Author: xeme

After successfully urging the United States Supreme Court to review a decision of the California-based U.S. Court of Appeals, Ninth Circuit, Keiter Appellate Law filed a brief with the United States Supreme Court on behalf of California pregnancy centers.  The Supreme Court agreed with the arguments presented and reversed the Ninth Circuit Court of Appeal’s decision.  NIFLA v. Beccera, 138 S.Ct. 2361 (2018).

Compelled Expression of the State’s Message

The Supreme Court appeal concerned the First Amendment issue of compelled speech.  The centers worked to persuade pregnant women to deliver rather than abort their children, and assisted their childbirth efforts.  California enacted a law forcing the centers to work against their very purpose by advertising – in up to 13 languages – how these women could get an abortion subsidized by the state.  The state analogized this to law requiring businesses to describe the products or services they offer, like having food producers disclose the ingredients of their products, or how many calories they contain, so consumers would know what they were getting.

But the “disclosure” was for a service the pregnancy centers did not provide, and wished to discourage, so the law did not resemble a rule requiring McDonald’s to inform customers that a Bacon Smokehouse Burger has 840 calories.  Rather, the law resembled one forcing a vegan who had opened a restaurant to persuade diners to abstain from eating meat to post on her door directions to the nearest McDonald’s – with coupons.  Even the most devoted carnivore could perceive the violation of personal conscience.

Keiter Appellate Law noted in its Supreme Court brief that the First Amendment protects the right not to speak even more the right to speak.  West Virginia State Board of Educ. v. Barnette, 319 U.S. 624, 633 (1943). Barnette famously protected a student’s right not to salute the flag, and the Supreme Court followed it in Wooley v. Maynard, 430 U.S. 705 (1977), which held New Hampshire could not compel a driver to display a license plate proclaiming the state motto, “Live Free or Die” against his conscience.

Justice Anthony Kennedy’s NIFLA concurrence thus cited the same page from Wooley that Keiter Appellate Law cited:

[I]t is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.’ [Wooley, 430 U.S. 705, 715]  It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions.

Keiter Appellate Law’s brief observed the free speech violation was even worse in NIFLA than Wooley.  In Wooley, every New Hampshire driver received a license plate from the state, and thus knew the “Live Free or Die” message was the state’s, not Mr. Maynard’s.  But because very few people were aware that California Health and Safety Code section 123472, subdivision (a)(1) prescribed the notice, many visitors ascribed the message to the centers themselves, and left with the “belief they were referred to an abortion provider” by them.  The Scharpen Foundation, Inc. v. Harris, No. RIC1514022 (Cal. Super.Ct. Oct. 30, 2017) 11.

The Ninth Circuit Court of Appeals decision had found there was no improper viewpoint discrimination, because the law applied “to all clinics, regardless of their stance on abortion or contraception.”  NIFLA v. Harris, 839 U.S. 823, 836 (9th Cir. 2016) (Harris).  But the universal application of the flag-salute law did not save it in Barnette, and the universal application of the license plate requirement did not save it in Wooley.  Viewpoint discrimination concerns what is said, not just who says it.  It would be as if the state could justify demanding all drivers display a license plate affirming “President Donald Trump is Making America Great Again,” on the ground that the rule applied to everyone, Republicans, Democrats, and Independents alike, “regardless of their stance” on the president.

Inconsistently, the Ninth Circuit Court of Appeals had itself struck down a law that similarly imposed viewpoint-discrimination in the medical context.  The Court of Appeals found unconstitutional a law barring doctors from recommending medicinal marijuana to their patients, even though the law applied to all doctors, regardless of their stance on marijuana.  Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). Conant emphasized “Being a member of a regulated profession does not . . . result in a surrender of First Amendment rights.”  Id. at 637.  But when the subject was not marijuana but abortion, the Ninth Circuit was less protective of professionals’ freedom of speech: “a licensed professional does not enjoy the full protection of the First Amendment . . . .within the practice of the profession.”  Harris, 839 F.3d at 839.

In any event, the Supreme Court rejected the Ninth Circuit Court of Appeal’s justification that the obligation to advertise the availability of state-funded abortions applied universally.  The Supreme Court observed there were nearly 1,000 comparable clinics in the state, but most of those clinics are excluded from the requirement.  Such “[u]nder inclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”  NIFLA, 138 S.Ct. at 2375-76, italics added.

The Chilling Effect on the Centers’ Own Speech

Keiter Appellate Law actually added an additional line of argument, which neither the petitioner nor 29 of the 30 amicus curaie briefs (including that of 144 Members of Congress) included.  Keiter Appellate Law contended the law not only compelled the centers to express the contrary state message, but also chilled the centers’ capacity to express their own view, citing Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256, and Arizona Free Enterprise Club’s Freedom PAC v. Bennett, 564 U.S. 721 (2011).  In its defense of the law, the California Attorney General specifically addressed these cases in an (ultimately unsuccessful) attempt to refute their application to this case.

Miami Herald concerned a Florida law requiring newspapers that criticized a political candidate to give the candidate a “right of reply” on the newspaper’s own pages.  There were many parallels with the challenged California law, as to how, where, and why to present the compelled message.

Just like the Florida law, which mandated the newspaper display the reply “in as conspicuous a place and in the same kind of type” as the newspaper’s own speech, California demanded where and with what size font the centers present the state message – in up to 13 languages.  Just as the newspaper itself was the most effective medium for rebuttal, California asserted that compelling speech from the centers was the “most effective way” to communicate its message.  And just as Florida justified its requirement as promoting “an electorate informed about the issues,” so to did California justify its law as necessary “to ensure that women are able to receive . . . information about [family planning] services.”

But the value of an informed electorate did not justify abridging a speaker’s own expression, just as the state could not abridge a party’s freedom to control its expression for the sake of efficiency.  See NIFLA, 138 S.Ct. at 2376, citing Arizona Free Enterprise, 564 U.S. 721, 747. Miami Herald observed that forcing the newspaper to communicate the opposing message left the paper with less page space and money with which to present “other material the newspaper may have preferred to print.”  It thus not only forced to paper to express a contrary view but restricted the paper from expressing its own.

The United States Supreme Court in Miami Herald found the Florida law not only made it harder for papers to express their position but also deterred them from doing so.  The law compelled a reply only when a newspaper published the initial criticism, so papers could avoid the forced message by avoiding the criticism in the first place.  “Government-enforced right of access inescapably ‘dampens the vigor and limits of the variety of public debate.’ ”  Miami Herald, 418 U.S. at 257, quoting N.Y. Times v. Sullivan, 376 U.S. 254, 179 (1964).  Similarly, pro-life individuals could avoid having to advertise and facilitate abortion, but only if they censored their own advocacy.

The United State Supreme Court in NIFLA recognized how Miami Herald, 418 U.S. 241, 256,applied to the case, and cited it in its second paragraph of analysis: “By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech.”  NIFLA, 138 S.Ct at 2371.  And the Court concluded with reference to the Miami Herald principle: the law “imposes an unduly burdensome disclosure requirement that will chill their protected speech.”  Id. at 2378.

The Dissent and the Limits of Compelled Disclosure

Four justices dissented in NIFLA.  Justice Breyer’s dissent cited the Supreme Court’s decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), which upheld state law requiring doctors to describe to patients the risks of abortion before performing one.  For the most part, the citation is inapt.  The law often requires doctors to describe the operations they perform and medicine they prescribe (and their side effects) – just as the law directs food producers to disclose their ingredients.  Therefore, doctors could be ordered to provide “truthful, non misleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the ‘probable gestational age’ of the fetus.”  Casey, 505 U.S. at 882 (emphasis added).  Such medical information could help produce an “informed consent.”  The California law differed from “informed consent” laws because the pregnancy centers were not performing abortions, and the compelled disclosure did not concern medical issues but the legal availability and financial affordability of abortions.

Justice Breyer’s strongest point was that Casey permitted a state to compel doctors to describe not just the medical details of the procedure but also information about adoption (and child support).  “[A] Constitution that allows States to insist that medical providers tell women about the possibility of adoption should also allow States similarly to insist that medical providers tell women about the possibility of abortion.”  NIFLA, 138 S.Ct at 2388 (Breyer. J. dissenting.)  But doctors routinely provide information about alternatives to a proposed medical procedure, which adoption is not.  In fact, the Pennsylvania law approved in Casey expressly required informing patients about the physical risks of childbirth too.  If it nevertheless appeared that the law discouraged abortion more than birth, “information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice,” and this is true “even when in so doing the State expresses a preference for childbirth over abortion.  Casey, 505 U.S. at 883.  The Constitution does not require complete neutrality by the state between childbirth and abortion.  Maher v. Roe, 432 U.S. 464 [state could choose to defray poor women’s expenses incident to childbirth but not those incident to abortion].

Justice Breyer was on weaker ground in predicting the demise of myriad laws compelling speech to promote public health and safety, from informing parents about vaccinations and child seat belts to disclosing exit signs for fire safety.  Justice Breyer himself recognized the distinction in a recent concurring opinion:

If, for example, a challenged government regulation negatively affects the processes through which political discourse or public opinion is formed or expressed (interests close to the First Amendment’s protective core), courts normally scrutinize that regulation with great care. . . . If, however, a challenged regulation simply requires a commercial speaker to disclose “purely factual and uncontroversial information,” courts will apply a more permissive standard of review.

Expressions Hair Design v. Schneiderman, 137 S.Ct. 1144, 1152 (2017) (Breyer, J. concurring).

Courts may thus strike down laws manipulating the abortion debate while preserving fire safety warnings.

Interestingly, and somewhat disturbingly, the justices’ positions on the case mostly tracked their substantive positions on abortion, even though the legal question concerned not abortion but speech.  To be sure, there is some connection to the larger abortion question.  Because it is easier for states to regulate conduct than speech, a decision deeming access to abortion so important as to justify forcing opponents to advertise abortions could even more easily justify forcing them to perform abortions.

But the case was really about the First Amendment.  The constitutional question would have been the same if a state like Texas had created a law targeting all sporting goods shops that choose not to sell firearms, and ordered them to tell customers where they could buy them.  One wonders whether each of the nine justices would have voted the same way as they did in NIFLA.

Keiter Appellate Law Prevails Again at the California Supreme Court

Keiter Appellate Law won its sixth consecutive case at the California Supreme Court, in the case of People v. Soto (2018) 4 Cal.5th 968. The appeal concerned the intersection of two criminal law doctrines, intoxication and imperfect self-defense, and interpreted a 1995 amendment to the Penal Code. Keiter Appellate Law filed an amicus curiae brief on behalf of former Senator Ray Haynes, who represented a district to the Southeast of Los Angeles in the California Senate, and was an influential proponent of the amendment, along with Mitchell Keiter.

Juaquin Soto broke into Israel Ramirez’s home and stabbed him to death while Ramirez’ family hid in the bedroom. Soto asked the California Supreme Court to find he could not be guilty of murder if he was so high on methamphetamine and other intoxicants that he actually (albeit unreasonably) believed Ramirez was attacking him, and he needed to use deadly force to protect himself. Keiter Appellate Law urged the Supreme Court to reject Soto’s request. By a 5-2 vote, it did.

Intoxication

The effect of intoxication evidence on homicide liability has varied over time, in both California and around the nation, based on shifting public conceptions of crime generally, and alcohol specifically. (Mitchell Keiter, How Evolving Social Values Have Shaped (and Reshaped) California Criminal Law (2014) 9 California Legal History 393. In the state’s early years, it was completely inadmissible as a defense, and intoxicated killers were guilty of first degree murder. By the late 1800’s, defendants could present evidence of intoxication to show they did not act with a specific intent to kill (express malice), but could not present it to show they acted without “implied malice,” which exists when offenders willfully commit an act that is gravely dangerous to human life, with conscious or wanton disregard for that consequence. (People v. Knoller (2007) 41 Cal.4th 139.) Practically speaking, defendants who presented evidence of adequately severe intoxication could evade conviction for first degree murder, and be guilty of only second degree murder.

By the early 20th century, however, the “scientific school” of criminology was ascendant. It questioned whether drinking, or even crime in general, was truly “voluntary,” or instead the product of forces beyond individual control, like heredity or environment. (Mitchell Keiter, Balancing a “Right to be Forgotten” With a Right to Remember (2018) 13 California Legal History 421, 432-433 Mitchell Keiter, Just Say No Excuse: The Rise and Fall of the Intoxication Defense (1997) 87 Journal of Criminal Law and Criminology 482, 486-490.) The California Supreme Court responded, and in 1959 altered the law so that voluntary intoxication was admissible as a defense to first degree murder, second degree murder — and voluntary manslaughter. (People v. Gorshen (1959) 51 Cal.2d 710.) Someone who intentionally decapitated his wife because his drug intoxication convinced him that her head was a grapefruit was thus guilty of only involuntary manslaughter, with an effective sentence of just 12 to 24 months. The Supreme Court made other changes which made it easier for defendants to classify their homicides as manslaughter rather than murder. (Keiter, Evolving Social Values, 9 California Legal History 393, 407-420.)

The Legislature shrank the scope of the intoxication defense in the 1990’s, in response to People v. Whitfield, supra, 7 Cal.4th 437. Whitfield drove with a blood alcohol count of .024, and was unconscious when his car swerved into oncoming traffic and killed another driver. (Whitfield, supra, at pp. 442-443.) A four-justice majority of the California Supreme Court reaffirmed People v. Gorshen and held that if Whitfield did not subjectively appreciate the risk he created, he was guilty of only involuntary manslaughter. (Id. at p. 453.) Three dissenting justices advocated for the older rule that held a defendant’s failure to perceive the risk was immaterial if caused by his own, self-induced intoxication: “[E]vidence of voluntary intoxication followed by reckless behavior allows a trier of fact to conclude that the actor held a conscious and antisocial disregard for human life.” (Id. at p. 476, dis. opn. of Mosk. J.) Under this rule, defendant’s intoxication was not a defense to implied malice murder.

Soon after, the United States Supreme Court resolved another appeal very differently. Montana law barred defendants from ever introducing intoxication evidence to show they lacked the requisite mental state (as California had done at its inception), though it could show they lacked the physical ability to commit the crime. The United States Supreme Court affirmed the rule did not violate the defendant’s due process right to present a exculpatory evidence, as the Montana Legislature had decided intoxication was not exculpatory. (Montana v. Egelhoff (1995) 518 U.S. 37.)

Later that year, California amended its Penal Code. There had been some support for a complete exclusion like Montana’s, but the Legislature settled on a compromise that resembled the pre-Gorshen rule, and permitted intoxication evidence as a defense against express malice but not implied malice.

Self-Defense

It is justifiable homicide when a person kills another in the reasonable belief such killing is necessary for his self-preservation – even if that belief if incorrect. But for more than a century, California law has held that individuals who kill in the unreasonable belief that such killing is necessary to protect themselves from death or greivous bodily harm are guilty of an offense less than murder: voluntary manslaughter. The “heat of passion” doctrine, which mitigates homicides to voluntary manslaughter, encompasses homicides committed unreasonably out of anger, or fear. (People v. Logan (1917) 175 Cal.45, 49.) In 1979, the Supreme Court appeared to separate these two grounds for mitigation in characterizing the latter as “imperfect self-defense,” which applied when the defendant killed due to his actual belief that the killing was necessary for self-defense, but the belief was unreasonable. (People v. Flannel (1979) 25 Cal.3d 668, 682.) The doctrine derived from the premise that individuals who misjudged their circumstances, while dangerous, were not so culpable as those who committed a wrongful killing with either the intent to inflict such wrongful death or with conscious disregard of that consequence.

The California Supreme Court has described intoxicated killers as less culpable than intentional ones, though sufficiently (and possibly more) dangerous.

In the forum of conscience, there is no doubt considerable difference between a murder deliberately planned and executed by a person of unclouded intellect, and the reckless taking of life by one infuriated by intoxication; but human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to an accurate discrimination as to the moral qualities of individual conduct.

(People v. Blake (1884) 65 Cal.275, 277.)

People v. Soto’s Holding

The Soto appellant contended his consumption of methamphetamine, marijuana, and alcohol led him to unreasonably perceive a need for self-defense, and thus the court should have instructed the jury to consider a Flannel voluntary manslaughter verdict. Soto contended the 1995 amendment, excluding intoxication as a defense to implied malice murder, did not affect the rule that imperfect self-defense was available to anyone who subjectively perceived a need for self-defense. The Court of Appeal had agreed with his contention.

Keiter Appellate Law countered that the 1995 amendment effected the policy advocated by Justice Mosk’s dissenting opinion in Whitfield; defendants could not use their own recklessness in becoming stuperous to reduce their liability from murder to manslaughter. The amicus brief recalled Justice Brown’s concurring opinion:

Intoxication can affect a person in two opposing ways. It can cause a person not to perceive a risk that is real, as is common in the case of alcohol abuse (see, e.g., People v. Whitfield (1994) 7 Cal.4th 437, 442–444 [parallel citations]), and it can cause a person to perceive a risk that is not real, as is common in the case of cocaine or methamphetamine abuse.

(People v. Wright (2005) 35 Cal.4th 964, 985 (conc. opn. of Brown, J.).)

In other words, if an inebriate who shot at a child believing her to be a tree stump (not perceiving a real risk) did not have a defense to murder, neither did an inebriate who shot at a child because he thought she was an armed terrorist (perceiving an unreal risk). Anyone who intentionally clouded his own judgment was not entitled to mitigation.

Keiter Appellate Law’s amicus brief further canvassed the law of all 50 states and observed not a single one treated homicides more leniently when defendants asserted intoxication caused an unreasonable belief in the need for self-defense (perceiving an unreal risk) than when they asserted they failed to perceive an actual risk. Keiter Appellate Law urged California not to become the first.

The Supreme Court majority agreed that the Legislature’s decision to exclude intoxication evidence as a defense to implied malice murder precluded its availability to reduce murders to manslaughter through the imperfect self-defense doctrine.

Intoxication can distort a person’s perception of the unfolding circumstances, and thereby impair the sound judgment that is needed when deciding to use lethal force in self-defense. . . . [¶.] By prohibiting evidence of voluntary intoxication to negate implied malice, the Legislature apparently agreed with Justice Mosk that a defendant who acts with conscious disregard for life should be punished for murder regardless of whether voluntary intoxication impaired his or her judgment.

(People v. Soto (2018) 4 Cal.5th 968, 977-978.)

An Alternate Ground

The California Supreme Court’s decision barring defendants from introducing evidence of their own intoxication was the optimal outcome. But Keiter Appellate Law offered the Supreme Court an alternate ground for affirming Soto’s conviction: Imperfect (unreasonable) self-defense is available as a defense only where reasonable self-defense would be an available self-defense. (People v. Valencia (2008) 43 Cal.4th 268, 288.) As it was Soto’s own wrongful conduct (breaking into Ramirez’ apartment and attacking him with a knife) that initiated the violent altercation, Soto was not legally entitled to use deadly force to protect himself from Ramirez’ counterattack. (See People v. Rangel (2016) 62 Cal.4th 1192, 1216; In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) Because he could not assert perfect (reasonable) self-defense, he could not assert imperfect (unreasonable) self-defense.

The Dissent

Justice Liu (joined by Justice pro tem Thompson) dissented from this holding. The dissent questioned whether the California Supreme Court should construe the California Constitution just as the United States Supreme Court construed the United States Constitution in Montana v. Egelhoff, supra, 518 U.S. 37. Five justices in that case held Montana enacted a law “rendering evidence of voluntary intoxication logically irrelevant to proof of the requisite mental state,” and this policy complied with the constitutional requirement of due process. (Egelhoff, supra, 518 U.S. 37, 58-59 [conc. opn. of Ginsburg J.].) Justice Liu contended the other four justices deemed the policy unconstitutional, and he questioned why the California Supreme Court should so uncritically disregard the policy arguments of what he characterized as a “four-justice dissent.” (Soto, supra, 4 Cal.5th at p. 987 (conc. & dis. opn. of Liu, J.).)

Justice Liu described these dissenting justices in Egelhoff as insisting that a “state rule barring intoxication evidence denies a criminal defendant a fair opportunity to present a defense and relieves the prosecution of its burden to prove every element of the crime beyond a reasonable doubt.” (Soto, supra, 4 Cal.5th at p. 987 (conc. & dis. opn. of Liu, J.).) That was not their position. The four justices agreed with the other five that Montana could have constitutionally barred intoxication evidence as supporting a defense to any mental state, and any degree of homicide; they simply doubted Montana had actually done that. Justice O’Connor was joined by the other three justices in expressing that conclusion.

A state legislature certainly possesses the authority to define the offenses it wishes to punish. If the Montana Legislature chose to redefine this offense so as to alter the requisite mental-state element, the due process problem presented in this case would not be at issue. [¶] There is, however, no indication that such a “redefinition” occurred.

(Egelhoff, supra, 518 U.S. 37, 71 (dis. opn. of O’Connor, J.) (emphasis added).

Justice Souter was even more direct.

I have no doubt that a State may so define the mental element of an offense that evidence of a defendant’s voluntary intoxication at the time of commission does not have exculpatory relevance and, to that extent, may be excluded without raising any issue of due process. I would have thought the statute at issue here (Mont.Code Ann. § 45–2–203 (1995)) had implicitly accomplished such a redefinition, but I read the opinion of the Supreme Court of Montana as indicating that it had no such effect, and I am bound by the state court’s statement of its domestic law.

(Id. at p. 73 (dis. opn. of Souter, J.) (emphasis added).)

Contrary to the dissenting opinion, there were not four United States Supreme Court justices, or even one, who doubted a state could constitutionally exclude evidence of voluntary intoxication as a mental state defense to any charge.

People v. Soto was a tremendous victory for the People of the State of California. It rejected the formerly operative “compromise between the conflicting feelings of sympathy and reprobation or the intoxicated offender.” (People v. Hood (1969) 1 Cal.3d 444, 456.) When a man consumes enormous amounts of methamphetamine, breaks into another man’s home and stabs home to death before his terrified family, there is no room for “compromise.” Our sympathy must lie exclusively with the victim.”