En banc Snoozefest

Last week the First Circuit re-heard the civil rights claim by Maine Gubernatorial candidate and ex-Speaker of the House Mark Eves against current Governor LePage.  As we blogged recently, the District Court dismissed the claim; the First Circuit panel affirmed; and the full Court granted a motion for rehearing en banc in an order that included lots of specific questions for the parties to re-brief.

One would think that the argument on rehearing would be a rootin’ tootin’ bundle of excitement.  The First Circuit only averages about one en banc hearing a year, and this one has some interesting features to it, with our colorful Governor making some choice comments about Eves, leading to this litigation.

But one would be wrong.  It was a yawner.  The link to the argument is here, although it will go away soon –  Eves v. LePage, Case No. 16-1492 Oral Argument.

First, as we mentioned previously, for reasons unknown, Judge Kayatta recused himself.  Two of the other judges, Judges Thompson and Stahl, weren’t there, either.  They had been involved in the previous argument, but still, one would have thought that they’d participate the second time around – they are going to vote as a part of the full bench.  I have had arguments where a judge was unavailable and they piped in his voice during the argument, like the Great and Powerful Oz, which was pretty difficult, but at least the judge remained involved.  Having a “full banc” argument where the “full banc” doesn’t show up seemed a little odd.

This left Chief Judge Howard, Judge Torruella, Judge Lynch, and Judge Barron.

It was five minutes in before anyone even asked a question.  After that, it was mostly Judge Barron – I think – the audio was terrible, with Judges Torruella and Lynch asking a very few questions.  None of these questions was terribly penetrating or illuminating, and mostly sought factual clarifications regarding the record.  This proves one point to keep in mind in any appeal – the importance in setting out the facts properly.  Judges all believe they know and can research the law – they have armies of clerks to do that, too.  What they want from counsel is a clear understanding of what the facts are, so they can apply all their learned understanding of the law to the matter before them.

Judge Lynch, for example, sounded grumpy that the written correspondence on which the action was mostly based was apparently not in the record.  This was a motion to dismiss, and nothing requires a plaintiff to attach documents to the complaint instead of paraphrasing them, and the plaintiff’s lawyer, David Webbert, apparently chose to do the latter.  That said, documents referenced in a complaint can be reviewed as a part of a motion to dismiss, and it’s understandable why the Court, or at least Judge Lynch, wasn’t thrilled with having to base a decision on a plaintiff’s characterization versus the actual communications.

Another interesting point – or at least as interesting as this argument got – was a stray statement by Judge Barron to the effect of setting aside whether the Court should affirm qualified immunity, to explore whether the action complained of should be deemed a civil rights violation.  Qualified immunity involves two questions:  (1) whether the facts alleged make out a violation of a constitutional right; and (2) whether the right was ‘clearly established’ at the time of the defendant’s alleged violation.  The second question was the only one the first panel focused on, with the opinion written by Judge Lynch.  Indeed, she emphasized, “we reiterate that we have no need to address the constitutionality vel non of Governor LePage’s conduct.”  Eves v. LePage, No. 16-1492 (1st Cir., Nov. 22, 2016)

A plaintiff doesn’t have to produce a case directly on point to show a right was “clearly established”, but existing precedent must place the constitutional question “beyond debate.”  Ashcroft v. al-Kidd, 566 U.S. 731, 741 (2011). If the full court, as did the first panel, finds that dismissal was proper based on the second question, then any chit chat about the first question would be dicta.  Should a court engage in such chit chat?

The first panel thought not, in keeping with the general tendency and good sense of courts to answer questions presented to them narrowly.  But then, in the civil rights arena, how do you ever get beyond immunity if the court doesn’t identify the scope of the rights in question?  How do rights ever become clearly established?  But would an en banc opinion with lots of dicta talking about the first question and saying a right was violated be enough to establish the right, putting government officials on notice as to their future conduct?  What if there are multiple opinions here, resulting in a mish-mash of different thoughts on this question?

In any event, the proceedings for this particular en banc matter seem to be ending on a whimper, not a bang.