Constitutional challenge to VAWA raises ire.
"She had the perfect set of facts," said Wagner, a Richmond, Virginia, attorney specializing in cases dealing with colleges and universities. And enough "fall-back remedies" at her disposal to pursue other legal recourse should the VAWA claim fail. Brzonkala's suit claimed that in September 1994 two Virginia Polytechnic Institute football players raped her three times in the coed dorm they shared. The suit alleged the university had committed a breach of its contract to provide a safe environment and had created a hostile environment under Title IX, Wagner said.
In March, reversing its own three-judge panel opinion, the Fourth Circuit ruled, 7-4, that the VAWA civil rights remedy is unconstitutional. "Such a statute, we are constrained to conclude, simply cannot be reconciled with the principles of limited federal government upon which this nation is founded," wrote Fourth Circuit Judge J. Michael Luttig. (Brzonkala v. Virginia Polytechnic Institute & State University, Nos. 96-2316, 96-1814, 1999 WL 111891 (4th Cir. Mar. 5, 1999).)
Wagner's initial hunch about the Supreme Court is closer to reality. Both she and her co-appellant, the NOW Legal Education and Defense Fund, are preparing to file certiorari.
Brzonkala's case may be heard by the High Court because the opinion marks the first time a federal circuit court has struck down VAWA's groundbreaking civil rights remedy. Twelve other federal district courts have upheld the provision, which entitles victims of gender-motivated felonies to sue for compensatory, punitive, declaratory, injunctive, or any other court-approved relief in a federal court, without pursuing a criminal action. (42 U.S. C.A. [sections] 13981.)
The remedy is part of a comprehensive statute enacted in 1994 to address the problems of domestic violence and sexual assault. The law's passage was the culmination of four years of congressional hearings in which states acknowledged they inadequately prevented gender-motivated violence. Statistics supported the contention by VAWA's proponents that women who are beaten or stalked by boyfriends or husbands shop and work less than other women. Congress determined that lower sales and work absenteeism affected interstate commerce and used the Commerce Clause to promulgate VAWA.
But the Fourth Circuit said Congress exceeded its constitutional powers when it enacted VAWA's civil remedy pursuant to its authority under the Commerce Clause and [sections]5 of the Fourteenth Amendment--the Enforcement Clause.
The court found no nexus between commerce and gender-motivated violence. Gender-motivated violent acts are a private issue, the court said, and the inherent nature of violence is not economic. The opinion is based on federalism principles developed by the Supreme Court in U.S.V. Lopez (514 U.S. 549 (1995)) and City of Boerne v. Flores (521 U.S. 507 (1997)).
In Lopez, the Supreme Court disabled the Gun-Free School Zones Act, finding that gun possession near schools did not significantly affect interstate commerce. In Boerne v. Flores, the Court found the Religious Freedom Restoration Act exceeded Congress's power under [sections] 5 of the Fourteenth Amendment because it attempted to regulate private conduct.
Similarly, the circuit found gender-motivated violence is a private act and cannot be regulated by the government.
"In the most specific way, the [Fourth Circuit] opinion is about an important tool to deal with violence against women. In a broader sense, it's about what Congress can do to solve social problems," said Erwin Chemerinsky, a constitutional scholarwith the University of Southern California Law Center.
Technically, the opinion affects potential filers in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Politically, however, the opinion has riled the statute's proponents.
"It's not appropriate for the court to substitute its view against the legislative findings of Congress. This is an important civil remedy to deter violence," said Martha Davis, legal director of NOW's Legal Defense and Education Fund.
"The Fourth Circuit, frankly, is wrong," said Roxanne Barton Conlin, a former ATLA president who practices in Des Moines, Iowa. "In the Gun-Free School Zones Act, there was no investigation. There were no findings by Congress" that guns in schools have an impact on interstate commerce. VAWA established the economic consequences of gender-motivated violence, she said.
Wagner found the Fourth Circuit's logic to be faulty. "Congress can pass laws regulating a Michigan farmer's corn used as fodder for animals. It never leaves the farm. But when more than half the population is subjected to the most disgusting acts of violence, the court said that Congress can't protect them?"
Chemerinsky characterized the Fourth Circuit as a conservative court. Wagner said the circuit's two vacant judgeships also influenced the opinion. The opinion is a stunning contrast to previous federal rulings, and Davis said he is confident that it will not influence future federal circuit decisions.
Prior to the Fourth Circuit's opinion, 11 federal district courts had upheld VAWA's constitutionality because they found Congress had enacted the legislation on a sufficient amount of evidence submitted at the hearings.
Less than a month after the Fourth Circuit rendered its opinion, a federal district judge in New York agreed with the 11 other district courts and admonished the Fourth Circuit for its finding.
"A federal court should pause long and hard before declaring unconstitutional a statutory provision that is the product of such lengthy inquiry and detailed findings by Congress itself consisting of the democratically elected representatives of the several states," wrote Judge Jed Rakoff. (Ericson v. Syracuse University, 98 Civ. 3435 JSR, 1999 WL 212684 (S.D.N.Y. Apr. 13, 1999).)
Advocates say the civil rights remedy leveled the playing field for victims of domestic violence.
"Violence against women is a hate crime. The act is an important step in women's civil rights and the prevention of domestic violence," said Conlin. Before VAWA, she used civil claims such as assault, battery, or negligent or potential infliction of emotional distress, but the cases just "limped along."
Claims have concurrent state and federal court jurisdiction, but Conlin prefers to file the claim in federal court, especially for small-town victims. Filing in federal court avoids a husband's or boyfriend's political influence or connection with the local court, she said.
Conlin acknowledged VAWA is not widely used, which she attributed to unawareness of the statute or to attorneys' reluctance to use it because it is a developing area of law.
She recommended that attorneys filing VAWA actions attach other claims to the suit and anticipate the defense raising a constitutional challenge.
Once a challenge is raised, the Department of Justice and NOW automatically provide technical aid to plaintiff lawyers. In the Brzonkala case, both helped Wagner argue the issue before the Fourth Circuit.
If the Supreme Court agrees to hear Brzonkala's case, it will be heard by nine justices who have issued recent decisions striking down federal laws. Chemerinsky said the most significant trend in the decisions by Chief Justice William Rehnquist's Court is protecting state sovereignty.
No one can predict what the Supreme Court will do, but Chemerinsky said Brzonkala's case offers the Court an opportunity to clarify its position on Lopez and provide direction on how far Congress can go when it passes laws aimed at solving social problems.
Regardless of the Supreme Court's decision on hearing Bronzkala's appeal, Wagner foresees plans for improving VAWA. If the Court denies their petition, she intends to go back to Congress to request some changes. She believes plaintiffs would gain the freedom to name third-party defendants if the word "felony" were removed from the statute.
If the Court grants the hearing and subsequently issues an opinion that supports VAWA's civil rights remedy, Wagner said, "then others will use it, and case law will help us get through the rough spots."
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|Date:||Jun 1, 1999|
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