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Oh boy, fireworks in opinions out of the en banc 4th Cir. today. Will post when it hits the court's website, but a preview: principle dissent suggests the majority are chumps, says that the maj. op. should be void for vagueness, and that they don't care about abused women.
This draws a rebuke from three judges concurring: "I express hope that we will turn away from the use of inflammatory language, which diminishes the value of our work."
To which the dissenter specially replies: civility may censor dissenting voices.
To which the dissenter specially replies: civility may censor dissenting voices.
If you've been following along, you can probably guess who wrote the, er, animated dissent.
Here we go. Divided 4th Cir. en banc holds unconstitutional Virginia's two-step scheme whereby it first civilly designates certain individuals as "habitual drunkards" and then criminally prosecutes habitual drunkards for possessing alcohol. ca4.uscourts.gov/Opinions/17132…
The maj. op. constitutional ruling has two parts. First, it holds that the Virginia scheme violates due process because the term "habitual drunkard," which is undefined in statute and variously defined in state courts, is unconstitutionally vague.
Second, the maj. op. holds that even if you conformed "habitual drunkard" to mean alcoholics or some similar sub-group, you would be criminalizing an illness, which violates the 8th Amendment's proscription of cruel and unusual punishment.
Here's where the fireworks start. Concurring Judge Keenan writes to express bafflement at the principal dissent's tone and claims.
She urges civility and "express hope that we will turn away from the use of inflammatory language, which diminishes the value of our work."
She urges civility and "express hope that we will turn away from the use of inflammatory language, which diminishes the value of our work."
Dissenting Judge Wilkinson disagrees on both constitutional points, and says it is ironic (Alanis-brand) that the decision comes on the cusp of the centennial of women's suffrage.
Dissenting Judge Wilkinson then devotes a section to discussing the ills of alcoholism for women before expressing confusion about "why the majority would go to such lengths to thwart attempts to ameliorate these conditions."
"We should not, for want of a better word, be such chumps."
Judge Wilkinson, specially dissenting, then responds directly to Judge Keenan, again suggesting that the maj. op. has "somber implications for the abuse of women both on campus or in the home."
Just FYI, this case is about homeless drunks; there was nothing about abuse in it.
Just FYI, this case is about homeless drunks; there was nothing about abuse in it.
Then he invokes the possibility that civility is a tool of censorship.
"Animation defines the First Amendment I was taught to revere."
"Animation defines the First Amendment I was taught to revere."
Anyway, given the nature of the disagreement and the tenor of the decisions, it would not surprise me at all if SCOTUS were to take this up if Virginia seeks further review.
Future programming note: federal law ALSO uses the term "habitual drunkard" in immigration law, where it also lacks a statutory definition.
But there's more caselaw defining the term in the immigration context.
But there's more caselaw defining the term in the immigration context.
