CREATORS: States Look to Their Own Constitutions for Guidance on Racial Equality

Matthew T. Mangino
CREATORS
May 13, 2025

In 1896, the U.S. Supreme Court issued a ruling that held racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality. Justice Henry Billings Brown wrote the majority opinion in Plessy v. Ferguson.

Six justices joined with Brown, who opined that although the Fourteenth Amendment guaranteed the legal equality of all races in the United States, "it was not intended to prevent social or other types of discrimination."

The much-maligned decision in Plessy remained in effect about education for 58 years. Finally, on May 17, 1954, the Supreme Court decided Brown v. Board of Education — which held that the "separate but equal" doctrine was unconstitutional in the context of public schools and educational facilities.

The Supreme Court issued a unanimous 9-0 decision in favor of Brown. The Court ruled that "separate educational facilities are inherently unequal," and therefore laws that impose them violate the Equal Protection Clause of the Fourteenth Amendment.

Brown paved the way for minority students to have a fair and equal education. In 1974, the Equal Educational Opportunities Act was established, prohibiting discrimination against faculty, staff and students. This included racial segregation of students and required school districts to take action to overcome barriers to students' equal participation.

However, 69 years after Brown, the Supreme Court rejected affirmative action at schools of higher education, declaring that the race-conscious admissions programs at Harvard University and the University of North Carolina were unlawful, eliminating a pillar of higher education.

In Students for Fair Admissions v. President and Fellows of Harvard College and SFFA v. University of North Carolina, the Brown decision was often quoted in the 230 pages of opinions.

The Supreme Court held that state laws cannot favor one race over another, that the equal protection clause requires equal treatment under the law for everyone "without regard to race or color." The decisions turned the Brown decision on its head. Affirmative action — which had been used to level the playing field for minority students was now considered to be imposing discriminatory practices on white prospective students.

The landmark decision in Brown, which overturned a legacy of racism in this country, was used to rationalize an argument eliminating affirmative action. The decisions in Harvard and North Carolina will, as Adam Liptak wrote in The New York Times, "(A)ll but ensured that the student population at the campuses of elite institutions would become whiter and more Asian and less Black and Latino."

Then came President Donald Trump's second term. Almost immediately upon taking office, a letter went out to state education leaders across the country, suggesting Title I funding — targeted to schools with a high proportion of low-income students — would be cut if the use of Diversity, Equity, & Inclusion (DEI) programs continued.

School and state officials were asked to sign a certification or "loyalty oath" and return it to the U.S Department of Education acknowledging they are complying with the directive. The oath has been challenged in court.

In light of an unsympathetic Supreme Court and an administration bent on rewriting the history of discrimination in this country, advocates for racial equality are fighting back. They have turned to state constitutions and state courts to fight "resegregation."

State judges in New Jersey and Minnesota have interpreted their respective state constitutions as imposing responsibility on the state to remedy racial discrimination. Expect more states to look to their state constitution for relief, while other states relish the federal government's undoing of years of progress toward racial equity.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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CREATORS: What Is Due Process and Why Is It Important?

Matthew T. Mangino
CREATORS
April 15, 2025

As we slide into the second quarter of 2025, if I were to predict the word or phrase of the year, it would be "due process." News stories lament the absence of due process, and talking heads, lawyers, White House aides, judges and journalists relentlessly examine its history and relevance. What does due process mean?

Due process, established by the Fifth and Fourteenth Amendments, guarantee that the government cannot take a person's basic rights to "life, liberty, or property" without giving advance notice and the opportunity to challenge the action in front of an impartial arbiter.

The concept of due process developed centuries before the U.S. Constitution was drafted. Due process is a historical product of the Magna Carta, through which King John of England promised "that [n]o free man would be deprived of his life, liberty, or property except by the lawful judgment of his peers or by the law of the land." The phrase "due process of law" first appeared in a 1354 version of the Magna Carta, "No man ... shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."

The Founders incorporated due process into the Fifth Amendment to the U.S. Constitution, "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." At the time, due process only applied to federal matters.

In the wake of the Civil War, the U.S. House of Representatives proposed the Fourteenth Amendment. In 1868, the Fourteenth Amendment was ratified by the states and became part of the U.S. Constitution.

In essence, due process can be encapsulated in a single word — fairness. Due process impacts all of us, even if we are not facing arbitrary imprisonment or deportation.

Due process ensures fair treatment when a homeowner contests property taxes, or a driver fights a traffic ticket, a business seeks a zoning change, an individual seeks unemployment compensation or a student faces discipline.

According to Brandon L. Garrett, Kate Evans and Elana Fogel writing for The Hill, due process is always placed under special stress when people demand quick results without fairness. For instance, a new President wanting to show the nation he is cracking down on criminal gangs and illegal immigrants.

The U.S. government did not provide notice or review before hurrying hundreds of Venezuelan nationals onto planes bound for a notorious prison in El Salvador last month. According to The New York Times, White House aide Stephen Miller has repeatedly asserted that the people deported were not entitled to due process, even though the U.S. Supreme Court recently said the opposite.

David French of The New York Times asked, "How do they know if someone is an 'illegal alien' absent due process?"

French shared, in a recent column, his experience as a soldier deployed to Iraq during Operation Iraqi Freedom. After six of his comrades were killed in a booby-trapped house, a captured man was brought to French and his commanding officer. They determined, after questioning and examination of the relevant evidence, that he was not an enemy combatant.

He was released. French continued, "As he rolled out, though, a soldier turned to me and voiced our shared fear. 'It sure would suck if he actually turned out to be bad and we let him go.'"

"We're not God," French responded. "I can't look into his heart and know the truth, so we have to go by evidence. The evidence makes the decision for us. Was there enough evidence to hold him?"

That is due process. French continued, "(Due process) doesn't just protect a person's liberty and dignity. It's a humble acknowledgment of our own limitations."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Trump wins another 14th Amendment ballot challenge

After several days of trial involving multiple witnesses and other evidence, a Colorado state court became the fifth to reject an effort to keep Donald Trump off a state presidential ballot under Section 3 of the Fourteenth Amendment, a post-Civil War addition to the Constitution ratified in 1868, reported The Bulwork. It provides: “No person shall . . . hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Because the Colorado case involved lengthy testimony and detailed findings of fact and rulings on the meaning of Section 3, the 102-page decision is worth summarizing at some length. Clearly, Colorado District Judge Sarah B. Wallace wrote with an expectation that judges at higher state courts and likely even the U.S. Supreme Court would wind up studying her analysis on an appeal petition.

Here’s what other courts have ruled thus far about Trump and Section 3:

• Earlier this month, the Minnesota Supreme Court rejected a bid to keep Trump off the state’s primary ballot, but for a different reason than Wallace’s: that “there is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot . . . a candidate who is ineligible to hold office.” Translated, the Republican party is fully in charge of who gets on the primary ballot. Yet Minnesota Chief Justice Natalie Hudson noted that the plaintiffs could file another suit later to keep Trump off the general election ballot should he win the Republican primary in Minnesota.
• In Michigan, Court of Claims Judge James Redford took a different route altogether, ruling that courts have no business deciding what Section 3 means because it’s a “political question” that exclusively belongs to Congress. (The political question doctrine is a made-up rule the Supreme Court uses if it just doesn’t want to wade into sticky political issues like crafting the technical rules governing an impeachment trial, for example.) However, if Trump wins the general election, Redford added, his eligibility under Section 3 could be revisited, and if he’s then determined ineligible, the Twentieth Amendment—which provides for the vice president-elect to become president if a president-elect dies before taking the oath of office—could somehow kick in.
• In New Hampshire, a federal judge ruled in October that John Anthony Castro, an unknown presidential candidate from Texas who has initiated over two dozen Section 3 lawsuits across the country, did not have standing to sue under Article III of the U.S. Constitution—meaning he lacked a sufficient injury to bring the matter within Article III’s “case” or “controversy” requirement that gives federal courts jurisdiction in the first place. The judge wrote: “Castro has not established that he has or will suffer a political competitive injury arising from Trump’s participation in the New Hampshire Republican presidential primary.” In addition, he agreed with the Michigan state court judge that the matter is probably a “political question” that’s for elected politicians—not judges—to decide.
• Finally, in Florida, another federal judge dismissed a case for lack of standing in September. The plaintiff in that case was an individual citizen who, the judge ruled, had no legal basis to complain about another person’s running for office. A “generalized interest” in the election outcome is not enough of an injury to invoke the power of the courts.

All these cases will undoubtedly be appealed.

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Suit in Colorado seeks to remove Trump from ballot pursuant to 14th Amendment

Six voters in Colorado filed a lawsuit seeking to remove former President Donald Trump from the state's election ballots because of his role in the insurrection on Jan. 6, 2021, reported NBC News.

Their suit, which was filed in the U.S. District Court in Denver, contends that Trump should be disqualified from running in future elections under Section 3 of the 14th Amendment of the Constitution, which states that no person shall hold any office if they "engaged in insurrection or rebellion" after having taken an oath to support the Constitution.

The group called on the court to remove Trump from the 2024 ballot and declare that it would be "improper" and "a breach or neglect of duty" for Colorado Secretary of State Jena Griswold, a Democrat, to allow his name to appear on any future primary or general election ballots.

Citizens for Responsibility and Ethics in Washington (CREW) and several law firms filed the lawsuit on behalf of the six voters — four Republicans and two unaffiliated.

The petitioners include former Rep. Claudine Schneider, a registered Republican who represented a congressional district in Rhode Island from 1981 to 1991, and endorsed Barack Obama for president in 2008, Hillary Clinton in 2016 and Joe Biden in 2020; Norma Anderson, who served as majority leader in the Colorado House and Senate; and Krista Kafer, a conservative columnist for the Denver Post, who said she would vote for Trump in 2020. Anderson left the Republican Party in 2021, but CREW confirmed to NBC News that she rejoined the GOP a year later.

Their 115-page lawsuit argues that Trump violated his oath of office by inciting the mob that attacked the Capitol on Jan. 6.

The group included findings on Trump's efforts to overturn the election results that were revealed by the House Jan. 6 committee, which dissolved in January after having concluded a lengthy investigation into the riot, as well as from special counsel Jack Smith's investigation that led to one of the four criminal indictments against the former president.

"President Trump was the mob’s leader, and the mob was his weapon. The mob traveled from throughout the country to Washington because the President summoned them there," the lawsuit argued. "He instructed the mob to march on the Capitol and they complied. Many in the mob left the Capitol grounds only when, after hours of violence against police officers and interference with Congress’s constitutionally-mandated duties, Trump belatedly told them to leave."

Reached for comment, Griswold didn't weigh in on whether Trump violated the Constitution or should be disqualified from the ballot. "I look forward to the Colorado Court’s substantive resolution of the issues, and am hopeful that this case will provide guidance to election officials on Trump’s eligibility as a candidate for office," she said in a statement.

Trump campaign spokesperson Steven Cheung slammed the voters behind the lawsuit, saying in a statement that they're "people who are pursuing this absurd conspiracy theory and political attack on President Trump."

They "are stretching the law beyond recognition much like the political prosecutors in New York, Georgia, and DC," Cheung added. "There is no legal basis for this effort except in the minds of those who are pushing it."

CREW noted that Section 3 of the 14th Amendment has "not been tested often in the last 150 years, due to lack of insurrections."

However, CREW also said that last year it represented New Mexico residents who sued to remove Cowboys for Trump co-founder Couy Griffin from his elected position as Otero County commissioner, which was "the only successful case to be brought under Section 3 since 1869."

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Capital-Star: Congress shouldn’t stop with Trump in applying the 14th Amendment

Matthew T. Mangino
Pennsylvania Capital-Star
January 15, 2021

The 14th Amendment to the United State Constitution has been proposed as a means to disqualify President Donald Trump from running for a second term.

Section Three was cited in the article resulting in the Presidents second impeachment. The articles alleges that Trump disqualified himself from office by inciting his followers to violently obstruct the congressional certification of President-elect Joe Biden’s victory.

The history of disqualification from public office goes back to the earliest years of the republic. In 1861, Sen. John C. Breckinridge of Kentucky was expelled from the United States Senate. The resolution, which passed unanimously, declared Breckinridge “has joined the enemies of his country, and is now in arms against the government he had sworn to support.”

Between 1856 and 1860 Breckinridge was a heartbeat away from being president of the United States.  He was President James Buchanan’s Vice-President. Within months of being elected to the U.S. Senate he was a general in the Confederate army.

Following the Civil War, in what some have called the second Constitution, the Congress passed, and the states ratified, the 13th, 14th and 15th Amendments to the Constitution. The Reconstruction Amendments were meant to abolish slavery, lessen the power of states and extend the right to vote to all former slaves.

The 14th Amendment is best known for the Equal Protection Clause which made the Bill of Rights applicable to the states and set in motion a plethora of Supreme Court decisions defining the rights of those accused of a crime.

The 14th Amendment has another, lesser known, rarely used, provision that in light of the Capitol insurrection, may have renewed relevance.

Section Three of the amendment was enacted to prevent Confederate officials who had served in the Unites States government or armed forces before the Civil War from regaining a position of authority in the post-bellum government. Former Confederates were barred until 1872 when Congress granted amnesty to civil and military officials of the Confederacy.

If Section Three is good enough to impeach the president why not use it to expel senators or house members who helped incite the Capitol insurrection?

Section Three provides, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who . . . shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

According to the St. Louis Post-Dispatch, U.S. Rep. Cori Bush, D-Mo., introduced a resolution in the House with 47 co-sponsors directing the House Ethics Committee to commence a review of more than 100 Republicans who voted to overturn the election results to see if they should be censured or expelled.

There have been calls for U.S. Sens. Josh Hawley, R-Mo., and Ted Cruz, R-Texas, to resign for their role in the Capitol insurrection.

Hawley was the first senator to say he would object to the certification of November’s election, based on patently false accusations that the presidential election was stolen. Hawley and Cruz led a group of Senate Republicans who helped Trump turn what is normally a routine certification vote into an attack on democracy. Even after the insurrection, Hawley, Cruz and four other senators continued to object to the certification.

U.S. Sen. Sherrod Brown, D-Ohio, has called for Cruz’s and Hawley’s resignation, saying they “betrayed their oaths of office and abetted a violent insurrection on our democracy.”

According to the HuffPost, Brown said, “If they do not resign, the Senate must expel them.”

U.S. Sen. Sheldon Whitehouse, D-R.I., also has called for an ethics investigation to consider expulsion of Cruz and Hawley.

Inciting, or actively participating in, an insurrection must have consequences.  A two-thirds majority of the House or Senate can insure that no one in Congress is above the law.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, in New Castle, Pa. He is the author of The Executioner’s Toll, 2010. His weekly syndicated column is distributed by GateHouse Media. Readers may contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino. His work appears occasionally on the Capital-Star’s Commentary Page. 

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WAPO: There’s an alternative to impeachment or 25th Amendment for Trump, historians say

As a pro-Trump mob stormed the Capitol last week, Eric Foner, one of the nation’s premier Civil War historians, watched in horror, reported the Washington Post.

“I was watching just like anyone else, with my mouth hanging open,” he said in an interview.

But his mind quickly shifted to history, specifically the little-known history of a little-known provision of the 14th Amendment of the U.S. Constitution.

The 14th Amendment, ratified in 1868, is most famously known for providing citizenship and equal protection under the law to anyone born or naturalized in the United States, including formerly enslaved and free Black people.

But as calls emerged almost immediately for President Trump’s ouster and ban from office via the 25th Amendment or impeachment — neither course is expeditious or easily accomplished — Foner began pondering a different remedy provided by Section Three of the amendment, which says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

“Nobody really had heard about this except people like me who study this era,” said Foner, a Columbia University professor and author of numerous books on the Civil War, Reconstruction and Abraham Lincoln. “And then I had other historians emailing me saying, ‘Wouldn’t Section Three apply here if Trump is guilty?’ ”

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RBG the 'the unlikeliest radical'

David Cole wrote in The New York Review of Books, with the exception of Thurgood Marshall, no Supreme Court justice did more to realize the Constitution’s promise of “equal protection of the law” than Ruth Bader Ginsburg. Where Marshall, as director-counsel of the NAACP Legal Defense Fund, succeeded in dismantling Jim Crow segregation, Ginsburg, as the first director of the ACLU Women’s Rights Project, persuaded the Supreme Court that women and men, long treated differently under the law, must be accepted as equals.

Neither acted alone; they carried the torches of the civil rights and women’s rights movements, respectively. Their courtroom arguments were buoyed by broader political currents. But both achieved far-reaching, historic changes in constitutional law. And both did it incrementally, through careful, painstaking work, aimed at appealing to those not already with them. As Ginsburg said, “Fight for the things that you care about, but do it in a way that will lead others to join you.”

In the last years of her life, Ginsburg became an unlikely celebrity. RBG T-shirts, mugs, earrings, bobblehead dolls, workout gear, and books all became best-sellers. In 2018, both a documentary, RBG, and a Hollywood feature film, On the Basis of Sex, appeared, to popular and critical acclaim. Chief Justice John Roberts quipped, at the unveiling of a portrait of Ginsburg, that his children asked him why he, too, didn’t have a rapper’s moniker. She deserved every bit of the praise. One of only nine women in a class of about five hundred at Harvard Law School, she broke many barriers, and her work made it possible for young women today to take for granted that they cannot be denied admission, jobs, or other benefits simply because of their sex. That’s radical.

But she was about the unlikeliest radical you’d ever meet. Shy to the point of awkward in personal interactions, she spoke quietly but with evident conviction and integrity. She picked her words carefully, whether in briefs, arguments, questions from the bench, dissents, or conversations.

As a justice, too, she refrained from bomb-throwing. On a court dominated by conservatives, she frequently found herself in dissent. But unlike some of her more rhetorical colleagues—in particular, Justice Antonin Scalia—her dissents did not aim barbs at the majority, but instead coolly, painstakingly, and effectively dissected the ruling’s errors, and often placed her emphasis on areas of agreement and avenues the majority decision left open.

RBG achieved real change. She entered the law at a time when men wielded virtually all political and economic power, women were barely taken seriously in the legal profession or by the law itself, and the statute books were shot through with sex-based laws. She used her skills to elevate the status of women in the United States forever. The world she has left behind was transformed by her work. But at every turn, she pursued change methodically, with care and attention to her own imperative that one must always seek to bring others along. Her career illustrates that one can be radical and incrementalist at the same time; indeed, as she argued, it may be the only way to achieve enduring change.

She wasn’t always cautious, of course. In 1972, she made her first argument before the Supreme Court in a case challenging a federal rule that granted automatic spousal benefits to wives of members of the military, but not to husbands of women who served in the few positions then open to them. Facing the nine male justices, Ginsburg closed her argument by quoting the suffragist and abolitionist Sarah Grimké:

In asking the Court to declare sex a suspect criterion, amicus urges a position forcibly stated in 1837 by Sarah Grimké, noted abolitionist and advocate of equal rights for men and women. She spoke not elegantly, but with unmistakable clarity. She said, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

In response, Chief Justice Warren Burger, sounding a bit at a loss, could muster only “Thank you, Mrs. Ginsburg.” The court ruled in her favor, 8-1.

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GateHouse: Contrived state laws used to stifle protesters

Matthew T. Mangino
GateHouse Media
August 15, 2020

Are protestors criminals or are they civic-minded members of the community exercising their constitutional right to assemble and advocate?

The president thinks protestors are criminals and he has said as much. He called Minneapolis protesters “thugs” and has called for his supporters to “knock the crap out” of demonstrators he opposes. He said, “I think it’s embarrassing for the country to allow protesters.”

His disdain for protesters has encouraged legislation like Tennessee’s Driver Immunity Act. Drivers hate to be inconvenienced when protesters block streets. According to Vera Eidelman and Lee Rowland of the American Civil Liberties Union, ”[D]riving isn’t a right — it’s a privilege. Protesting, on the other hand, and specifically protesting in the streets, is a fundamental constitutional right.”

Apparently inconvenience “trumps” constitutional rights in Tennessee. In 2017, Tennessee enacted a law which provides that “A person driving an automobile who is exercising due care and injures another person who is participating in a protest or demonstration and is blocking traffic in a public right-of-way is immune from civil liability.”

In Tennessee, you might be able to avoid getting sued for running over a protester, but a driver who deliberately runs over anyone—protester or not—could face serious criminal charges.

David Alan Sklansky, a criminal law expert at Stanford Law School told Reuters “Homicide law is defined state by state, but I think there is a broad consensus, first that driving a car at a pedestrian can constitute deadly force, second that the use of deadly force is justified in self-defense only when a person reasonably believes that it is necessary to use deadly force in order to protect himself against death or serious bodily injury.”

Feel good “law and order” legislation like Tennessee’s driver immunity law has encouraged recklessness and lawlessness toward protesters in Seattle, Portland, Newport Beach and West Hollywood to name a few.

However, Tennessee continues to pursue protesters with zeal. This week, the state legislature passed a sweeping proposal that targets protesters. The bill was passed by a GOP House and Senate and now sits on the desk of Republican Gov. Bill Lee.

The bill would punish protesters who camp on state property—as protesters have outside the state Capitol since the killing of George Floyd—with a Class E felony. Class E felonies are punishable by up to six years in prison, and such convictions also result in the loss of a person’s voting rights.

According to the Tennessean, the bill also provides mandatory minimum sentences for rioting. It would also mandate that those arrested for charges such as vandalism of public property and other protest-related offenses be held for at least 12 hours without bond.

“We are using a bazooka to go after a house fly here,” said Tennessee Senate Minority Leader Jeff Yarbro, a Democrat from Nashville, during Senate floor debate on the bill. He continued, “Are we really saying that a citizen of this state can be punished with a year in prison and have a felony record because they camped on public property?”

Criminal conduct during a protest should not be tolerated and those who engage in criminality should be prosecuted. The right to protest is not limitless. The government can impose restrictions on the time, place, and manner of peaceful assembly, provided they “are justified without reference to the content of the regulated speech [and] . . . are narrowly tailored to serve a significant governmental interest.”

However, the First Amendment and Fourteenth Amendment to the United States Constitution prohibits federal and state governments from enacting legislation that would abridge the right of people to peaceably assemble. As far back as 1939, the Supreme Court agreed.
Legislation that seeks to stifle free speech by the threat of harsh penalties for contrived violations of the law serve no legitimate purpose and infringe upon longstanding, fundamental constitutional rights.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Oregon's less than unanimous jury verdicts in criminal cases to be reviewed by SCOTUS

The U.S. Supreme Court is scheduled hear arguments on Oct. 7 in Ramos v. Louisiana and determine whether it should overrule Apodaca v. Oregon and hold that the sixth amendment of the constitution guarantees a state criminal defendant the right to a unanimous jury verdict, reported the Salem Statesman Journal.

Apodaca v. Oregon refers to Robert Apodaca and two other Oregon men convicted of felonies whose cases went before the U.S. Supreme Court in 1972. 

Apodaca, then 23, of Salem, was convicted by a split Marion County jury in 1968 of assault with a dangerous weapon and sentenced to five years in prison. According to newspaper archives, Apodaca cut a man's neck with a knife during a fight on State Street earlier that year. 

It took the jury less than 10 minutes to convict Apodaca. 

Apodaca and two other Oregon men appealed their convictions. After the Oregon Court of Appeals affirmed their convictions and the Oregon Supreme Court denied review, the men took their cases to the U.S. Supreme Court, claiming the non-unanimous juries that convicted them violated their constitutional rights.

The court reviewed whether a conviction stemming from a less-than-unanimous jury decision violated the men's right to a fair trial by jury as protected by the Sixth and Fourteenth Amendments.

The Sixth Amendment guarantees a right to a fair trial and impartial jury; the Fourteenth Amendment ensures due process of the law and equal protection of law. Neither explicitly states unanimous jury verdicts are required for conviction. 

In 1972, in a 5-4 decision, the U.S. Supreme Court held that the constitutional right to a trial by jury was not violated by a non-unanimous verdict in state court. 

Apodaca's and the two other men's convictions were upheld. 

Justice Thurgood Marshall, who dissented along with three others, said the ruling "cut the heart out" of the Sixth Amendment of the Constitution.

Since the ruling, Oregon has continued to allow non-unanimous jury convictions in manslaughter, sex abuse, attempted murder and rape cases.  

Louisiana voters ended the practice in 2018, leaving Oregon as the lone holdout for non-unanimous verdicts in the United States.

A widespread push emerged during the 2019 Oregon Legislative Session to take the issue of non-unanimous juries to voters.

Opponents of the system said it leads to racism, wrongful convictions and serious miscarriages of justice. Even sides who typically opposed each other — prosecutors, defense attorneys and activists — were united against the non-unanimous jury system. 

Aliza Kaplan, director of the Criminal Justice Reform Clinic at the Lewis & Clark Law School, said Oregon's decision to allow non-unanimous verdict in the 1930s was the result of racism and xenophobia.

A Jewish defendant was acquitted of murder and instead convicted of manslaughter because of a hung jury in 1933, a public outcry ensued. Many blamed the hung jury on immigrant and non-white jurors. 

The next year, Oregon voters approved an amendment to the state constitution to allow non-unanimous jury verdicts.

This choice, Kaplan said, effectively silenced minority juror voices and abandoned the Sixth Amendment of the Constitution. 

Even Oregon's district attorneys joined in urging legislators to repeal the system on the ballot. 

The resolution to bring the issue to voters passed unanimously and with no opposition in the House, but the resolution died in committee and never went to the Senate for a vote.

Some speculated that the U.S. Supreme Court's decision to hear Ramos v. Louisiana may have contributed to the resolution losing momentum.

“Some felt that we should let the case on the issue pending before the United States Supreme Court, Ramos v. Louisiana, play out before advancing a constitutional amendment to voters,” Rep. Jennifer Williamson, D-Portland, said in a statement after the session ended. “This issue remains a top priority for me, and I will continue to fight to ensure that non-unanimous juries become a relic of Oregon’s past.”

She vowed to work during next year's short legislative session to bring it to voters in 2020.

DOJ lawyers made it clear in the first page of the brief filed with the U.S. Supreme Court that they were not aiming to address whether Apodaca was correctly decided.

"Nor does this brief contend that a non-unanimous jury rule is preferable to a unanimous jury rule," the brief reads. "In fact, there is widespread agreement among the stakeholders in Oregon's criminal justice system that the state's constitution should be amended to require jury unanimity prospectively."

Rather, the brief was filed to outline the impact of ruling that the Sixth Amendment requires unanimity on state prosecutions. 

"I filed the amicus brief in Ramos ... to explain the dire situation the Oregon justice system would find itself in if Apodaca were to be overturned," Attorney General Ellen Rosenblum said in a statement. 

As Oregon's attorney general, she favors unanimous jury verdicts for cases going forward.

But, Rosenblum clarified, for 47 years, Oregon judges have relied on the Apodaca ruling upholding the constitutionality of non-unanimous verdicts. 

"If that decision were to be reversed now, hundreds, if not thousands, of past Oregon felony convictions since 1972 could be overturned," Rosenblum said. "Already criminal defense lawyers have set over 250 cases currently on direct appeal in motion."

Oregon Justice Resource Center Executive Director Bobbin Singh said this was an unfortunate position for Rosenblum to take, accusing her of being "afraid of too much justice."

Everyone acknowledges and admits that the non-unanimous jury system is rooted in racism and xenophobia, Singh said. 

"It undermines the integrity of convictions," he said. "I think this is all well-understood and accepted by pretty much everyone at this point. If we accept that, then we should accept it in its entirety."

He likened the current dilemma with the case McCleskey v. Kemp — "one of the most horrific decisions to emerge from the Supreme Court as it relates to racial disparities and discrimination and the death penalty."

In the 1987 decision, Singh said, the U.S. Supreme Court acknowledged racial disparities existed when it came to death sentences, but said it would be "too disruptive" to fully acknowledge the problem. 

"We can't accept these truths and these realities in piecemeal or in ways that are just convenient for us," Singh said. 

DOJ attorneys said Oregon has a legitimate reliance in maintaining convictions made since Apodaca, saying the brief was submitted to alert the Supreme Court that overruling the 1972 decision would cause widespread disruption in the criminal system, including to the victims and witnesses in each felony case tried to conviction and affirmed in the past eight decades in Oregon.

"The extent to which Oregon has relied on Apodaca cannot be overstated," the brief said. "Oregon courts have given a non-unanimous jury instruction in almost every single felony jury-trial case for the past 47 years."

Tens of thousands of jurors have followed these instructions. The DOJ outlined a future if Apodaca was overturned:

Trial, appellate and post-conviction courts would be flooded with non-unanimity claims.

The criminal justice system would be overwhelmed by the "staggering" number of cases to be re-tried.

Many cases could not be re-tried due to loss of evidence and witnesses from the passage of time. 

In Ramos' reply brief, his attorneys said Apodaca was a splintered decision.

"So even from the very beginning, convictions obtained by non-unanimous verdicts rested on unsteady— indeed, defective — legal footing," attorneys said in the brief. "Louisiana and Oregon relied on Apodaca at their own risk."

They also contended that there is no good reason to believe ruling in Ramos' favor would severely burden the court system. 

Rosenblum said a better outcome would stem from voters, not the courts, eliminating Oregon's non-unanimous system.

"In my view, legislators should refer this important issue to the ballot so Oregonians can vote, and hopefully end the long-standing practice in Oregon of non-unanimous jury verdicts," Rosenblum said. "If we move forward with a referral to the people, I believe the Supreme Court will be less likely to outright reverse Apodaca, and we will be in a much better position to make a compelling argument to the Court to that effect."

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PLW: US Supreme Court Strikes Huge Blow at Civil Forfeitures

Matthew T. Mangino

The Legal Intelligencer

February 28, 2019

Opponents of civil asset forfeiture laws recently scored a big victory before the U.S. Supreme Court.

Those alarmed by the expansion of civil asset forfeiture often cite the risk for abuse because in many states, like Pennsylvania, law enforcement have an incentive to seize property, as they receive some or all of the proceeds from its sale.

According to the American Civil Liberties Union (ACLU), in the last decade Pennsylvania law enforcement has confiscated over $100 million in private property through civil asset forfeiture.

The U.S. Supreme Court ruled Feb. 20, that the Eighth Amendment’s ban on excessive fines applies to the states through the due process clause of the 14th Amendment.

The court ruled on behalf of Tyson Timbs, who was fighting the civil forfeiture of his $42,000 Land Rover after he used it to sell heroin to undercover officers. The maximum fine for the drug charge was $10,000.

The Indiana trial court found that Timbs used the Land Rover to facilitate a crime, but found that the forfeiture of the vehicle “would be grossly disproportionate to the gravity of Timbs’ offense, hence unconstitutional under the Eighth Amendment’s excessive fines clause.”

On appeal, the Indiana Supreme Court held that the excessive fines clause only constrains federal actions and is not applicable to the states.

During the infancy of the United State of America—following the ratification of the Constitution—James Madison introduced 20 proposed amendments to the Constitution. Twelve of those amendments were approved by the Congress and 10 were ratified by the states.

Those 10 amendments were enacted in 1791 and became known as the Bill of Rights. The Eighth Amendment, is simple and straightforward. The Eighth Amendment provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Following the Civil War, the 14th Amendment extended the protections of the Bill of Rights to the states. The U.S. Supreme Court has already decided that the Eighth Amendment provisions prohibiting “excessive bail” and “cruel and unusual punishment” apply to the states through the Fourteenth Amendment.

Both provisions have been held to be “fundamental to our scheme of ordered liberty” with “deep roots in our history and tradition.”

In Timbs v. Indiana, 586 U.S. ___ (2019), the court was asked to decide if the 14th Amendment incorporated the excessive fines clause of the Eighth Amendment to the states.

Last fall, the Pennsylvania Supreme Court was asked to determine an issue relating to asset forfeiture. The court held that there is no common-law power to take property through civil forfeiture.

Justen Irland was arrested in Adams County when he allegedly brandished a handgun to another driver during a road rage incident. Irland pleaded guilty to disorderly conduct, a summary offense, and was fined $200.

The state also confiscated his gun. Although there was no statute authorizing the government to use civil forfeiture to take property connected to the crime of disorderly conduct, the Adams County District Attorney’s Office argued that it had inherent “common law” authority to use civil forfeiture to take and keep property that law enforcement believed was connected to any crime—even disorderly conduct.

Under Pennsylvania’s civil asset forfeiture laws, the government can legally take property it claims is connected to illegal activity without convicting, or even charging, the property owner of a crime.

Police and prosecutors who make decisions about when to pursue civil forfeiture can keep all of the forfeited funds for their own budgets. Pennsylvania law enforcement officials have a direct financial incentive in pursuing forfeitures.

The Pennsylvania Supreme Court concluded that there is “no historical foundation establishing common law civil forfeiture in the commonwealth and that civil forfeiture of derivative contraband requires statutory authorization,” see Commonwealth v. Irland, 32 MAP 2017.

In Timbs, the U.S. Supreme Court acknowledged that by 1787 the constitutions of eight states—about 70 percent of the population—expressly prohibited excessive fines. By 1868, 90 percent of the country’s population lived in a state that prohibited excess fines. Today, all 50 states have a constitutional provision prohibiting the imposition of excessive fines.

Justice Ruth Bader Ginsburg announced the decision for the court in Timbs, saying that the Eighth Amendment’s excessive fines clause protects against government retribution.

“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties,” Ginsburg wrote.

Ginsburg continued, “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies.”

All states and the federal government allow law enforcement to seize and forfeit cash, property and other materials they believe are associated with illegal activity, reported the National Conference of State Legislatures.

Once property has been seized, prosecutors file civil actions seeking to forfeit property suspected of being involved in illegal activity. The action is typically against the property—not the person—and can be seized regardless of what happens on the criminal side of the case.

In Timbs, the state of Indiana attempted to make the argument that “in rem” actions, against the property itself and not the owner, are beyond the reach of the excessive fines clause. In Austin v. United States, 509 U.S. 602 (1993), the court specifically held that civil in rem forfeitures fall within the clause’s protection when they are at least partially punitive. The high court chose not to revisit that decision in Timbs.

The concern over abuse of civil forfeitures statutes is being gradually addressed by state legislatures across the country. North Carolina, New Mexico and Nebraska have abolished civil forfeiture, according to the National Conference of State Legislatures.

Eleven states, California, Connecticut, Iowa, Minnesota, Missouri, Montana, Nevada, New Hampshire, Ohio, Oregon and Vermont—require a criminal conviction—proof beyond a reasonable doubt—to engage in some or all forfeiture proceedings.

Ginsburg plainly set forth the fundamental concern with civil asset forfeitures when she suggested, “Fines may be employed ‘in a measure out of accord with the penal goals of retribution and deterrence,’ for ‘fines are a source of revenue,’ while other forms of punishment ‘cost the state money.’”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll, 2010,” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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GateHouse: President seeks to amend the Constitution by executive order

Matthew T. Mangino

GateHouse Media

November 3, 2018

On the eve of the midterm elections, the president has promised to end birthright citizenship embodied in the 14th Amendment to the U.S. Constitution.

The most recent amendment to the U.S. Constitution was ratified in 1992, some 202 years after it was proposed by the first Congress. The president wants to erase a portion of the 14th Amendment with the swipe of a pen.

This country’s last constitutional amendment, the 27th Amendment, also known as the Congressional Compensation Act of 1789, was actually the second of 12 Amendments proposed in 1789. Ten of those proposed Amendments were timely ratified and became the Bill of Rights.

According to the Constitution Center, there was no time period for ratification of a proposed Amendment by the states. After only six states ratified what would become the 27th Amendment, it remained dormant for almost 80 years.

In 1873, Ohio ratified the amendment as an expression of dissatisfaction with attempts by Congress at the time to increase their salaries. The amendment once again lay dormant, but in 1978 Wyoming ratified it, and by 1992, the requisite three-quarters of all states had ratified the Amendment — it was certified as the 27th Amendment.

At issue today is the 14th Amendment, ratified by Congress in 1868 as part of the civil rights amendments after the Civil War. The 14th Amendment provides in part, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

“What (President) Trump is seeking to do is enact a constitutional amendment through executive fiat through the phone and the pen, and you can’t do that,” Matthew Kolken, an immigration lawyer who is an elected member of the American Immigration Lawyers Association’s board of governors told Business Insider. “The process to enact a constitutional amendment is exceptionally difficult and designed that way.”

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.

The only method ever used to amend the Constitution has been Congress proposing an amendment in the form of a joint resolution. Once passed by Congress, a proposed amendment becomes part of the Constitution as soon as it is ratified by 38 of the 50 states.

The president has no constitutional role in the amendment process. In fact, the Congressional resolution does not go to the White House for signature or approval. The lack of any role for the president in amending the Constitution makes Trump’s proposed executive order even more troubling.

The 14th Amendment cannot be changed by executive order, or even by an act of Congress. It requires a constitutional amendment.

In 1995, Walter Dellinger, then the head of the Department of Justice’s Office of Legal Counsel, testified before Congress on the department’s position that any action to limit birthright citizenship would be unconstitutional. He said at the time that birthright citizenship is “fundamental to our liberty as we understand it.” According to Lawfareblog.com, Dellinger noted this week that this position “has never been publicly called into question.”

Unfortunately, the president has no regard for the law or the Constitution. Whether his threat to sign away birthright citizenship is just that — election bluster to motivate his far right base — or he truly intends to take action, he is being, and will continue to be, challenged.

Trump’s cockamamie ideas with regard to immigration have been thwarted. His family separation policy was met with intense opposition from both sides of the aisle and his executive order seeking to restrict immigration and travel to the U.S. was upheld on the third try after federal courts blocked the first two versions.

Even leaders in his own party have rejected the president’s idea out of hand. GOP Speaker of the House Paul Ryan opposes Trump’s plan to issue an executive order. “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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