Legal attacks on lockdown mount; R.I. Governor's time will run out, report warns

Persons entering Rhode Island remain subject to 14-day

quarantine in the present phase 1 of reopening. Photo by
Taber Andrew Bain CC BY 2.0.

A former Rhode Island Supreme Court justice and a libertarian think tank asserted this week that R.I. Governor Gina Raimondo is running out of rope in sustaining her emergency lockdown orders.

Earlier in the pandemic, we law types found ourselves with time on our hands to read up on, and sometimes write about, the legal landscape of emergency powers.  Report 98-505 from the Congressional Research Service (here from the Federation of American Scientists and updated March 23, 2020) and CDC public health emergency guidance (2009, updated 2017) suddenly became popular downloads.  The 50-state compilation of quarantine and isolation laws at the National Conference of State Legislatures was well visited.  Various guides to emergency powers have blossomed since.  Heritage published a "constitutional guide" as early as March.  The Brennan Center updated a 2018 report about three weeks ago.  At Lawfare, Benjamin Della Rocca, Samantha Fry, Masha Simonova, and Jacques Singer-Emery overviewed state authorities the week before last.

Wisconsin Supreme Court chamber (Daderot CC0 1.0)

This week brought news of the Wisconsin Supreme Court decision two days ago, striking down the Wisconsin governor's stay-home order.  Clarity around the scope of the ruling and guidance as to how it should be implemented was woefully lacking from the 4-3 fractured court, and public confidence in the decision was undermined by the participation of a lame duck conservative justice in forming the majority.  Against the backdrop of a state supreme court already badly tarnished by partisan politics, the decision has only aggravated America's White House-fueled ideological in-fighting over coronavirus public policy.

Rhode Island Governor Gina Raimondo

Personally, I've been happy with the leadership of Governor Gina Raimondo in responding to the crisis in my home state, Rhode Island.  But to be fair, I work in Massachusetts, and my job has been relatively secure.  There have been peaceful protests against lockdown in Rhode Island, and there is no doubt that the economic closure is devastating the small-business-heavy economy in the nation's smallest state.

On Wednesday, Robert Flanders, Matthew Fabisch, and Richard MacAdams published a legal analysis of Governor Raimondo's emergency orders.  The report came from the free-market think tank, the Rhode Island Center for Freedom and Prosperity.  The authors are all lawyers; Flanders is a former associate justice of the state supreme court and was once a Republican challenger to U.S. Senator Sheldon Whitehouse.  Flanders wrote a companion editorial for The Providence Journal.  (HT@ Gene Valicenti.)

The takeaway from the report in the news is that the Governor has overstepped her emergency authority and is ripe for a lawsuit.  That's an understandable but unfair oversimplification.  The report is a solid legal analysis that examines the scope of state executive authority from a range of angles, including the statutory framework and constitutional limitations such as takings.  The popular takeaway derives from just one thread of the analysis, if an important one: The Governor's emergency powers must be limited, and a key dimension of those limits is time.

Rhode Island State House (cmh pictures CC BY-NC 2.0)

The report does not purport to adjudicate the Governor's emergency response as wrong or right.  Rather, the authors opine, when the Governor's authority runs up against the reality that exigencies are, by definition, not perpetual, the General Assembly has a responsibility to step up and lead.  That might mean simply extending the Governor's authority to make the kind of spot decisions that will be required for subsequent phases of reopening.  Or the legislature may override executive-ordered closures and force the reopening of the economy.

Saliently, the legislature should take charge of public policy.  The most cumbersome branch of government in its populous operation, the legislature is to be excused in the throes of emergency.  But after enough time has passed, the most democratically responsive branch of government should be able to gather its wits, get on its feet, and make law.  Decisions such as whether K12 schools will reopen in the fall, for example, not just financial shortfalls, should be the subject of fact-gathering legislative hearings right now.

The inevitable logic of this ideal is subject to reproach on grounds that many of our state legislatures in the United States, Congress besides, have become dysfunctionally non-responsive to increasingly severe social and economic problems. This paralysis has many and complicated causes, including corporate capture and unbridled gerrymandering.

In the functionalist reality of our government of separated powers, if one branch abdicates its mantle, the others will fill the vacuum.  Thus, in the absence of legislative leadership, a governor may be expected to carry on with policy-making, and a state supreme court, especially a politicized one, may be expected to push back.  It's in this sense that the pandemic crisis is exposing yet another grave institutional weakness in the infrastructure of American government.

If a legislature remains paralyzed long enough, the people will become antsy.  Among the ultimate remedies for legislators who would shirk their duties, some are more palatable than others (video: Liberate Minnesota protest, April 17, by Unicorn Riot CC BY-NC 3.0).  Once upon a time in Rhode Island, residents took up arms to compel the legislature to expand enfranchisement through a constitutional convention.

Alas, one problem at a time.

COVID-19 stresses United States on domestic borders; war analog might foster state solidarity upon federal power

Rhode Island Governor Gina Raimondo was recently
threatened with a lawsuit by New York Governor Andrew
Cuomo.  U.S. Air National Guard Photo
by Master Sgt Janeen Miller (2016).

I have just published at the new blog, Law Against Pandemic. Here is the abstract:

The coronavirus pandemic is stressing not only our healthcare systems, but our political and legal systems.  The pandemic has challenged our sense of identity in humankind, pitching us back and forth between a spirit of global solidarity and a competition of human tribes for resources and survival.  That tension plays out in our political and legal responses to the pandemic, manifesting the natural human temptation to tribalism in both international and intranational dimensions.

As policymakers struggle to respond to the pandemic and to curb the outbreak of COVID-19, I have been struck by the emergence of interstate tensions in the United States.  The pressure of the pandemic, aggravated by a slow and uncertain governmental response at the federal level, has been a brusque reminder that the United States are a plural: a federation of states that famously endeavored “to form a more perfect Union,” but that, like human governance itself, remains a work in progress.

Read more at the new blog, Law Against Pandemic

 

Everyone's talking First Amendment

So this one was the vision of what happens if things don't go the way [philosopher Richard] Rorty wants. And in his view, Bill Clinton and what we would now call the neo liberal left was ignoring workers' needs and was not paying attention to the things that give rise to populism and only the right was paying attention to those needs.

[Rorty] said, 'at that point, something will crack. The non-suburban electorate will decide that the system has failed and start looking around for a strong man to vote for. Someone willing to assure them that, once he is elected, the smug bureaucrats, tricky lawyers, overpaid bond salesmen and postmodernist professors will no longer be calling the shots.

'One thing that is very likely to happen is that the gains made in the past 40 years by black and brown Americans and by homosexuals will be wiped out. Jocular contempt for women will come back into fashion. All the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet.'

—The New Yorker's Andrew Marantz on WNYC's On the Media, Oct. 11, 2019,

quoting the speculative fiction of philosopher Richard Rorty in 1997

The Conservator Society of the Providence Public Library, The Providence Journal, and The Public's Radio will host a forum on "First Amendment Frontiers" tonight at the Providence, Rhode Island, Public Library.  Panelists are Lee V. Gaines, education reporter for Illinois Public Media; Justin Hansford, executive director of the Thurgood Marshall Civil Rights Center at Howard University; Lata Nott, executive director of the First Amendment Center of the Freedom Forum Institute; and Alan Rosenberg, executive editor of The Providence Journal.  Ian Donnis, political reporter for The Public’s Radio, will moderate.

The First Amendment has been much in the news lately, in our strange times.  Two items from my listen-and-read list.  First, Brooke Gladstone for WNYC's On the Media hosted a discussion, "Sticks and Stones," with New Yorker staff writer Andrew Marantz, author of Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation.



In part one of three, Marantz challenges First Amendment absolutism.  That's not a big reach, but lays out the context for his discussion.  In part two, Marantz reviews the mostly 20th-century history of First Amendment doctrine.  It's familiar territory until he hits Citizens United (about 12 minutes into the 17 of part two, or 29 minutes into the 50-minute whole), when things heat up with the help of UC Berkeley Professor John Powell, Susan Benesch of the Dangerous Speech Project, and The Case Against Free Speech author P.E. Moskowitz.  The third part digs into the speculative fiction of philosopher Richard Rorty, which generated the quote atop this post.

The thrust of Marantz's thesis on OTM was that John Stuart Mill's concept of one's liberty ending at the tip of another's nose has been taken too literally for its physicality.  As Powell put it, psychological harm manifests physically, and physical harm manifests psychologically, so the division between the two is artificial and nonsensical.  Words cause harm, the logic goes, so we must rethink our free speech doctrine with regard to problems such as hate speech.

Moreover, Marantz explained that the First Amendment must be reinterpreted relative to the Reconstruction amendments, which call for a re-balancing between the individual rights of the Bill of Rights, such as free speech, and the rights incorporated y the Reconstruction amendments, such as equal protection.  At the same time, and to my relief, both Benesch and Moskowitz expressed reservations about abandoning doctrines such as Brandenburg imminent incitement.  Moskowitz observed that the latitude to regulate hate speech has been perverted by European governments to censorial aims.

Second, the SMU Law Review published a centennial anniversary symposium issue on the Schenck and Abrams "clear and present danger" cases.  These are the articles:

• The Lessons of 1919 by Lackland H. Bloom, Jr.
• Born in Dissent: Free Speech and Gay Rights by Dale Carpenter
• Inciting, Requesting, Provoking, or Persuading Others to Commit Crimes: The Legacy of Schenck and Abrams in Free Speech Jurisprudence by Larry Alexander
• Speech and Exercise by Private Individuals and Organizations by Kent Greenawalt
• The Clear and Present Dangers of the Clear and Present Danger Test: Schenck and Abrams Revisited by Ronald J. Krotoszynski, Jr.
• Dissent in a Crowded Theater by Mari Matsuda
• “And the Truth Shall Make You Free”: Schenck, Abrams, and a Hundred Years of History by Rodney A. Smolla
• Deliberative Democracy, Truth, and Holmesian Social Darwinism by Alexander Tsesis
• Falsity and the First Amendment by G. Edward White
• Originalist Reflections on Constitutional Freedom of Speech by Christopher Wolfe

Takings are out of control; whither went democracy?

My colleague Prof. Ralph Clifford is cited and quoted in this item from the Pacific Legal Foundation. The PLF opined with disapproval upon takings problems in which the government essentially exploits the takings power after discounting property value by tax liability, a one-two punch, kicking the owner to the street.

The abuse is compounded by the continuing latitude of governments to line the pockets of private investment with the proceeds of takings, upheld in Kelo v. New London (2005).  See also the award-winning documentary Little Pink House (2017), and a mouth-watering Kelo epilog.

This on the heels of discussion at UMass Law last week of a U.S. Supreme Court cert. petition filed in Smyth v. Conservation Commission of Falmouth (Mass. App. Ct. Feb. 19, 2019), now No. 19-223 (pet. filed U.S. Sept. 19, 2019), in which the Massachusetts Court of Appeals rejected a takings claim upon denial of a building permit.  (HT@ Dean Eric Mitnick.  The court heard arguments in the case at UMass Law last year.)

One doesn't have to look far nowadays for abuses of governmental power that are bipartisanly objectionable yet persist to the shameless aim of making the rich richer.  I'm presently reading Amor Towles's A Gentleman in Moscow, a fiction about the aftermath of the Russian revolution; when you're a libertarian and you start thinking "those Bolsheviks weren't all bad," something has gone awfully wrong in America.

Here is an excerpt of the PLF item:

Uri is a retired 83-year-old Michigan engineer, and in 2014 he accidentally underpaid, by $8.41, the property taxes on a home he rented out. But instead of notifying him of the issue and helping him, his county government seized the home and sold it at auction for $24,500. The county then kept all the proceeds—leaving Rafaeli with nothing.
All for an 8 buck mistake.

That may sound like an extreme and unusual case. But in fact, this type of tax forfeiture abuse, called home equity theft, is completely legal in 13 states.

In Alabama, Colorado, Maine, Massachusetts, Michigan, Minnesota, New York, North Dakota, Oregon, and Wisconsin, governments not only keep the value of unpaid property taxes and interest from the sale of a seized home—they also keep the surplus value rather than returning it to the property owner. In Arizona, Colorado, Illinois, Massachusetts, and Nebraska, private investors often reap the gains of home equity theft.

Here is the abstract of Prof. Clifford's 2018 study:

Prof. Clifford

The predominant method for collecting delinquent real estate taxes in Massachusetts is the use of the “tax deed” as authorized by Chapter 60, Sections 53-54. Under the authorized procedures, each municipality’s tax collector can execute and record a deed that transfers fee simple title to the real estate to the municipality subject to the taxpayer’s statutorily created redemption right. If the redemption right is or cannot be exercised, all of the taxpayer’s rights in the property, as well as other’s rights created by encumbrances such as mortgages, are terminated by the foreclosure process provided for in the statute. Importantly, the municipality does not obtain title to the taxpayer’s land by foreclosure; instead, it merely frees itself of any remaining claim by the taxpayer.

The problem with the tax deed procedure is that it fails to provide both procedural and substantive due process to the taxpayer. Procedurally, although adequate notice is given, title to the taxpayer’s real estate is taken by the government without a hearing. Based on an unreviewed decision by a municipal tax collector, the taxpayer immediately loses title to the land. Substantively, by using a tax deed, the municipality engages in the taking of property without providing reasonable compensation. The value of the land taken for payment of the tax debt is not evaluated in the context of the debt owed. Empirical evidence shows that the property’s value significantly exceeds the debt owed, giving the municipality the ability to collect almost fifty dollars for every dollar of delinquent real estate tax owed, on average. Each year, approximately $56,000,000 is unconstitutionally appropriated from taxpayers. This article explores these problems. 

And here are the questions presented in the Smyth petition:

In Penn Central Transp. Co. v. N.Y., 438 U.S. 104 (1978), this Court held that Fifth Amendment “regulatory takings” claims are governed by three factors: the “economic impact” of the challenged regulatory action, the extent of interference with a property owner’s “distinct investment-backed expectations” and the “character of the governmental action.” Id.

Falmouth, Mass., property, posted by Frank Haggerty to Patch.

The Massachusetts Appeals Court applied the Penn Central factors to hold that Respondent Town of Falmouth (Town) did not unconstitutionally take Petitioner Janice Smyth’s (Mrs. Smyth) property by denying a permit to build a home. Mrs. Smyth’s parents purchased the lot in 1975 for $49,000 ($216,000 in today’s dollars), but did not develop it. In the meantime, the entire subdivision was developed. When Mrs. Smyth inherited the lot and sought to build, the Town refused to grant a permit based on regulation post-dating her interest. The denial left Mrs. Smyth’s lot without any possible use except as a “playground” or “park,” and stripped it of 91.5% of its value. Yet, the court below held that none of the Penn Central factors weighed in favor of a taking under these circumstances.

The questions presented are:

1. Whether the loss of all developmental use of property and a 91.5% decline in its value is a sufficient “economic impact” to support a regulatory takings claim under Penn Central.

2. Whether a person who acquires land in a developed area, prior to regulation, has a legitimate “expectation” of building and, if so, whether that interest can be defeated by a lack of investment in construction?

3. Whether the Court should excise the “character” factor from Penn Central regulatory taking analysis.

My Comparative Law class is reading about democratic deficit in Europe.  It's a good time to remember that the study of comparative law can be as much about similarities as differences.

Civil rights suit claims a right to education.The problem might be bigger.

My UMass Dartmouth colleague in history, Professor Mark Santow, also a member of the Providence, R.I., School Board, is part of litigation filed Wednesday, November 28, against the State of Rhode Island, claiming that the government is violating civil rights by failing to provide adequate education to youth in the public school system.

The complaint in Cook v. Raimondo, in federal district court in Rhode Island, where I reside, is available online from WPRO.  The suit was ably contextualized by Alia Wong for The Atlantic and covered by The New York Times.  Wong's piece, along with its sidebars and links, recounts the troubled history of claims to education rights under the U.S. Constitution and the unique if stubborn position of the United States in the world in refusing to add children's education to our pantheon of civil rights.

Personally I worry about the overuse of human rights language to enshrine the mundane as sacred and thereby downgrade basic human needs to aspirational wish lists—witness the dilapidated state of South African townships while the courts struggle to engineer economic rights into reality.  But I also readily admit that our 1789 Constitution, in part owing to its excessively burdensome Article V amendment process, has fallen behind the times on some omissions that, with the benefit of hindsight, seem to be no-brainers—such as sexual equality, the right to privacy, the freedom of information (a.k.a. right to access to information), and quite well arguably, rights to breathable air and basic education.

The Cook complaint smacks of activist litigation, aimed as much at media and policymakers as at the courts.  It gets around to its legal claims in number 121 of its 133 paragraphs.  Nevertheless, the claims are clever and worth pondering.  In five counts, the complaint neatly alleges violation of (1) the equal protection clause (mostly "fundamental interest," though there's a strong thread of "diversity" too), (2) the due process clause, (3) the privileges-and-immunities clause, and then—here's where things get spicy—(4) the Sixth and Seventh Amendments, and (5) the republican guarantee clause.

The Fourteenth Amendment claims are built upon a compelling background that heralds the Framers' recognition of education's essentiality to democracy, followed by a depressing account of how public education in civic virtue lately gave way to a bottom-line-oriented mill of standardized test preparation, woefully inadequately equipped and devoid of vision or values.  The story is downright Orwellian, as the complaint describes the plodding production of glassy-eyed sheep to populate America, children robbed and broken of the knowledge, skill, or will to challenge the status quo.  One wonders that Ayn Rand herself would not be persuaded to the cause of public education.

Added to the conventional Fourteenth Amendment angle are those thought-provoking latter claims about jury service and republican governance.  Citation to the Sixth and Seventh Amendments, as well as the federal Jury Act, focuses on that vital and rare obligation of citizen direct participation in government to assert a denial of rights both to the jurors who are ill prepared for the job and, consequently, the litigants and criminal defendants who depend on an informed jury to vindicate their rights.  In the final count, the republican guarantee clause is cited with indirect reference to the First Amendment ("free speech and other constitutional rights"), suggesting that an ill informed electorate can neither vote nor participate in government sufficiently to maintain representative democracy.  I can't help but think of the seemingly insoluble dilemma of money in politics, evidenced by the fealty to corporate donors pledged by our paralyzed, gerrymandered, and hardly-any-longer representative Congress.

Cook brings readily to mind the Juliana climate change lawsuit (and the Dutch Urgenda decision), about which I wrote recently.  Juliana seems doomed in the U.S. Supreme Court, if ever it were to get that far, despite a curiously indulgent ruling by Judge Ann L. Aiken in federal district court in Oregon (and later), sending the case on to trial.  It's overwhelmingly probable that the Juliana plaintiffs do not expect to win.  Rather, they seek to make a point, and they're doing so well.  So in Cook, too, as in a similar case on appeal in Michigan, the litigants have opined publicly that they hope to draw the attention of lawmakers and to stimulate public discussion—even to educate student-plaintiffs through the process, something also happening in the Juliana case, in which students appears as plaintiffs, and Judge Aiken relies deliberately on the work of student externs.  Consonantly, these cases stir up amicus feeding frenzies; NGOs in Cook already are jockeying for position to get their say on the public record.  (I'm not above it.)

As something of a separation-of-powers formalist, I'm troubled by the use of the courts for policy-making activism.  The courts are not designed for policy-making, and judges are not hired to be activists.  The late Justice Scalia famously and aptly lamented the prospect of nine black-robed "moral philosophers" in Washington, D.C., with lifetime appointments, making policy decisions for a purportedly democratic nation.  When I see a complaint that is drafted for public consumption and political persuasion rather than for judicial interrogation and a search for truth, I fear the strategy undermines whatever remains of the bar's reputation for professional integrity and objective clarity.

At the same time, this rise in judicial activism is a sign and symptom of something very broken about our democracy.  People are resorting to the courts because the political branches are not responsive.  Much as the Cook plaintiffs suggest, our system of government is failing to represent its constituents.  The complaint asserts, "Most social studies classes in Rhode Island do not discuss social problems and controversial ideas ...."  The complaint concludes: "A positive civic ethos requires all students to feel that they have a stake in the society and in its political system, and that institutions can work for them and their families in the future, even if these institutions have not been fully responsive to their needs in the past."

Whether for the right to breathable air or a basic education, a frustrated youth is turning to the courts not as a first resort, but as a last resort.  If in the end, none of our three branches of government delivers on the American promise—not the dream per se, but the opportunity to attain it—where will complainants go next?

The Brookings Institution opined in 2011:

Education has played an important role in the uprisings in the Middle East and North Africa with many commentators noting that educated youth have been integral to what has come to be called the “Arab spring.” However, what they fail to mention is that spending many years in school has failed to give many Arab youth a good education. These revolutions were not propagated by well-educated youth; these uprisings were spurred by the needs and demands of poorly educated youth, whose knowledge and skills do not meet the demands of a rapidly-advancing world.... [Despite near universal access to education,] there has been very low return on investment in terms of meaningful educational outcomes. Education systems throughout the region are hindered by low quality, irrelevancy and inequity.

Next stop: American Spring?

Dutch court upholds dike against climate change, while Trump Administration seeks to stop climate-change 'trial of the century' in Oregon

"Little Dutch boy" at Madurodam, The Hague,
by Kara van Malssen (CC BY-NC-SA 2.0)

On Tuesday, an intermediate appellate court in the Netherlands upheld a verdict against the government demanding more state action to curb carbon emissions and combat climate change.  The court's decision (unofficial English translation) in favor of energy NGO Urgenda came just one day after the dire 12-year warning of the special report of the U.N. Intergovernmental Panel on Climate Change.  Meanwhile the Trump Administration filed an emergency motion in federal court in Oregon today in its latest bid to stop climate-change litigation in the United States.

The Netherlands is working mightily already to reduce carbon emissions.  The state projects a reduction in the neighborhood of 20% by 2020 over 1990 levels.  But that number still falls short of 25%, which the court calculated as the nation's minimum treaty commitment.  That difference, The Guardian reported, could be enough to force the shutdown of a recently opened coal-fired power plant.  The court's decision chiefly references the 1992 U.N. Framework Convention on Climate Change and traces the development of states' legal obligations through the history of climate conferences from Kyoto in 1997 to Bonn in 2017.

As the state observed in the case, "Dutch emissions are minor in absolute terms and ... the Netherlands cannot solve the global problem of climate change on its own" (¶ 30).  So the global significance of the decision is mostly symbolic, and, activists hope, an example for climate-change activism in the courts around the world.

American iterations of climate-change litigation are many, but the one case that has captured the public imagination more than any other is Juliana v. United States in the District of Oregon.  The case has played well in media because the plaintiff effort is spearheaded by a not-so-camera-shy youth group, the Earth Guardians, led by indigenous activist, hip-hop artist, and let's be honest, teen heartthrob Xiuhtezcatl Martinez.  (Below: new promo video for Martinez's debut album, Break Free.)

Juliana might yet be described best as "ill fated."  Unlike myriad climate-change-aiming lawsuits in areas such as environmental and business regulation, or upon collateral constitutional theories, such as the Commerce Clause or First Amendment, Juliana is a direct assault on the federal government under constitutional due process—literally, the right to life.

At first blush, this approach seems to face insurmountable hurdles before the merits could ever be reached: namely, standing, justiciability, official immunity, not to mention the hundred other reasons civil rights lawsuits are awfully hard to win.  Then at the threshold of the merits lie the conventional tort problems of affirmative duty, causation, and injury.  In the "constitutional tort" vein, the plaintiffs seek to breathe new breadth into the "public trust doctrine," which posits that government holds natural resources in trust for the public good.  The doctrine has seen modest success in, for example, beach access cases, but jurisprudential conservatives do not enthusiastically embrace the raw, public-policy-driven invitation to judicial intervention.

Despite conventional wisdom, the Juliana suit survived both a motion to dismiss in the trial court and an aggressive effort by the Trump Administration to shut the action down in the Court of Appeals.  (To be fair, the Obama Administration also was not ra-ra plaintiffs on this one.)  In November 2016, District Judge Ann Aiken recognized, "This is no ordinary lawsuit."  Upon detailed analysis, she rejected the government's arguments on both standing and justiciability, finding the question presented "squarely within the purview of the judiciary."

Judge Aiken speaking on recidivism reduction
at ReInvent Law in 2013 (from video CC BY 3.0)

Then, analogizing to the Supreme Court's reasoning on due process in the 2015 gay marriage case, Obergefell v. Hodges, Judge Aiken "ha[d] no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society."  The Ninth Circuit in March rejected the government's bold demand that the case be dismissed to protect the separation of powers, finding the government's claim premature and well shy of the high bar for writ of mandamus.  In July, the U.S. Supreme Court denied the government's appeal for a stay.

Thus back on the District of Oregon docket, Juliana was scheduled to open at trial on October 29.  A headline in The Japan Times, over a pro-plaintiff commentary by Princeton bioethics professor Peter Singer, titled Juliana "the trial of the century."  One week ago, on October 5, the Administration filed another motion for stay in the trial court.  Undoubtedly buoyed by the appointment of Justice Brett Kavanaugh, the Government today renewed its motion to stay and asserted its intention to petition the U.S. Supreme Court for mandamus relief.

In the Dutch case, the government tried to fend off the lawsuit on grounds equivalent to standing and justiciability, but to no avail.  The Dutch Civil Code authorizes class actions (a rarity in Europe) specifically by interest groups on behalf of citizens.  Moreover, the court reasoned that individual human rights claims must be justiciable in Dutch courts if individuals could bring the same claims in the European Court of Human Rights.  The government argued "trias politica," that is, separation of powers, to which the court responded (cheekily?): "This defence does not hold water. The Court is obliged to apply provisions with direct effect of treaties to which the Netherlands is party, including [the European human rights convention].  After all, such provisions form part of the Dutch jurisdiction and even take precedence over Dutch laws that deviate from them" (¶ 69).

Under the European human rights convention, Urgenda relied on articles 2 and 8, respectively the rights to life and privacy, the latter including the inviolability of family life—the same two notions cited by Judge Aiken in her Obergefell-inspired due process analysis under the Fifth and Fourteenth Amendments.

You can await the next development in Juliana via PACER under case no. 6:15-cv-01517.

[UPDATE: U.S. Supreme Court issued an extraordinary stay on Oct. 19.  See, e.g., Richard Franks @ Legal Planet.  HT @ Flannery Rogers.]

[UPDATE: Joel Stronberg at Resilience reported that despite the earlier Roberts stay, SCOTUS issued an order on November 2 clearing the way for Juliana to go to trial.]

[UPDATE:  Juliana returns to oral argument in the Ninth Circuit in Portland, Oregon, on June 4, 2019. Track the case at Climate Case Chart, which explains: "The government [appellant argues] that the plaintiffs lacked standing and that their lawsuit was not a cognizable case or controversy under Article III of the Constitution. The government contended that a 'quick look at the climate change issues and actions pending before Congress and the Executive Branch'—including the Green New Deal, carbon tax legislation, and the replacement for the Clean Power Plan—'confirms that Plaintiffs have petitioned the wrong branch.' The government also argued that the plaintiffs were required to proceed under the Administrative Procedure Act and that their constitutional claims failed on the merits."]

[UPDATE: The Dutch Supreme Court upheld the outcome in Urgenda on Dec. 20, 2019.]

[UPDATE: On January 17, 2020, the Ninth Circuit dismissed Juliana for failure of standing. An appeal to the U.S. Supreme Court is inevitable, but extremely unlikely to succeed. The case is Juliana v. United States, No. 18-36082.]