Constitutional Law 2012 Cosponsored by the Constitutional Law Section Friday, November 30, 2012 8:15 a.m.–3:45 p.m. Hotel Monaco Portland, Oregon 5.75 General CLE credits CONstitutiONaL Law 2012 sECtiON PLaNNErs Planning Chair: Matthew J. Kalmanson, Hart Wagner LLP, Portland Erin C. Lagesen, Appellate Division, Oregon Department of Justice, Salem Erin J. snyder, Associate Director of Career Services, Lewis & Clark Law School, Portland Les swanson, Les Swanson Attorney and Counselor at Law, Portland alycia N. sykora, Alycia N. Sykora PC, Bend OrEGON statE Bar CONstitutiONaL Law sECtiON EXECutiVE COMMittEE Edward H. Trompke, Chair The Honorable David Schuman, Chair-Elect Chin See Ming, Past Chair Gregory A. Chaimov, Treasurer Erin J. Snyder, Secretary Robert M. Atkinson The Honorable Henry C. Breithaupt John Paul (Toby) Graff Matthew J. Kalmanson Erin C. Lagesen The Honorable Jack L. Landau Maureen Leonard Jennifer Middleton C. Robert Steringer Les Swanson Alycia N. Sykora The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2012 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 Constitutional Law 2012 ii taBLE OF CONtENts schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Faculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii 1. united states supreme Court review and Preview . . . . . . . . . . . . . . . . . . . . . . . 1–i — Dean Erwin Chemerinsky, University of California, Irvine School of Law, Irvine, California 2. Constitutional interpretation and Globalization. . . . . . . . . . . . . . . . . . . . . . . . . 2–i — Professor Paula L. abrams, Lewis & Clark Law School, Portland, Oregon 3. the Oregon Constitution and Cases in 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–i — alycia N. sykora, Alycia N. Sykora PC, Bend, Oregon 4. Litigating the Constitutional tort Case: tips from the Bench and Bar . . . . . . . . . . . . 4–i — the Honorable anna J. Brown, U.S. District Court, Portland, Oregon — James G. rice, Office of the City Attorney, Portland, Oregon — Elden M. rosenthal, Rosenthal Greene & Devlin PC, Portland, Oregon Constitutional Law 2012 iii Constitutional Law 2012 iv sCHEDuLE 7:30 registration 8:15 welcome and introduction 8:30 united states supreme Court review and Preview Dean Erwin Chemerinsky, University of California, Irvine School of Law, Irvine 10:00 Break 10:15 Constitutional interpretation and Legitimacy Professor Paula L. abrams, Lewis & Clark Law School, Portland Dean Erwin Chemerinsky, University of California, Irvine School of Law, Irvine Professor Ofer raban, University of Oregon School of Law, Eugene 11:45 Lunch 1:00 the Oregon Constitution and Cases in 2012 F Debate clause F Open courts F Right to counsel the Honorable Jack L. Landau, Oregon Supreme Court, Salem the Honorable David schuman, Oregon Court of Appeals, Salem alycia N. sykora, Alycia N. Sykora PC, Bend 2:15 Break 2:30 Litigating the Constitutional tort Case: tips from the Bench and Bar F What are the legal parameters of a civil rights case? F Who should be sued, and in what forum? F What are the procedural differences between federal and state court in litigating a Section 1983 claim? F Should a government body be named as defendant? F How does a potential immunity defense impact Section 1983 litigation? the Honorable anna J. Brown, U.S. District Court, Portland James G. rice, Office of the City Attorney, Portland Elden M. rosenthal, Rosenthal Greene & Devlin PC, Portland 3:45 adjourn Constitutional Law 2012 v Constitutional Law 2012 vi FaCuLty Professor Paula L. abrams, Lewis & Clark Law School, Portland. Professor Abrams worked in Washington, D.C., for the Executive Office of the President, Council on Wage and Price Stability, and later as an attorney for the Office of Legal and Enforcement Counsel at the Environmental Protection Agency. In addition to private practice, she has served as executive director of both the Oregon Judicial Fitness Commission and the Oregon Commission on the Judicial Branch. Professor Abrams has published numerous articles in the area of constitutional law. She has published a book, Cross Purposes, on the landmark Supreme Court case, Pierce v. Society of Sisters. In 2009, Professor Abrams was named Jeffrey Bain Faculty Scholar in recognition of her exemplary teaching and scholarship. the Honorable anna J. Brown, U.S. District Court, Portland. Judge Brown was appointed United States District Judge for the District of Oregon by President William Jefferson Clinton and confirmed by the United States Senate on October 15, 1999. Judge Brown was admitted to the Oregon State Bar in 1980 and was a civil trial lawyer with the Portland office of Bullivant Houser Bailey, where she was one of the first women admitted to partnership, until 1992, when she was appointed (by Governor Barbara Roberts) and later elected to the state court bench in Multnomah County. Judge Brown has presided at numerous complex civil and mass tort jury trials, including Williams v. Philip Morris, Oregon’s first tobacco/product-liability trial whose punitive damages award was reviewed in multiple state appellate and U.S. Supreme Court proceedings. Judge Brown also has developed significant criminal trial practice experience over her 20 years on the bench and, as a state judge, presided in the Multnomah County Drug Court in its early years. She serves on the Ninth Circuit’s Jury Trial Improvement Committee, the board of the United States District Court of Oregon Historical Society, and Lewis and Clark Law School’s Alumni Board, and she is a career-long member of Oregon Women Lawyers. Judge Brown shares her extensive trial practice experience in frequent continuing legal education programs with the Oregon State Bar and the Oregon Law Institute, among others. Dean Erwin Chemerinsky, University of California, Irvine School of Law, Irvine. Dean Chemerinsky is the founding dean and distinguished professor of law at the University of California, Irvine School of Law, with a joint appointment in Political Science. Previously, he taught at Duke Law School for four years, during which he won the 2006 Duke University Scholar-Teacher of the Year Award. Before that, he taught for 21 years at the University of Southern California School of Law and served for four years as director of the Center for Communications Law and Policy. Dean Chemerinsky has also taught at UCLA School of Law and DePaul University College of Law. His areas of expertise are constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, most recently The Conservative Assault on the Constitution (October 2010, Simon & Schuster), and nearly 200 articles in top law reviews. He frequently argues cases before the nation’s highest courts and also serves as a commentator on legal issues for national and local media. the Honorable Jack L. Landau, Oregon Supreme Court, Salem. Judge Landau joined the Supreme Court in January 2011. Before joining the Supreme Court, he served on the Court of Appeals from 1993 to 2010. He previously served the Oregon Department of Justice as Assistant Attorney General and Attorney- in-Charge in the Special Litigation Unit and as Deputy Attorney General and was in private practice in Portland. Judge Landau has been an adjunct professor at Willamette University College of Law since 1993, where he has taught Legislation, and has written numerous articles for law reviews and other publications. Judge Landau holds an LL.M. from the University of Virginia School of Law. Constitutional Law 2012 vii FaCuLty (Continued) Professor Ofer raban, University of Oregon School of Law, Eugene. Professor Raban is an Associate Professor and Elmer Sahlstrom Senior Faculty Fellow at the University of Oregon School of Law. He teaches Constitutional Law, Criminal Investigation, and Legal Theory. Professor Raban received his J.D. from Harvard Law School and his D.Phil. in legal philosophy from Oxford University. He then worked as a prosecutor in New York before returning to academia. Professor Raban taught law, among other places, at the University of Oxford and the University of Utah. James G. rice, Office of the City Attorney, Portland. Mr. Rice is a Senior Deputy City Attorney with the City of Portland. He is admitted to practice in Oregon, Ohio (inactive), and before the United States Supreme Court. His career has been split between civil litigation and criminal defense. He currently defends cases that involve Section 1983, torts, and public service infrastructure. Mr. Rice is past president of the Oregon Criminal Defense Lawyers Association and served on the Professional Liability Fund board of directors and Governor Kulongoski’s Methamphetamine Task Force. Elden M. rosenthal, Rosenthal Greene & Devlin PC, Portland. Mr. Rosenthal practices personal injury and civil rights law in the state and federal courts of Oregon and, with associated local counsel, in other states across the country. He is a Fellow of the American College of Trial Lawyers. In addition to serving on bar committees, Mr. Rosenthal is actively involved in teaching and mentoring law students and other lawyers; he is an adjunct faculty member of the Lewis & Clark Law School, where he teaches tort law to law students in the night school. Mr. Rosenthal received the 1991 Oregon State Bar Award of Merit, the 1991 Oregon Trial Lawyers Association first Public Justice Award, the 2007 ACLU of Oregon E.B. McNaughton Award, and the 2008 Oregon Trial Lawyers Association Distinguished Trial Lawyer Award. Mr. Rosenthal was the 2008 commencement speaker for the University of Oregon Law School graduating class. the Honorable David schuman, Oregon Court of Appeals, Salem. Judge Schuman has been a member of the Oregon Court of Appeals since 2001. Before joining the Court of Appeals, he taught law at the University of Oregon School of Law, where he also served as Associate Dean for Academic Affairs. He previously practiced law in the Oregon Department of Justice as an Assistant Attorney General in the Appellate Division and as Deputy Attorney General. While teaching law, Judge Schuman received the Ersted Award for Distinguished Teaching and published scholarly articles in the Oregon Law Review, Michigan Law Review, Vermont Law Review, American Criminal Law Review, Temple Law Review, and many other journals, as well as articles in The Washington Post, The Oregonian, The Chronicle of Higher Education, and other periodicals. alycia N. sykora, Alycia N. Sykora PC, Bend. Ms. Sykora’s practice includes civil litigation and appeals. She also serves as a judge pro tem for the Deschutes County Circuit Court. She is past chair of the Oregon State Bar Constitutional Law Section and past president/current CLE chair of the Deschutes County Bar Association. She taught Introduction to Comparative Politics for several terms at Central Oregon Community College. She is the Central Oregon Coordinator for the American Constitution Society’s “Constitution in the Classroom” project, which has grown to reach 2,000 local students per year. Constitutional Law 2012 viii Chapter 1 united states supreme Court review and Preview Dean erwin Chemerinsky University of California, Irvine School of Law Irvine, California Contents Supreme Court Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1 I. Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1 A. Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1 B. Ineffective Assistance of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . 1–1 C. Sixth Amendment—Confrontation Clause . . . . . . . . . . . . . . . . . . . . . 1–2 D. Cruel and Unusual Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2 II. First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2 A. Religion Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2 B. Speech Clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1–2 III. Civil Rights Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1–3 A. Bivens Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3 B. Individual Officer Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3 IV. Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3 V. Constitutionality of Affordable Care Act . . . . . . . . . . . . . . . . . . . . . . . . . . 1–3 VI. The Term Ahead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–4 Closing the Courthouse Doors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–5 Chapter 1—United States Supreme Court Review and Preview Constitutional Law 2012 1–ii