327 n.111. A defendant’s in-court demeanor can be especially crucial in capital murder cases because many juries may be more inclined to vote in favor of imposing the death penalty when the side effects of antipsychotic medication cause a defendant to appear remorseless and apathetic. State v. Garcia, 658 A.2d 947, 974-75 (Conn. 1995) (Berdon, J., concurring). This is also an especially vital concern in cases where the defendant is attempting to prove lack of mental capacity as an affirmative defense. Id. at 975 (Berdon, J., concurring). 57. See Riggins, 504 U.S. at 141 (Kennedy, J., concurring). Justice Kennedy stated: In my view elementary protections against state intrusion require the State in every case to make a showing that there is no significant risk that the medication will impair or alter in any material way the defendant’s capacity or willingness to react to the testimony at trial or to assist his counsel. Based on my understanding of the medical literature, I have substantial reservations that the State can make that showing. Id. 58. Id. at 130-31, 136-37. 59. Id. at 136.

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However, the administration of antipsychotic medication to maintain trial competency entails a plethora of risks not otherwise associated with the inducement of “some bare level of functional competence.”60 Likewise, while a psychiatrist may have been in a better position to determine the propriety of involuntary medication in Harper, the impact a particular drug might have upon a defendant’s ability to present an effective and vigorous defense to a criminal charge is an issue not to be deferred to psychiatrists who are otherwise ignorant as to the complexities of a criminal trial, but is best resolved by the attorneys and judges who participate in the trial process itself.61 Therefore, Riggins stands for the proposition that a court may not authorize the involuntary medication of a pretrial detainee without specific evidence of a “compelling” or “essential” state interest,62 and that the detainee cannot be brought to trial through “less intrusive means.”63 3. Conflicting Standards of Judicial Scrutiny in the Aftermath of Riggins The Court’s opinion in Riggins has been widely noted for its failure to prescribe a precise standard of judicial scrutiny for cases involving the involuntary medication of pretrial detainees.64 Although the Riggins Court held that Nevada’s desire to medicate a defendant charged with capital murder was not “necessary to accomplish an essential state policy,”65 the Court explicitly denied that it was adopting any standard of judicial review, let alone strict scrutiny.66 The Riggins Court’s equivocation, however, has not escaped criticism. In his dissenting opinion in Riggins, Justice Thomas 60. Riggins, 504 U.S. at 141 (Kennedy, J., concurring). 61. See id. at 141 (Kennedy, J., concurring) (“Indeed, the inquiry itself is elusive, for it assumes some baseline of normality that experts may have some difficulty in establishing for a particular defendant, if they can establish it at all.”). 62. Id. at 138. 63. Id. at 135. 64. See, e.g., Siegel et al., supra note 55, at 326; Aimee Feinberg, Note, Forcible Medication of Mentally Ill Criminal Defendants: The Case of Russell Eugene Weston, Jr., 54 STAN. L. REV. 769, 775 (2002); William B. Bystrynski, Note, Riggins v. Nevada: Toward a Standard for Medicating the Incompetent Defendant to Competence, 71 N.C. L. REV. 1206, 1220 (1993). 65. Riggins, 504 U.S. at 138 (emphasis added). 66. Id. at 136.

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176 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 balked at the majority’s insistence that it had not adopted a standard of strict scrutiny.67 In support of his view that the majority had essentially applied a strict scrutiny analysis, Justice Thomas highlighted the majority’s requirement that Nevada’s interest in maintaining Riggins’ trial competency must rise to the level of a compelling state interest, and that Nevada was required to prove that the proposed medication was the least intrusive means available in bringing Riggins to trial.68 Because the terminology employed by the Riggins Court usually implies the application of strict scrutiny,69 Justice Thomas was quite justified in his refusal to believe the majority’s denial that it was not adopting a strict scrutiny standard of review. Justice Thomas was not alone in refusing to take the Riggins Court’s majority at face value. In United States v. Brandon,70 for instance, the United States Court of Appeals for the Sixth Circuit held that all petitions to medicate a pretrial detainee must survive strict scrutiny.71 Beginning from the premise that the government’s request to medicate a pretrial detainee implicates a “fundamental right to be free from bodily intrusion,”72 the Sixth Circuit concluded that the Riggins Court had “alluded to a strict scrutiny approach.”73 While acknowledging that the Riggins Court

67. See id. at 156 (Thomas, J., dissenting). 68. Id. at 156-57 (Thomas, J., dissenting). 69. E.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 237-38 (1995) (holding that under strict scrutiny, states may not use “benign” racial classifications except in the furtherance of a compelling state interest, and only after the consideration of “race neutral” alternatives); Palmore v. Sidoti, 466 U.S. 429, 432-33 (1984) (holding that in applying strict scrutiny to racial classifications, such classifications “must be justified by a compelling governmental interest and must be ‘necessary . . . to the accomplishment’ of their legitimate purpose” (quoting McLaughlin v. Florida, 379 U.S. 184, 196 (1964))); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 305 (1978) (holding that racial classifications must further a “‘permissible and substantial’” state policy, and that the classifications must be “‘necessary . . . to the accomplishment of [the state’s] purpose’” (quoting In re Griffiths, 413 U.S. 717, 72122 (1973))); Roe v. Wade, 410 U.S. 113, 155 (1973) (holding that state intrusions upon “fundamental rights” are valid only in the face of a “compelling state interest,” and that such legislative intrusions must be “narrowly drawn to express only the legitimate state interests at stake”). 70. United States v. Brandon, 158 F.3d 947 (6th Cir. 1998). 71. Id. at 960. 72. Id. at 957. 73. Id.

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had expressly declined to adopt a specific standard of review,74 the Sixth Circuit nonetheless concluded that Riggins stood for the proposition that the government’s request to medicate a pretrial detainee must be “narrowly tailored to [further] a compelling governmental interest” in restoring the detainee’s trial competency.75 In addition, the Sixth Circuit distinguished the Riggins Court’s analysis from the rational basis test applied in Harper, a case in which a state’s petition to medicate a mentally ill convicted inmate found to be dangerous was held to be entitled to review under a rational basis test because the state’s interest was limited to a legitimate penological interest in maintaining prison safety.76 Unlike cases involving the involuntary medication of convicted inmates, where maintaining prison safety is a primary concern, the Sixth Circuit concluded that the government’s goal in Brandon was not to maintain prison safety, but rather to “render[] [the defendant] competent to stand trial in a proceeding that is fair to both parties.”77 In such circumstances, strict scrutiny was held to be the proper standard.78 Therefore, in light of Justice Thomas’ dissent in Riggins and the Sixth Circuit’s astute analysis in Brandon, Sell’s argument before the Supreme Court – that his case required the application of strict scrutiny – was not without merit.79 Conversely, the equivocal language of the Supreme Court in Riggins led the Eighth Circuit in Sell to conclude that the government’s request to medicate Sell did not trigger strict scrutiny, but rather a lower form of “heightened” scrutiny.80 However, the 74. Id. at 959. 75. Id. at 960. The Brandon Court supported its holding with a quote from Riggins: “Nevada certainly would have satisfied due process if . . . the district court had found . . . that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins’ own safety or the safety of others.” Id. (quoting Riggins, 504 U.S. at 135 (emphasis added)). 76. Id. at 957 (citing Washington v. Harper, 494 U.S. 210, 223 (1990)). 77. Id. at 960. 78. See id. 79. See Brief of Petitioner at 35-37, Sell v. United States, 539 U.S. 166 (2003) (No. 02-5664). 80. United States v. Sell, 282 F.3d 560, 567 n.3 (8th Cir. 2002) (“[W]e believe that we must apply some sort of heightened standard of review, but unlike the Sixth Circuit, we do not adopt the strict scrutiny standard.”), vacated by 539 U.S. 166 (2003). The Eighth Circuit also supported its choice of a heightened scrutiny standard by mentioning that the Supreme Court denied adopting a strict scrutiny test in Riggins; it also recognized, however, that

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178 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 Eighth Circuit did not break new ground in its conclusion that Riggins required something less than strict scrutiny. Rather, the Eighth Circuit relied heavily upon the opinion in United States v. Weston,81 a case in which the United States Court of Appeals for the District of Columbia applied a heightened scrutiny analysis to the government’s request to medicate a mentally incompetent defendant charged with capital murder.82 Ironically, the language used by the D.C. Circuit closely resembled a strict scrutiny analysis: “Accordingly, to medicate Weston, the government must prove that restoring his competence to stand trial is necessary to accomplish an essential state policy.”83 Unlike the Sixth Circuit, however, the D.C. Circuit refused to give its test the label of strict scrutiny, despite the fact that the terminology employed by both circuits is virtually identical.84 Rather, the D.C. Circuit simply took the Riggins Court at face value, acknowledging that it had the Court did not appear to apply any lesser, reasonableness-based test either. See id. (citing United States v. Weston, 255 F.3d 873, 888 (D.C. Cir. 2001)). 81. United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001). 82. Id. at 880. The defendant in Weston was Russell Eugene Wilson, the infamous “Capitol Hill Shooter” who had been charged with shooting and killing two officers of the United States Capitol Hill Police, and injuring a third. See id. at 874. 83. Weston, 255 F.3d at 880 (emphases added). 84. Compare id. (holding that, to medicate the defendant, “the government must prove that restoring his competence to stand trial [was] necessary to accomplish an essential state interest”), with United States v. Brandon, 158 F.3d 947, 960 (6th Cir. 1998) (holding that the government must present a “compelling” state interest, and that involuntary medication must be “narrowly tailored” to the furtherance of the government’s interest). The only facial difference between Brandon and Weston is that the Sixth Circuit labels the requisite governmental interest as “compelling,” while the D.C. Circuit requires an “essential” governmental interest. See Weston, 255 F.3d at 880; Brandon, 158 F.3d at 960. This seems to be a mere difference in semantics, however, because both terms are used interchangeably in Riggins. See 504 U.S. 127, 136 (1992) (“Nor did the order indicate a finding that safety or other compelling concerns outweighed Riggins’ interest in freedom from unwanted antipsychotic drugs”) (emphasis added); id at 138: To be sure, trial prejudice can sometimes be justified by an essential state interest. Because the record contains no finding that might support a conclusion that administration of anti psychotic medication was necessary to accomplish an essential state policy, however, we have no basis for saying that the substantial probability of trial prejudice in this case was justified. Id. (citations omitted) (emphases added).

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not endorsed the application of strict scrutiny, appearances to the contrary notwithstanding.85 Following in the footsteps of the D.C. Circuit, the Eighth Circuit in Sell held that the government may not involuntarily medicate a pretrial detainee in the absence of an “essential state interest that outweighs the individual’s interest in remaining free from medication.”86 The Eighth Circuit further held that involuntary medication must also be narrowly tailored in furtherance of the state interest, that there be “no less intrusive way of fulfilling its essential interest.”87 The Eighth Circuit labeled its test as “some sort of heightened standard of review,” as opposed to strict scrutiny.88 Even if the terminology employed by the circuit courts in Sell and Weston would seemingly imply the application of strict scrutiny, a closer review of the respective opinions will reveal that neither court employed the “searching judicial inquiry” required under a strict scrutiny analysis.89 For example, in concluding that involuntary medication was narrowly tailored to the government’s interest in restoring Sell’s competency to stand trial,90 the Eighth Circuit simply deferred to the opinions given by Sell’s prison psychiatrists that involuntary medication was the least intrusive method of fulfilling the government’s interest in restoring Sell’s competency to stand trial.91 In deferring to the government’s psychiatrists, however, the Eighth Circuit paid little attention to evidence provided at trial by Sell’s personal psychiatrist that antipsychotic medication was not an appropriate method of treating Sell’s condition.92 In endorsing the conclusions given by the government’s experts, the Eighth Circuit provided no explanation of why it found the government’s conclusions to be more persua-

85. Weston, 255 F.3d at 880 (noting that under Riggins, the government must present an “overriding justification” for involuntary medication, and that the medication must be “necessary to accomplish an essential state policy” (quoting Riggins, 504 U.S. at 135)). 86. Sell, 282 F.3d at 567. 87. Id. 88. Id. at 567 n.7. 89. See e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236 (1995). 90. Sell, 282 F.3d at 568. 91. See id. 92. See id. at 564.

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180 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 sive than the expert testimony given on Sell’s behalf.93 Likewise, the D.C. Circuit in Weston simply deferred to the opinions given by the government’s expert witnesses that involuntary medication was necessary to bring Weston to trial, while giving no consideration to conflicting expert testimony that treatment with antipsychotic medication would be ineffective.94 Moreover, both circuit courts seemed to place a burden upon both Weston and Sell of proving that trial competency could be restored through less intrusive alternatives.95 However, in applying the strict scrutiny analysis established by the Sixth Circuit in Brandon,96 a federal district court concluded that the testimony given by a prison psychiatrist was insufficient to establish that involuntary medication was narrowly tailored to the government’s interest in bringing an incompetent pretrial detainee to trial because the psychiatrist provided no basis for his conclusion and failed to discuss the full range of relevant medical research.97 In contrast to the circuit courts in Weston and Sell, the district court did not burden the detainee with proving that trial competency could be restored through less intrusive, non-drug alternatives.98 Thus, in the wake of Riggins, the terminology used by the various courts is remarkably similar: a pre-trial detainee may be involuntarily medicated only in furtherance of a ‘compelling’ or 93. See id. 94. See United States v. Weston, 255 F.3d 873, 882-83 (D.C. Cir. 2001); see also United States v. Weston, 134 F. Supp. 2d 115, 122-23 (D.D.C. 2001), aff’d on other grounds, 225 F.3d 873 (D.C. Cir. 2001). 95. See Weston, 255 F.3d at 882; Sell, 282 F.3d at 568. 96. 158 F.3d 947, 960 (6th Cir. 1998) (holding that to justify forcible medication of a non-dangerous pretrial detainee for the purpose of restoring his competence to stand trial, the government must present a “compelling” state interest, and the involuntary medication must be “narrowly tailored” to the furtherance of the government’s interest). 97. United States v. Santonio, No. 2:00-CR-90C, 2001 U.S. Dist. LEXIS 5892, at *10-13 (D. Utah May 4, 2001); see also Woodland v. Angus, 820 F. Supp. 1497, 1511-12 (D. Utah 1993) (applying strict scrutiny and holding that the State of Utah failed to prove “to a reasonable degree of medical certainty” that involuntary medication would restore a defendant’s trial competency because the state’s psychiatrists could not “promise” or “guarantee” that the proposed medication would successfully restore the defendant’s competency). 98. See Santonio, 2001 U.S. Dist. LEXIS 5892, at *13. Instead, the court in Santonio required the government to prove that it could not “obtain an adjudication of the pretrial dentainee’s guilt or innocence using any other means.” Id. This factor weighed against the prosecution when it produced no evidence with regard to such proof. Id.

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‘essential’ state interest, and the medication must be the ‘least intrusive’ or ‘necessary’ means of furthering the state’s prosecutorial interest. However, the actual substance behind the abstract terminology is contingent upon whether the reviewing court defines its standard of review as ‘strict’ or ‘heightened’ scrutiny. In other words, courts that have construed Riggins as requiring the application of strict scrutiny have been more emboldened to distrust the assertions of government psychiatrists that involuntary medication with antipsychotic drugs is the only means available to restore trial competency. Conversely, courts applying a lower ‘heightened’ standard of review have been disinclined to second guess the opinions given by the government’s psychiatrists, while further burdening an incompetent pre-trial detainee with the obligation of proving that trial competency could be restored through less intrusive alternatives. Despite the disparities in the application of Riggins, there has been a general consensus among most courts that the standard of review in cases involving a nondangerous pretrial detainee must be higher than the rational basis test established in Harper for medicating dangerous inmates who have already been tried and convicted of crimes.99

99. E.g., United States v. Gomes, 298 F.3d 71, 82 (2d Cir. 2002) (holding that “heightened, but not strict, scrutiny is the appropriate standard for determining when a non-dangerous criminal defendant may be forcibly medicated with antipsychotic drugs for the purpose of rendering him competent to stand trial), vacated by 539 U.S. 939 (2003), order aff’d, 387 F.3d 157 (2d Cir. 2004); United States v. Sell, 282 F.3d 560, 567 n.7 (8th Cir. 2002) (“Like our sister courts, we believe that we must apply some sort of heightened standard of review, but . . . we do not adopt the strict scrutiny standard.” ), vacated by 539 U.S. 166 (2003); Weston, 255 F.3d at 880 (concluding that Riggins required the application of “some form of heightened scrutiny,” which was something more than the reasonableness test of Harper as it pertained to non-dangerous pretrial detainees); see also State v. Jacobs, 828 A.2d 587, 589 (Conn. 2003); State v. Garcia, 658 A.2d 947, 966-67 (Conn. 1995), rev’d on other grounds, Jacobs, 828 A.2d at 588-89; State v. Odiaga, 871 P.2d 801, 804-05 (Idaho 1994). At least one court, however, has seen no distinction between Harper and Riggins, holding that a petition to medicate a pretrial detainee solely for the purpose of restoring trial competency should merely be subjected to a reasonableness standard under Harper, because restoring trial competency is a “legitimate incident of institutionalization.” Khiem v. United States, 612 A.2d 160, 168 (D.C. 1992) (quoting United States v. Charters, 863 F.2d 302, 305 (4th Cir. 1988)).

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182 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 III. THE SUPREME COURT SPEAKS AGAIN: SELL V. UNITED STATES

A. Prolegomenon As noted above, the disparate standards of judicial review employed by the lower courts were a product of the Supreme Court’s equivocation in Riggins. However, unlike in Riggins where the Court “ha[d] no occasion to finally prescribe . . . substantive standards” of review,100 the Court in Sell was faced with an opportunity to resolve the existing confusion among the lower courts once and for all by determining the standard of judicial review to which a mentally incompetent detainee facing the threat of involuntary medication is constitutionally entitled.101 The Sell Court seized this opportunity by attempting to establish a clear and explicit standard of judicial scrutiny to be applied whenever a state seeks to forcibly medicate a pretrial detainee for the sole purpose of restoring or maintaining trial competency.102 In reality, the Sell Court’s analysis is no less equivocal than that of the Riggins Court. In deciphering the Sell Court’s analysis, it becomes clear that Sell requires lower courts to apply a hybrid of both intermediate and strict scrutiny in determining when a state’s prosecutorial interests can override a pretrial detainee’s liberty interest in refusing unwanted medication. As argued below, the Supreme Court’s holding in Sell has significantly strengthened a state’s authority to use psychiatric medication to further policies and goals that are unrelated to the therapeutic interests of mentally ill inmates. Moreover, the Sell Court’s opinion may enable overzealous prosecutors to obfuscate the important distinctions between involuntarily medicating an inmate to mitigate dangerousness and using psychiatric medication to restore trial competency. Consequently, the prison psychiatrists who are responsible for treating mentally incompetent inmates may become unwitting accomplices to a state’s plan to use the therapeutic benefits of psychiatric medication as a crude method to further its prosecutorial goals.

100. Riggins, 504 U.S. at 136. 101. See Sell v. United States, 539 U.S. 166, 179 (2003). 102. See id. at 179-80; see also supra note 4 and accompanying text.

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B. Basic Principles The Supreme Court in Sell granted certiorari to decide the issue of whether the government’s petition to medicate Sell for the sole purpose of rendering him competent to stand trial for “nonviolent offenses” deprived Sell of an important liberty interest protected by the Due Process Clause.103 The Court held that, in principle, the government may involuntarily medicate a mentally ill defendant “facing serious criminal charges” for the sole purpose of restoring trial competency.104 With this holding, the Sell Court unambiguously acknowledged that a state may premise its desire to medicate a mentally ill detainee upon a motivation unrelated to the individual’s best medical interests. The Sell Court’s holding is a distinct and significant departure from the analysis in Harper, in which the Court justified the involuntary medication of a convicted inmate for the purpose of mitigating his dangerous propensity because the state’s interest in maintaining safety within a penal institution was closely related, if not identical, to Harper’s own personal therapeutic needs.105 In contrast with Harper, the Sell Court’s holding established the following four-prong test to determine whether involuntary medication is appropriate in an individual case: 1) a state’s petition to medicate must be in furtherance of an “important governmental interest[];” 2) there must be a finding that involuntary medication will “significantly further” the state’s proffered interest; 3) involuntary medication must be “necessary” to further the state’s proffered interest; and 4) the proposed medication must be deemed “medically appropriate.”106 Clearly, the Sell Court failed to prescribe an unambiguous standard of review; rather, Sell appro103. Sell, 539 U.S. at 175. 104. Id. at 179. 105. Washington v. Harper, 494 U.S. 210, 225-26 (1990). The Harper Court further stated that the prison’s institutional policy of involuntarily medicating dangerous inmates was a rational means of furthering the State’s legitimate objectives. Its exclusive application is to inmates who are mentally ill and who, as a result of their illness, are gravely ill or represent a significant danger to themselves or others. The drugs may be administered for no purpose other than treatment, and only under the direction of a licensed psychiatrist. Id. at 226 (emphasis added). 106. Sell, 539 U.S. at 179, 180-81.

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184 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 priates the terminology of both intermediate and strict scrutiny.107 Moreover, the Sell Court seems to concur with Justice Kennedy’s skepticism in Riggins regarding the ability of judges and physicians to deal adequately with the deleterious consequences that antipsychotic medication may have upon a pretrial detainee’s right to a fair trial.108 C. Establishing the Strength of the Government’s Prosecutorial Interest Under the first prong of the Sell Court’s test, a state must establish that its petition to medicate an individual is pursuant to an important governmental interest.109 Here, the Sell Court seems to define the weight of the government’s prosecutorial interest under the requirements of an intermediate scrutiny analysis.110 Moreover, the Sell Court retreated from its prior statements in Riggins that the involuntary medication of a pretrial detainee

107.

See id. at 179: [T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary to further important trial-related interests. Id. (emphases added). The Court’s use of the words “substantially” and “important” appear to suggest an intermediate level analysis, while the phrase “less intrusive alternatives” implicates the narrowly tailored prong of a strict scrutiny analysis. See supra note 69. 108. See id. at 179. In Riggins, Justice Kennedy asserted his view that the Constitution required the State, in each case, to prove that there was no significant risk that the medication and its side effects would materially impair the defendant’s capacity to assist in his own defense. Riggins v. Nevada, 504 U.S. 127, 141 (1992) (Kennedy, J., concurring). He expressed “substantial reservations that the State can make that showing.” Id. Moreover, he called the inquiry “illusive,” and possibly something even experts would have difficulty establishing, if it could be established at all. Id. 109. Sell, 539 U.S. at 180 (“First, a court must find that important governmental interests are at stake.”). 110. Cf. Clark v. Jeter, 486 U.S. 456, 461 (1988) (stating that intermediate scrutiny requires that classifications based on gender or illegitimacy must be “substantially related to an important governmental objective”) (emphasis added); Craig v. Boren, 429 U.S. 190, 197 (1976) (requiring that gender-based classifications must further “important governmental objectives” in order to pass muster under the Equal Protection Clause) (emphasis added).

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must further a “compelling” or “essential” state interest.111 By lowering the weight of the required governmental interest from “compelling” or “essential” to “important,” it appears that the Sell Court capitulated to the Eighth Circuit’s lower standard of heightened scrutiny.112 The Sell Court concluded that the government presumptively has an important interest in prosecuting serious crimes against either persons or property.113 However, the Court provided no guidance as to how lower courts should determine whether a crime is serious enough to warrant involuntary medication in individual cases. Nonetheless, the Court does not challenge the Eighth Circuit’s conclusion that the charges of Medicaid and insurance fraud with which Sell faced could, in principle, be severe enough to warrant involuntary medication.114 The Sell Court gives much more deference to the government’s prosecutorial interest than the Riggins Court, for the Riggins Court simply rejected Nevada’s petition for involuntary medication while giving no consideration to Nevada’s interest in prosecuting a defendant charged with capital murder.115 Furthermore, in rejecting Sell’s argument that a pretrial detainee enjoys a fundamental right to be free from unwanted medication,116 the Court reiterated its holding in Harper that an incarcerated person has only a “significant liberty interest” in re111. See Riggins, 504 U.S. at 136, 138. 112. See United States v. Sell, 282 F.3d 560, 567 n.3 (8th Cir. 2002) (“[W]e believe that we must apply some sort of heightened standard of review . . . .”), vacated by 539 U.S. 166 (2003); see also Sell, 539 U.S. at 179 (describing the four-pronged heightened standard of review that does not quite rise to the level of strict scrutiny). 113. Sell, 539 U.S. at 180. 114. See id. (stating that while the government has an important interest in bringing an individual accused of a serious crime to trial, the inquiry of what is “serious” depends upon the circumstances, which “may lessen the importance of that interest”); Sell, 282 F.3d at 568 (characterizing the sixty-two charges of fraud and single charge of money-laundering against Sell as “serious,” and implicating a “paramount” governmental interest in restoring Sell’s competency to stand trial). But see id. at 574 (Bye, C.J., dissenting) (“[T]he [Eighth Circuit] majority inexplicably turns a blind eye to the apparent agreement of all parties that the fraud and money laundering charges alone are insufficiently serious to warrant forcible medication.”). 115. See Riggins, 504 U.S. at 138. 116. See Brief of Petitioner at 35-37, Sell v. United States, 539 U.S. 166 (2003) (No. 02-5664).

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186 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 fusing the administration of antipsychotic medication.117 The Court’s characterization of Sell’s rights under due process as a “significant liberty interest” is of great significance. In general, a liberty interest that does not rise to the level of a “fundamental right” can be overridden by a “legitimate” state interest.118 In prior cases involving the involuntary care and treatment of mentally ill and disabled persons, the Court has consistently characterized the right to refuse treatment as a mere “liberty interest,” while refusing to stamp such a right with the more lofty imprimatur of a “fundamental right.”119 By not labeling the right to refuse unwanted medical treatment a “fundamental right,” the Court has generally concluded that the judiciary has a very limited role in determining the precise methods employed to care for the mentally ill because judges are ill-equipped to second guess the decisions of trained professionals.120 Whenever the Court has found a mere “liberty interest” to be at stake, rather than a “fundamental right,” the treatment decisions made by a state’s officials have been granted an initial 117. Sell, 539 U.S. at 178 (quoting Washington v. Harper, 494 U.S. 210, 221 (1990)). 118. See, e.g., Harper, 494 U.S. at 221-22, 225; Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 279 (1990); Youngberg v. Romeo, 457 U.S. 307, 321 (1982). 119. See, e.g., Cruzan, 497 U.S. at 278 (“The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.”); Youngberg, 457 U.S. at 318 (stating that in relation to a mentally retarded person institutionalized by the state, “there is a constitutionally protected liberty interest in safety and freedom from restraint.”); Addington v. Texas, 441 U.S. 418, 425 (1979) (“This Court repeatedly has recognized that [involuntary] civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”); O’Connor v. Donaldson, 422 U.S. 563, 580 (1975) (“There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which . . . must be justified on the basis of a legitimate state interest.”). 120. See Youngberg, 457 U.S. at 321-23. In his concurring opinion in O’Connor v. Donaldson, Chief Justice Burger suggested that the states are under no obligation whatsoever to provide treatment for civilly committed patients, concluding instead that the state’s police power in protecting society from the “significant antisocial acts” of severely mentally ill persons obliges the states only to provide civilly committed patients with “a more humane place of confinement” than the oldfashioned jails and poorhouses in which the mentally ill had been historically confined. 422 U.S. at 582-83 (Burger, C.J., concurring).

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presumption of validity.121 In such cases, therefore, the Court’s initial attitude toward the aggrieved party’s complaint has been more dismissive than in cases where the Court has found the existence of a “fundamental” right. Because a pretrial detainee’s right to refuse unwanted medication under substantive due process is no greater than the amorphous “liberty interest” of a convicted inmate to refuse treatment under Harper,122 it appears initially that a pretrial detainee is entitled to no greater level of judicial scrutiny than a reasonableness standard.123 Similarly, under the Sell Court’s analysis, the government’s “important” interest in prosecuting a “serious crime” is qualitatively similar to a state’s “legitima[te]” and “importan[t]” interest under Harper in medicating a dangerous inmate.124 Conversely, in holding that a state must present a “compelling” or “essential” interest in overriding a pretrial detainee’s “liberty interest” in refusing medication,125 the Court in Riggins veered away from its prior body of case law which simply required a state to present a “legitimate” interest when seeking to infringe upon a simple “liberty interest.”126 Thus, by requiring only an “important” governmental interest vis-à-vis a pretrial detainee’s “liberty inter121. See, e.g., Youngberg, 457 U.S. at 323 (stating that courts should not second-guess medical professionals who are better qualified than judges or juries to make treatment decisions, and thus those professionals’ decisions are “presumptively valid”); see also Harper, 494 U.S. at 222-23: The Policy under review requires the State to establish, by a medical finding, that a mental disorder exists which is likely to cause harm if not treated. Moreover, the fact that the medication must first be prescribed by a psychiatrist, and then approved by a reviewing psychiatrist, ensures that the treatment in question will be ordered only if it is in the prisoner’s medical interests, given the legitimate needs of his institutional confinement. These standards, which recognize both the prisoner’s medical interest and the State’s interests, meet the demands of the Due Process Clause. Id. 122. Harper, 494 U.S. at 221. 123. See Khiem v. United States, 612 A.2d 160, 168-69 (D.C. 1992) (adopting the view that the government’s petition to medicate a pretrial detainee for the sole purpose of restoring trial competency is subject only to a review for “arbitrary and capricious action”). 124. See Sell v. United States, 539 U.S. 166, 180 (2003); Harper, 494 U.S. at 225. 125. Riggins v. Nevada, 504 U.S. 127, 136, 138 (1992). 126. See, e.g., Harper, 494 U.S. at 221, 225.

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188 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 est,”127 the Sell Court, to some extent, corrected the anomaly created by the Court’s analysis in Riggins. This departure from Riggins may lend even greater support to the proposition that the scale has been tipped in favor of a standard of judicial scrutiny which is generally deferential to the government’s desire to administer medication to a mentally incompetent detainee. It must be emphasized, however, that under Sell, a state is required to present an important governmental interest before a pre-trial detainee’s liberty interest in avoiding medication can be overridden for the purpose of restoring trial competency.128 The Sell Court reasoned that this is because a state’s interest in prosecuting serious crime can, under certain circumstances, be diminished to such a degree as to eliminate the state’s need for involuntary medication altogether.129 In particular, the Sell Court concluded that a state’s prosecutorial interest can be diminished by the likelihood that the defendant could be subjected to future confinement under a civil commitment statute in lieu of a criminal trial.130 Although the Court acknowledged that “civil commitment is [not] a substitute for a criminal trial,”131 this was a victory for Sell because the Court clearly rejected the government’s contention that medicating a mentally incompetent pretrial detainee for the purpose of restoring trial competency was the only method of satisfying the government’s prosecutorial interests.132 Although the alternative of civil commitment may protect a pretrial detainee’s liberty interest in bodily integrity, the Sell Court’s analysis may be flawed as it pertains to the defendant’s liberty interest in being free from physical confinement. Indeed, an individual who is confined under a civil commitment statute can be confined indefinitely as long as he poses a danger to him127. See Sell, 539 U.S. at 180. 128. See id. 129. Id. 130. Id. In addition to the likelihood of indefinite confinement under a civil commitment regime, the Sell Court also suggested that the government’s prosecutorial interest may be diminished if the detainee was already confined for a significant period of time for which he would receive credit toward the imposed sentence upon conviction. Id. 131. Id. 132. See Brief for the United States (Respondent) at 24-26, Sell v. United States, 539 U.S. 166 (2003) (No. 02-5664); accord United States v. Weston, 255 F.3d 873, 881-82 (D.C. Cir. 2001); United States v. Gomes, 289 F.3d 71, 81 (2d Cir. 2002).

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self or others if left unsupervised in the community.133 Therefore, a pretrial detainee who is subjected to civil commitment in lieu of a criminal trial could conceivably be confined for a longer period of time than would have otherwise been the case if the criminal charges had been adjudicated at trial.134 In addition, some may object to the notion of transforming the nation’s psychiatric hospitals into repositories for the warehousing of mentally incompetent criminal defendants simply because they cannot be brought to trial. However, by refusing to hold that civilly committed patients have a constitutional “right to treatment,”135 the Court has consistently viewed civil commitment solely as a legal instrument by which states may confine and control individuals who have been found to pose a danger to the community by reason of a mental illness or disability.136 Therefore, it comes as no surprise that the Sell Court regarded indefinite confinement under a civil commitment regime as a reasonable alternative to the state’s interest in punishing criminal acts through incarceration.137 In sum, Sell requires lower courts to employ a form of intermediate scrutiny in weighing the severity of an alleged crime against the likelihood that a state’s prosecutorial interests could be adequately satisfied through a civil commitment regime.138 Although the Court was deliberate in not limiting the option of involuntary medication only to allegations of violent crimes,139 lower 133. See O’Connor v. Donaldson, 422 U.S. 563, 575-76 (1975); see also 18 U.S.C. § 4246 (2000) (regulating hospitalization of an inmate due for release from prison but suffering from mental disease or defect). 134. See Brief for the United States (Respondent) at 26, Sell v. United States, 539 U.S. 166 (2003) (No. 02-5664) (arguing that allowing courts to take the likelihood of involuntary confinement under a civil commitment statute into consideration in weighing the government’s prosecutorial interests in involuntarily medicating that inmate to restore trial competence could cause many mentally ill defendants to be “warehoused indefinitely” ). 135. See O’Connor, 422 U.S. at 573 (“Specifically, there is no reason now to decide whether mentally ill persons dangerous to themselves or to others have a right to treatment upon compulsory confinement by the State, or whether the State may compulsorily confine a non-dangerous, mentally ill individual for the purpose of treatment.”). 136. See id. at 573-74, 576; Addington v. Texas, 441 U.S. 418, 425-26 (1979). 137. See Sell, 539 U.S. at 180. 138. See id. at 179. 139. Id. at 180 (holding that the government has an important interest in prosecuting “serious” crimes against either the “person” or against “prop-

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190 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 courts may not simply defer to a state’s cursory assertion that any felony charge would categorically warrant involuntary medication.140 Despite the fact that Sell had a mere “liberty interest,” as opposed to a “fundamental right,” in avoiding unwanted medication,141 a state must present something more than a “legitimate” state policy before it can compel a mentally ill defendant to accept an unwanted medication.142 As was the case in Riggins, the Sell Court’s analysis departs from prior holdings in which a simple “liberty interest” could be outweighed by a “legitimate” state policy, although the Sell Court does not go so far as to require an “essential” or “compelling” interest.143 Although it appears initially that the Sell Court simply adopted a form of intermediate scrutiny, the two prongs of the Court’s analysis discussed below may suggest something more. During the remainder of its analysis, the Sell Court struggled with the perceived inability of both judges and prison psychiatrists to manage the often debilitating side effects associated with most forms of antipsychotic medication, thus increasing the likelihood of unfair prejudice at trial.144 Possibly as a result of this, the Sell Court injected elements of strict scrutiny into its analysis, while relying upon Justice Kennedy’s extremely skeptical view in Harper regarding whether trial prejudice could ever be averted whenever a state involuntarily medicates a mentally incompetent defendant.145

erty”). But cf. Brief of Petitioner at 41, Sell v. United States, 539 U.S. 166 (2003) (No. 02-5664) (“The government’s interest is lessened even further because the government’s only basis for medicating Dr. Sell is the government’s belief that Dr. Sell is guilty of non-violent crimes, involving only economic losses.”) (emphasis added). 140. For an example of one such cursory assertion made by the government in a case, see Brief for the United States (Respondent) at 24, Sell v. United States, 539 U.S. 166 (2003) (No. 02-5664) (arguing that the government has a “compelling” interest in adjudicating and convicting felonies). 141. Sell, 539 U.S. at 178. 142. See id. at 179 (requiring the state to meet a series of inquiries before permissibly administering antipsychotic drugs involuntarily to mentally ill defendants facing serious criminal charges in order to render the defendants competent to stand trial). 143. See Sell, 539 U.S. at 178-79. 144. See id. at 179. 145. See id.; see also Riggins v. Nevada, 504 U.S. 127, 140-42 (1992) (Kennedy, J., concurring).

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D. Preserving the Right to a Fair Trial Assuming that a state has presented an important governmental interest in restoring trial competency, the second prong of the Sell test requires a court to find that involuntary medication will significantly further the state’s interest.146 Accordingly, the government must show that the proposed medication is “substantially likely to render the defendant competent to stand trial.”147 In describing this second prong of the test, the Sell Court cited with approval a portion of Justice Kennedy’s lengthy concurrence in Riggins,148 in which he explicitly described the ways in which the side effects of antipsychotic medication can adversely effect a defendant’s in-court demeanor, his abilities to react to the proceedings, testify on his own behalf, and communicate with counsel.149 As such, Justice Kennedy’s concurrence in Riggins is highly instructive in predicting how lower courts should apply Sell in resolving petitions for the involuntary medication of pretrial detainees. The substance of Justice Kennedy’s thesis in Riggins is that medical and pharmacological data suggests that the involuntary medication of mentally ill defendants would entail “a serious threat to a defendant’s right to a fair trial.”150 Hence, granting a state the power to medicate a pretrial detainee would, in effect, enable prosecutors to manipulate the defendant’s demeanor in a manner that would “prejudice all facets of the defense.”151 Under Justice Kennedy’s analysis, therefore, a state bears an almost insurmountable burden of proving that a proposed medication is not only efficacious, but also that the side effects from the medication will not impair the defendant’s opportunity to receive a fair trial.152 Conversely, the Eighth Circuit, when confronted with the 146. Sell, 539 U.S. at 181 (“Second, the court must conclude that involuntary medication will significantly further those concomitant state interests.”). 147. Id. (emphasis added). 148. See id. 149. See Riggins, 504 U.S. at 142-45 (Kennedy, J., concurring). 150. Id. at 138. 151. Id. at 142. 152. Id. at 141. Justice Kennedy stated: [E]lementary protections against state intrusion require the State in every case to make a showing that there is no significant risk that the medication will impair or alter in any material way the defendant’s capacity or willingness to react to the

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192 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 issue in Sell, concluded that issues of possible trial prejudice would be best resolved after the medication had been administered,153 with no real concern paid to the possible side effects and their burden on ensuring a fair trial. Due to the tremendous weight accorded by the Sell Court to Justice Kennedy’s analysis in Riggins,154 the Supreme Court rejected the Eighth Circuit’s “wait and see” approach with respect to a state’s duty to protect a medicated defendant from unfair prejudice at trial.155 Moreover, the Sell Court criticized the lower courts for simply deferring to the conclusions proffered by Sell’s prison psychiatrists that the benefits of involuntary medication would presumably outweigh the potential risks, despite the likelihood of significant side effects.156 E. The Intrusiveness of Involuntary Medication Under the third prong of the Sell analysis, a court must find that “involuntary medication is necessary to further [the state’s] interests” in bringing the defendant to trial.157 Here, the Court affirmed its prior hypothesis in Riggins that a state could, in principle, medicate a pretrial detainee for the sole purpose of restoring trial competency.158 However, considering the Court’s reliance upon Justice Kennedy’s concurrence in Riggins regarding the perils associated with forcibly medicating pretrial detainees, the overall contour of the Supreme Court’s analysis does not appear to be testimony at trial or to assist his counsel. Based on my understanding of the medical literature, I have substantial reservations that the State can make such a showing . . . . These uncertainties serve to underscore the difficult terrain the State must traverse when it enters this domain. Id. 153. United States v. Sell, 282 F.3d 560, 572 (8th Cir. 2002), vacated by 539 U.S. 166 (2003). 154. The fact that the Sell Court cites to Justice Kennedy’s concurrence in Riggins on four separate occasions is indicative of the significance accorded to Justice Kennedy’s analysis in Riggins. See Sell, 539 U.S. at 179, 181, 182, 185. 155. See id. at 181 (holding that in order for the involuntary medication to pass constitutional muster, the court must conclude that involuntary “administration of drugs is substantially unlikely to have side effects that would interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense.”). 156. Id. at 185. 157. Id. at 181. 158. See id. at 178-79; Riggins, 504 U.S. at 135.

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be consistent with the Eighth Circuit’s optimism that Sell’s prison psychiatrists could easily manage whatever adverse side effects he might experience during trial.159 Rather, the Sell analysis seems to be more aligned with the Sixth Circuit’s holding in Brandon that the Riggins standard required some sort of “narrow tailoring” test which is more akin to strict scrutiny.160 Thus, this third prong suggests that although a state need only present an important governmental interest in restoring trial competency,161 the state must nonetheless prove that involuntary medication is narrowly tailored to the accomplishment of its prosecutorial interests.162 Sell’s failure to establish an easily identifiable standard of review may have worrisome implications for lower courts seeking guidance. Sell seems to stand for the proposition that lower courts must use a level of vigilance and judicial intervention that is more akin to strict scrutiny as it pertains to the preservation of a mentally incompetent detainee’s trial-related rights.163 However, lower courts may continue to apply something akin to intermediate scrutiny insofar as it relates only to a state’s assertion that the circumstances of an alleged crime could, in theory, override an individual’s liberty interest in avoiding unwanted medication. By stringing together elements of intermediate and strict scrutiny,164 the Sell Court struggles to strike a compromise between the government’s “compelling interest in finding, convicting, and punishing those who violate the law,”165 and the unquestioned duty of the courts to protect a criminal defendant’s fundamental right to a fair trial from the “deleterious” side effects of antipsychotic drugs.166

159. See Sell v. United States, 282 F.3d 560, 571-72 (8th Cir. 2002), vacated by 539 U.S. 166 (2003). 160. See United States v. Brandon, 158 F.3d 947, 960 (6th Cir. 1998). 161. See Sell, 539 U.S. at 180. 162. See id. at 181. Under traditional notions of intermediate scrutiny, states would only be required to show that involuntary medication was “substantially related” to an important governmental interest. See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976). 163. See Sell, 539 U.S. at 179. 164. See id. 165. See Brief for the United States (Respondent) at 19, Sell v. United States, 539 U.S. 166 (2003) (No. 02-5664) (quoting Moran v. Burbine, 475 U.S. 412, 426 (1986)). 166. See Brief of Petitioner at 46, Sell v. United States, 539 U.S. 166 (2003) (No. 02-5664) (quoting Estelle v. Williams, 425 U.S. 501, 504 (1976)).

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194 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 F. Medical Appropriateness Finally, the fourth prong of the Sell test requires a finding that the proposed drugs used would be medically appropriate.167 Under this final step of the analysis, a court must evaluate the proposed medication in relation to the defendant’s specific medical condition in order to weigh the probability of efficacy against the severity of likely side effects.168 Because the nature and severity of side effects vary with the type of drug used,169 the Sell Court implicitly endorsed Sell’s contention that the government cannot medicate him without first informing the trial court as to the exact drug it intends to administer.170 The Sell Court’s “medical appropriateness” prong begs the question as to the extent a prison psychiatrist’s medical judgment may be improperly influenced by a state’s interest in bringing a mentally incompetent detainee to trial.171 In an attempt to accommodate a state’s prosecutorial interest, for example, a prison psychiatrist may propose to administer a drug with fewer immediate side effects (thereby enabling the state to bring the defendant to trial without the court finding a risk of unfair prejudice), despite the availability of an alternative drug more appropriate for the patient’s long-term psychiatric condition, but yielding more immediate side effects. The Sell Court’s analysis does nothing to dissuade prison psychiatrists from conspiring with prosecutors to 167. Sell, 539 U.S. at 181 (“Fourth, . . . the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.”); accord Riggins v. Nevada, 504 U.S. 127, 133 (1992); Washington v. Harper, 494 U.S. 210, 227 (1990). 168. See Sell, 539 U.S. at 181. 169. Id. 170. See id. (holding that the court must conclude that administration of antipsychotic drugs is medically appropriate based upon the defendant’s medical condition and that the drugs are necessary to further the state purpose of rendering the defendant competent to stand trial); Brief of Petitioner at 49, Sell v. United States, 539 U.S. 166 (2003) (No. 02-5664) (noting the court’s obligation to conclude that administration of medication is “necessary and appropriate” and arguing that “[c]ertainly, a showing of medical appropriateness requires that the government provide the Court . . . with the name and proposed dosage of the antipsychotic drug to be administered”). 171. See Joanmarie Ilaria Davoli, Still Stuck in the Cuckoo’s Nest: Why Do Courts Continue to Rely on Antiquated Mental Illness Research?, 69 TENN. L. REV. 987, 1046-49 (2002) (commenting on the various conflicts of interest that ensue whenever a psychiatrist’s treatment decisions are influenced by the legal strategies of both prosecutors and defense counsel).

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jeopardize a mentally ill patient’s long-term mental condition by prescribing a particular drug for the sole and immediate purpose of hauling that person into a courtroom.172 G. The Strong Presumption Against Medicating to Restore Trial Competency Despite its failure to prescribe a consistent standard of judicial review,173 the Sell Court’s opinion will force many lower courts to reconsider their previous rulings regarding the circumstances under which the government may involuntarily medicate pretrial detainees. Although the Sell majority gave little consideration to the detainee’s “liberty interest” in avoiding unwanted medication,174 any state that wishes to medicate a pretrial detainee is burdened with the initial presumption that the involuntary administration of antipsychotic drugs will entail a “substantial probability of trial prejudice.”175 Moreover, in his concurrence in Riggins, Justice Kennedy was explicitly doubtful about whether a state could ever present a set of circumstances under which its interest in bringing a criminal defendant to trial would outweigh the danger of trial prejudice inherent within the administration of antipsychotic medication.176 Considering the extent to which Justice Kennedy’s pessimism was adopted by the majority in Sell,177 as 172. On the other hand, “[a] standard that requires forced psychiatric treatment only be available when the motivation is purely therapeutic eliminates the situation in which the government is requesting treatment in order to achieve its own goals of prosecution or execution instead of out of concern for the afflicted individual.” Id. at 1049. This danger is inherent in situations where the prosecution wishes to medicate a defendant for the sole purpose of restoring his or her competency to stand trial. The motivation in such cases is purely selfish, in that the state wants an opportunity to convict the defendant, and likely is motivated very little, if at all, by concerns for the defendant’s mental well-being. 173. See Sell, 539 U.S. at 179 (establishing a standard utilizing aspects of both intermediate level and strict scrutiny review); supra notes 159-165 and accompanying text. 174. See Sell, 539 U.S. at 179 (setting a standard of review that does not specifically require inquiry into the defendant’s liberty interest). 175. See Riggins, 504 U.S. 127, 138 (1991). 176. See id. at 141 (Kennedy, J., concurring); supra note 55 and accompanying text. 177. See Sell, 539 U.S. at 180 (“This standard will permit involuntary administration of drugs solely for trial competence purposes in certain instances. But those instances may be rare.”) (emphasis added).

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196 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 well as the Court’s conclusion that the likelihood of civil commitment can greatly diminish the government’s need to bring a defendant to trial,178 the Sell Court’s analysis suggests that trial competency alone is an allowable, yet disfavored, rationale for involuntarily medicating a pretrial detainee who poses no danger to himself or others. H. The Dangers of Pretextuality The most troubling aspect of the Sell Court’s opinion is the Court’s recommendation that in all cases involving pretrial detainees, states should first seek permission to medicate an individual for dangerousness under the Harper standard before seeking to medicate on the grounds of restoring trial competency.179 The Court’s suggestion was premised upon its belief that determining a detainee’s dangerousness is “more objective and manageable” than the more precarious and unpredictable inquiry into a proposed medication’s impact on a detainee’s right to a fair trial.180 As argued above, Sell seems to stand for the proposition that a state bears the heavy burden of producing specific evidence to prove that the involuntary medication of a pretrial detainee will not impinge upon the detainee’s right to a fair trial.181 This proposition, however, is severely undermined by the Sell Court’s procedural recommendation that a state should first seek to medicate a pretrial detainee for dangerousness under Harper;182 such a procedure appears to presume that treating a dangerous inmate and restoring trial competency are interchangeable state interests.183 In fact, dangerousness and trial competency are not inter178. Id. 179. See id. at 183; see also Washington v. Harper, 494 U.S. 210, 227 (1990) (holding that the Due Process Clause allows a state to medicate a mentally ill inmate after finding that the inmate is “dangerous to himself or others and [that] the treatment is in the inmate’s medical interest”). 180. Sell, 539 U.S. at 182. 181. See supra Part III.G. 182. See Sell, 539 U.S. at 183; see also Harper, 494 U.S. at 227. 183. But see Sell, 539 U.S. at 181-83. Noting the difference between the two inquiries – whether to medicate a pretrial detainee to pacify or to restore competency – the Court justified requiring a court to, as a threshold question, “determine whether the Government seeks, or has first sought, permission for forced administration of drugs on these other Harper-type [or dangerousness] grounds; and if not, why not.” Id. at 183.

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changeable interests, as evidenced by the Sell Court’s own conclusion that the lower courts had improperly relied upon the government’s attempt to conflate the issues of dangerousness and trial competency into a single inquiry.184 The question of whether an inmate is dangerous to himself or others under Harper is different than the question of whether medication should be administered to render a defendant competent for trial because a finding of dangerousness under Harper is subject only to a rational basis test, in which courts must give significant deference to a state’s findings of dangerousness.185 The Harper rational basis standard is markedly different and a much lower burden to carry than the Sell Court’s intermediate-strict hybrid standard of review.186 Consequently, the Sell Court’s procedural recommendation does nothing to remedy the danger that courts may continue to obscure the important distinctions between a state’s interest in mitigating dangerousness and its interest in restoring trial competency. Most regrettably, the Court may have empowered prosecutors to use the deferential standard of review in Harper as a convenient pretext to have a pretrial detainee medicated for dangerousness when the true motive is the restoration of trial competency.187 Notably, one way that courts may be able to discourage states from misusing Harper in such a way is by strictly limiting the inquiry of the detainee’s alleged dangerousness to the immediate 184. See id. at 183-85. 185. Harper, 494 U.S. at 226-27. 186. See id. at 227 (holding that the Due Process Clause allows a state to medicate a mentally ill inmate after finding that the inmate is “dangerous to himself or others and [that] the treatment is in the inmate’s medical interest”); Sell, 539 U.S. at 179, 180-81 (setting forth a four-pronged test for whether a pretrial detainee may be involuntarily medicated to restore his or her competence to stand trial). 187. A prosecutor may easily attempt to medicate a defendant under a claim that he or she is dangerous to herself or others, especially with the help of state-employed prison psychiatrists to testify that the medication is needed for its calming effect. Moreover, the Court would welcome this initial claim, and based upon its opinion in Sell, apparently the Court would prefer that prosecutors try the dangerousness claim before using the possibility of rendering the defendant competent to stand trial as a justification for involuntary medication. See Sell, 539 U.S. at 183 (requiring courts asked to permit forcible administration of antipsychotic drugs to first inquire into whether the prosecution has made a claim that the medication is necessary due to the defendant’s dangerous propensities, and to ask why the prosecution has not made such a claim when it fails to do so).

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198 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 conditions of incarceration. I. Defining Dangerousness Under Sell and Harper Perhaps the most critical issue facing lower courts is the extent to which a state’s finding that a pretrial detainee is dangerous under the Harper standard may be improperly used to circumvent the heightened levels of scrutiny required by Sell.188 In particular, courts must be aware that governmental officials have, in the past, frequently used a mentally incompetent detainee’s prior history of aggressive behavior outside the current conditions of incarceration as a primary basis to seek involuntary medication under the Harper dangerousness standard.189 When a detainee’s acts prior to incarceration are used as a basis to justify involuntary medication under Harper, the detainee can be burdened with an almost overwhelming presumption of dangerousness.190 All the prosecution would need to do to satisfy Harper is to find some events in the defendant’s past, no matter how distant, that tend to show the defendant’s propensity for dangerousness.191 The problem with this tactic is obvious. The only real value in such evidence is to show how dangerous the defendant may have been in the past, which presumably has nothing to do with whether the defendant should be involuntarily medicated under

188. See id. at 179. 189. See, e.g., Morgan v. Rabun, 128 F.3d 694, 698 (8th Cir. 1997) (finding that the defendant was dangerous based in part upon the nature of the crime that led to his commitment and his hostile demeanor when institutionalized in a hospital); United States v. Weston, 134 F. Supp. 2d 115, 130 (D.D.C. 2001) (basing a finding of Weston’s dangerousness upon, in part, his past violent behavior), aff’d on other grounds, 225 F.3d 873 (D.C. Cir. 2001); United States v. Keeven, 115 F. Supp. 2d 1132, 1135-36 (E.D. Mo. 2000) (involving an Involuntary Medication Report based partly upon a mentally incompetent detainee’s history of aggressive behavior prior to incarceration and hostility toward her own attorneys which sought to justify involuntary medication upon the detainee’s “profound psychosis resulting in loss of judgment, increased aggression and potential assaultive behavior.”). 190. See, e.g., Morgan, 128 F.3d at 698 (using detainee’s prior violent acts, including the alleged crime leading to commitment, as a basis to affirm a staff psychiatrist’s decision to medicate); Donaldson v. Denver, 847 P.2d 632, 633-35 (Colo. 1993) (holding that the trial court did not abuse its discretion in using a mentally incompetent detainee’s prior history of aggressive behavior as a basis to conclude that involuntary medication was necessary to mitigate the detainee’s dangerousness). 191. See Harper, 494 U.S. at 227.

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his current conditions of incarceration. A state may attempt to medicate a mentally incompetent detainee although the detainee has not shown a proclivity to assault prison staff or fellow inmates during the course of incarceration, or even if the inmate has been completely segregated from the general prison population.192 If prosecutors and prison officials are permitted to use prior violent acts (such as the alleged crime of the prison detainee) as a primary basis for involuntary medication under Harper, they may be able to circumvent the first prong of the Sell Court’s test requiring the state to establish that its petition to medicate an individual is pursuant to an important governmental interest.193 When the government’s true interest is to medicate the defendant to render him or her competent to stand trial, and not to medicate to ameliorate a defendant’s dangerousness, using prior violent acts as a basis to medicate pretrial detainees belies the first prong of Sell by not permitting the court to determine whether the government’s true interest is an “important” one.194 Because the Sell Court suggested that all petitions for involuntary medication should first be examined under Harper,195 the extent to which lower courts might consider a mentally incompetent detainee’s prior propensity for violent behavior is crucial in determining whether prosecutors will be more or less inclined to use Harper as a pretext to medicate for dangerousness when the ultimate purpose may be simply to restore trial competency.196 To prevent prosecutors from using the rational basis test in Harper 192. Although overruled on appeal to the D.C. Circuit, the District Court‘s ruling in United States. v. Weston is illustrative of a lower court’s susceptibility to entertaining presumably irrelevant evidence of dangerousness despite a defendant’s isolated incarceration pending trial. Weston, 134 F. Supp. 2d at 129-30 (using defendant’s prior violent acts as a basis to approve the government’s involuntary medication petition under Harper, despite the fact that Weston was held in isolation). But see Weston, 255 F.3d at 878-79 (holding that defendant’s complete seclusion from the general prison population precluded a finding of dangerousness under Harper, but that he nonetheless could be medicated to restore trial competency). 193. See Sell, 539 U.S. at 180. 194. See id. 195. Id. at 183. 196. See Donaldson v. Denver, 847 P.2d 632, 636 (Colo. 1993) (Scott, J., dissenting) (disputing the state’s contention that involuntary medication was for the purpose of preventing a gross deterioration in the defendant’s condition and concluding instead that the “total goal” was to restore trial competency).

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200 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 as a means to circumvent the requirements of heightened scrutiny required by Sell, courts should be careful not to confuse the issue of dangerousness under Harper with that under a civil commitment procedure. A mentally ill person’s prior propensity for violence would be relevant in a civil commitment hearing because the threshold question is whether the person should be institutionalized because he otherwise poses a significant danger to himself or others while left unsupervised in the community.197 In contrast, the inquiry under Harper is more narrow because courts are only required to determine whether the detainee poses a danger to himself or others exclusively within the detainee’s current conditions of incarceration.198 As such, a state has a rational basis justification for involuntarily medicating an inmate under Harper only if the court finds that the methods employed within a particular facility for controlling violent behavior are insufficient to prevent the detainee from harming himself or others within the facility.199 To determine whether a particular facility is equipped to control a mentally ill inmate’s behavior, a court should narrow the scope of its inquiry to whether the inmate poses an immediate threat to the prison’s psychiatrists, staff, and other inmates within the institution, and whether prison officials have attempted to control the inmate’s 197. See O’Connor v. Donaldson, 422 U.S. 563, 576 (1975). 198. See Washington v. Harper, 494 U.S. 210, 227 (1990); see also Sell, 539 U.S. at 174-75. The Sell Court accepted the District Court’s determination of Sell’s dangerousness after noting the District Court had “limited its determination to Sell’s ‘dangerousness at this [present] time to himself and to those around him in his institutional context.’” Id. The Court in Harper stated: We hold that, given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest. Harper, 494 U.S. at 227 (emphasis added). The Supreme Court premised its holding in Harper upon prior cases in which the Court found that the unique exigencies of maintaining safety within a penal institution justified the infringement of an inmate’s individual liberty interest, such as the right to avoid bodily restraints, or even the right to marry. See id. at 223-27. 199. See United States v. Weston, 255 F.3d 873, 879 (D.C. Cir. 2001) (“Absent a showing that Weston’s condition now exceeds the institution’s ability to contain it through his present state of confinement, the prior decision appears to preclude a finding of dangerousness.”).

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behavior through non-drug alternatives. This limited inquiry will better insure that a state’s finding of dangerousness is truly deserving of the lower standard of review under Harper, and is not merely a Trojan horse used to circumvent the searching inquiry required under Sell into an incompetent detainee’s prospect of receiving a fair trial while under the influence of a potent psychiatric drug. Evidence of alleged violent acts occurring before the inmate was imprisoned, perhaps occurring in an unsupervised setting, is not likely to be probative in determining whether a mentally ill detainee poses a danger to himself or others in a prison facility, where the detainee’s propensity for violence may be successfully supervised and controlled through the use of isolation or other non-drug alternatives. IV. PAVING THE WAY TO THE DEATH CHAMBER

The need for courts to construe Harper narrowly does not only apply to cases in which a state wishes to use antipsychotic medication as a means of restoring trial competency. Indeed, perhaps the most egregious use of the rational basis test of Harper would be if a state employed the rationale of dangerousness as a pretext to render a mentally incompetent condemned inmate fit for execution. Because life on death row often exacerbates the symptoms of mental illness, thereby rendering many otherwise competent inmates incompetent,200 there remains after Sell a legitimate fear that some states may seek to use the rational basis test of Harper as a means to circumvent the Supreme Court’s prohibition against executing the mentally insane.201 200. See, e.g., Roberta M. Harding, “Endgame”: Competency and the Execution of Condemned Inmates – A Proposal to Satisfy the Eighth Amendment’s Prohibition Against the Infliction of Cruel and Unusual Punishment, 14 ST. LOUIS U. PUB. L. REV. 105, 115-16 (1994). Any individual condemned to face execution must have been tried and sentenced. In such previous judicial proceedings, the condemned individual must have been determined to be competent or else such proceedings would have been suspended until competency was achieved. Therefore, for the issue of competency to face execution to surface, the condemned individual must have become incompetent following his death sentence. Keith Alan Byers, Incompetency, Execution, and the Use of Antipsychotic Drugs, 47 ARK. L. REV. 361, 366-67 (1994) (citations omitted). 201. See Harding, supra note 200, at 122-25. The Supreme Court expressly prohibited the execution of the mentally insane in 1986. See Ford v.

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202 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 The seminal case concerning the medicate-to-execute question is State v. Perry,202 in which the Supreme Court of Louisiana refused to allow state officials to use a Harper finding of dangerousness as a justification to medicate a condemned mentally incompetent inmate.203 Although Perry was ultimately decided upon state constitutional grounds,204 the Louisiana Supreme Court regarded the state’s petition to medicate under Harper as a cynical ploy to use an alleged concern for the inmate’s health and safety as a mere pretext to render him mentally fit for execution.205 If the Perry rationale is not adopted by other courts, involuntary medication of inmates awaiting the death penalty to render them competent to carry out their sentence is not an unimaginable possibility. Furthermore, after Sell, state officials may no longer even need to use Harper as a pretext to conceal their true motives when seeking to medicate condemned inmates. Rather, state officials may actually find it easier to gain judicial approval under Sell in cases involving the involuntary medication of condemned inmates than in cases involving pretrial detainees. To understand how Sell might impact the lives of mentally incompetent inmates who are currently residing on death row, one must first look briefly to the Supreme Court’s original prohibition against executing the mentally insane. The Supreme Court, in Ford v. Wainwright,206 held that executing the mentally insane violates the prohibition of the Eighth Amendment against cruel and unusual punishment.207 Although the Ford Court held that Wainwright, 477 U.S. 399, 410 (1986) (“The Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane.”). 202. 610 So. 2d 746 (La. 1992). 203. Id. at 755. 204. Id. 205. See id. at 754. The Louisiana Supreme Court stated: It is obvious that none of the participants considered that prison safety or the long term best medical interests of Perry were significant or determinative issues in the proceeding. Having conducted this proceeding with the single-minded purpose of forcibly medicating Perry in order to execute him, . . . the state cannot now contend that it genuinely seeks to uphold the trial court’s forced medication order merely to further Perry’s best medical interest and the safety of Perry and others in the prison setting. Id. 206. 477 U.S. 399 (1986). 207. Id. at 410.

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states may not execute a prisoner who is “insane,”208 the Court declined to establish any required procedure or criteria in determining whether a condemned inmate is mentally fit for execution.209 The only guidance provided by the Court came in the form of a proposition from Justice Powell’s concurrence that the Eighth Amendment allows the states to execute only those who “know the fact of their impending execution and the reason for it.”210 Subsequently, this statement from Justice Powell’s concurrence became commonly known as the “cognitive test,” and was adopted by many states as the sole criteria in determining a condemned inmate’s eligibility for execution.211 In addition to adopting the cognitive test, however, some jurisdictions have held that a condemned inmate is death eligible only if he can effectively communicate with counsel, an additional requirement know as the “assistance prong.”212 The disparate interpretations of Ford will have a significant impact upon how Sell is applied in cases involving the involuntary medication of condemned inmates. As argued above,213 the Sell Court essentially created a two-tiered standard of review: courts must first apply intermediate scrutiny to determine whether a state’s prosecutorial interest is important enough in a particular case to outweigh an individual’s liberty interest to refuse unwanted medication, followed by a form of strict scrutiny to ensure that the side effects of a proposed medication would not significantly impact an individual’s ability to communicate with counsel, or otherwise result in unfair trial prejudice.214 The rationale for incorporating the “assistance prong” into an inquiry regarding a condemned inmate’s mental fitness for execution is that it is im208. Id. 209. See id. at 416-17 (“[W]e leave to the State the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”). 210. Id. at 422 (Powell, J., concurring). 211. See e.g., Singleton v. State, 437 S.E.2d 53, 56 (S.C. 1993) (citing Johnson v. Cabana, 818 F.2d 333 (5th Cir. 1981)). 212. See id. at 56-57 (citing authorities and stating that “[o]ther states have adopted similar views where, in order to execute a defendant, he must have the intelligence to convey any knowledge of a fact which would make his punishment unjust or unlawful to his attorney.”). 213. See supra Part III.B. 214. See supra Parts III.A.-F.; see also Sell v. United States, 539 U.S. 166, 179 (2003).

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204 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 perative that a condemned inmate can assist counsel throughout the post-conviction appeals process.215 In a jurisdiction that has incorporated this “assistance prong” into its analysis, the potential side effects of a proposed drug would be crucial in determining whether involuntary medication would render a condemned inmate death eligible under Ford.216 As such, under the assistance prong a condemned inmate would be entitled to the same judicial protections as a pretrial detainee under Sell, thus triggering strict scrutiny in order to ensure that involuntary medication would not impair a condemned inmate’s ability to participate effectively throughout the appeals process. Because of the Supreme Court’s current pessimism regarding the ability of psychiatrists to mitigate the side effects commonly associated with antipsychotic drugs,217 it is highly unlikely that a court bound by the “assistance prong” would approve a state’s request to medicate a condemned inmate. However, in the wake of the Eighth Circuit’s holding in Singleton v. Norris,218 the results will be starkly different in jurisdictions that ascribe solely to the “cognitive test.”219 Several months prior to the Supreme Court’s holding in Sell, the Eighth Circuit, in Singleton v. Norris, affirmed a district court’s order permitting the State of Arkansas to execute a condemned inmate who had been previously restored to competency through involuntary medication under a Harper finding of dangerousness.220 Beginning with the premise that the state’s interest in punishing crime is “at its greatest in the narrow class of capital murder cases in which the aggravating factors justify imposition of the death penalty,”221 the Eighth Circuit concluded that invol-

215. See Singleton, 437 S.E.2d at 57-58. 216. See Riggins v. Nevada, 504 U.S. 127, 140-42 (1992) (Kennedy, J., concurring); see also Ford v. Wainwright, 477 U.S. 399, 410 (1986). 217. See, e.g., supra note 56 and accompanying text. 218. See Singleton v. Norris, 319 F.3d 1018, 1020 (8th Cir. 2003) (affirming the district court’s rejection of defendant “Singleton’s contention that the administration of mandatory antipsychotic medication to a prisoner, even if originally constitutional under Harper, becomes unconstitutional once an execution date is set because at that time it ceases to be in the prisoner’s medical interest”). 219. The “cognitive test” involves determining whether a defendant on death row “know[s] the fact of their impending execution and the reason for it.” Ford, 477 U.S. at 422 (Powell, J., concurring). 220. Singleton, 319 F.3d at 1020. 221. Id. at 1025.

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untary medication of a condemned inmate was narrowly tailored to further an essential state interest.222 The most contentious issue, however, was whether it could ever be medically appropriate to medicate a condemned inmate when doing so would ultimately result in furthering the inmate’s ability to be put to death.223 In concluding that involuntary medication was medically appropriate, the Eighth Circuit restricted its analysis solely to the immediate effects the medication had in relieving Singleton’s symptoms of psychosis, while refusing to consider the ancillary effect of facilitating his eventual death by execution.224 This approach by the Eighth Circuit stands in stark contrast to that of the Louisiana Supreme Court, which held that the state’s medicate-to-execute regime “[came] closer to being the cause of death in furthering the state’s punishment goal than to the practice of medicine or treatment in the patient’s best [medical] interest.”225 Moreover, in Singleton, the Eighth Circuit gave no consideration to the possibility that involuntary medication might inhibit Singleton’s ability to communicate with his counsel, or to participate effectively in the appeals process. Because the Eighth Circuit applied the “cognitive test” as the sole criteria in defining Singleton’s mental fitness under Ford,226 Singleton’s ability to assist his counsel throughout the appeals process became irrelevant since the court’s only concern was whether Singleton was aware of his 222. See id. 223. See id. at 1026 (“Central to Singleton’s argument is his contention that medication ‘obviously is not in the prisoner’s ultimate best medical interest’ where one effect of the medication is rendering the patient competent for execution.”). 224. See id. The Singleton court reasoned that: Several doctors . . . have found the medication to be effective in controlling Singleton’s psychotic symptoms. Singleton’s argument regarding his long-term medical interest boils down to an assertion that execution is not in his medical interest. Eligibility for execution is the only unwanted consequence of the medication . . . . In the circumstances presented in this case, the best medical interests of the prisoner must be determined without regard to whether there is a pending execution. Id. 225. State v. Perry, 610 So. 2d 746, 753 (La. 1992). 226. The Eighth Circuit applied the “cognitive test” without explicitly naming it. See Singleton, 319 F.3d at 1027 (“Ford prohibits only the execution of a prisoner who is unaware of the punishment he is about to receive and why he is to receive it.”).

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206 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 impending punishment and the reasons behind it.227 Because Singleton was foreclosed from presenting any evidence as to the possible impact that involuntary medication might have upon his ability to assist counsel in obtaining a successful appeal of his death sentence, the Eighth Circuit was left to conclude that the only negative side effect from the proposed medication would be Singleton’s eventual trip to the death chamber.228 Because the Supreme Court has already denied Singleton’s request for certiorari,229 the Eighth Circuit’s holding in Singleton now stands as “good law.” In addition, the Supreme Court’s holding in Sell fortifies the Eighth Circuit’s analysis in Singleton in two significant ways. First, the Sell Court’s conclusion that courts should evaluate the severity of an alleged crime in determining the appropriateness of medicating for trial competency purposes works in favor of medicating a condemned inmate who has already been convicted of capital murder, the most reprehensible crime imaginable.230 Second, by encouraging states to cloak all involuntary medication petitions under the pretext of a Harper finding of dangerousness,231 the Sell Court has turned a blind eye to the alarming reality that the treatment decisions made by some prison psychiatrists may be motivated not by an undivided loyalty to the patient’s psychiatric well-being, but rather by the desire of government officials to ensure that all condemned inmates receive their “just desserts.” Furthermore, in weighing the strength of a state’s prosecutorial interests under the Sell Court’s heightened scrutiny analysis,232 lower courts will likely find that the alternative of indefinite confinement under a civil commitment order cannot diminish the state’s interest in executing a condemned in227. Id. 228. Id. at 1026 (“Eligibility for execution is the only unwanted consequence of the medication.”). 229. Singleton v. Norris, 540 U.S. 832, 832 (2003). 230. See Sell v. United States, 539 U.S. 166, 180 (2003) (“First, a court must find that important governmental interests are at stake. The Government’s interest in bringing to trial an individual accused of a serious crime is important.”); cf. Ford v. Wainwright, 477 U.S. 399, 429 (1986) (O’Connor, J., concurring in part and dissenting in part) (“But I consider it self-evident that once society has validly convicted an individual of a crime and therefore established its right to punish, the demands of due process are reduced accordingly.”). 231. See discussion supra Part III.H. 232. See Sell, 539 U.S. at 179.

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mate because the state’s interest in punishing those convicted with capital murder undoubtedly exceeds any form of indefinite incarceration. The most disturbing aspect of the Supreme Court’s refusal to review the Eighth Circuit’s holding in Singleton,233 however, is the Court’s apparent inability to recognize that those courts which merely apply the “cognitive test” in defining an inmate’s mental fitness for execution will not apply any form of judicial scrutiny in regard to the possible impact that involuntary medication might have upon the inmate’s ability to communicate and assist his counsel during appeal. It is highly troublesome that many condemned inmates who have the most to lose will be denied the same level of judicial protection granted to all pretrial detainees under Sell, especially as it relates to the important right to assist and communicate with counsel during the entire course of the judicial process in which one’s ultimate fate will be decided.234 Under the current state of the law, a state’s ability to restore a condemned inmate’s mental competency through the use of drugs will hinge solely upon the jurisdiction’s favored interpretation of mental competency under Ford. The only way to remedy this obvious disparity is for the Court to revisit Ford by requiring all jurisdictions to apply the “assistance prong,”235 in addition to the “cognitive test,”236 thereby ensuring that the Sell Court’s vigorous protection of a pretrial detainee’s right to assist and communicate with counsel is extended to a condemned inmate’s last efforts to avoid execution.237 V. CONCLUSION

Collectively, Sell and Singleton are indicative of a disturbing movement in the law in which the prosecutorial interests of the state may someday overshadow the historical duty of physicians and psychiatrists to base all treatment decisions on the fulfillment of a patient’s best medical interest. In seeking to accommodate a state’s interest in prosecuting mentally incompetent defendants

233. 234. 235. 236. 237.

See Singleton, 540 U.S. at 832. See U.S. CONST. amend. VI. See Singleton v. State, 437 S.E.2d 53, 56-57 (S.C. 1993). See Ford v. Wainwright, 477 U.S. 399, 422 (Powell, J., concurring). See Sell, 539 U.S. at 181.

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208 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:165 with an individual’s right to refuse unwanted medication, the Sell Court has taken a definite, yet cautious, step toward granting prosecutors the discretion to dictate the terms and conditions under which mentally incompetent defendants are to be medicated. Notwithstanding this unprecedented expansion of state power, the Sell Court has given lower courts clear notice that the Supreme Court may not turn a blind eye to the ways in which the state’s authority to administer antipsychotic drugs might be used to impair a defendant’s constitutional right to receive a fair trial. However, the Sell Court’s holding coincides with recent developments in the manufacture and distribution of a newer generation of antipsychotic drugs that are not accompanied by the same debilitating side effects often associated with the older medications traditionally prescribed by psychiatrists.238 In light of these current developments, the Supreme Court may someday choose to reconsider its current skepticism regarding the ability of prison psychiatrists to prevent heavily medicated defendants from being subjected to unfair prejudice at trial.239 Moreover, the current state of the law is even more unsettled in regard to the numbers of mentally incompetent inmates who currently reside on death row.240 In declining to review the Eighth Circuit’s holding in Singleton,241 the Supreme Court missed an important opportunity to clarify the disparate ways states have measured the mental competency of condemned inmates awaiting execution, thus providing condemned inmates with the same judicial protections granted to pretrial detainees under Sell. Instead, 238. The newer generation of drugs, commonly known as “atypical” or “novel” antipsychotics, tend not to cause the same severe neurological side effects, such as tardive dyskinesia, as do their older counterparts. Siegel supra note 53, at 348-49. However, although these newer drugs are effective in alleviating many of the acute symptoms of psychosis, not much is known about their long-term efficacy; nor are they widely available in injectable form. Id. at 349. Until these newer drugs become more available in injectable form, prison psychiatrists will not be able to administer these drugs to unwilling patients. Id. at 349 n.235; Paul A. Nidich & Jacqueline Collins, Involuntary Administration of Psychotropic Medication: A Federal Court Update, 11 (No. 4) HEALTH LAW. 12, 13 n.21 (May 1999). 239. See Nidich & Collins, supra note 238, at 13 (arguing that in light of the recent improvements in the manufacture of psychotropic drugs, the Supreme Court “should revisit this issue with an open mind”). 240. See Harding, supra note 200, at 113-16 (discussing increases in the number of mentally incompetent condemned inmates). 241. See Singleton v. Norris, 540 U.S. 832, 832 (2003).

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prosecutors have a greater incentive to use a mentally incompetent condemned inmate’s propensity for dangerousness as a pretext merely to render the inmate mentally fit for execution. By granting the government the limited authority to medicate mentally incompetent defendants for trial competency purposes, the Court may have unknowingly accorded the government the unlimited power to use the therapeutic benefits of psychiatric medication to bring condemned inmates to the threshold of the death chamber. Cameron J. Jones

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Mandatory Voir Dire Questions in Capital Cases: A Potential Solution to the Biases of Death Qualification “Given the important, delicate, and complex nature of the death qualification process, there can be no substitute for thorough and searching inquiry . . . .”1 I. INTRODUCTION

The above quotation emphasizes the importance of voir dire in a capital case. Because of the gravity of the death penalty as an available punishment, courts should do everything possible to ensure capital voir dire results in a fair, impartial jury that is able to follow the rule of law. Unfortunately, it seems this result fails to occur under the current form of death qualification. Voir dire differs in capital cases as compared with other trials in that jurors must be “death qualified” to serve in a capital case. While “death qualified” has meant different things to different courts, the term is most commonly used to describe a venire person able to follow both the juror’s oath and the law, despite whatever personal feelings that individual may harbor either for or against the death penalty.2 In contrast, death qualification “excludables,” or “non-death qualifiers,” are those eliminated from a capital jury because they cannot follow the law and the juror oath. While this may seem like a reasonable manner to empanel a fair jury, empiricists have found that death qualification results in unfair juries with many pro-prosecution biases.3 Many social scientists believe there are a number of flaws in-

1. State v. Williams, 550 A.2d 1172, 1182 (N.J. 1988). 2. See Wainwright v. Witt, 469 U.S. 412, 424 (1985). 3. See discussion infra Part II.

211

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212 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 herent in the current process of death qualification.4 Studies have shown that death qualified jurors are more likely to convict a defendant than non-death qualifiers.5 Additionally, studies have demonstrated that individuals eligible to sit on capital juries are more likely to have other attitudes related to their death penalty beliefs that effect their interpretation of the case in favor of the prosecution, despite their ability to follow the juror oath and the rule of law.6 For instance, because ideas do not occur in a vacuum,7 those who qualify as capital jurors are more likely to be classified as legal authoritarians,8 and thus may believe in a crime control model of criminal justice.9 Crime control theorists are predisposed to believe the prosecution’s version of events and witnesses,10 and are more likely to think a defendant is guilty before any evidence is heard in the case.11 These attitudes, thought to be held by many death qualified jurors, undermine the notion of a presumption of

4. As a cautionary note, it appears that after thorough examination of the empirical studies, social scientists tend to base their research on a definition of death qualification that focuses on those who can serve on a capital jury because their moral beliefs will not interfere with their ability to be impartial. See discussion infra Part II. This definition, however, fails to take into account those individuals not morally opposed to the death penalty, but rather will not enforce it because of their lack of faith in the ability of the justice system to be conclusive enough to warrant imposition of death. Those individuals are not death qualified because they would not be able to follow the juror instructions requiring consideration of death as an available punishment. It would be interesting to ascertain whether those jurors would have the same tendencies as those who are not death qualified for moral reasons. 5. William C. Thompson et al., Death Penalty Attitudes and Conviction Proneness: The Translation of Attitudes into Verdicts, 8 LAW & HUM. BEHAV. 95, 109 (1984). 6. See id. at 97. 7. See id. (“[A]ttitudes toward the death penalty do not exist in isolation but are associated with a cluster of other attitudes and beliefs about criminal justice.”). 8. Douglas J. Narby et al., A Meta-Analysis of the Association Between Authoritarianism and Jurors’ Perceptions of Defendant Culpability, 78 J. APPLIED PSYCHOL. 34, 40-41 (1993). 9. See Robert Fitzgerald & Phoebe C. Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 LAW & HUM. BEHAV. 31, 46-48 (1984). 10. See Claudia L. Cowan et al., The Effects of Death Qualification on Jurors’ Predisposition to Convict and on the Quality of Deliberation, 8 LAW & HUM. BEHAV. 53, 69 (1984). 11. See Fitzgerald & Ellsworth, supra note 9, at 48.

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innocence. Furthermore, death qualification has the adverse effects of frequently excluding minorities and women,12 and fostering a jury with a homogenous attitude toward the legal system, resulting in poorer jury deliberation and a jury stacked against the defendant.13 Despite the abundance of research indicating these flaws, courts have refused to lend much positive credence to those findings.14 The research in this area has been developing for several decades, but the United States Supreme Court continues to hold it inconclusive and unsubstantial.15 However, even though the Court has been reluctant to rely on the empirical data, it has been forced to revise the death qualification process on several occasions, indicating that there are flaws inherent in the current process.16 This Comment proposes that courts should take a further step to revise death qualification by requiring judges in capital cases to ask a minimum mandatory set of voir dire questions aimed at eliciting death qualified jurors who are not burdened with the proprosecution biases many current death qualifiers may possess. “The essential function of voir dire is to enable counsel to gather information sufficient to make well informed decisions about jurors whose biases may interfere with a fair consideration of the evidence.”17 The problem with death qualification in its present state is that, while it seeks to find jurors who can follow the law, many of those jurors may still have attitudes that make them more conviction prone. If voir dire questions can be utilized to identify jurors who would both follow the law and be impartial, then the process as a whole would become fairer for defendants and would help the court maintain an image of impartiality. Because the Court has already regulated voir dire in a variety of

12. See id. at 46-47 (including a table comparing death qualification results based on major demographic characteristics). 13. Cowan et al., supra note 10, at 55. 14. See discussion infra Part III.B. 15. See discussion infra Part III. 16. See discussion infra Part III. 17. Memorandum of Law in Support of Defendant John Javilo McCullah’s Request For Voir Dire Procedures at 1, United States v. McCullah, No. CR-92-32-S (E.D. Okla. 1996), aff’d, 76 F.3d 1087 (10th Cir. 1996), available at http://www.capdefnet.org./fdprc/contents/litigation_guides/guideframe.htm [hereinafter McCullah Memorandum].

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214 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 ways,18 this Comment’s thesis does not suggest a radical departure from Supreme Court jurisprudence. Instead, it proposes one of the few practical solutions to the complex problem of how to impanel a jury in a capital case able to impartially hear a trial. Part II of this Comment will explore the empirical research in this area and discuss the biases inherent in the current death qualification process. Part III will examine the reasons the Supreme Court has given for rejecting the empirical research and its justifications for allowing death qualification in its current state. The Comment will conclude in Part IV with a proposal that judges be required to ask specific questions during voir dire to ascertain which jurors have less death qualified biases, thereby ensuring a fairer legal process. II. THE EMPIRICAL RESEARCH ON DEATH QUALIFICATION BIASES

A. Jurors Retained Through the Process of Death Qualification As the court opinions discussed below indicate,19 many legal experts do not believe death qualification results in a jury with biases significant enough to render the current method of jury selection unconstitutional. Several social scientists, however, hold contrary opinions and have attempted to demonstrate that death qualifiers as a group have biases that deny the defendant in a capital case his right to a fair and impartial jury. Many of these studies, however, have been examined and rejected by the courts.20 Nevertheless, it is important to understand what the attitudes and biases are that researchers allege death qualifiers have. It is also important to understand what characteristics and attitudes are consistently being eliminated from capital juries through death qualification. For if the empirical research on death qualification is correct, then the process may not be as impartial as the courts would like society to believe. More importantly, these attitudes must be understood to develop an appropriate solution to eradicate the alleged flaws in the process.

18. 19. 20.

See discussion infra Part IV. See discussion infra Part III. See, e.g., Lockhart v. McCree, 476 U.S. 162, 168-73 (1986).

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1. Are Death Qualified Jurors More Likely to be Conviction Prone? One of the most crucial potential problems of death qualification is conviction proneness. In 1971, George Jurow was the first to accept the Witherspoon Court’s implicit invitation for further research in the area.21 Through his research,22 Jurow began to elaborate on the ideas of conviction proneness first put forth by Wilson,23 and later developed by Zeisel,24 both studies rejected in Witherspoon.25 Jurow noted the predominance of those in favor of the death penalty as being more likely to convict.26 The problem with this study, however, is even if the data is accurate, its practical implications are arguably limited. Some researchers attempt to use the theory of conviction proneness as a means of demonstrating that the defendant in a capital case is going into trial

21. See Fitzgerald & Ellsworth, supra note 9, at 37-38; Witherspoon v. Illinois, 391 U.S. 510, 517-18 (1968); see also George L. Jurow, New Data on the Effect of a “Death Qualified” Jury on the Guilt Determination Process, 84 HARV. L. REV. 567 (1971). 22. The subjects in Jurow’s study were divided into groups based upon how they responded, on a five-point scale, on when they could or could not administer the death penalty. Cowan et al., supra note 10, at 57-58. In one portion of the study, his data indicated that 44.7% of death qualified subjects voted to convict, as opposed to only 33.3% of the excludables. Id. 23. Id. at 56. Wilson found that individuals with objections to the death penalty were less likely to convict a defendant in the guilt phase of a trial when compared with those jurors who had no scruples against the death penalty. Id. Wilson separated college students into two groups based upon their responses to whether or not they had “conscientious scruples” against the death penalty. Id. Students were given cases to read and provided what their vote would be had they been on the jury. Id. Mock jurors with no scruples against capital punishment were more likely to convict the defendant. Id. While this “conscientious scruples” test is no longer the death qualification standard, this study may serve as an indication that death penalty attitudes are tied to conviction proneness. See Wainwright v. Witt, 469 U.S. 412, 424 (1985) (holding that the standard is whether a prospective juror’s views on capital punishment would “prevent or substantially impair” his or her ability to follow juror instructions in accordance with his or her oath). 24. Cowan et al., supra note 10, at 57. Zeisel interviewed jurors who had previously sat on actual felony juries. Id. He asked them three questions: what the whole jury voted on the first ballot, what their individual vote was, and if they had any scruples against the death penalty. Id. Like Wilson, Zeisel found that jurors who favored the death penalty were more likely to convict the defendant. Id. 25. Witherspoon, 391 U.S. at 516-18. 26. Jurow, supra note 21, at 584-85.

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216 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 with a jury stacked against him.27 If Jurow’s data is an accurate representation of human attitudes, however, less than half the death qualifiers elected to convict the defendant.28 While death qualified jurors do convict more than death excludables according to the research, Jurow’s data indicates that it is not at an extraordinarily higher rate, and therefore may not be as large of a problem as researchers claim.29 As time has passed, however, more reliable methods of evaluating death qualified jurors have developed offering potentially greater accuracy in demonstrating the presence of conviction proneness.30 One such study was conducted by William C. Thompson’s research group, which established the conviction proneness of death qualified jurors through the administration of a “Regret Scale.”31 The researchers concluded that death qualifiers are conviction prone because they are more likely to feel worse about letting a guilty man go free than about wrongfully convicting an 27. See, e.g., Cowan et al., supra note 10, at 53; Fitzgerald & Ellsworth, supra note 9, at 31. 28. See supra note 22. 29. Jurow’s second case study, however, resulted in 60% of death qualifiers and only 42.9% of death excludables voting to convict. Cowan et al., supra note 10, at 58. This demonstrates a larger difference – almost 20% – in conviction proneness between the two groups, indicating that death qualifiers may in fact find the defendant guilty more frequently. 30. See, e.g., Irwin A. Horowitz & David G. Seguin, The Effects of Bifurcation and Death Qualification on Assignment of Penalty in Capital Crimes, 16 J. APPLIED SOC. PSYCHOL. 165, 165, 180-81 (1986). Horowitz and Seguin’s research also found that death qualified jurors are more likely to convict. In that study, participants were divided into different mock juries and classified as either death qualified or non-death qualified. Id. at 172-73. The groups then heard either the guilt or sentencing phase of the trial. Id. The research indicated that the death qualified jury that heard both the guilt and sentencing phases of the trial gave the most severe verdicts. Id. at 180-81. Interestingly enough, this is the procedure used in almost all capital trials. See, e.g., Buchanan v. Kentucky, 483 U.S. 402, 427 (justifying the use of having one jury decide both stages of the trial – guilt and penalty – because a single jury process avoids repetitive proceedings and ensures the defendant the benefit of any residual doubt jurors may feel regarding guilt at sentencing). Therefore, those who will be the harshest toward capital defendants are the ones trying capital defendants. What is even more fascinating about this study is, while it showed that death qualifiers are more conviction prone, the non-death qualified jurors still convicted the defendant eight out of eleven times. See Horowitz & Sequin, supra, at 176. This may indicate that the fear that many courts may have that non-death qualifiers would not convict at all is simply untrue. 31. Thompson et al., supra note 5, at 106.

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innocent man.32 While the death qualifiers acknowledged that there are times when innocent people are wrongly convicted, they felt that this was a necessary flaw in the process of reducing crime and controlling the behavior of actual criminals.33 Therefore, the researchers concluded that death qualifiers convict more frequently and require less certainty of guilt because such persons feel it is important to control crime, and they do not feel guilty if they wrongly sentence a man to die, so long as the conviction was the result of a process which aims to make society safer from real law-breakers.34 A problematic consequence of conviction proneness occurs when the death penalty is sought in cases where the death penalty would not be an appropriate punishment. Unlike judicial officers, prosecutors who routinely deal in capital cases may fully subscribe to the empirical data indicating the conviction proneness of capital juries and make practical use of this proclivity. For instance, some prosecutors may elect to use this information in an unethical fashion, by requesting the death penalty specifically to get the benefits of a death qualification process resulting in conviction prone juries.35 This may be done by prosecutors to increase the chances of success at trial, even when the death penalty may not be appropriate in the particular case.36 Even the most hardened supporters of the death penalty should view this as an abuse of the process,37 for the death penalty should not be sought simply as a way to in32. See id. at 107. 33. See id. at 107-08. 34. Id. at 108. 35. This unethical prosecutorial practice has been addressed by both commentators and judges. See, e.g., Lockhart v. McCree, 476 U.S. 162, 185, 188 n.4 (1986) (Marshall, J., dissenting) (criticizing the majority for failing to address the possibility that the State will request the death penalty in particular cases solely to obtain a death qualified jury); Samuel R. Gross, Determining the Neutrality of Death-Qualified Juries: Judicial Appraisal of Empirical Data, 8 LAW & HUM. BEHAV. 7, 13 (1984). 36. See Lockhart, 476 U.S. at 185 (stating that permitting such conduct by the prosecutor causes the State to have a “special advantage in those prosecutions where the charges are the most serious and the possible punishments, the most severe”); see also Gross, supra note 35, at 13. 37. There are formal guidelines and procedures a prosecutor must abide by before a court will allow the death penalty to become available. See, e.g., 18 U.S.C. § 3593 (2000). It appears to be relatively simple, however, for a prosecutor to satisfy the statutory requirements, thereby making the desired goal of obtaining a death qualified jury relatively easy to achieve. See id.

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218 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 crease the chances of conviction. 2. Are Death Qualified Jurors More Likely To Favor Crime Control over Due Process Rights? Empiricists have unearthed many other biases, in addition to conviction proneness, that death qualified jurors may have against a defendant in capital cases. While the death qualification process attempts to account for personal attitudes about the death penalty, it fails to appreciate that attitudes do not occur in isolation.38 Thus, researchers believe other biases are linked to death penalty attitudes that are not eliminated through current death qualification requirements, and that these attitudes result in a jury that favors the prosecution.39 Researchers categorize individuals as having one of two types of beliefs regarding the criminal justice system: the crime control approach or the due process approach.40 Those who believe in the crime control ideology believe it is important to capture criminals quickly and efficiently.41 They also generally believe that police are capable of performing their jobs effectively, and therefore, that most defendants who make it to trial are probably guilty because the police most likely caught the right man.42 On the other hand, those who have a due process mindset are more concerned with the rights of individuals and are suspicious of state power.43 Unlike the crime control method, those who adopt a due process approach have a strong belief in the presumption of innocence.44 These distinctions are important because numerous studies indicate that death qualifiers are more likely to favor a crime control approach.45 38. See Cowan et al., supra note 10, at 60. 39. Id. 40. Fitzgerald & Ellsworth, supra note 9, at 33-34. 41. Id. at 34. 42. Id. 43. Id. at 33. 44. Id. 45. See id. at 46-48. The authors noted the following regarding their study: [T]he results of our study are in line with previous research indicating that a person’s attitude toward capital punishment is an important indicator of a whole cluster of attitudes about crime control and due process. Compared to the death qualified jurors, the members of the excluded group are more concerned with the maintenance of the

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The categorization of veniremen into either a crime control or due process approach represents a variety of ideas that individuals in each category may hold.46 Thompson’s research group, in concluding that death qualifiers were more likely to favor crime control ideology, discussed how this would have a biasing effect on the defendant.47 For example, because of their crime control beliefs, death qualifiers may go into a trial presuming the guilt of a defendant, and ambiguous evidence at trial will generally be interpreted against a defendant.48 For instance, if there are missing details in a scenario of events, death qualifiers are more likely to fill those gaps with information tending to confirm their belief that the defendant committed the crime, and are more likely to mentally visualize the defendant committing the criminal acts.49 Similarly, death qualifiers with a crime control attitude are more readily willing to accept the prosecutor’s version of the facts of the case while remaining distrustful of defense witnesses.50 Thus, these death qualified jurors would not likely give a defendant the benefit of a reasonable doubt because they would be likely to interpret the evidence against him and have trouble believing his witnesses. This leads to the aforementioned problem of conviction proneness, as well as a deprivation of a defendant’s presumption of innocence. Another anti-defendant bias that has been found to be a feature of death qualified juries is an increased belief in a defendant’s culpability. In one study on this phenomenon, Jane GoodmanDelahunty’s research group concluded that death qualified jurors

fundamental due process guarantees of the Constitution, less punitive, and less mistrustful of the defense. Id. 46. See id. at 33. 47. Thompson et al., supra note 5, at 103-05. 48. See id. at 104-05. 49. Id. at 105 (“People construe ambiguities and ‘fill-in’ missing details in accordance with their conception of how the scenario typically develops.”). 50. See id.; see also Cowan et al., supra note 10, at 69. The Cowan research group found that “death-qualified jurors were more impressed with prosecution witnesses,” and found the prosecutor more believable in comparison to death excludables’ perceptions. Id. However, “[d]eath-qualified and death excludable jurors did not differ in their perceptions of the likability [sic], competence, or believability of the defense attorney.” Id. The question remains, however, that if death excludables were allowed on capital juries, would this not create a pro-defendant bias?

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220 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 differ from death excludables in their interpretation of the criminal mens rea.51 When participants of their study were shown a videotaped criminal act, the death qualifiers were more likely to believe that the crime was committed intentionally.52 In contrast, death excludables were less likely to believe that the criminal’s actions were intentional.53 The Goodman-Delahunty study concluded by making four general conclusions about death qualifier attitudes in general. The researchers found that jurors who were death qualified were more likely to infer from the evidence: “(1) that the defendant intended to murder the victim, (2) that his specific actions indicated premeditation, (3) that the defendant’s substance abuse did not mitigate his actions, and (4) that the defendant would be a future threat to society.”54 These conclusions demonstrate the harshness of the conditions a defendant possibly must face in a capital trial. For instance, while a jury is supposed to take into account mitigating factors when determining guilt and an appropriate sentence, the Goodman-Delahunty study found that death qualified jurors are less likely to do this.55 Furthermore, because death qualifiers are more likely to believe a defendant intended his crime and would be a future threat to society,56 punishment will likely be harsher than what death excludables might determine to be an appropri-

51. See Jane Goodman-Delahunty et al., Constructing Motive in Videotaped Killings: The Role of Jurors’ Attitudes Towards the Death Penalty, 22 LAW & HUM. BEHAV. 257, 265 (1998). 52. Id. at 269. The subjects in this study were shown a security tape of a man killing a convenience store clerk. The actus reus – the fact that this man committed the murder – was not in dispute; rather, the subjects were asked to determine his criminal intent from the evidence, and thus decide on the appropriate charge of first degree murder, second degree murder, or manslaughter. The charge would in turn determine whether the defendant would be eligible for the death penalty, which could be invoked only if the defendant was convicted of first degree murder. Id. at 262. 53. Id. at 265. The effect of this difference is obvious and quite problematic for the defendant. Presumably, if death qualifiers are more convinced that criminal acts are done intentionally, the result will be harsher punishments for the defendant. For example, death qualifiers will more likely find a defendant guilty of first degree murder than second degree murder or manslaughter. See id. at 269. It follows that in many instances, the effect of such biases could mean the difference between life and death for the defendant. 54. Id. 55. Id. 56. See id.

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ate sentence. These conclusions are especially troubling when one considers that death qualified juries, the ones that were found to give the harshest punishments,57 are only used in those cases where the harshest punishment of all – the death penalty – is available. This is only a brief list of some anti-defendant biases researchers have found a majority of death qualifiers possess.58 These attitudes are linked to death penalty beliefs; therefore, those who are not against the death penalty have been found to hold these additional ideologies.59 However, in addition to creating a jury with many pro-prosecution beliefs, the death qualification process also eliminates a number of characteristics that would counter-balance these biases. B. Juror Characteristics Excluded Through Death Qualification While death qualification may result in a jury whose members hold pro-prosecution attitudes, the process has the added negative effects of consistently eliminating certain individuals with attitudes and characteristics less biased toward conviction. In other words, diversity that could ensure procedural fairness is reduced. For instance, studies indicate that death qualification eliminates a

57. See Horowitz & Sequin, supra note 30, at 180. 58. One other final pro-prosecution attitude entangled with crime control thinking is legal authoritarianism. Legal authoritarians are similar to classical authoritarians in that they look to society’s rules and laws for discipline and stability. This need for stability reflects their deep distrust of human beings in general. Narby et al., supra note 8, at 34. Legal authoritarians are those who are more likely than others to disregard the civil liberties and the rights of an accused. Id. at 35. This may include a disregard of “the presumption of innocence, the exclusive burden of proof borne by the prosecution, and various [other] constitutional procedural safeguards.” Id. These attitudes, prevalent among death qualifiers bias the jury against a defendant because a defendant is being denied his entitlement to certain rights and presumptions. It would appear that the death qualification criteria would eliminate such legal authoritarians from the jury because the process supposedly eliminates those who cannot follow the law and their juror oath. See Wainwright v. Witt, 469 U.S. 412, 424 (1985). The problem, however, is that legal authoritarians are not eliminated under that standard; because they feel they are following a more important law, one they feel helps to ensure the convictions of defendants that they distrust and feel deserve punishment, the death qualification process overlooks them. See Narby et al., supra note 8, at 34. 59. See, e.g., Cowan et al., supra note 10, at 69.

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222 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 large portion of women and minorities.60 Fitzgerald and Ellsworth examined this problem and concluded that death qualification eliminates a very sizable number of these demographic groups from service.61 This lack of diversity may presumably be harmful to a defendant, particularly if a defendant is a woman or minority. Researchers may have optimistically hoped that because of their findings of inherent bias in the current death qualification process, courts might once again reconsider the validity of death qualification. Women and minorities have been held to be cognizable groups that cannot be eliminated from a jury simply because they are members of those classes.62 If it is true that death qualification frequently results in such removal, the courts might be more willing to once again redefine the death qualification process so that it no longer yields an unconstitutional result. Death qualification also reduces diversity of ideas and perceptions causing juror deliberation to suffer.63 Due to this homogeneity of attitudes concerning the criminal justice system that death qualified juries have been found to possess, most death qualified jurors are likely to view a trial similarly and interpret evidence and witness credibility in a like manner.64 Therefore, deliberations will likely be shorter and there will be less discussion of the trial. On the other hand, in studies of mixed juries composed of both death and non-death qualified jurors, there was a higher quality of deliberations.65 Because the jurors had dissimilar attitudes on criminal justice ideals, the trial was interpreted differently among the individual jurors. Consequently, there was more discussion about the evidence and facts, and more points of the

60. E.g., id. at 67. 61. See Fitzgerald & Ellsworth, supra note 9, at 46. Their research indicated that 21% of all women jurors and 25.5% of all black jurors are eliminated from serving on capital juries due to the death qualification process. Id. 62. See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race”); Taylor v. Louisiana, 419 U.S. 522, 537 (1975) (holding that women as a class may not be excluded from juries based solely on their sex). 63. See Cowan et al., supra note 10, at 75-76. 64. See id. 65. See id. at 60 (“[The jurors] need only be different. In losing a different viewpoint the jury loses some of its capacity for controversy and selfcriticism.”).

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trial were raised during the deliberations.66 The lack of quality deliberation that results from death qualification is important because the ever-lofty ideal purpose of a trial is to “find the truth.” The only way to accomplish this is to look at the situation from a variety of perspectives, and this simply cannot happen after death qualification virtually wipes out dissimilar perceptions from the jury. III. JUDICIAL REVIEW OF DEATH QUALIFICATION

Due to its controversial nature, the legality and fairness of death qualification has come before the courts on numerous occasions. Throughout the years, the United States Supreme Court has held the death qualification process constitutionally sound.67 However, this far from proves the process is the fairest procedure to obtain a capital jury. A. Development of the Death Qualification Standard – Changes in Definition The first major Supreme Court case that truly addressed the relationship between death qualified juror attitudes and their function in the legal system was Witherspoon v. Illinois.68 An Illinois jury had sentenced Witherspoon to death after the prosecution eliminated nearly half of the venire group on challenges.69 The trial court allowed the prosecution to go so far as to eliminate anyone who said they were opposed to the death penalty, or “expressed qualms about capital punishment.”70 Witherspoon attacked the use of challenges on those jurors and claimed that such 66. See id. at 76. 67. E.g., Lockhart v. McCree, 476 U.S. 162, 184 (1986); Wainwright v. Witt, 469 U.S. 412, 424 (1985). Various state supreme courts have agreed. E.g., Nebraska v. Burchett, 399 N.W.2d 258, 264 (Neb. 1986). 68. 391 U.S. 510 (1968). 69. Id. at 513. Illinois, at the time, was operating under a state law that authorized challenges for cause on any venireman who, “on being examined, state[s] that he has conscientious scruples against capital punishment, or that he is opposed to the same.” Id. at 512 (quoting 725 ILL. COMP. STAT. ANN. 5/115-4 (West 2000)). The current version of this statute omits the original language completely and indicates instead that “[e]ach party may challenge jurors for cause.” Id. 70. Id. at 513. At one point during voir dire, the trial judge even specifically stated: “Let’s get these conscientious objectors out of the way, without wasting any time on them.” Id. at 514.

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224 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 a procedure was a violation of his Sixth and Fourteenth Amendment rights to due process and to adjudication by a jury of his peers.71 Partially agreeing, the Supreme Court held the Illinois statute improper in its current form.72 The Court went on to establish guidelines that should be used to determine whether a potential juror could be properly excluded from a capital jury. The “Witherspoon Standard” was annunciated as follows: In a capital case, veniremen could be excluded for cause if they: made [it] unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude towards the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.73 In establishing this standard, the Court made several key findings regarding death penalty juror attitudes. Most notably, by excluding those who would automatically vote against the death penalty, the Court demonstrated its belief that just because an individual has conscientious or religious scruples against the death penalty does not necessarily mean that such an individual would be unable to convict a capital defendant and inflict the death penalty in the “proper case.”74 This belief epitomizes the Court’s rejection of the psychological evidence presented by the defendant tending to show such a jury would indeed be biased against him.75 While the Court did not rely on any empirical research of its own in making this decision, it rather quite generally stated “[i]t has not been shown that this jury was biased with respect to the petitioner’s guilt.”76 Another important conclusion in Witherspoon was that the

71. See id. at 518; see also U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State . . . .”) (emphasis added); U.S. CONST. amend. XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”). 72. See Witherspoon, 391 U.S. at 522. 73. Id. at 522 n.21. 74. Id. at 515-16 n.9. 75. Id. at 517-18. 76. Id. at 518.

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Court specifically stated its decision in the case only rendered the sentence of Witherspoon invalid, but not his conviction.77 This illustrates the Court’s continued belief that death penalty attitudes held by jurors do not have an inherent effect on a juror’s ability to determine guilt or innocence. On the other hand, by establishing the standard as it did, the Court did seem to acknowledge that death penalty attitudes could in some circumstances effect a juror’s ability to determine guilt.78 This conclusion follows from the specific language used by the Court, when it stated that veniremen may be excluded for cause when they made it “unmistakably clear . . . that their attitude towards the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.”79 By making such jurors excludable, the Witherspoon Court clearly demonstrated its conviction that certain individual beliefs are so strong they cannot be set aside. However, the standard is arguably flawed in that it will only exclude those who make it unmistakably clear that their death penalty beliefs will affect their ability to determine guilt. This fails to account for the view held by many researchers that death penalty attitudes subconsciously effect an individual’s ability to determine guilt.80 Simply exploring death penalty beliefs during voir dire should not be enough to death qualify a juror because other attitudes, ignored by the current death qualification, could negatively effect that person’s impartiality. Courts have continuously altered the Witherspoon criteria and have applied changing standards to expanded situations. The strongest attack on the Witherspoon criteria came in Wainwright

77. Id. at 522 n.21. 78. See id. 79. Id. By adding this prong to the test, the Court appeared to recognize that death penalty attitudes effect not only the penalty phase of the trial, but also the juror’s ability to impartially determine guilt or innocence. 80. See, e.g., Cowan et al., supra note 10 (reviewing empirical studies conducted by a number of researchers). For example, a juror could qualify under the Witherspoon standard if he stated that while he may have reservations against the death penalty, it would not affect his determination of guilt. That person’s view on the death penalty, however, may be linked to other attitudes and biases that would subconsciously affect his or her vote on whether to convict or acquit the defendant. See discussion supra Part II.

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226 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 v. Witt.81 In that case, the Court seemed frustrated with the high burden of proof required by the Witherspoon standard which required a showing that an individual would never vote for the death penalty.82 Furthermore, that standard did not focus on when veniremen could be excluded from capital cases, but rather only on when they could not be excluded.83 To remedy this problem, the Wainwright Court established the following standard: “A prospective juror may be excluded for cause because of his or her views on capital punishment . . . [when] the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath.’”84 Unlike the Witherspoon criteria, Wainwright did not focus on death penalty attitudes in particular. Rather, it centered on the idea that as long as a juror is able to follow instructions under the law, then that juror should be allowed to serve.85 As a result, the Court made it easier for prosecutors to exclude more jurors because of their feelings about capital punishment.86 The Witherspoon standard required exhibiting unmistakably clear bias that a potential juror would automatically vote against the death penalty. After Wainwright, however, this high burden of proof is not required. Therefore, veniremen who may only have scruples against the death penalty but would not automatically vote against it could arguably be excluded from service if such beliefs could interfere with their role as jurors. This may allow prosecutors to eliminate more individuals who have fewer biases against a defendant than those who are completely in favor of the death penalty.

81. 469 U.S. 412 (1985). 82. See id. at 421-22. Additionally, while the Witherspoon standard had been in use for a number of years, the Court pointed out that the standard was contained in a footnote of the Witherspoon opinion and interpreted it as mere dicta. Id. at 422. 83. See id. at 421-22. 84. Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). 85. See id. 86. Craig Haney et al., “Modern” Death Qualification: New Data on Its Biasing Effects, 18 LAW & HUM. BEHAV. 619, 624 (1994) (“As expected, application of the Witt standard did increase the size of the groups of persons who were excludable on the basis of their death penalty opposition.”).

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B. Judicial Rejection of Empirical Data on Death Qualification Biases 1. Despite Alleged Biases, the Death Qualification Process is Constitutional Many courts justify the process of death qualification on legal grounds, overlooking any empirical research indicating the biases inherent in the process,87 and dismissing those problems as insufficient to hold the procedure an unconstitutional violation of a de89 fendant’s rights.88 For example, in Buchanan v. Kentucky, the Court held that a death qualified jury was not extraordinarily conviction prone, and therefore, could decide the fate of a man not subject to capital punishment.90 More importantly, the Court rationalized the constitutionality of death qualification by holding that it does not violate a defendant’s right to a jury selected from a representative cross-section of the community.91 Despite any attitudes that death excludables may share, they were held not to constitute a distinctive group for fair cross-sectional purposes because their exclusion was not based on a cognizable trait such as

87. See, e.g., Lockhart v. McCree, 476 U.S. 162, 173 (1986). 88. United States v. Edelin, 118 F. Supp. 2d 36, 47 (D.D.C. 2000). The Supreme Court in McCree and in Buchanan assumed the validity of the studies before it and still ruled that the death qualified jury was a valid and constitutional instrument of the courts. The Supreme Court was not willing to find in McCree and Buchanan that the prejudice associated with a death qualified jury was sufficient to mandate another system of selecting juries . . . . Id. (citations omitted). 89. 483 U.S. 402 (1987). 90. Id. at 413, 420. The Court justified the process to such a degree that it was held to be constitutional to use a death qualified jury against a defendant who was not even having the death penalty sought against him. Id. at 419-20. The case involved two co-defendants, but the death penalty was only sought against one. Because the death penalty was sought, the death qualification process was used to obtain the jury. Id. at 407-08. This was a nonbifurcated trial, so a single jury heard and decided all of the evidence against both defendants. Id. The Court held that even though the death penalty was not sought against one defendant, the death qualification process did not create an impartial jury for him, and therefore, there was no violation of his Sixth Amendment rights. Id. at 419-20. 91. Id. at 415.

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228 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 race or sex.92 On the contrary, death excludable jurors are only excluded for their inability to perform in accordance with the jury instructions.93 Much of the reasoning in Buchanan was derived from a case decided one year earlier, Lockhart v. McCree.94 Lockhart’s importance lies in its full examination of the empirical research on death qualification biases,95 and rejecting that the Constitution does not prohibit the death qualification process in capital cases.96 Like Witherspoon, Lockhart involved a defendant’s allegation that a jury of death qualifiers violated his Sixth and Fourteenth Amendment rights and deprived him of his right to have “his guilt or innocence determined by an impartial jury selected from a representative cross section of the community.”97 The Court rejected these claims and held that the death qualification process did not deny the defendant his constitutional protections.98 The Lockhart Court made two crucial findings in rendering its decision. First, the Lockhart Court found that a death qualified jury was not unconstitutionally impartial because such a jury could have been selected even without the use of the death qualification process.99 Second, the Court held that death qualified jurors

92. See id. at 413; cf. J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127, 130-31 (1994) (holding that discrimination on the basis of gender in the exercise of peremptory challenges violates the Equal Protection Clause); Batson v. Kentucky, 476 U.S. 79, 84 (1986) (holding that jurors could not be excluded solely because of their race). 93. See Buchanan, 483 U.S. at 416. 94. 476 U.S. 162 (1986). 95. See id. at 167-73. 96. Id. at 173. 97. Id. at 167. 98. Id. at 184. 99. Id. at 178. The Court noted that even McCree, the defendant in Lockhart, admitted that the jurors in the case “could have ended up on his jury through the ‘luck of the draw,’ without in any way violating the constitutional guarantee of impartiality.” Id. McCree argued that the process of death qualification itself biases some jurors to view the case in a certain way and was therefore unconstitutionally prejudicial against the defendant in a capital case. Id. However, the Court found this argument “illogical and hopelessly impractical” because if the same jurors could have been selected even without the death qualification process, there is no sense in the argument that there would be injustice if they happened to be selected through death qualification instead. Id.

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were not excluded because they belonged to a cognizable group.100 Rather, death excludables were removed from jury service because of their inability to follow the law.101 Therefore, the death qualification process was held not to violate the Constitution, nor was it found to give even the appearance of unfairness, because it simply eliminated those who could not legally obey the rules required for jurors.102 The Lockhart Court further found that even if it were to accept the defendant’s cognizable group argument, non-death qualified jurors are not a cognizable group for fair cross-section purposes.103 The Court articulated that cognizable groups for faircross sectional analysis refer predominantly to race and gender, and not to groups based on shared attitudes.104 Non-death qualifiers may be excluded, even as a group, because unlike race or sex, attitudes can arguably be controlled.105 Therefore, groups defined solely based upon shared beliefs that make members of the group unable to serve as jurors in a particular case may properly be excluded from jury service “without contravening any of the basic objectives of the [constitutional] fair-cross-section requirement.”106 The Court reasoned further that “[b]ecause the group of ‘Witherspoon-excludables’ includes only those who cannot and will not conscientiously obey the law with respect to one of the issues in a capital case, ‘death qualification’ hardly can be said to create an ‘appearance of unfairness.’”107 What may be inferred from Lockhart is that even if all the empirical data is true – that death qualifiers do have common attitudes and biases that tend to favor

100. See id. at 175-76. 101. Id. 102. Id. 103. Id. at 177. 104. Id. at 176-77. 105. Id. at 176. 106. Id. at 177. 107. Id. at 176. The Court fortified its position and summarized its holding with the following statement: [A] jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case. Id. at 184.

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230 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 the prosecution – the data appears to do little to dissuade the Supreme Court Justices from allowing death qualifiers to sit on a capital case, so long as the jurors state they can follow their oath. 2. The United States Legal System Refuses to Rely on the Empirical Research Witherspoon and Lockhart best demonstrate the Supreme Court’s refusal to rely on empirical research on death qualification biases. One of the most remarkable aspects of Witherspoon was the Court’s implicit request for further empirical data on the effects of death qualification.108 This request was made in response to the Court’s review of several early empirical works regarding death qualification.109 At the time, the Court found that the research on the subject was too “tentative and fragmentary” to conclusively determine that death qualified jurors are inherently filled with pro-prosecution biases.110 The Court’s consideration of the empirical data, however, must have created much optimism in the scientific world that future studies could influence the Court to acknowledge the problems inherent in death qualification. This optimism must have turned to disappointment when the legal system continued to reject the research. Witherspoon was certainly not alone in its rejection of the empirical research.111 In fact, Lockhart paid more attention to the

108. See Witherspoon v. Illinois, 391 U.S. 510, 517-18 (1968). The Court stated that “[i]n light of the presently available information, we are not prepared to announce a per se constitutional rule . . . .” Id. at 518 (first emphasis added). This statement may be interpreted as a suggestion by the Court that further empirical evidence may sway it in a different direction in the future. Namely, the statement may mean the Court could be convinced the death qualification process is unconstitutional if newer and more reliable studies supported such a conclusion. 109. See id. at 517 n.10. In Witherspoon, the Court explained that it examined and commented on the following studies: W.C. Wilson, Belief in Capital Punishment and Jury Performance (1964) (unpublished manuscript, on file with the University of Texas); F.J. Goldberg, Attitude Toward Capital Punishment and Behavior as a Juror in Simulated Capital Cases (undated) (unpublished manuscript, on file with Morehouse College); H. Zeisel, Some Insights Into the Operation of Criminal Juries 42 (Nov. 1957) (confidential first draft, on file with the University of Chicago). Id. 110. Id. at 517. 111. See, e.g., Buchanan v. Kentucky, 483 U.S. 402, 415 n.16 (1987); United States v. Edelin, 118 F. Supp. 2d 36, 47 (D.D.C. 2000).

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empirical data on death qualification than any other case.112 Lockhart took an in-depth look at the research on death qualified jurors, but like its predecessors, did not trust the findings and held them inapplicable to its legal conclusion.113 In making this determination, the Lockhart Court implicitly refuted the findings of Grigsby v. Mabry,114 one of the few cases that relied on the empirical data to conclude that death qualification produces a jury more likely to convict.115 The Court offered great detail as to why it rejected the empirical data. First, the conclusion reached in Grigsby was held erroneous because it was based upon several of the same studies that were examined, and ultimately rejected, in Witherspoon.116 Second, the Court rejected many of the newer studies used in Grigsby because it felt that they lacked real world applicability.117 Third, many of the studies did not simulate actual jury deliberations, and the Court apparently believed this deviation could impact the results of the empiricists.118 Furthermore, none of the studies relied on in Grigsby were able to predict what would occur if a death excludable juror was allowed on a capital jury.119 Because no positive effects of allowing death excludables to hear 112. See 476 U.S. 162, 167-73 (1986). 113. Id. at 173. 114. See id. at 171; Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), stay granted, 583 F. Supp. 629 (E.D. Ark. 1983), aff’d as modified, 758 F.2d 226 (8th Cir. 1985). 115. See Grigsby, 569 F. Supp. at 1323. This finding was later affirmed by the United States Court of Appeals for the Eighth Circuit. Grigsby, 758 F.2d at 242, 243. In Lockhart, the Supreme Court found the Grigsby analysis erroneous, because none of the studies available at the time of Grigsby convincingly demonstrated that death qualified jurors were conviction prone. See 476 U.S. at 171. 116. See Lockhart, 476 U.S. at 171; see also Witherspoon v. Illinois, 391 U.S. 510, 517-18 (1968). The Lockhart Court reasoned that if the studies were “too tentative and fragmentary” at the time of Witherspoon in 1968, then there was no reason to regard the same studies as acceptable, reliable data at the time of Lockhart in 1985. Lockhart, 476 U.S. at 171 (quoting Witherspoon, 391 U.S. at 517). 117. See id. For instance, several of the studies involved participants who were not actual jurors sworn under oath to apply the law to the facts of an actual case. Id. Because the experiments did not involve a real capital defendant whose life hung in the balance, the Court had doubts about whether these studies accurately predicted the behavior of actual jurors. Id. 118. Id. 119. Id. at 171-72.

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232 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 capital cases were demonstrated by the studies presented to the Court, the Court found no need to change the process, and held that death qualification was constitutional.120 One might argue the Supreme Court was not completely blind to the problems of death qualification but that the Court was only following a long-held tradition of apprehension toward death qualification studies in general.121 One argument supporting the Court’s refusal to rely on the research is that many social studies are irrelevant because they are based on general studies of large groups and do not focus on the specific individuals of the case. Thus concerns arise about how scientists can link the generalized information to the particular case. 122 The Court arguably finds the death qualification studies inapplicable because the studies’ findings are not necessarily descriptive of the potential jurors in the individual case at hand.123 A second argument is that the Court may exclude social science research because of its perceived similiarity to character evidence.124 Courts may believe that the research describing human traits and dispositions is akin to character evidence, which is “exclud[able] in most situations because its probativity is considered as relatively slight and its potential for prejudice relatively great.”125 A court treating death qualification research as character evidence may be less willing to apply it in a particular case.126 Death qualification research is similar to character evidence in that it focuses on the traits, beliefs, and personalities of potential jurors and the connection of such traits to death penalty out-

120. Id. at 173. 121. See, e.g., id. at 171 (quoting Witherspoon, 391 U.S. at 517) (“[I]f these studies were ‘too tentative and fragmentary’ to make out a claim of constitutional error in 1968, the same studies, unchanged but for having aged some 18 years, are still insufficient to make out such a claim in this case.”). 122. Robert P. Mosteller, Legal Doctrines Governing the Admissibility of Expert Testimony Concerning Social Framework Evidence, 52 LAW & CONTEMP. PROBS. 85, 100 (1989). 123. See, e.g., Lockhart, 476 U.S. at 171-172. 124. See Mosteller, supra note 122, at 104 (“The traditional treatment of character evidence may have broad importance for the admissibility of social framework evidence.”). 125. Id. 126. See id. (“One may argue that social framework evidence generally resembles character evidence and should be admissible according to rules similar to those governing character evidence.”).

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comes:127 “Just as character may indicate a propensity for an individual to act in a certain way, social framework evidence about a relevant group provides guidance in predicting individual conduct.”128 These modes of analysis for Supreme Court rejection of social science research may be analogized to general judicial rejection of specific social research on death qualification for similar reasons.129 These arguments, however, can be readily refuted. For instance, the argument that many social studies are irrelevant because they are based on general studies of large groups and do not focus on the specific individuals of the case fails to take into account the obvious fact that a large study sample is needed to predict juror behavior in specific cases because the voir dire group in each particular case is likewise being drawn from the community at large.130 Furthermore, the argument that courts should treat death qualified research as character evidence may easily be rebutted with the fact that social science research is not intended to predict or explain the behavior of any party or witness to the trial, the purpose for which character evidence is often introduced.131 Instead, the purpose of social science research is to show that all humans have inherent beliefs tied to the death penalty that should be taken into account when evaluating capital jury selection criteria, and to provide an understanding that inherent flaws exist in the jury selection system that mandate changing the constitutional quid pro quo.132 Because social science evidence is not utilized the same way character evidence is utilized, it should not be treated similarly.

127. See id.; Jurow, supra note 21, at 576 (hypothesizing that conviction proneness is a function of the personal beliefs of specific jurors). 128. Mosteller, supra note 122, at 104. 129. See, e.g., Lockhart, 476 U.S. at 173 (rejecting empirical studies on death qualification and holding them insufficient to support a determination that the death qualification process is unconstitutional). 130. Rather than making the studies irrelevant, the generalization is necessary to give the studies credibility. A study involving only the jurors of one particular case would lack credibility and predict nothing about juror attitudes regarding future cases. 131. See KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE § 186 (John W. Strong et al. eds., 5th ed. 1999). 132. See Jurow, supra note 21, at 567-68.

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234 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 Moreover, even if courts were to treat social science evidence the same as character evidence, social science evidence should still be admissible under a character evidence analysis. There are some purposes for which character evidence is allowed.133 For example, one purpose for which character evidence is allowed is to attack the credibility of a witness with evidence of a reputation for untruthfulness.134 Character evidence is often introduced in practice to show potential bias of a witness as well. Similarly, social science evidence should be admitted to attack a jury member’s character with a claim that they are biased against the defendant due to the death qualification process. Nonetheless, in Lockhart, the empirical data was still explicitly rejected.135 However, the specificity of the rejection of the data in the Lockhart opinion can be seen as a small victory. The Lockhart Court clearly articulated what it thought the studies were lacking and in which areas it felt they were most weak. After Lockhart, perhaps researchers may now develop studies that attempt to eliminate the problems stated by the Court. With such development there might be the possibility for further reexamination of the death qualification process. There does remain the possibility, however, that courts simply do not want to believe the data because of the disruption it would cause the jury selection system. No matter what changes are performed in the subsequent research studies, it is possible the Court may continue to find some way to discredit the studies, or hold them insufficient to require a change in death qualification. IV. MANDATING QUESTIONS AIMED AT ELIMINATING DEATH QUALIFICATION BIASES: A PRACTICAL SOLUTION

If the empirical research is accepted as true, and the repeatability of the findings indicates that it should, then it is obvious there are flaws in the death qualification process. While these problems are easily observable, a possible solution is not as recognizable. One of the simplest solutions, one might argue, would be to eliminate death qualification altogether. However, in a nation

133. See FED. R. EVID. 404, 405, 608. 134. FED. R. EVID. 608. 135. See Lockhart, 476 U.S. at 173.

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where the death penalty is still an accepted form of punishment in some states,136 such a solution is unrealistic because it would eliminate any use of the death penalty as a form of punishment. If death qualification were removed, the death penalty would hardly ever be used, because non-death qualifiers, now eligible to serve on capital juries, could nullify the choice of the death penalty as a sentence. The dilemma is the proverbial double-edged sword: without death qualification, guilty defendants may not be convicted or sentenced to death; but if death qualification continues in its current form, conviction prone jurors will serve in capital cases, thereby impairing a defendant’s chances of an acquittal. The solution then lies not in a total removal of death qualification, but through a change in the form of voir dire questioning. As a general proposition, the flaws in the death qualification process can be alleviated to a certain degree by mandating in capital cases a minimum level of specific voir dire questions aimed at eliciting jurors who are death qualified, yet have a reduced level of pro-prosecution biases. While the empirical studies suggest that death qualified jurors are conviction prone and have attitude biases against the defendant, it must be remembered that these are, for the most part, statistical studies. This means that while researchers’ data indicates that death qualified jurors are more likely to have the pro-prosecution beliefs mentioned above, it does not follow that all death qualified jurors hold such opinions. Required questions should be asked, preferably by the neutral judge during voir dire, that are designed to extract from the venire group those jurors who are death qualified but do not hold proprosecution biased attitudes and who are not conviction prone. A. A Change in the System is Justifiable While a set of mandatory voir dire questions may seem like a radical change in the voir dire system, this change is appropriate and justifiable. First of all, it is not such a radical change beyond the bounds of the law. Numerous other aspects of the voir dire system are controlled by the courts under already-promulgated rules of law. One such aspect of voir dire that has historically been 136. See States with the Death Penalty, at http://www.deathpenaltyinfo. org/ (last visited December 7, 2004) (providing information on every state that still imposes the death penalty).

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236 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 controlled is the allowance for and limitation of preemptory challenges.137 Additionally, judges are often given the discretion to dictate what types of questions will be asked as well as the procedures used in questioning (i.e. questionnaires, one-on-one individual questioning, etc.).138 A number of statutes also prescribe different requirements for voir dire, several even specifically geared toward regulating voir dire in capital cases.139 Because due process apparently is already presumed to permit the courts and the legislature to be heavily involved in regulation of the voir dire process, requiring certain questions to be asked by judges during capital voir dire would not be an overstep of any legal bounds. The Wainwright Court confirmed that voir dire should be regulated at least to an extent by annunciating a standard by which prospective jurors may be excluded for cause.140 While the Supreme Court did not require specific questions during voir dire in Wainwright, it did set the standard as to what types of jurors were properly excludable.141 It follows that requiring particular voir dire questions that specifically bring to light how particular jurors fit into the Wainwright standard may also be a justifiable process.142 Furthermore, a mandated set of questions is justified in that capital voir dire has been anything but a stable practice. The courts have continuously had to reevaluate the process of death qualification and change its mechanics and application. For instance, in Davis v. Georgia,143 the Court had to decide if there were grounds for reversible error if only one juror was improperly

137. See FED. R. CRIM. P. 24(b). 138. See, e.g., McCullah Memorandum, supra note 17. 139. See, e.g., 18 U.S.C. § 3432 (1998) (“A person charged with . . . [a] capital offense shall . . . be furnished with a copy of the indictment and a list of the veniremen . . . stating the abode of each venireman . . . .”). While not dealing specifically with the content of voir dire questions, this is an indication of statutory control and regulation of juror selection procedures. 140. See Wainwright v. Witt, 469 U.S. 412, 424 (1984) (“That standard is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’”). 141. Id. 142. But see id. at 424-25 (stating that “many veniremen simply cannot be asked enough questions to reach the point where their bias has been made ‘unmistakably clear’”). 143. 429 U.S. 122 (1976).

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excluded under the Witherspoon standard.144 The Court held that it was error.145 Further, in another indication that the judiciary should perhaps be involved with mandating specific death penalty voir dire questions, the Court in Morgan v. Illinois,146 while not mandating specific questions as proposed here, did determine that certain questions were not specific enough to effectively achieve the goal of death qualification.147 The issue in Morgan was whether “general fairness and ‘follow the law’ questions” were sufficient to satisfy the defendant’s right to make inquiry regarding whether juror’s were biased.148 The Court held that general inquiries into a prospective juror’s ability to follow the law were not sufficient to effectively determine if that juror could in actuality follow the law.149 This implies that specific inquires are required by the Court to truly understand a venire person’s ability to serve in accordance with the law. If such specificity is required in questioning, the Court should mandate those particular questions that it decides are specific enough to ensure death qualification’s effectiveness. One of the key justifications for mandating specific voir dire questions in capital cases is the importance for the court system to 144. Id. at 123. 145. Id. (“[I]f a venireman is improperly excluded even though not so committed [to voting against the death penalty regardless of the facts], any subsequently imposed death penalty cannot stand.”). The issue in Davis was whether the death penalty should stand when a juror who qualified for exclusion under the Witherspoon standard because he would not automatically vote against the death penalty was excluded by the prosecution because he had some reservations about the form of punishment. Id. Because he was properly death qualified, it was held to be reversible error to exclude the juror. See id. 146. 504 U.S. 719 (1992). 147. Id. at 734-35. 148. Id. at 734. 149. Id. at 734-35 (“Witherspoon and its succeeding cases would be in large measure superfluous were this Court convinced that such general inquiries could detect those jurors with views preventing or substantially impairing their duties in accordance with their instructions and oath.”). The Court was concerned that when people are asked generally if they could follow the law in sentencing, prospective jurors might believe that they could be impartial without truly realizing the effects that their death penalty attitudes would have on their ability to follow the juror oath: “It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining dogmatic beliefs about the death penalty would prevent him or her from doing so.” Id. at 735.

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238 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 maintain an impression of fairness and impartiality to the public. Lockhart specifically stated that one of the purposes of having a fair cross-section requirement is to “preserv[e] ‘public confidence in the fairness of the criminal justice system.’”150 Grounds for change exist if the public does not feel that a defendant is given a fair chance in a capital trial.151 That being so, a court has a duty to improve its image in the eyes of citizens. Any lack of faith by the citizenry in the legal system’s fairness and impartiality may be argued to undermine the validity of any decisions made by a court. Moreover, the impaneling of pro-prosecution jurors removes fundamental fairness by inhibiting the capital defendant’s right to a reasonable doubt. As empiricists show, such jurors are more likely to believe the defendant is guilty even before any evidence is presented;152 therefore, less is arguably needed for them to believe the defendant is guilty beyond a reasonable doubt. This in turn denies a defendant the fundamental fairness that was desired of our system when the reasonable doubt standard was established. Despite this possibility, as has been repeatedly held by the Court, the empirical data on death qualification is not considered sufficient to overturn the death qualification process on constitutional grounds.153 In other words, death qualification is constitutional and does not deny a capital defendant of his fundamental rights according to the Court. However, nothing in this proposal would require the Court to classify death qualification as unconstitutional. The suggestion is simply that the empirical data be held sufficient to warrant an alteration of the process from its current form. Death qualification would thus remain constitutional; yet, through further questioning to elicit pro-prosecution biases, society, and more importantly defendants, would be assured of the fairness of the system. Coincidentally, it appears that courts might be on the verge of mandating specific questions based on the active role the law has taken in supervision of capital voir dire. For instance, numerous decisions have established rulings on certain questions in capital 150. Lockhart, 476 U.S. at 174-75. 151. While the courts choose to not rely on the empirical studies indicating death qualification biases, there is no indication that the nation at large would not believe in the veracity of the research. 152. See discussion supra Part II. 153. See discussion supra Part III.B.

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voir dire that were deemed either to be relevant or in error.154 In addition, legal analysts have consolidated lists of specific question suggestions based upon these court rulings in a number of forms.155 Moreover, it is a general principal that the trial judge has the discretion to decide which questions to allow and disallow and how the process of voir dire is to be conducted.156 Arguably, if courts are maintaining control over what questions should or should not be excluded from voir dire, they should also have the authority to require particular questions. Although mandate is a considerable leap from simple allowance of certain questions, it is the best way to ensure eradication of death qualification biases. In the alternative to requiring specific voir dire inquiries, questions could be developed as a practitioner’s guide.157 Judges could be piloted with a series of specific questions geared toward eliciting death qualification biases. There are, however, problems with such a system. First, if such questions are only to be suggestions, there is the strong possibility they will not be used in every case, or even a majority of cases. If this result ensues, the change will not purge the system of the biases and unfairness inherent in the current death qualification process. In addition, questions for 154. See, e.g.,VERNON’S OKLAHOMA FORMS 2D: CRIMINAL LAW PRACTICE AND PROCEDURE § 21.24 (2002) (informing that the Oklahoma Criminal Court of Appeals will review a juror’s entire voir dire to determine if the trial court properly excluded that juror for cause and indicating that specific questions may be held to be error when they are worded insufficiently or unfairly). 155. See, e.g., id. § 21.25: Relevant inquiries by counsel may include questions concerning the “three punishment options, their beliefs about the death penalty, their religious affiliation, their faith’s position on the death penalty, whether they would consider mitigating evidence and whether they would follow the trial court’s instructions.” The meaning of a life sentence and a sentence of life without parole, however, have been held an improper subject for voir dire. In addition, a capital defendant is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias when accused of an interracial crime. As to any other “special circumstances” that may be relevant in the case, the trial judge retains discretion concerning the form and number of questions on the subject, including the decision whether to question the venire individually or collectively. Id. § 21.25 (footnotes omitted). 156. Id. § 21.25; see, e.g., Morgan v. Illinois, 504 U.S. 719, 734-35 (1992); Davis v. Georgia, 429 U.S. 122, 123 (1976). 157. See discussion infra Part IV.B.

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240 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 a practitioners guide are difficult to formulate because many of the biases require a number of questions, rather than just one question per possible bias, to elicit the proper information. Thus, a collection of possible questions is not the desired solution. Rather, this Comment seeks to require judges to use questions they decide are detailed enough to elicit the aforementioned biases. B. The Questions that Could Make Death Qualification More Effective The proposed solution of requiring specific voir dire questions has the purpose of eliminating the biases that many empiricists believe are held by a majority of death qualifiers.158 As already articulated, not all death qualified jurors have these proprosecution, crime control biases; therefore, it could be possible to achieve a death qualified jury who is not conviction prone. To accomplish this, perhaps it should be left to the researchers themselves to develop an empirical system where specific questions could be asked to find this small group of “ideal jurors” sought in a capital case. This would not be the first time the legal system has invited the scientific world to conduct research in this area.159 However, until the social scientists take up this calling, an abundance of the specific questions that may achieve this sought-after goal of an unbiased capital jury may be found simply by examining some of the already existing questions asked by judges and attorneys who have tried capital cases. Many questions currently exist that are valuable in eliciting the biases of death qualifiers. If some of these questions were to become mandatory in all capital cases, it would serve the purpose of establishing the appearance of an impartial system. A problem empiricists found is that death qualifiers who are legal authoritarians are more likely to believe prosecutors and their witnesses.160 Instead of simply asking generally whether a juror could follow the law, the bias of legal authoritarianism could 158. See discussion supra Part II. 159. See Witherspoon v. Illinois, 391 U.S. 510, 517-18 (1968) (indicating that the data adduced and presented at the time was insufficient to hold that the death qualification process was unconstitutional). The Witherspoon opinion may suggest that further research regarding death qualification could be enough for the Court to invalidate the current process. 160. See Thompson et al., supra note 5, at 105; see also supra note 50.

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be extracted by simple questions. For instance, a juror could be asked the following: “Would you judge the testimony of a law enforcement officer as you would that of any other witness, i.e., not give his or her testimony any more or less weight merely because he or she is a law enforcement officer?”161 This is by no means meant to imply that one simple question will be able to elicit the sought-after biases or lack thereof, because as the courts have recognized,162 jurors may not realize how their attitudes could actually effect their ability at trial.163 Several related questions, however, if specific enough, should be helpful to determine how a juror would respond to different situations. For example, in a New York case, jurors were asked several specific questions related to authoritarianism attitudes: What is your opinion, if any, about prosecutors in general? . . . What is your opinion, if any, about defense attorneys in general? . . . When testifying as a witness in a case, do you believe that police officers or FBI agents have more credibility, less credibility, or the same credibility as an ordinary citizen? . . . [and] Do you believe that if a police investigation results in an arrest, the suspect is: Guilty, Probably Guilty, [or] Probably Innocent? 164 These types of questions would be useful in uncovering those potential jurors who have the same biases feared by the empiricists. Several other juror biases may be determined from specific voir dire questions as well, including juror attitudes about crime and whether or not jurors possess the crime control biases that a majority of death qualifiers have been alleged to possess.165 For example, several questions on this matter were used in United States v. Jones, including: “In your opinion, what are the three (3) most important problems with law and order today,” and “[w]hat,

161. Juror Questionnaire at q.69, United States v. Frank, 11 F. Supp. 2d 322 (S.D.N.Y. 1998) (No. 97 CR 269(DLC)), available at http://www.capdefnet.org/fdprc/contents/litigation_guides/guideframe.htm (last visited Sept. 17, 2004) [hereinafter Juror Questionaire]. 162. See, e.g., Morgan v. Illinois, 504 U.S. 719, 735 (1992). 163. See Ronald C. Dillehay & Marla R. Sandys, Life Under Wainwright v. Witt: Juror Dispositions and Death Qualification, 20 LAW & HUM. BEHAV. 147, 148-49 (1996). 164. Juror Questionnaire, supra note 161 at q.65-68. 165. See supra notes 40-54 and accompanying text.

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242 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 in your opinion, should or could be done about the crime problem?”166 While in form these questions may appear general, they are open-ended enough to elicit a wide spectrum of information and perhaps richly detailed answers that may shed light upon the attitudes of a venire person. Questions like these may be helpful in understanding what veniremen truly feel about the criminal justice system by eliciting deeper ideas than just their opinion about whether they can impartially serve or not. A comparison of these specific questions with a more commonly used general question, such as “[w]ould your views on capital punishment influence your verdict on whether the Defendant is guilty or innocent,” 167 shows how the more specific questions can elicit more complete information about what a venire person truly believes and how he or she will interpret the trial. Instead of simply answering “yes” or “no” to whether the individual believes he or she will be impartial, requiring longer explanations with their answers may help uncover deeper beliefs that can effect the way one will act as a juror. This form of questioning will uncover specific attitudes that will enable attorneys to effectively use their voir dire challenges. The many ideologies associated with the “crime control” approach can each individually be revealed through the appropriate questions. For instance, crime control believers feel less strongly in the presumption of innocence than those with due process beliefs.168 Questions to extract this bias could include having the venire person rate on an agreement scale how strongly he or she believes in such statements as the following: A defendant in a criminal case should testify or produce some evidence to prove he or she is not guilty; . . . [a] defendant arrested for murder is presumed innocent; . . . [and it] is possible that an innocent person could be accused and brought to trial for a crime he or she did not

166. Stipulated Joint Juror Questionnaire at q.47, 52, United States v. Jones, No. 5:95-CR-047-C (N.D. Tex. 1995), aff’d, 132 F.3d 232 (5th Cir. 1998), aff’d, 527 U.S. 373 (1999), available at http://www.capdefnet.org/ fdprc/contents/litigation_guides/guideframe.htm (last visited Sept. 17, 2004) [hereinafter Stipulated Questionnaire]. 167. F. LEE BAILEY & KENNETH J. FISHMAN, COMPLETE MANUAL OF CRIMINAL FORMS § 51:6 (3d ed. 2003). 168. See Fitzgerald & Ellsworth, supra note 9, at 34; supra notes 44-50 and accompanying text.

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commit.169 This agreement scale, along with a required explanation of potential jurors’ beliefs, would make the judge aware if potential jurors actually believe in the presumption of innocence. Similarly, death qualifiers believe it is better to convict an innocent man than to acquit a guilty man.170 This bias may be brought to light by requiring the venire person to rate his or her opinion and explain his or her beliefs about such statements as: “It’s better for a guilty person to go free than to convict an innocent person.”171 Also, crime controllers are more likely to believe the prosecution and have attitudes about each side before trial,172 so a useful inquiry may include a question asking what is the first thing that comes to the venire’s mind when he or she thinks of a defense attorney or prosecution attorney.173 This would allow a venire person to explain any prejudices that he or she may have toward either side. One of the problems with death qualification voir dire in its current form is that jurors who are only asked general questions are not given enough information to accurately predict or demonstrate how they will perform and react to the evidence at trial.174 The dilemma is that the process “requires prospective jurors answering questions about capital punishment during voir dire to make self-judgments about unknown circumstances.”175 Because currently used voir dire questions may not be specific enough to inform individuals of what real life issues may confront them and effect their judgments at trial, responses to these current voir dire questions may be worthless because they do not accurately reflect how that potential juror will actually behave at trial. Studies have found that “a substantial percentage of juror candidates cannot be expected to know what their role would entail were they to become members of a jury in a capital case, and would, therefore, be likely to be inaccurate when responding to questions based on [Wain-

169. 170. 171. 172. 173. 174. 175.

Juror Questionnaire, supra note 161, at q.162, 164, 169. Thompson et al., supra note 5, at 107-08. Juror Questionnaire, supra note 161, at q.172. Fitzgerald & Ellsworth, supra note 9, at 34. Stipulated Questionnaire, supra note 166, at q.71. Dillehay & Sandys, supra note 163, at 148-49. Id. at 148.

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244 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 wright v.] Witt.”176 This problem may be alleviated by asking specific questions aimed at eliciting known biases that may emerge from death qualifiers at trial. The problem can be further resolved by providing veniremen with hypotheticals creating situations which may help the prospective jurors better understand what their jobs will be and thereby increasing the accuracy of their voir dire responses. The use of hypothetical situations is thus another possibility that could help discover biases. Situational questions are recommended, in that they place in potential jurors’ minds real images while answering voir dire questions. For example, the judge could give the following hypothetical in a homicide case: Assume that you have been chosen as a juror in a murder case and that you and other jurors have unanimously found the person guilty of multiple intentional murders with no legal justification, beyond a reasonable doubt. Therefore, in this sense you know that the person is guilty of more than one murder. Additionally, the jury has unanimously found the person guilty of substantial planning and premeditation beyond a reasonable doubt. This constitutes an aggravating circumstance under the law and permits the jury to impose the death penalty. Now, in a case like that, could you in good conscience vote for a sentence other than the death penalty or would you vote for the death penalty?177 Presumably, upon hearing this fact scenario, the jurors will place themselves in the hypothetical situation and other attitudes, besides simply whether or not they think they can follow the law and their juror oath, will rise to the surface and become apparent. For instance, if the venireman were asked the previous question,178 the goal would seem to be to determine the individual’s ability to impose the death penalty. However, other attitudes may also be learned from the venire’s response, such as the venire’s 176. Id. at 160. 177. Motion to Supplement The Court’s Voir Dire Inquiry, As Necessary, And Requested Supplemental Inquiry at q.C.1., United States v. Culbert, No. CR-92-81127 (E.D. Mich. 1995), available at http://www.capdefnet.org/fdprc/ contents/litigation_guides/guideframe.htm (last visited October 7, 2004) [hereinafter Motion to Supplement]. 178. See supra note 177 and accompanying text.

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ability to use mitigating factors in deciding on the proper punishment in a case. The use of hypotheticals would be effective in eliciting such factors because the hypotheticals are not based on abstract theoretical concepts, but rather on specific situations. When jurors contemplate specific situations in the form of hypotheticals, they may go through the same thought processes that they would use at trial, including feeling all of the attitudes they as human beings use in making decisions. Therefore, hypotheticals would be a useful tool for the courts to use to discover if, while one may be death qualified, there are other attitudes that may get in the way in a real life factual situation that would bias the individual as a juror. A slight variation on the use of hypotheticals would ask the potential juror to place himself in the shoes of the defendant. The judge could ask, for instance, the following: “If you were sitting in the place of the defendant . . . charged with the same offenses, would you be willing to have a juror in your present frame of mind sit in judgment on your case? . . . Please explain.”179 This would enable the venire person to think about whether or not he would want himself as a juror. This arguably would then be helpful in ascertaining that individual’s biases. Another way of dealing with mitigating factors other than hypotheticals is to simply direct questions to the venire group regarding the specific mitigating factors. For example, in a case where race will possibly be an issue, the judge could ask: “In deciding punishment in a murder case would you consider, if a defendant proved by a preponderance of the evidence, [that he] ‘suffered the effects of racial discrimination . . .’ as a reason or mitigating circumstance not to vote for imposition of the death penalty?”180 The effect of other mitigating factors could also be inquired about by asking similar questions, such as: “In deciding punishment in a murder case would you consider, if a defendant proved by a preponderance of the evidence, [that he] ‘was introduced to drug abuse at an early age . . .’ as a reason or mitigating circumstance not to vote for imposition of the death penalty?”181 Questions regarding mitigating factors are important in death

179. Juror Questionnaire, supra note 162, at q.222. 180. Motion to Supplement, supra note 177, at q.B.3. 181. Id. at q.B.4.

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246 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 penalty cases because, as already indicated, certain death qualifier attitudes diminish the weight the jury gives toward such mitigating factors.182 This is just a small sample of some of the types of more specific questions that should be required during death qualification. Concededly, there are a number of points of opposition to this proposed solution. Some might believe that mandatory specific questioning would be overly time-consuming. This assumption is untrue, because such questioning would not make voir dire any lengthier than it has already become in capital cases.183 For instance, in some cases voir dire has lasted for days and even weeks,184 and some juror selection sheets contain hundreds of questions.185 Furthermore, many of the same questions recommended here are from actual cases, so nothing radically different would be added to voir dire. Instead, this proposal would create a uniform system of the best questions available to elicit death qualification juror biases. Juror questionnaires already encompass a wide variety of topics, and are already quite time-consuming.186 Thus, including certain mandatory questions would not likely increase the time normally devoted to voir dire to an intolerable level. Some juror selection sheets even ask questions such as, “do you own a pet,”187 or “list your [three] favorite television shows.”188 While such questions are recognizably important to jury selection by helping attorneys understand the personality of a venireman, they are no more important than mandatory questions to elicit juror bias traditionally inherent in death qualified jurors. Both types of questions may be asked, or such personality questions may be altered so as to also elicit the potential juror biases death qualification should bring to light. Therefore, the time consump-

182. See Goodman-Delahunty et al., supra note 51, at 269-70. 183. Death qualification voir dire is by no means, even in its current form, a short process. See, e.g., Recommended Jury Selection Procedures at §§ C-D, United States v. Frank, 11 F. Supp. 2d 322 (S.D.N.Y. 1998) (No. 97 CR 269 (DLC)), available at http://www.capdefnet.org/fdprc/ contents/litigation_guides/guideframe.htm (last visited Sept. 17, 2004). 184. Id. at § D. 185. See, e.g., Stipulated Questionnaire, supra note 166 (containing a forty-seven page questionnaire with over two hundred combined questions). 186. See, e.g., id. 187. Id. at q.53. 188. Id. at q.91.

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tion argument must fail. Another possible criticism to having a mandatory minimum set of voir dire questions is that if, as is suggested, attorneys are already using these questions, why then should courts mandate what is already in practice? The answer is simply that not all attorneys – or judges – use the proper questions that can elicit the biasing attitudes of death qualified jurors. As many groups advocate, one of the biggest problems with capital cases is inadequate representation for the defendant.189 If defendants are poorly represented, it would be best to at least furnish them with a jury that is not prone to convict them from the start of the trial. Mandatory questions, presented by the judge and aimed at eliciting a death qualified, unbiased jury, would provide the defendant a chance of having his story believed, regardless of his attorney’s abilities. V. CONCLUSION

The alleged problems with death qualification are not unknown to the courts. Courts have addressed the issue on several occasions and have repeatedly failed to recognize the biases inherent in the process, and the resulting obstacles for the defendant. While the current death qualification process has been deemed constitutional, courts still should attempt to remedy the biases inherent in the current process. Courts have reworked the process on other occasions; thus, courts should accept the present challenge, if for no other reason than to preserve the appearance of fairness in capital cases. However, any belief that all jurors who are death qualified have biases and attitudes that favor the prosecution is an overstatement. While empirical data indicates that jurors who have passed death qualification are more likely to be conviction prone and hold pro-prosecution beliefs, it is incorrect to say that all death qualified jurors hold those attitudes. Because of this, it is possible to whittle down the class of death qualifiers further to those death qualifiers with reduced biases against the defendant. This could be accomplished by mandating specific questions designed to discover those death qualified jurors with the ability to be impartial. This would enable capital defense attorneys to make more effective use of their preemptory challenges 189. See, e.g., Innocence Protection Act of 2001, S. 486, 107th Cong. § 201 (2001).

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248 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:211 and hopefully, make it easier to obtain a jury less stacked against the defendant. This is a simple solution to the problem with arguably no adverse effects. Even if courts are correct in their assumptions about the empirical data, no harm would result from implementing this procedure. Yet, if the courts have been wrong in their rejection of empirical statistics on the death qualification process, this revision could tremendously increase a defendant’s chances of obtaining his guaranteed right to a fair, impartial trial.190 Such an essential and fundamental constitutional right cannot, and should not, be denied. Jesse Nason

190.

See U.S. CONST. amend. VI.

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Results Above Rights? The No Child Left Behind Act’s Insidious Effect on Students with Disabilities “Education, to be sure, is not a ‘one size fits all’ business.”1 I. INTRODUCTION

The Federal No Child Left Behind Act (NCLB), passed in January of 2002,2 will indisputably blaze a new public school education path adverse to the directives of the Individuals with Disabilities Education Act (IDEA).3 The NCLB accentuates educational quality, school accountability and school choice through mandatory testing at specified points in a student’s educational development.4 Query whether the NCLB and its mandatory testing initiative will have a positive impact on school children, our nation’s most valuable commodity, or if it is another ineffective policy instrumentality effervescing from bureaucracies far removed from the educational trenches. Proponents publicize the NCLB as a landmark measure capable of ensuring that only the highest educational standards are practiced as well as preached in American schools. Opponents argue that the NCLB’s testing mandate is nothing more than an onerous administrative procedure void of any educational assistance. Regardless of where one falls on this spectrum, the NCLB directives encroach upon testing participation rights previously afforded students under the IDEA.5

1. United States v. Virginia, 518 U.S. 515, 542 (1996). 2. No Child Left Behind Act, 20 U.S.C.A. § 6311(b)(3)(C)(v)(I) (West 2003) [hereinafter NCLB]. 3. Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400–1487 (West 2000) [hereinafter IDEA]. 4. 20 U.S.C.A. § 6311(b)(3)(C)(v)(I). 5. 20 U.S.C. § 1414(d)(1)(A)(v).

249

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250 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 The IDEA grants numerous rights to students with disabilities, including the right to participate, if at all, in school or district-wide testing.6 Students with disabilities may participate in the same manner as their regular education peers.7 Concomitantly, depending on individual needs, students may be exempt from participation or may participate alongside their mainstream peers with testing accommodations or substantive modifications.8 By compelling school districts to initiate standardized testing for all students, the NCLB infringes on the rights previously bestowed upon students with disabilities. Infringement may deny students with disabilities a meaningful educational benefit, resulting in a substantive violation of the IDEA.9 Further, failure to comply with an IDEA measure may result in a procedural violation if noncompliance causes a loss of an educational opportunity.10 Under the NCLB, absent extreme circumstances, all students, regardless of individual disability, participate in state or districtwide assessments.11 Conversely, pursuant to the IDEA, a student participates in testing depending on the student’s disability.12 Therefore, the NCLB testing mandates interfere with students’ needs, as students with disabilities require individualized consideration and attention. This individualized attention is documented in a student’s Individualized Education Plan (IEP).13 Once a pro-

6. Id. 7. Id. 8. Id. Accommodations refer to changes in testing materials or procedures such as presentation, response, setting, and scheduling. Modifications refer to the manner of participation and include extended time, breaking the test into parts, computer access for essay exams, and the use of calculators. See JUDY W. WOOD, ADAPTING INSTRUCTION TO ACCOMMODATE STUDENTS IN INCLUSIVE SETTINGS 144-45 (3d ed. 1998). 9. See Bd. of Educ. Of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200-01 (1982). 10. See generally 20 U.S.C § 1415. 11. See NCLB, 20 U.S.C.A. § 6311(b)(3)(C). 12. See IDEA, 20 U.S.C. § 1414(d)(1)(A)(v) (West 2000). 13. An IEP is a document describing a child’s skills and stated goals for services as well as strategies for achieving those goals. INCLUDING CHILDREN WITH SPECIAL NEEDS IN EARLY CHILDHOOD PROGRAMS 45-70 (M. Wolery & J.S. Wilbers eds., National Association for the Education of Young Children) (1994) [hereinafter Wolery & Wilbers]. The IEP includes a student’s performance level, annual goals for the particular student, type of education and services to be rendered, extent of mainstreaming, key dates, transitional

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vision is codified in the IEP, the student has a vested right in the provision. The NCLB and its mandatory testing scheme may violate the vested rights of a student with disabilities as the testing scheme may run counter to the testing determination previously reflected in the student’s IEP. This Comment examines both IDEA rights and NCLB obligations, illustrating how the NCLB overreaches into the individualized testing considerations the IDEA affords students with disabilities. Additionally, this Comment addresses student rights under the IDEA and the likelihood that the NCLB will eradicate testing rights of students. Section II explains student testing rights under the IDEA, new and conflicting guidelines promulgated in the NCLB, and IDEA violations educators confront in reconfiguring pedagogical procedures to fit the NCLB. Section III analyzes the seminal case, Bd. of Educ. of the Hudson Cent. Sch. Dist. v. Rowley, and its progeny to reveal factors courts consider in adjudicating procedural and substantive violation claims associated with planning and implementing student educational opportunities. Section IV explores the relationship between testing and educational placement for students with disabilities to demonstrate that, in addition to potential IDEA violations, it is both impractical and detrimental to educate certain students in a manner consistent with their mainstream contemporaries. Finally, Section V suggests utilizing an elevated standard for students’ education to guarantee focus on the students’ individual needs above sweeping directives. Under this heightened standard, it may be possible for the IDEA and the NCLB to stand in peaceful coexistence without the threat of litigation, and, more importantly, the infringement on a student’s right to an appropriate education. II. PUBLIC SCHOOL RESPONSIBILITY: IDEA RIGHTS AND NCLB DIRECTIVES

The following section elucidates the design of the aboveentitled educational decrees and their ubiquitous impression on the school landscape. Section A summarizes the IDEA, the landmark initiative promulgated to target the individual needs of services, and procedures for measuring student progress and informing parents. See also 20 U.S.C. § 1414(d)(1)(A)(i)-(viii). The IEP is the mechanism for carrying out IDEA provisions. Wolery & Wilbers, supra.

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252 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 unique learners. Section B describes the NCLB, its purported rationale and its unrealistic objectives. Finally, Section C augments the conflicts spawned by the NCLB and the resulting deleterious effect on student rights. A. The IDEA and the Rights of Students with Disabilities The IDEA demarcates students’ rights and corresponding school responsibilities towards students with disabilities.14 The IDEA’s purpose is to guarantee that students with disabilities are provided a “free appropriate public education” (FAPE) through special education and services implemented to address their unique needs.15 The Act establishes that students with disabilities have the right to a unique education tailored to individual needs.16 A “free appropriate public education” is a publicly funded and supervised education measured by state standards, executed in accordance with each student’s IEP and designed to provide an educational benefit.17 States are eligible to receive funds under the IDEA provided that the states employ a myriad of policies and procedures including student evaluations and IEP implementation.18 In addition to these guidelines, the IDEA also requires that students with disabilities participate in state and district-wide assessments.19 Under the IDEA, students with disabilities may participate with or without accommodations.20 Where appropriate, local education agencies draft and execute alternate assessment guidelines for those who cannot partake in the regular state or district-wide assessment.21 A team of educators draft each student’s IEP,22 delineating testing modifications and accommoda14. See IDEA, 20 U.S.C. § 1400(d)(1)(A)-(C) (West 2000). 15. Id. § 1400(d)(1)(A). 16. See id. § 1400(d)(1)-(3). 17. Id. § 1401(8). 18. See id. § 1412(1)-(16). These policies and procedures assist with identification and education of unique learners and include but are not limited to: FAPE, IEPs, least restrictive environment, procedural safeguards, evaluation, confidentiality, general supervision, eligibility, personnel standards, and performance goals and indicators such as individual assessments. Id. 19. Id. § 1412(a)(17)(A). 20. See id; see also Wolery & Wilbers, supra note 13. 21. Id. Alternate assessments are any method of evaluating progress differing from the state or district model. Id. 22. See IDEA, 20 U.S.C. § 1414(d)(1)(A)(i)-(viii); id. § 1414(d)(1)(B). The

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tions to be utilized in the assessments.23 Further, the IEP team determines how, if at all, the student will be assessed.24 Therefore, the IDEA leaves testing procedures to the IEP team to ascertain how to measure individual student progress as the team is most familiar with the student and best equipped to make this determination. The IDEA’s underlying purpose is to meet the “unique needs” of students with disabilities.25 A unique need could require alteration of the manner in which a student participates in an assessment or it could necessitate refraining from academic assessments altogether. In order to comply with individual needs, the IEP determinations must be made on an individual basis. What facilitates progress for one student may not benefit another, even if both students have the same disability. Accordingly, a student’s unique needs determine whether the student should participate in state or district-wide testing either with accommodations or through an alternative assessment. Moreover, unique needs may dictate that the student refrain from assessments altogether, without regard to arbitrary numbers or statistics promulgated by any agency. In addition to testing schema, safeguards exist to ensure, at a minimum, that schools follow certain procedures when executing a student’s IEP.26 First, the IDEA gives parents an opportunity to inspect all records that pertain to their student’s education.27 Concurrently, the statute requires that parents receive written notice of any change or addition to the student’s IEP.28 When, in the course of pedagogical events, parents disagree with either current procedures or the IEP’s substance, parents have the opportunity to present their grievances at mediation.29 Depending on the degree and severity of the grievance (or the temperament of the parIEP is the mechanism for carrying out IDEA provisions. See generally id. § 1414. 23. Id. § 1414(d)(1)(A)(v)(I). 24. Id. §1414(d)(1)(A)(v)(I)-(II). The IEP team, consisting of teachers, administrators, and parents is responsible for drafting the student’s IEP in accordance with the student’s individual needs. Id. § 1414(d)(1)(B)(i)-(vi). 25. Id. § 1400(d)(1)(A). 26. Id. § 1415(b). 27. Id. § 1415(b)(1). 28. Id. § 1415(b)(3)(A)-(B). 29. Id. § 1415(e)(1).

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254 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 ents and/or school district), mediation may be ineffective. Subsequently, a parent still troubled by perceived educational impropriety may seek redress by filing a complaint with the local school board requesting an impartial due process hearing to determine whether the school district has complied with the Act.30 After exhausting these remedies, a parent may bring a civil action in federal court.31 The procedural guidelines promulgated in the IDEA seem straightforward, unproblematic, and easy to employ at first glance.32 To the discerning eye of an experienced educator, however, any procedure purporting simplicity is all too illusory.33 To add to the labyrinthine procedural exigencies, the United States Supreme Court, in Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,34 determined that the standard for “free appropriate public education” is tantamount to an educational plan “reasonably calculated to enable the child to receive educational benefits” and educational services falling below this level would not suffice.35 Further, the Court determined the point at which educational services, or the lack thereof, amounted to a substantive violation of a student’s rights.36 Thus, given the extent of Congress’ devotion to the rights of students with disabilities, the long history of case law, and the Supreme Court’s interpretation of federal legislation, public school education of students with disabilities is unequivocally of grave concern. Accordingly, each and every act, ordinance, or policy initiative aimed at public education must be drafted with assiduous precision, taking into consideration how each measure might affect students’ preexisting substantive rights and procedural safeguards put in place to protect those 30. Id. § 1415(f)(1). 31. Id. § 1415(i)(2)(A). 32. It would appear that such detailed legislation, coupled with a societal trend toward litigation, would yield strict adherence to at least the procedural guidelines established in IDEA. See PHILIP CHINN & DONNA GOLLNICK, MULTICULTURAL EDUCATION IN A PLURALISTIC SOCIETY 172 (Prentice Hall 1998). 33. At the risk of sounding redundant, this skepticism is evidenced by the long history of case law outlining both procedural and substantive violations of the IDEA. See discussion infra Part IV. 34. 458 U.S. 176 (1982). 35. Id. at 207 (interpreting the IDEA’s predecessor statute, the Education for All Handicapped Children Act). 36. See id. at 206.

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rights. Therefore, examination of the NCLB, as well as the additional responsibilities Congress imposes on schools, is essential to determine how the two acts coordinate with each other. B. The Changing Face of Pedagogic Practice: Implementation of the No Child Left Behind Act37 On January 8, 2002, Congress passed the NCLB, touted as the most sweeping piece of educational legislation since the Elementary and Secondary Education Act became law during the Johnson Administration.38 The purpose of the NCLB is to offer students the chance to acquire a quality education.39 According to the NCLB, Congress’s vision of a “quality education” is equivalent to competence in state academic assessments which purportedly measure a state’s “challenging . . . academic standards.”40 In addition, parents are given school choice options if the school fails to meet state-mandated expectations.41 Each states’ education department drafts guidelines disseminating what the state determines should be taught in the public schools.42 After establishing these academic standards, students participate in mandatory district-wide testing to examine whether schools are successfully implementing these criteria.43 To receive federal funds, a public

37. This synopsis is not intended to be comprehensive concerning the plethora of responsibilities and requirements bequeathed upon schools. Instead this account of the NCLB is intended only to identify the NCLB provisions hostile to testing rights of students with disabilities under the IDEA as codified in accompanying IEPs. 38. See U.S. Department of Education, Introduction: No Child Left Behind, at http://www.ed.gov/print/nclb/overview/intro/index.html (last visited December 1, 2004). In addition to representing a sweeping overhaul of federal efforts to support secondary and elementary education in the United States, No Child Left Behind also reauthorizes the Elementary and Secondary Education Act. See id. 39. See NCLB 20 U.S.C.A. §6301 (West 2003). 40. See id. 41. Id. § 6316(b)(1)(E)(i). More succinctly, if a certain percentage of students are not meeting the standards (a euphemism for “failing”) on end-ofyear tests at particular schools, parents are free to place their children in another school. See id. Whether removing a student and relocating her to a foreign scholastic environment will cause the student to no longer “fail” is beyond the scope of this Comment. 42. 147 CONG. REC. H10083 (daily ed. Dec. 13, 2001) (statement of Rep. Pryce). 43. Id.

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256 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 school system must comply with the NCLB.44 Few would oppose the idea of calculating whether students are learning appropriate academic skills; however, the NCLB, in its present form, may have difficulty achieving its intended results because, at least with respect to students with disabilities, such students may not demonstrate comprehension through standardized testing. Pursuant to the NCLB, states must design demanding academic norms in math and reading that apply to all students.45 In addition, states are required to create and implement a system to evaluate whether schools have met state-authorized “adequate yearly progress” measurements.46 Included in the definition of “adequate yearly progress” is a proviso obliging “separate measurable annual objectives for continuous and substantial improvement for . . . [t]he achievement of . . . students with disabilities[.]”47 Thus, states must decide on a minimum percentage of students with disabilities required to meet proficiency standards.48 Though states are free to assign this percentage, at least ninetyfive percent of the students in each subgroup must participate in testing for a school district to meet adequate yearly progress standards.49 Further, students are to be tested at least once from grades 3 to 5, 6 to 9, and 10 to 12.50 The assessments are designed to account for one-hundred percent student participation, regardless of subgroup categorization, or the implementation of accommodations or adaptations.51 Finally, the local education agency is required to submit a plan to the state education agency demon-

44. See id. 45. 20 U.S.C.A. § 6311(b)(1)(C). 46. Id. § 6311(b)(2)(B). 47. Id. § 6311(b)(2)(C)(v)(II)(cc). 48. Id. § 6311(b)(2)(G)(iii). 49. Id. § 6311(b)(2)(I). One such subgroup is “students with disabilities,” and, for purposes of this Comment, subsequent discussion does not pertain to any other subgroup including “economically disadvantaged students,” “students from major racial and ethnic groups,” or “students with limited English proficiency.” Id. § 6311(b)(2)(C). Further, even if the student with disabilities subgroup does not meet the state determined percentage, the school may still meet adequate yearly progress so long as the percentage has not dropped by more than ten percent and the subgroup has made progress on at least one other indicator. Id. § 6311(b)(2)(I)(ii). 50. Id. § 6311(b)(3)(C)(v)(I). 51. See id. § 6311(b)(3)(C)(ix)(I)-(II).

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strating how it will implement services under the Act for students with disabilities.52 Students with disabilities are specifically addressed in the NCLB.53 Certainly Congress would not exclude students with disabilities from such an important educational initiative; however, there is evidence that Congress passed the Act with strong reservations concerning this class of students.54 Thus, Congress did not pass the NCLB without first studying the likely effects on students with disabilities. Insight notwithstanding, the NCLB as it currently exists presents an inherent conflict with regards to this population. Such conflict can only hinder educational development guided by the IDEA, as the next section illustrates. C. The Facial Conflict Between the NCLB and the IDEA Notwithstanding any potential standardized testing validity problems, the NCLB testing mandate may violate student rights established by the IDEA. First, under the IDEA, students are required to participate in state or district-wide testing; however, there is no minimum participation percentage.55 There are a variety of explanations for such an omission. Primarily, the crux of the IDEA hinges on the individually tailored education plan crafted according to the student’s uniqueness, without regard to mandatory, arbitrary floors determined by people who have minimal, or no interaction with the student. Arguably, alternate assessment should make up for this gap as they are included in both the IDEA and the NCLB.56 However, the NCLB includes alternative assessments only for determining the percentage of students tested; there is no provision that mentions alternate assessments as a means for achieving a reliable and appropriate measure of proficiency.57 Second, under the IDEA, the IEP team, not the local educa-

52. Id. § 6312(b)(1)(E). 53. See id. § 6311 (b)(2)(C)(v)(II)(cc). 54. 147 CONG. REC. H10103 (daily ed. Dec. 13, 2001) (statement of Rep. Miller). Even though the Act was passed with overwhelming bipartisan support, there still existed serious disagreement over how it would affect special education. Id. 55. See IDEA, 20 U.S.C. § 1412 (West 2000). 56. See id. § 1412(a)(17); 20 U.S.C.A. § 6311(b)(2)(I)(i). 57. See generally 20 U.S.C.A. § 6311.

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258 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 tion agency, determines how the student will be assessed, if at all, depending on the student’s disability and need.58 The NCLB takes the contrasting position that all students are to participate, regardless of disability or need.59 This problematic approach ignores the IEP’s primary concern: the student’s individual needs. The NCLB requires that students test in particular grades.60 However, under the IDEA, students need not reside in a traditional grade, as an education tailored to a particular student does not demand such a distinction. Assignment to a particular grade for the sole purpose of testing again would disregard the IDEA’s ultimate goal of particularized treatment of students with disabilities. Therefore, it is unequivocal that the NCLB and the IDEA posit two different conceptions of education. The IDEA vision focuses on individual needs whereas the NCLB view concentrates on standards employed merely to characterize the pervasive slump that exists in public school education. However, since the IDEA encompasses students’ testing participation rights, failure to comply is actionable notwithstanding the NCLB’s enactment. III. THE NCLB PROMPTS GRAVE CONCERN AT THE STATE LEVEL

Data compiled by the Nation’s Report Card shows how the NCLB has influenced testing patterns for students with disabilities despite rights established in the IDEA. For example, in Rhode Island in 1998, four years before Congress enacted the NCLB, thirteen percent of all eighth grade students were identified as having some sort of reading disability.61 Of this thirteen percent, five percent were excluded from testing, and only one percent were tested with accommodations.62 Subsequently, in 2002, after the NCLB’s passage, sixteen percent of students were identified as disabled, only four percent were excluded from testing and seven percent were tested with accommodations.63 The data evinces a 58. 20 U.S.C. § 1414(d)(1)(A). 59. See 20 U.S.C.A. § 6311(b)(3)(C). 60. Id. § 6311(b)(3)(C)(v)(I). 61. National Center for Education Statistics, The Nation’s Report Card, at http://nces.ed.gov/nationsreportcard/reading/results2003/acc-sd-g8.asp (last visited Sept. 13, 2004). 62. Id. 63. Id. Similarly, in Massachusetts in 1998, fifteen percent were identified, three were excluded and five were tested without accommodations. In 2002, seventeen percent were identified, four were excluded and eight were

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state trend toward identifying more students with disabilities. Yet, despite an increase in identification, fewer students have been excluded from testing; instead, more students are tested with accommodations. It is possible schools may be over-identifying students with disabilities to get low-performing students accommodations, hoping that accommodations will yield more favorable test results. Regardless, the trend, at least in Rhode Island, indicates a move toward assessing a greater number of students. Although on its face this is not problematic, such a puissant drift becomes suspect given the strict guidelines imposed by the IDEA. The drift poses the question whether administrators strictly adhere to individual IEPs or if administrators disregard IEPs to an extent, and thus violate the IDEA, in order to meet NCLB mandates. As the IDEA grants students with disabilities their only legitimate educational rights, discounting the IDEA to adhere to a quota system does a disservice to the student and exposes the school district to potential liability. Thus, it becomes necessary to diligently diagram testing trends and the resulting impact on students with disabilities. The NCLB’s influence on testing trends in Rhode Island is evident in the recent standardized testing patterns made available by the Rhode Island Department of Education. This assessment trend commenced throughout the country during the 1990s and still remains a powerful force.64 Currently in Rhode Island, all students are to participate in state-wide assessments with or without accommodations or using an alternate assessment. Accommodations include changes in test setting, timing, scheduling, presentation, or manner of response.65 Students must meet specific thresholds in eight categories to qualify for alternate assessments.66 The categories pertain to the existence of an IEP, cognitive and functioning behavior, intensive support, cause of tested with accommodations. Id. 64. Mark Pomplun, Cooperative Groups: Alternative Assessment for Students with Disabilities?, 30 J. SPEC. EDUC. 1, 1 (1996). 65. An alternate assessment is any evaluation method utilized to measure progress that differs from the district norm. Rhode Island Department of Elementary and Secondary Education, at http://www.ridoe.net/ standards/stateassessment/Accomodations.htm (last visited Sept.13, 2004). 66. Rhode Island Department of Elementary and Secondary Education Web site, at http://www.ridoe.net/standards/stateassessment/alternateassess ment.htm (last visited Sept.13, 2004).

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260 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 educational performance, age-appropriate levels, ability to apply skills, IEP team compliance, and documentation.67 If the student does not meet the required thresholds, the student must participate in assessments with or without accommodations.68 This standard conflicts with the IDEA, where students may be excluded from state-wide tests under appropriate circumstances.69 Moreover, pursuant to the NCLB, schools are required to test ninetyfive percent of students in reading and math.70 Again, this mandate is inconsistent with the IDEA, which establishes no arbitrary floor for participants, given its commitment to student individuality.71 In addition to these testing alterations, Rhode Island has implemented twenty-one performance indicators to measure individual school progress.72 A school must meet target levels on all twenty-one indicators in order to achieve “adequate yearly progress.”73 Indicators include target passing rate percentages on as-

67. Id. 68. Id. 69. IDEA, 20 U.S.C. § 1414 (West 2000). 70. Linda Borg & Bruce Landis, How Schools are Evaluated, PROVIDENCE J. BULL., Aug. 15, 2003, at B3. 71. In Massachusetts, all public education students are required to participate in the Massachusetts Comprehensive Assessment System (MCAS) either in its standard form, with accommodations, or through the use of an alternate assessment. Mass. Department of Education, Mass. Comprehensive Assessment System, at http://www.doe.mass.edu/mcas/alt/overview.html (last visited Sept. 14, 2004). Only a small number of students, those with the most significant disabilities, will be permitted to use alternate assessments. Id. Furthermore, the IEP team will decide “how, not whether, the student will participate in the MCAS . . . .” Id. An alternate assessment consists of a portfolio containing academic materials collected throughout the year by both the teacher and the student. Id. Thus, similar to the Rhode Island mandates, Massachusetts places demands on schools and students incompatible with the IDEA. Under the IDEA, the IEP team determines whether the student will participate and, based on the team’s discretion, the manner in which an alternate assessment will be conducted. 20 U.S.C. § 1414(d)(1)(A)(v). Therefore, the NCLB has improperly influenced both Massachusetts and Rhode Island into altering testing schemes to potentially result in the IDEA infringement. 72. See R.I. DEP’T OF ELEMENTARY AND SECONDARY EDUC., SCH. AND DIST. PERFORMANCE AND ACCOUNTABILITY SYS., 4 (Sept. 2003), available at http://131.109.26.242/reportcard/03/AccountabilityBrochure.pdf (Sept. 18, 2003) [hereinafter PERFORMANCE AND ACCOUNTABILITY SYS.]. 73. Id.; see also NCLB, 20 U.S.C. § 6311(b)(2)(C) (West 2003) (defining “adequate yearly progress”).

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sessments for specific student groups, one of which includes students with disabilities.74 Failure to meet any indicator can result in potential school reconfiguration, school choice for children or requiring the school to provide a plethora of additional services.75 Many Rhode Island schools are not achieving “adequate yearly progress” because the disabled subgroup falls short of the target rate, causing administrative disruption and the loss of essential student services.76 Some students with disabilities were previously excluded or offered alternate assessments because state or district tests were not appropriate. Now, participation may not only impinge rights but also facilitate the loss of needed services or cause the reconfiguration of an exemplary school. Given the heightened sensitivity to procedural and substantive violations of the IDEA, the testing provision changes in Rhode Island will likely lead to litigation.77 Rhode Island is currently enacting procedures that would require substantial IEP rearrangement.78 In addition to the potential procedural changes, students with disabilities may now be deprived of preexisting pedagogical practices proven to be successful in order to make room for the standardized testing procedures and preparations necessary under the NCLB. It is possible students could bring a cause of action under IDEA section 1415 citing procedural violations due to the IEP changes.79 In addition, students could bring claims for substantive violations, claiming that the new testing provisions provide no academic benefits to their education plans. Further case study is required to flesh out the elements of both the procedural and substantive violation of the IDEA. IV . SUBSTANTIVE AND PROCEDURAL VIOLATIONS OF THE IDEA

In 1982, the United States Supreme Court announced the educational standard schools must provide students with disabilities in Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.

74. See PERFORMANCE AND ACCOUNTABILITY SYS., supra note 72. 75. See id.; see also id. at 6; NCLB, 20 U.S.C.A. § 6316(b)(8). 76. See, e.g., David McFadden, Eight Students Seek Transfer from Failing City Schools, PROVIDENCE. J., Aug, 29, 2003, at C1. 77. See CHINN & GOLLNICK, supra note 32. 78. See McFadden, supra note 76. 79. See 20 U.S.C. § 1415 (West 2000).

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262 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 Rowley.80 The Court interpreted the “free appropriate public education” requirement of the IDEA’s predecessor statute, the Education for All Handicapped Children Act, to ascertain the requisite degree of education afforded to students with disabilities.81 A State complies with the Act’s requirements, the Court held, when it follows the procedures set forth in the Act and if the IEP is “reasonably calculated to enable the child to receive educational benefits” conferring a “minimum floor of opportunity.”82 Noting the distinction between students with disabilities and regular students, the Court proclaimed: The educational opportunities provided by our public school system undoubtedly differ from student to student, depending upon a myriad of factors that might affect a particular student’s ability to assimilate information presented in the classroom. The requirement that States provide “equal” educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons.83 Thus, the Court determined that states need to provide a minimum floor of opportunity, and highlighted the distinctive and unique characteristics of education plans for students with disabilities.84 The IDEA expanded on the individual’s unique learning characteristics highlighting educational benefits for students and offered comprehensive opportunities.85 The IDEA focuses on individual uniqueness while the NCLB evaluates educational programs. The IDEA maintains that the IEP shapes the student’s education where the NCLB, with its testing mandate, disregards any individual determination under the auspices of school program evaluation.86 Following the Rowley 80. 458 U.S. 176, 203-04, 206-07 (1982). 81. Id. at 203-04. The Court’s interpretation is still currently applied in evaluating whether a substantive or procedural IDEA violation has occurred. The Court determined that the school did not need to provide a deaf student with a sign language interpreter as the student was advancing from grade to grade with ease. Id. 82. Id. at 206-07. Here, the Court determined that the school met the standard. Id. at 209. 83. Id. at 198. 84. See id. at 201, 206-207. 85. See generally IDEA, 20 U.S.C. § 1415 (2000). 86. See James G. Shriner, Legal Perspectives on School Outcomes As-

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Court’s rationale and the IDEA’s evolution, standardized testing may be inappropriate and/or invalid for some students.87 To furnish any educational benefit, determining whether, and if so, how a student shall be tested, should be done on an individualized basis. A minimum participation percentage requirement may lead to a substantive or procedural IDEA violation. Focus should center back on individual needs, perhaps through wide-scale alternate assessment use, rather than large-scale testing.88 If large-scale testing remains the norm, rights may vanish, claims may rise, and students with disabilities might be “left behind.” Therefore, careful review of the factors courts consider in determining IDEA violations is necessary to demonstrate how mandatory testing infringes upon educational rights. A. Substantive IDEA Violations and Potential NCLB Infringements Mandatory testing invites potential substantive violations of the IDEA because a student may not acquire any meaningful benefit from the standardized test and it may replace preexisting procedures that did offer such a benefit. One type of IDEA violation stems from insufficiencies in the student’s IEP. Courts, following the Rowley standard, determine whether students can derive meaningful educational benefit from their IEPs. If a student cannot derive a meaningful educational benefit from the IEP, a substantive IDEA violation arises.89 Inversely, if a provision necessary for a student to receive an educational benefit is omitted from an IEP, the omission may also lead to a substantive IDEA violation.90 To illustrate, the United States Court of Appeals for the Ninth Circuit found that denying a student with a behavioral and emotional disorder placement at a residential treatment facility amounted to a substantive IDEA violation because the student could not derive a meaningful educational benefit without

sessment for Students with Disabilities, 33 J. SPEC. EDUC. 232, 232-33 (2000). 87. See generally id. 88. See infra notes 97-98 and accompanying text. 89. See, e.g., Seattle Sch. Dist. v. B.S., 82 F.3d 1493, 1498-1500 (9th Cir. 1996). 90. See, e.g., E.D. v. Enterprise City Bd. of Educ., 273 F. Supp. 2d 1252, 1272 (M.D. Ala. 2003).

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264 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 such placement.91 The court reasoned that “unique educational needs” are not limited to the academic.92 Similarly, in E.D. v. Enterprise City Bd. of Educ.,93 a United States District Court for the Middle District of Alabama held that a school district’s IEP amounted to a substantive IDEA violation because it did not provide strategies for the student to return to school on a full-time basis.94 In addition to actual IEP content, courts also find substantive IDEA violations based on student performance. For instance, if a deaf and blind student with the capacity to learn self-help skills is not making progress towards academic goals, a substantive violation occurs if the IEP does not provide a program specifically designed for those self-help skills.95 Further, courts consider each student’s individual potential because students have different abilities and capabilities.96 Given the foregoing review, it is possible the NCLB provisions fall within the substantive violation context. First, a determination must be made whether participation in a state or districtwide test confers an educational benefit to the student. Because testing is addressed in the IDEA, Congress likely recognized the benefit of participation.97 However, because a student may potentially be excluded from testing under the IDEA, it is equally likely Congress anticipated situations in which assessments would provide no meaningful educational benefit.98 Though NCLB proponents claim that participation enhances accountability and raises expectations for students with disabilities,99 deference is due to the original IEP, as it is drafted soley to benefit the individual.

91. Seattle Sch. Dist., 82 F.3d at 1500, 1502. 92. Id. at 1500 (quoting H.R. REP. NO. 98-410, at 19 (1983), reprinted in 1983 U.S.C.C.A.N. 2088, 2106) (construing “unique educational needs” to include the student’s academic, social, health, emotional, communicative, physical and vocational needs). 93. 273 F. Supp. 2d 1252 (M.D. Ala. 2003). 94. Id. at 1272. 95. See Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1476 (9th Cir. 1993). 96. See Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (2d Cir. 1999). 97. See IDEA, 20 U.S.C. §1414(d)(1)(A) (2000). 98. See id. 99. See Judy L. Elliot et al., State-Level Accountability for the Performance of Students with Disabilities: Five Years of Change?, 39 J. SPEC. EDUC. 39, 39-40 (2000).

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Also, because the IDEA enables the IEP team to determine how and if a student should be assessed, denying an alternate assessment deprives a student of a meaningful educational benefit.100 The NCLB has induced states to adopt categorical, rather than individual, approaches to determine whether a student can participate through alternate assessments.101 The IDEA’s language and subsequent case law, however, suggest that alternate assessments likely provide a greater benefit than standardized testing.102 Therefore, these categorical approaches could deny benefits promised to students by both the IDEA and the Supreme Court.103 B. Procedural IDEA Violations and Another Analogy to NCLB Mandates The NCLB’s mandatory testing scheme may also amount to a procedural violation of the IDEA as it could prompt harmful IEP omissions. Procedural violations however are not absolute; that is, if a school does not comply with the procedures set forth in the IDEA, noncompliance does not automatically result in a procedural violation of the student’s rights. Courts consider loss of educational opportunity, the nature of noncompliance, and the consequence to a student in determining whether procedural noncompliance amounts to a violation. 104 the In Cleveland Heights-Univ. City Sch. Dist. v. Boss, United States Court of Appeals for the Sixth Circuit found a procedural violation of the IDEA because a student’s IEP did not include objective criteria for measuring progress.105 The court reasoned that such a substantial omission, one more than a mere technical violation, went to the crux of the IEP.106 Similarly, the United States Court of Appeals for the Fourth Circuit determined that once a school district obtained information concerning a transfer student’s IEP, it became obliged to inform parents of

100. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192, 200-01 (1982) (defining meaningful education). 101. See generally Pomplun, supra note 64. 102. See Experts: Multiple Methods of Alternate Testing Best, SPECIAL EDUC. REPORT, Nov. 2003 at 7. 103. See Rowley, 458 U.S. at 206-07; IDEA, 20 U.S.C. § 1414(d)(1) (2000). 104. 144 F.3d 391 (6th Cir. 1998). 105. Id. at 398-99. 106. Id. at 399.

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266 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 right under the IDEA.107 The court deduced that once a student is evaluated pursuant to federal IDEA guidelines, the student is entitled to the procedural benefit from school to school.108 Thus, to an extent, courts hold schools accountable for existing IEPs. The NCLB’s implementation may disrupt existing IEPs or, alternatively, IEPs may fail to address the federally-mandated testing guidelines altogether. A blatant procedural violation would occur if an IEP omits a comprehensive NCLB description and how the new guideline affects the student, if at all. For example, assume that a student was exempt from testing prior to the NCLB. Under new Rhode Island guidelines, the student must participate in testing.109 The student’s IEP must address this change in ample detail, and the school responsible for implementing the change must provide notice to the parents.110 As evidenced by Salley, the IEP is of grave importance to the student, and failure to comply with the IDEA procedures for executing it could negatively impact the student.111 If a change in testing procedure is not reflected in a student’s IEP, the student’s teachers may not cater instruction accordingly, leaving the student without the ability to show progress leading to an unequivocal IDEA violation. C. Distinguishing the Appropriate IEPs: The Imminent Jeopardy the NCLB Poses to the Efficacious IEP To better understand what may constitute an IDEA violation in light of the NCLB’s mandatory testing regime, it is helpful to survey what actions various courts have found acceptable under the IDEA. Courts have confirmed that the following alleged violations of the IDEA did not result in the deprivation or loss of educational opportunity: failure to classify and serve a student with a form of autism when the student did not demonstrate a need for the services;112 IEP offering reverse mainstreaming, or a restric107. Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458, 464-65 (5th Cir. 1995). 108. Id. at 465. 109. See R.I. Department of Elementary and Secondary Education at http://www.ridoe.net/standards/stateassessment/Accomodations.htm (last visited Sept. 1, 2004). 110. See IDEA, 20 U.S.C. § 1415 (2000). 111. See Salley, 57 F.3d at 465. 112. Eric H. v. Judson Indep. Sch. Dist., No. Civ.A. SA01CA0804-NN, 2002 WL 31396140, at *1, *11 (W.D. Tex. 2002).

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tive environment, with individual speech, occupational, and physical therapy;113 a public school implementing its own IEP over an IEP drafted at a private school in another district;114 and lack of a full-time aide for a student with autism in the absence of educational opportunity loss.115 In each circumstance, the respective court found that the student’s IEP was appropriate as it did not deprive the student of any benefit nor did it result in the loss of an educational opportunity.116 In contrast, if a student’s IEP is changed pursuant to the NCLB, the student could be deprived of a condition previously granting an educational benefit, thus stripping a potential educational opportunity. If a student has an existing IEP, the student already has a demonstrable need for services. Unlike cases where students were seeking to extend their IEPs, an NCLB-induced cause of action under the IDEA will likely be seeking to uphold the current IEP. As discussed earlier, the NCLB has the capacity to deprive the student of assessment procedures, a meaningful educational benefit. Further, altering the testing procedures could amount to the loss of a previously honored educational opportunity. Pre-NCLB, IEP testing guidelines were drafted in a student’s best interests, intended to address that particular student’s educational needs. The student may have participated in testing through an alternate assessment, or the student may have been excluded from testing because the student did not obtain any benefit from participation. Possibly, the IEP team determined that the student’s needs were best addressed by focusing on self-help skills, for example. If the NCLB allowed for increased use of alternate assessments, which it currently curtails, it could be reconciled with the IDEA. Currently, the NCLB does not allow for such a practice. NCLB alterations are distinguishable from the innocuous situations where courts found the IEPs appropriate. The NCLB has the capacity to alter the IEP to the point where the child is deprived of 113. 1999). 114. 2000). 115. 2003). 116.

Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 661 (8th Cir. Michael C. v. Radnor Township Sch. Dist., 202 F.3d 642, 651 (3d Cir. Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 807, 810 (5th Cir. See supra notes 112-11 and accompanying text.

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268 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 a benefit (alternate assessment or exclusion), spawning an IDEA procedural violation. Notwithstanding this analysis, the NCLB can, if amended, be implemented without violating the IDEA by affording the current IEP deference regarding testing determinations. If an IEP is properly drafted, it will state what assessment methods will best serve the student and why.117 The NCLB manifests crucial shortcomings as decisions are rendered categorically for all students without the input of the IEP team or without taking into consideration a student’s individual characteristics.118 When a standardized test is drafted with universal application in mind, it is difficult to argue that the test provides an educational benefit to the individual learner. NCLB proponents would likely argue that the assessments measure the quality of education, not the individual benefit derived. However, it would be difficult to measure the quality of a unique learner’s education if the particular assessment method was not a valid or appropriate measure of his or her learning. Therefore, in addition to preserving student rights, an NCLB amendment requiring deference to the IEP team’s determinations and allowing assessment alternatives for students with disabilities will likely save testing validity as a unique learner can only demonstrate progress on an appropriate and valid assessment. D. Adequate Student Progress: Outside the NCLB’s Assessment Capabilities Schools often overlook appropriate measures omitted from a 119 student’s IEP if the student demonstrates educational progress. Courts rely on the hearing officer’s finding of adequate student progress to uphold an IEP.120 As such, courts have acknowledged that the following circumstances did not result in the deprivation or loss of educational opportunity because the student adequately progressed: denying one-on-one reading instruction where the student was receiving adequate grades in regular education

117. See IDEA, 20 U.S.C. § 1414(d)(1)(A) (West 2000). 118. Borg & Landis, supra note 70, at B3. 119. See, e.g., Eric H. v. Judson Indep. Sch. Dist., No. Civ.A. SA01CA0804NN, 2002 WL 31396140, at *1, *11 (W.D. Tex. 2002). 120. See, e.g., Rowley, 458 U.S. at 210-11 (1982) (Blackmun, J., concurring).

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classes;121 denying increased reading instruction and therapy for a student with written and language deficiencies when the student showed significant progress in reading and oral expression;122 denying increased resource time for a student with Tourette’s Syndrome, Attention Deficit Disorder, and Obsessive-Compulsive Disorder, despite passing grades, academic progression, and appropriate accommodations and attention when necessary;123 a student with Behavior/Emotional Disorder challenged the school’s IEP but experienced overall behavior and academic improvement;124 refusal to place a student with Tourette’s Syndrome and Attention Deficit-Hyperactivity Disorder in a 24-hour facility instead of an adaptive behavior classroom where the student received passing grades and could walk the halls unaccompanied by an adult;125 and a student with processing and attention difficulties challenged the reduction in services despite year-to-year grade progression and consistent increases on standardized tests.126 This preceding line of cases shows that positive student progress weighs heavily in favor of IEP appropriateness. A fortiori, a low-achieving student has a better chance of obtaining success in an IDEA claim. It would be difficult for a successful student with disabilities to challenge NCLB testing provisions regardless of whether the test provided a meaningful educational benefit. In other words, a hearing officer would be more likely to examine the IEP of a low-achieving student with disabilities.127 Thus, a student bringing a claim after the NCLB’s implementation will likely be

121. Troy Sch. Dist. v. Boutsikaris, 250 F. Supp. 2d 720, 737 (E.D. Mich. 2003). This is determined by the school district hearing officer and confirmed by the respective court. Id. at 727-728. 122. Coale v. State Dep’t of Educ., 162 F. Supp. 2d 316, 319, 328, 331 (D. Del. 2001). 123. Carl D. v. Special Sch. Dist., 21 F. Supp. 2d 1042, 1056 (E.D. Mo. 1998). 124. Bd. of Educ. of Avon Lake City Sch. Dist. v. Patrick M., 9 F. Supp. 2d 811, 825 (N.D. Ohio 1998). 125. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 25354 (5th Cir. 1997). 126. Bd. of Educ. of Downers Grove Grade Sch. Dist. No. 58 v. Steven L., 898 F. Supp. 2d 1252, 1262 (N.D. Ill. 1995). 127. This attenuated logic, however, will do a disservice to the student while belittling IDEA for the IEP should govern regardless of past performance.

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270 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 seeking to uphold, not extend, the current IEP. A rational approach would involve precisely what the IDEA has already set forth: analyzing the unique needs of the individual student. The NCLB’s mandatory testing initiatives can survive as long as a student’s unique needs remain paramount. Unfortunately, policy frequently overrides IEP procedure and students with disabilities are often left behind. E. IDEA and Testing: The Graduation Exit Exam Dilemma Mandatory testing encroaches upon students’ rights because, in many cases, the IEP already accounts for testing substance and procedure. Currently, testing participation for students with disabilities is at the forefront of educational debate. Should testing participation be based on the student’s individual needs or should a student’s needs cede to state policies?128 Is it possible to design state policy consistent with the individual needs of a particular student? If the IDEA determines how a student is to be educated it follows that it should also determine how a student is tested.129 Increased alternate assessment use may quell the conflict between the IDEA and the NCLB, as alternate assessments are frequently posed as solutions to testing validity problems. School districts frequently avoid alternate assessment use, however. Some students have already pursued claims against local school boards on the theory that graduation exit exams violate IDEA testing safeguards. In Chapman v. Cal. Dep’t. of Educ.,130 a group of students with disabilities challenged the California High School Exit Exam requirement on grounds that mandatory participation violated the IDEA.131 The students asserted that the test was invalid because they were denied use of accommodations or alternate assessments, a blatant contradiction of their IEPs.132 The students argued that accommodations and alternate assessments were essential to meaningful inclusion in the state-wide

128. See Martha Thurlow, et al., Students with Disabilities in Large-Scale Assessments: State Participation and Accommodation Policies, 34 J. SPEC. EDUC. 152, 162 (2000). 129. See Experts: Multiple Methods of Alternate Testing Best, SPECIAL EDUC. REPORT, Nov. 2003, at 7. 130. 229 F. Supp. 2d 981 (N.D. Cal. 2002). 131. Id. at 983-84. 132. Id. at 984.

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test.133 The court agreed, deciding that a state cannot deny students with disabilities meaningful participation in the state tests when meaningful participation is available for other students.134 The court reasoned that the IEP shall dictate how a student is assessed, which could include accommodations, alternate assessments, or exclusion altogether, as it establishes testing procedures designed to validly assess student capabilities.135 Although Chapman was reversed by the United States Court of Appeals for the Ninth Circuit on the conjecture that the IDEA does not encompass graduation requirements, its reasoning regarding testing requirements provides helpful insight in evaluating the rationale for standardized testing provisions as they affect students with disabilities.136 Other courts have handled the same issue but have applied an analysis that tapers on the edge of a plenary IDEA violation. For example, in Rene v. Reed,137 the Court of Appeals of Indiana refused to acknowledge the validity of particular students’ claims.138 The students challenged the state graduation exam requirement that they had previously been exempted from pursuant to their IEPs.139 The students were now required to take the exams with accommodations or adaptations.140 The court determined that the graduation exam did not violate the IDEA because the “IDEA does not require any specific results.”141 Further, the court held, the state does not have to honor accommodations contained in individualized plans because this would affect the testing validity.142 Here, the court disregarded both the IDEA’s right-granting 133. Id. at 986. 134. Id. at 987. 135. Id. at 987-88. The court also relied on a memorandum from the U.S. Department of Education, Office of Special Education and Rehabilitative Services to State Directors of Special Education (January 17, 2001), available at http://www.dssc.org/frc/fed/OSEP01-06.FFAssessment.pdf. 136. See Smiley v. Cal. Dep’t of Educ., Nos. 02-15552, 0215553, 2002 WL 31856343, at *1 (9th Cir. 2002) (reversing Chapman in part on grounds that IDEA does not encompass restrictions on a state to set diploma requirements). 137. 751 N.E.2d 736 (Ind. Ct. App. 2001). 138. See id. at 745-47. 139. Id. at 739. 140. Id. 141. Id. at 745. 142. See id. at 746.

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272 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 authority and the IEP purposes and qualified its rationale as limited to graduation requirements. Though the IDEA may not regulate graduation requirements, it does regulate testing procedures for students with disabilities. Testing accommodations are implemented to assist the student in accessing a meaningful proficiency assessment without rendering the assessment invalid.143 Contrary to the Rene rationale, accommodations likely save testing validity. Therefore, in addition to the current legislature, courts also fail to notice the purpose of accommodations, alternate assessments, or exemption from tests. Notwithstanding the Rene court’s ambiguous conclusions, these cases show that courts are looking to testing purposes in determining how or whether students with disabilities are to participate. Under the NCLB, students participate to measure the quality of education received.144 For students with disabilities, however, quality of education is not limited to the academic. Further, a test cannot measure quality of education if it does not comport with teaching pedagogy. In a recent survey, a majority of educators asserted that the NCLB makes no sense for students with disabilities as educational progress is unlikely apparent on a standardized test.145 Moreover, many educators purport that the law currently inhibits alternate assessment implementation.146 In the preceding cases, one state could require standardized testing only because it dealt with graduation requirements.147 The NCLB, however, mandates testing at various points in a student’s education. Most of these assessments do not deal with graduation, yet they are still mainstream components, or components of the regular school environment.148 The mainstream environment, however, is not always the appropriate venue for educating students with disabilities. Presently, without the graduation requirement pretext, schools and courts cannot circumvent rights and subject all students to the mainstream environment without inviting an 143. Memorandum from the U.S. Department of Education, Office of Special Education Programs, to State Directors of Special Education (January 17, 2001), available at http://www.ed.gov/policy/speced/guid/idea/omip.html. 144. See NCLB, 20.U.S.C. § 6301(1) (West 2002). 145. States Seek to Revise Special Education Testing, SPECIAL EDUC. REPORT, Nov. 2003. 146. Id. at 5. 147. 20 U.S.C.A. § 6311(b)(3)(C)(ix). 148. See Wolery & Wilbers, supra note 13.

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IDEA violation. V. THE RONCKER STANDARD FOR EDUCATIONAL PLACEMENT: AN ANALOGY BETWEEN MAINSTREAM INAPPROPRIATENESS AND THE MAINSTREAM ASSESSMENT

Not all students’ particular needs can be addressed in the mainstream environment as the mainstream environment targets regular, not exceptional needs. The mainstream environment undoubtedly includes state or district-wide testing.149 Thus, if the mainstream environment is not appropriate for particular students then there is reason to believe standardized testing is equally inappropriate,150 given that the two are not mutually exclusive. The United States Court of Appeals for the Sixth Circuit, in Roncker v. Walter, pronounced factors, still applied by federal courts today, for determining the appropriateness of student placement.151 The determination is for placement of students already identified with a disability; thus, this analysis concerns the appropriate educational setting, not the educational standard pronounced in Rowley.152 The Sixth Circuit, in supporting individual, not categorical determinations, applied the following factors determining appropriate placement: 1. Whether services that make placement superior could be feasibly provided in a non-segregated facility. 2. Whether the benefits of mainstreaming outweighed the benefits provided by a segregated environment. 3. The disruptive force of the student in the non-segregated environment. 4. The cost of placing the student in the segregated environment.153 Based on this standard, courts frequently conclude that the 149. “Mainstream” refers to the regular education classroom and environment. The segregated environment is the opposite of the mainstream environment. It usually refers to a self-contained classroom. See WOOD, supra note 8, at 98-100; THOMAS L. GOOD & JERE E. BROPHY, LOOKING IN CLASSROOMS 262 (7th ed. 1997) (indicating that mainstream students participate as “fully” and “equally” in classroom activities as possible). 150. Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983) 151. Id. at 1062-63 (holding that placements should be individually made and not automatically determined based on classification). 152. Rowley, 458 U.S. at 202-04, 205-07. 153. Roncker, 700 F.2d at 1063.

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274 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 student should not be educated in the regular classroom. For instance, in Hudson v. Bloomfield Hills Pub. Sch.,154 the court, in relegating a student classified as Trainable Mentally Impaired (TMI) to the segregated classroom, held that a student should be educated in the regular environment but here the child’s needs required placement elsewhere.155 Other courts have deemed the mainstream inappropriate, reasoning that technical learning should not be emphasized over life skills and that interaction with non-handicapped peers would be limited to mere observation.156 In these situations, the factors typically weigh in favor of educating the child in the segregated environment.157 Although a testing determination is not as extreme as a segregated learning environment, similar factors could be used to circumscribe whether a student with disabilities should participate in state or district-wide testing when the student previously participated in an alternate assessment or was excluded.158 Regular testing is presumptively inappropriate if a student was previously excluded or the student participated through alternate assessments. Therefore, factors in determining participation must weigh heavily in favor of testing in order to overcome the preexisting IEP standards. If the IEP is ignored and the student participates in testing regardless of previous IEP team decisions, the focus will shift from the unique needs to standardized testing results. As several courts have already established, focusing purely on the student’s aca154. Hudson v. Bloomfield Hills Pub. Sch., 910 F. Supp. 1291 (E.D. Mich. 1995). 155. Id. at 1304. 156. See French v. Omaha Pub. Sch., 766 F. Supp. 765, 787-88, 792 (D. Neb. 1991); A.W. v. Northwest R-1 Sch. Dist., 813 F.2d 158, 161 (8th Cir. 1987) (per curiam). But cf. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1401-02, 1404 (9th Cir. 1994) (holding that mainstreaming is preferred and although in some cases segregation may be necessary, in these cases the factors weighed in favor of educating the child in the mainstream environment); Doe v. Bd. of Educ. of Tullahoma City Sch., 9 F.3d 455, 459-60 (6th Cir. 1993). 157. French, 766 F. Supp. at 792-94; A.W., 813 F.2d at 161-63. 158. Students segregated from the mainstream are typically categorized by physical and/or learning disability. See WOOD, supra note 8, at 96. Although this characteristic weighs heavily in determining placement it is not necessarily dispositive of a testing determination. See id. This supports the assertion that testing determinations should be made on an individual basis only; that is, for students with disabilities.

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demic results runs contrary to both the IEP and the IDEA.159 Although assessing the quality of the student’s education is important, this can likely be done without a time consuming and potentially invalid measure. States, therefore, should establish a new standard that focuses on unique needs and student individuality rather than empirical data and test results. VI. SURPASSING THE ROWLEY STANDARD AND HONORING RONCKER: CURTAILING THE OVER-REACHING AIMS OF THE NCLB

The political and statutory emphasis on test results, while avowed as beneficial educational renovation by legislators and administrators, abandons certain students with disabilities. In the wake of the NCLB, schools disregard mandatory IEPs and integrate students in an inappropriate environment in order to comply with school accountability guidelines. However, the IDEA continues to require strict IEP adherence in a setting conducive to individual needs. Therefore, new trends employed by school districts attempting to conform to the NCLB are hostile to individual needs, implicating potential IDEA violations pertaining to both the substance and setting of the student’s education.160 Pedagogical predicaments can be avoided if states apply a new standard for educating students with disabilities. A new standard that focuses solely on student needs and is insulated from external policy pressure will ensure maximum student development. School districts have already implemented standards that demonstrate the feasibility of replacing the Rowley guidelines.161 The United States Court of Appeals for the First Circuit, in Town of Burlington v. Dep’t of Educ. for the Commonwealth of Mass.,162 held that states are free to expand on the Court’s interpretation of the Education for All Handicapped Children Act.163 159. See Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990); Roncker, 700 F.2d at 1064; Bd. of Educ. of Tullahoma City Sch., 9 F.3d at 459; French, 766 F. Supp at 799. 160. See generally Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 209-10 (1982) (holding that it was unnecessary for the school district to provide the student with a sign-language interpreter where the student was progressing adequately without an interpreter). 161. See Roncker, 700 F.2d at 1064. 162. Town of Burlington v. Dep’t of Educ. for the Commonwealth of Mass., 736 F.2d 773 (1st Cir. 1984). 163. Id. at 784-85 (interpreting treatment of IDEA’s predecessor statute,

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276 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 Subsequent decisions reiterate this holding, allowing school districts to elevate standards for providing educational benefits to students with disabilities that focus on the individual’s unique needs.164 Under this heightened, student-centered standard, a state’s duty to a student with disabilities increases dramatically. The state now has the responsibility of catering to that student’s unique needs regardless of any testing mandate. States implementing the heightened standard, though, still must balance this with the NCLB testing mandate. There is a general inclination, after the NCLB, to test a higher percentage of students and exclude a lower percentage of students from participation.165 If states employ a student-centered standard, their students would be assured maximum possible development. For a student with disabilities, attaining maximum possible development may require testing with significant accommodations, an alternate form of testing, or refraining from testing altogether. Regardless, maximum possible development can only be obtained by focusing on the individual student’s unique needs outlined in the IEP. The NCLB and its mandatory testing guidelines may not necessarily coincide with the student’s unique needs and thus, may hinder the student’s maximum possible development. In addition to testing guidelines, some students are educated outside the mainstream environment. The educational benefits of mainstream exclusion may outweigh instructional time alongside non-disabled peers.166 Therefore, two compelling reasons exist to scrutinize closely testing determinations for students with disabilities: the possibility of violating the IDEA by disregarding IEP testing provisions, and subjecting the student to an inappropriate mainstream environment detrimental to educational development. If more school districts comport with this heightened individualized standard it is likely more students with disabilities will receive an educational benefit in an appropriate environment conducive to learning without IEP/IDEA infringement. Therefore, the the Education for All Handicapped Children Act). 164. See David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 423-24 (1st Cir. 1985); Roland M., 910 F.2d at 991-92, 1000; Norton Sch. Comm. v. Mass. Dep’t of Educ., 768 F. Supp. 900, 902-04 (D.Mass. 1991). 165. See supra note 61. 166. Roncker, 700 F.2d at 1063.

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NCLB should serve as a guideline without reigning absolute; the student’s unique needs, not a statute, must determine how, if at all, a student will be tested. Applying this standard could avoid litigation, and, more importantly, serve students with disabilities adequately and appropriately. Salvaging student rights requires an NCLB amendment granting unconditional deference to the IDEA and accompanying IEPs. Under the amended Act, students with disabilities would participate in district-wide assessments only if the IEP team deemed participation appropriate. Further, the IEP team could decide that the student cannot meaningfully participate in testing or that meaningful participation requires particular accommodations or modifications. Determinations are made according to the student’s IEP, without mandatory participation percentages. This practice would grant school districts the freedom to use alternative assessments that truly measure student progress while comporting with both the IDEA and the NCLB. VII. CONCLUSION

Students with disabilities require an education specifically tailored to individual needs to obtain any benefit from it. The NCLB, new to the educational arena, may have been drafted with only the best intentions. Nevertheless, its testing mandate reaches too far as it is insensitive to IEPs and specific guidelines implemented for students with disabilities. However, schools lose funding if they do not follow the NCLB, regardless of the Act’s effect on a particular population. Thus, there is great incentive to comply with the NCLB, even if this results in ignoring the IDEA. Case law exhibits how the NCLB testing mandate could amount to both an IDEA procedural and substantive violation. In addition to potential violations, NCLB testing may fall within an inappropriate educational environment for students with disabilities as the benefits of regular participation may be outweighed by exclusion or alternative assessments. Reconciliation is possible if states and school districts adhere to a new standard that emphasizes student uniqueness and individuality over assessment results. An amendment to the strict participation requirements of the NCLB is required to allow room for IEP-based, individual participation determinations. Pursuant to this lofty ambition, the NCLB could peacefully coexist with the IDEA to evaluate the quality of student

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278 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.10:249 education without imposing mandatory participation guidelines hostile to the IEP. If otherwise, students will miss educational opportunities while participating in a testing system in inappropriate environments that provide little educational benefit to them. To make meaningful education a reality, legislators must defer to the IDEA and allow the IEP to dictate how a student with disabilities should be tested, if at all. If this concession is made, the NCLB can remain to evaluate the effectiveness of school programs without subjecting certain students to a scheme and environment detrimental to their individual needs. Matthew R. Plain