n2 Brzonkala's lawyer testified again about the Fourteenth Amendment, somewhat more cautiously than in his VAWA testimony, and again urged additional findings. 1998 House Hate Crimes Hearings, 1998 WL 514016 (Statement of Cass Sunstein) ("there is a plausible argument that Congress can reach private conduct under the fourteenth amendment, but the current Supreme Court is not likely to accept this argument" and a "plausible" argument that Congress can reach private conduct because of state failures "to provide acceptable (or equal) protection against hate crimes, but this argument should depend on explicit findings and a good factual record"). To date, no proposal contains such findings.
n3 Although these proceedings are not in the record (Pet. App. 191a (Niemeyer, J., concurring)), this Court may take judicial notice of official proceedings in another court. E.g., Burbank-Glendale-Pasadena Airport Authority v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998); Opoka v. Immigration and Naturalization Service, 94 F.3d 392, 394 (7th Cir. 1996) (court "has the power [and] . . . the obligation to take judicial notice of the relevant decisions of courts . . ., whether made before or after the decision under review").
n4 See also, e.g., Plaintiff's Memorandum In Opposition To Defendants' Motion To Dismiss Filed 3/15/96 (J.A. 6) 12 (noting that the "true significance" of Lopez was the Court's "surprising unwillingness . . . to apply 'rational basis' analysis," whereby courts "hypothesize situations whereby the stream of interstate commerce may be affected in any conceivable way"; and urging the court to apply such "rational basis analysis" anyway).
n5 See Pet. App. 80a-82a. Indeed, in this Court, when challenged to explain what significance the non-economic nature of the conduct had in Lopez, Brzonkala responded that there was no reason "why petitioners should have provided any such explanation" because Lopez just "restated the traditional test." Brzonkala Certiorari Petition Reply Brief 8.
n6 The United States asserts that this Court was unconcerned with whether the statute was limited to restaurants with a specific interstate connection. U.S. Br. 27 n.15 (quoting McClung, 379 U.S. at 304-05). The portion of the case they quote, though, only demonstrates that the Court was not particularly concerned with whether the regulation would substantially affect interstate commerce; it was sufficient that the regulated activity (restaurants with interstate connections) did.
n7 E.g., National Institutes of Health, Statistics Related To Overweight And Obesity, NIH Publication No. 96-4158 (July 1996), available at www.niddk.nih.gov/health/nutrit/pubs/statobes.htm (300,000 preventable deaths per year caused by poor diet and inactivity).
n8 Brzonkala misstates the record by referring to Congress's "findings" concerning "gender-motivated" violence where the actual report refers only to all domestic violence or all violence against women. Brzonk. Br. 11-12 (citing S. Rep. No. 101-545 for purported propositions that "gender-motivated violence causes 'lost careers . . .'" and "gender-motivated violence can force victims into poverty" (emphasis added)).
n9 In Section 320904 of Public Law 103-322, Congress amended the GFSZA to set forth findings that crime is a nationwide problem which is exacerbated by the interstate movement of drugs, guns, and criminal gangs; firearms and their component parts move easily in interstate commerce and guns have been found in increasing numbers around schools; citizens fear to travel through certain parts of the country due to concern about violent crime and gun violence; the occurrence of violent crime in school zones has resulted in a decline in the quality of education, which in turn has had an adverse impact on interstate commerce; and States are unable to handle gun-related crime on their own. 18 U.S.C. § 922(q)(1).
n10 Neither petitioner explains how this proposition can be reconciled with the numerous authorities stating that the commerce power is plenary when it is regulating private conduct and acting properly within that power. E.g., Southland Corp. v. Keating, 465 U.S. 1, 11 (1984) ("At least since 1824 Congress' authority under the Commerce Clause has been held plenary").
n11 See, e.g., City of New York v. F.C.C., 486 U.S. 57, 63 (1988) ("When the Federal Government acts within the authority it possesses under the Constitution, it is empowered to pre-empt state laws to the extent it is believed that such action is necessary to achieve its purposes. The Supremacy Clause of the Constitution gives force to federal action of this kind . . ."); Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977) ("When Congress has 'unmistakably . . . ordained' . . . that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall").
n12 Petitioners seem to believe that Justice Kennedy's concurrence in Lopez supports this startling theory. Brzonk. Br. 32-34; U.S. Br. 31. In fact, the Kennedy concurrence merely points out that the threat to individual liberty is at its apex when Congress regulates in areas of traditional state activity because lines of political accountability are confused. Lopez, 514 U.S. at 576-77 (Kennedy, J., concurring). That insight simply suggests that this Court's concern over cabining Congress's authority within constitutional limits should be heightened when Congress regulates in an area of traditional state authority, not that it should abandon an unbroken line of precedent permitting Congress to both legislate and preempt whenever it is properly within one of its enumerated powers.
n13 In M'Culloch, this Court did note that a law might not be "necessary and proper" if it were a pretext for the regulation of something outside the enumerated powers. M'Culloch, 17 U.S. at 423. Although this Court has not generally considered Congress's motive, it can hardly be disputed that the real purpose of VAWA was not to address a problem in interstate commerce, but to do something about violence against women, see, e.g, U.S. Br. 3, and Subtitle C's primary purpose was to send a "signal." See also 1998 Senate Hate Crimes Hearings 16 (Holder Statement) (criminal provisions of VAWA (18 U.S.C. § § 2261, 2262) were inadequate because they did not have a "gender motivation" requirement and prosecutions under them were thus unable to attach a "stigma."
n14 The United States suggests that Subtitle C enforces Section 1 prohibitions by allowing crime victims to avoid state justice systems. U.S. Br. 44 n.24. (Under this theory, it seems, Congress can "enforce" Section 1 by taking whole areas of authority from the states, and thus avoiding any possible Section 1 violations in those areas.) Even assuming that would be proper "enforcement" legislation, Subtitle C does not allow any victim to avoid state criminal processes.
n15 The criminal provision of Section 2 provided that "if two or more persons in any state or territory conspire or go in disguise upon the highway or on the premises of another for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any state or territory from giving or securing to all persons within such state or territory the equal protection of the laws, each of said persons shall be punished . . ." Harris, 106 U.S. at 629.
n16 This Court contrasted the first two sections of the Civil Rights Act of 1875 with the fourth section, which precluded disqualification of a citizen from jury duty on the basis of race or color, and which had been sustained in Ex Parte Virginia, 100 U.S. 339 (1879). This Court found that an indictment against a state officer under that fourth section to be "entirely corrective in its character." Civil Rights Cases, 109 U.S. at 15.
n17 This well-recognized limit on federal legislative power is consistent with the rejection of the Bingham Amendment, described in detail in City of Boerne, 521 U.S. at 520-24. That proposal might have given Congress the right to act directly on private conduct to protect people's rights, and its defeat demonstrated the country's unwillingness to so radically change the constitutional design. E.g., Alfred Avins, Federal Power To Punish Individual Crimes Under The Fourteenth Amendment: The Original Understanding, 43 Notre Dame Lawyer 317, 327 (1968) ("The remedy that Congress did propose [in the Fourteenth Amendment] was that if state officials were derelict in their duty . . . then under the fifth section Congress could enforce the first section by punishing such state officials for their willful dereliction . . . But in no event did the framers in the Thirty-Ninth Congress contemplate that private criminals could be punished by federal authority under the fifth section of the fourteenth amendment. The defeat of the original Bingham draft shows that Congress wanted to foreclose even the possibility that such a power might be derived from the proposed amendment" (emphasis added)).
n18 Tort immunity, for example, although it has been eliminated virtually everywhere for severe intentional torts, was justified in recent years only by the state interest in marital harmony and avoiding potentially fraudulent claims against insurance companies. Thompson v. Thompson, 218 U.S. 611 (1910); Paiewonsky v. Paiewonsky, 446 F.2d 178, 182 (3d Cir. 1971); Nicpon v. Nicpon, 145 Ill. App. 3d 464, 495 N.E.2d 1193 (1986); Varholla v. Varholla, 56 Ohio St. 2d 269, 383 N.E.2d 888 (1978).
n19 The lower rates of conviction and prosecution, for example, might be attributable to the well-known phenomenon, discussed during the hearings on VAWA, of victims declining to assist in prosecuting certain crimes. Fletcher v. Town of Clinton, 1999 WL 997806, * 8 (1st Cir. Nov 8, 1999) (noting evidence that a high percentage of domestic violence victims are uncooperative).
n20 Nor do they violate due process. DeShaney v. Winnebago County Dep't Of Social Services, 489 U.S. 189, 197 (1989) ("a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause").
n21 That claim would be subject to rational basis scrutiny, and the issue of whether it could be justified under such scrutiny was not before the court in Watson. Cf. Eagleston v. Guido, 41 F.3d 865, 878 (2d Cir. 1994) (differential treatment of domestic violence passes rational basis scrutiny).
n22 State rules of practice apply in state court even when federal rights are at issue. Wolfe v. North Carolina, 364 U.S. 177, 195 (1960); 16B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d, § 4023 (1996).
n23 Petitioners and/or Congress's reliance on the lenient sentences given rapists (Brzonk. Br. 16) is misplaced for the same reason. Rape sentences are shorter in federal court. American Bar Ass'n, The Federalization Of Criminal Law 30 (1998) (Chart 7 illustrating Department of Justice statistics).
n24 E.g., Final Report Of The Task Force On Racial And Ethnic Bias And Task Force On Gender Bias In The D.C. Courts 169 (1992) ("courts hold mothers to a higher standard of behavior"); Gender and Justice: Report of the Vermont Task Force on Gender Bias in the Legal System 101 (1991) (courts place more weight on "women's alleged misconduct during marriage and following separation" than men's in awarding custody); Louisiana Task Force on Women in the Courts, Final Report 64-65 (1992) (sexual stereotyping works against both sexes in different contexts); Report of the Fairness and Equality Committee of the Supreme Court of Idaho 12 (1992) ("women are held to a higher and different standard than fathers and are judged more harshly than men"); Final Report of the Equality in the Courts Task Force, State of Iowa 131 (1993) (citing stereotypes "that operate to the disadvantage of women (they are subject to heightened moral scrutiny and heightened scrutiny of parenting and personal behavior than fathers)").