Thursday, May 5, 2016
Machinists v. Wisconsin, Case No. 2015CV000628 (Dane Co. April 8, 2016) Download Wisc Order is an important case. A state trial judge struck down 2015 Wisconsin Act 1 which was known as the right to work law. This statute prohibits labor organizations from assessing dues on non-union members and negotiating union security clauses in collective bargaining agreements. This case is important because it is the only decision which has struck down a right to work statute. Slip op. at 13.
Applying the Wisconsin Constitution, the court held that this statute resulted in a taking of property without just compensation. The court engaged in an extensive analysis of property rights and concluded that the union had a property interest in the services they perform for both members and non-members because labor is a commodity that can be bought and sold.
No doubt this decision will be appealed. Law review commentary would be welcomed. I am stunned that this decision is not reported.
Mitchell H. Rubinstein
Thursday, April 14, 2016
Breaking News California Appellate Court Reverses Vergara Which Held Calif Tenure Statutes Unconstitutional
On April 14, 2016, a California appellate court reversed a lower court decision which declared several California tenure statutes unconstitutional under state law. Download Vergara Court of Appeals Opinion
In a lengthy well-reasoned opinion the court rejected a facial challenge to the statute and reasoned that if poor students were receiving an inferior education it was because of staffing decisions, reasoning:
It is possible that the challenged statutes—in the way they pertain to teacher tenure and seniority—lead to a higher number of grossly ineffective teachers being in the educational system than a hypothetical alternative statutory scheme would. This possibility may present a problem with policy, but it does not, in itself, give rise to an equal protection violation, which requires a classification affecting similarly situated groups in an unequal manner. (Cooley, supra, 29 Cal.4th 228, 253.)
Assuming that poor and minority students encounter more grossly ineffective teachers and that this impacts their constitutional right to “basic educational equality” (Butt, supra, 4 Cal.4th 668, 681), the constitutional infringement is the product of staffing decisions, not the challenged statutes. Even if the statutes were struck down, the harm at issue—the disproportionate assignment of inferior teachers to poor and minority students—could still occur as before. (Any system will have some teachers who are not as effective as others.) And, since the challenged statutes, on their face and in effect, do not dictate where teachers are assigned, declaring the statutes facially unconstitutional would not prevent administrators from assigning the worst teachers to schools serving poor and minority students.
This case attracted significant media attention, several amicus briefs and copycat cases in other states. This high profile case was backed by former CNN reporter Cambell Brown.
Mitchell H. Rubinstein
Thursday, February 4, 2016
UAW v. Hardin County, ___F. Supp. 2d ___(W.D. Kentucky, Feb. 3, 2016), is an important case. Download Hardin County Order
A federal court held that a municipal ordinance which mandated right to work and limited union hiring halls and due-checkoff provisions was preempted by the NLRA. The NLRA, of course and most notably in Section 14(b), permits STATES to enact Right to Work laws.
The decision, which spans 14 pages, is well written and provides a nice summary of the NLRA and existing precedent in this area. As the court explains:
Section 14(b) provides that nothing in the NLRA shall be read to authorize the execution or application of union-security agreements “in any State or Territory in which such execution or application is prohibited by State or Territorial law.” 29 U.S.C. § 164(b). As the plaintiffs observe, it makes little sense to read “State or Territorial law” as encompassing local law in light of the statute’s previous reference to “any State or Territory”—if “State or Territorial law” includes the laws of political subdivisions, then the statute must be read “in any State or Territory [or political subdivision thereof]” to avoid assigning two different meanings to “State” in the same sentence. This is not a logical reading; “[a] standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning.”
Law review commentary would be most welcome.
Mitchell H. Rubinstein
Monday, March 9, 2015
Department of Transportation v. Association of American Railroads, No. 13-1080 (March 9, 2015) is one of those administration law cases that to the casual observer at first glance looks complicated, technical and, to be honest, boring. The case exists because in 2008, Congress granted Amtrak and the Federal Railroad Administration joint authority to issue "metrics and standards" relating to Amtrak's scheduling and performance. The Association ("AAR") challenged this authority in this case because the metrics and standards imposed adversely affects their members' freight business interests. Normally, this is the type case I would not even read. I'm sure glad I did.
The AAR argued Congress violated separation of powers rules by delegated this rule-making authority to Amtrak -- a private entity. The Court of Appeals held for AAR on both issues -- that Amtrak was a private entity and that the Congress's delegation of authority violated separation of powers. The Supreme Court reversed that first finding today and held unanimously that for separation of powers purposes, Amtrak is a government entity. The Court remanded the case to the Court of Appeals for further consideration in light of this holding.
Justice Kennedy wrote the opinion joined by seven other Justices, including Justice Alito, who concurred. Justice Kennedy acknowledges that further litigation will determine whether Amtrak's role in setting rail regulations passes constitutional muster. Justice Thomas concurred in the judgment only. Justices Alito wrote about the implications for the Amtrak legislative and regulatory scheme now that Amtrak is held to be a governmental entity for these purposes. These issues include the oath or affirmation requirement in Art. IV, cl. 3; the commission requirement in Art. II, Sec. 3, cl. 6; the scope of the relatively obscure non-delegation doctrine and whether Amtrak's legislative and regulatory scheme violates separation of powers.
Justice Thomas goes further -- his concurring opinion is a lengthy and powerful commentary on the separation of powers doctrine's history and purpose. He concludes his opinion this way:
In this case, Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads’ statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority’s holding that Amtrak is a governmental entity is all but a non sequitur. These concerns merit close consideration by the courts below and by this Court if the case reaches us again. We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.
This case is going back to the Court of Appeals and may be satisfactorily resolved there or below, but the Court's decision and opinions today set the stage for a possible major showdown on separation of powers and the Court's non-delegation doctrine.
- Eric Jaffe, "The five key moments from Amtrak's Supreme Court hearing," The Atlantic CityLab (Dec. 12, 2014).
- Greg Stohr, "Supreme Court questions law that helped Amtrak run on time," BloombergPolitics (Dec. 8, 2014).
- Patti Goldman, "Supreme Court case concerning Amtrak contains hidden twist," EarthJustice Blog (Dec. 8, 2014)
- Stephen Wermiel, "SCOTUS for law students: Non-delegation doctrine returns after long hiatus," SCOTUSblog (Dec. 4, 2014).
Edit to add:
- Lyle Denniston, "Opinion analysis: Deciding — without deciding finally," SCOTUSblog (Mar. 9, 2015).
 The Court previously held Amtrak to be a "Government actor" for First Amendment purposes in Lebron v. National R. R. Passenger Corp., 513 U.S. 374 (1995).
Saturday, March 15, 2014
The Texas Court of Criminal Appeals this week held that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies retroactively. In Miller, the Supreme Court held mandatory life without the possibility of parole sentences are unconstitutional for offenders that committed their crime while under 18 years of age. The Texas case is Ex Parte Maxwell, No. WR-76,964 (Tex. Crim. App., March 12, 2014).
A jury found Maxwell guilty of capital murder arising out of a 2007 murder/robbery. The State did not seek the death penalty so under Texas law the sentence automatically became life without possibility of parole after the jury returned the guilty verdict. Maxwell was 17 when the crime occurred.
The court decided the case 5-4 and generated short two dissents (see here and here). This Texas case joins the deepening split among the several states and federal circuits regarding Miller's retroactivity. We can expect more appeals courts to weigh in on the question until the Supreme Court ultimately grants cert and resolves the matter once and for all.
Friday, March 14, 2014
In a notable state constitutional law decision, the Florida Supreme Court on certified questions from the 11th Circuit, held that Florida's statutory cap on noneconomic damages in wrongful death cases violates the equal protection clause in the Florida Constitution.
The case is Estate of McCall vs. United States, No. SC11-1148 (Fla., March 13, 2014).
Tuesday, September 10, 2013
According to a February 2012 report by the National Association of State Retirement Administrators (NASRA), “on the average, pension costs for state and municipal governments are just shy of 3% of total spending.”
NASRA’s calculations were based on the most-recent data then available from the U.S. Census Bureau. (Read more)
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein
Thursday, May 23, 2013
The Fifth Circuit Court of Appeals of Texas, located in Dallas, held last week that a trial judge's undisclosed Facebook "friendship" with the victim's father in a criminal prosecution alone does not establish grounds for recusal or disqualification. Youkers v. State of Texas, No. 05-11-01407-CR (Tex. App. -- Dallas, May 15, 2013).
Defendant in the case pled guilty to assault of his pregnant girlfriend and received a 10-year sentence suspended for 5-years plus a $500 fine. Three months, later, the State filed a motion to revoke. Defendant entered an open plea of true to the motion's allegations at the revocation hearing. The trial judge sentenced Defendant to eight-years in the state penitentary and later denied the motion for new trial. The Defedant argued on appeal that he was entitled to the new hearing because the judge and the victim's father were undisclosed Facebook "friends" and that the judge had received an improper ex parte message (one favorable to the Defendant) via Facebook from the victim's father prior to sentencing.
The court analyzed the case facts, applicable canons, and further applied the recent ABA Standing Comm. on Ethics & Prof. Responsibity, Formal Op. 462 (February 21, 2013) (authorizing judges to participate in social networking providing such participation complies with relevant ethics rules). The appellate court also examined other Texas cases involving cases where judges presided in cases where the judge had a seemingly close, public relationship with a party. For example, in Lueg v. Lueg, 976 S.W.2d 308, 311 (Tex. App--Corpus Christi 1998, pet denied), cited by the Dallas court, another intermediate appellate court held that the mere fact that a party was a former campaign manager for the judge alone was insufficient to require the judge's recusal. The court rejected Defendant's claim of actual and apparent impartiality on the record and affirmed that ground.
Not all states agree with the approach taken by the ABA (and this Texas court) on judges using social media. Last September, for example, the Florida appeals court held that a judge's Facebook friendship alone presents grounds for disqualification. Domville v. State of Florida, 103 So.3d 184 (Fla.Cir. Ct. 2012) (covered by this blog here). Florida's state judicial ethics commission had previously rendered an opinion applying a restrictive approach to social media use for judges - a different approach than the one adopted by the ABA.
The permissive approach to judicial social media use adopted by the ABA and this Texas Court requires fact-intensive analysis into the relationship between the judge and the social media friend in recusal and disqualification issues. For this reason this issue now of first impression is one likely to be revisited frequently in states applying the ABA's permissive guidelines as more judges enter the social networking world.
Tuesday, May 14, 2013
A court in Arizona reportedly held that police could not use release time for union representationalwork. A newspapter article describing this case is available here. The plaintiff's theory appears to be that paying public employees for union business is a gift of public funds.
I do not buy this for a minute and it is just another example of anti-union animus that some people feel. I see this as no different than wages. A union also presents order in the workforce and that provides a benefit to the public. Preventing arbitrary employer action is also in the publics interest as most labor law statutes were enacted to reduce industrial strife. Public policy supports the right to organize and bargain collectively.
Law review commentary on this important topic would be most welcome.
Mitchell H. Rubinstein
Friday, October 26, 2012
In a major family law decision, the Supreme Court of Kentucky yesterday, relying on Troxel v. Granville, 530 U.S. 57 (2000), held that a fit parent is presumed to act in the best interest of the child and that a grandparent seeking child visitation against the parent's wishes must overcome the presumption by clear and convicing evidence that allowing the grandparent visitation is in the child's best interest. Walker v. Blair, No. 2012-SC-000004-DGE (Ky., Oct. 25, 2012).
In this case, paternal grandparent filed for visitation of her grandchild after her son, the grandchild's father, committed suicide under a pre-Troxel state law. Mother opposed the visitation. The Supreme Court held the pre-Troxel grandparent visition statute to be constitutional and interpreted the law to comply with Troxel's requirement that fit parents be presumed to act in the child's best interest. Because the trial and appellate courts in this case placed the parent and grandparent on equal footing and did not give the parent's decision to deny visition the special weight required by Troxel, the Supreme Court reversed and remanded for further proceedings.
See also: Louisville Courier-Journal story here.
Monday, October 8, 2012
Various media reports
Saturday, September 8, 2012
In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution. The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).
Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor. The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use. The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test. The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.
The Arizona Court considered three approaches to the issue: (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis. Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.
Friday, August 24, 2012
The common law release rule provides that a plaintiff’s settlement with, and release from liability of, one joint tortfeasor also releases from liability all other joint tortfeasors.
The California Supreme Court repudiated the common law release rule yesterday in Lueng v. Verdugo Hills Hospital, No. S192768 (Cal. August 23, 2012). The unanamous court wrote:
The rationale for the common law release rule was “that there could be only one compensation for a joint wrong and since each joint tortfeasor was responsible for the whole damage, payment by any one of them satisfied plaintiff’s claim against all.” That rationale assumes that the amount paid in settlement to a plaintiff in return for releasing one joint tortfeasor from liability always provides full compensation for all of the plaintiff’s injuries, and that therefore anything recovered by the plaintiff beyond that amount necessarily constitutes a double or excess recovery. The assumption, however, is unjustified. For a variety of reasons — such as the settling defendant’s limited resources or relatively minor role in causing the plaintiff’s injury — a plaintiff may be willing to release one tortfeasor for an amount far less than the total necessary to fully compensate the plaintiff for all injuries incurred. As Dean Prosser observed in his criticism of the common law release rule: “There is a genuine distinction between a satisfaction and a release.”
Monday, August 20, 2012
Last Thursday, the California Supreme Court unanimously overturned a 110-year to life sentence against a juvenile offender on Eighth Amendment grounds. Citing Graham v. Florida, 130 S.Ct. 2011 (2010) (holding the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole), the court held that such a sentence against a juvenile for a nonhomicide offense violates the juvenile's right against cruel and unusual punishment.
The case is People v. Caballero, No. S190647 (Cal. Aug. 16, 2012), and may be found here.
Hat tip: Sentencing Law and Policy
Monday, July 2, 2012
Today, the New Mexico Supreme Court released a unanimous family law decision of first impression, holding that the New Mexico Emancipation of Minors Act ("Emancipation Act") authorizes a district court to emanicpate a minor for some, but not all of the enumerated purposes in the act. Applied to this particular case, the decision reversed the Court of Appeals and affirmed a district court's order emancipating the minor plaintiff while also awarding the minor monthly child support payments from her mother. Diamond v. Diamond, No, 32,695 (N.M. July 2, 2012).
Here, Jhette Diamond ("Daughter") filed for and won emancipation from her Mother at age 16 with the court reserving Daughter's right to collect child support (Daughter is now in her early 20's). Mother did not participate in the hearing, but later filed a motion to set aside the judgment. The trial court conducted a hearing on the motion and denied the Mother's relief, as well as Mother's objection to her duty to support the now emancipated Daughter (Mother conceived Daughter by artificial insemination, Id., fn 1, at 4). The New Mexico Court of Appeals reversed.
The Emancipation Act describes nine puposes for which a minor may be emancipated by a court, and further provides that a court may emancipate a minor "for one or more" of those purposes. One such purpose is the minor's "right to support by his parents." The Supreme Court applied rules of statutory construction to concludes the Emancipation Act authorized a court to emanicpate a minor "for a single enumerated purpose, for all nine enumerated purposes, or for any intermediate number of enumerated purposes." Id, at 6.
The Supreme Court also rejected Mother's argument that Daughter could not prove she was "managing her own financial affairs" (a requirement for emancipation under the Emancipation Act) if she required or needed financial assistance from her. The Supreme Court observed that the Emanicpation Act contemplated that the emancipated minor may require public assistance and expressly provides a minor may not be denied such benefits to which she may be entitled because of emancipation. In rejecting Mother's argument, the Court pointed out further that the trial court did not emancipate Daughter from her support right.
The New Mexico court closed by examining a minor's right to support from her parents under common law and the laws of other states. The several states offer mixed results often turning on statutory language, from all-or-nothing emancipation (California, Vermont), to all-or-partial emancipation (Montana, Nevada) to emanicpation that mandates continued parental support (Michigan). The court found that courts created common law emancipation to protect a child's labor from the parents' creditors, and provided for partial emancipation where appropriate. Of particular note was P. J. Hunycutt & Co. v. Thompson, 74 S.E.628 (N.C. 1912), where the court held that where the father "ran off" the son, the son's later emancipation would not halt the father's support obligations. Diamond, at 13-15.
Thursday, June 28, 2012
In what on writer called a "stinging rebuke to industry and [the challenging] states," a three-judge DC Circuit court panel Tuesday upheld the Environmental Protection Agency's ("EPA's") greenhouse gas regulations.
The case, Coalition for Responsible Reg v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), following the United States Supreme Court's 5-4 decision in Massachusetts v. EPA, 549 U.S. 497 (2007) which compelled the EPA to regulate air pollutants under the Clean Air Act's ("CAA's") authority. The EPA in turn issued an Endangerment Finding, determining that greenhouse gases may "reasonably be anticipated to endanger public health or welfare" (citing the CAA) and the Tailpipe Rule, setting emission standards for cars and some trucks. The EPA also ordered certain stationary greenhouse gas producers to obtain construction and operating permits. Finally, the EPA issued a Timing and Tailoring Rule providing that only the largest stationary producers would be initially subject to the permit requirements.
The Petitioners which included some states and industry groups challenged the rules on ground that the EPA had improperly interpreted the CAA. Yesterday, the appeals court panel consisting of Judges Sentelle (Reagan appointment), Rogers (Bush II) and Tatel (Clinton), rejected those challenges, allowing the EPA rules to stand.
The next meaningful step for the challengers in this case is the United States Supreme Court, as en banc review of this unanimous decision seems very unlikely. The Massachusetts case was decided five-to-four, and four justices are required to grant certiorari. Inasmuch as the court's composition has changed with two justices from the Massachusetts majority (Stevens, the opinion's author, and Souter) having left the court, I would say there is some chance the Massachusetts dissenters will vote to grant certiorari in the case.
Friday, July 22, 2011
Remember Gov. Walker and Wisconsin. Whatever your views on the so called "Budget Repair Bill," you must admit that this guy is radical. He now wants to use prison labor to replace union labor with prison labor. The Cap Times reports:
Gov. Scott Walker ran for election on a promise to create 250,000 jobs during his first term in office. Now it seems some of that job growth has found its way to at least one county jail in Wisconsin.
Racine County Executive Jim Ladwig told several media outlets earlier this week he plans to add shoveling, landscaping and painting to the to-do lists of county inmates. Until recently, inmates were only allowed to cut the grass along highways.
That changed Wednesday when the state's controversial collective bargaining law took effect.
Mitchell H. Rubinstein
Monday, December 6, 2010
Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability
Taylor v Brentwood UFSD, CA2, 143 F.3d 679
A Brentwood school principal, Anne Rooney, alleged that district teacher, Charles B. Taylor, used corporal punishment in violation of district policy. After investigating the allegation, the district filed disciplinary charges against Taylor. The disciplinary panel found him guilty of the charges and he was suspended without pay for one year.
Taylor then filed a Section 1983 [Civil Rights] claim, naming Rooney and other district officials as defendants. He contended that his one-year suspension from teaching constituted race discrimination in violation of the Fourteenth Amendment (equal protection). A federal district court jury agreed with Taylor’s arguments and said that Rooney was liable for over $185,000 in damages. Rooney appealed and the Second Circuit Court of Appeals in New York reversed the lower court’s decision.
The court cited with approval Rooney’s arguments that:
1. Her action [reporting the alleged use of corporal punishment] was not the proximate cause of any injury sustained by Taylor;
2. She had either absolute immunity or qualified immunity from liability because she acted pursuant to her official duty to report complaints regarding the use of corporal punishment by teachers to her superiors; and
3. Taylor, having been found guilty by the disciplinary panel, could not relitigate the issue of whether he was treated differently from similarly situated Caucasian teachers in his Section 1983 action.
The Circuit Court commented that “Taylor had a history of physical confrontations with students ...” occurring throughout the administrations of three different principals. It also took notice of the District’s “Corporal Punishment Policy” and evidence showing that Taylor had been “repeatedly reminded” of the policy over a fifteen-year period and had received several reprimands regarding the manner in which he disciplined students.
The Circuit Court ruled that Rooney could not be held liable because she was not proximately cause Taylor’s suspension. That, said the Court, action resulted following an investigation and a due process hearing in which Taylor was found guilty. It said that its decision in Jefferies v Harleston, 52 F3d 9, controlled the outcome of this case.
In Jefferies, the Circuit Court ruled that “although the actions of certain defendants were unconstitutional, liability under Section 1983 did not attach because such actions could not be considered the cause of any injury sustained by the plaintiff.”
The Court said that it believed that the independent investigations of the incidents by school officials, together with the school board’s filing charges culminating in the decision of the disciplinary hearing panel to suspend Taylor, constituted a superseding cause of Taylor’s injury, breaking the causal link between any racial animus Rooney may have had and Taylor’s suspension.
Concluding that no reasonable jury could find Rooney’s actions to be the cause of Taylor’s injury, the Court said that no new trial was necessary. Accordingly, all that was needed was for the Circuit Court to remand the case to the district court with instructions to enter judgment for Rooney.
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein
Thursday, January 29, 2009
Big Brothers/Big Sisters of America cannot be held liable for the actions of a volunteer mentor, but there local affiliate can be
We have discussed the difficulty in determining who is and who is not an employee many times on this blog, and in particular with respect to whether volunteers can be treated as employees. Now comes another twist, can companies be liable in tort for the actions of volunteers. A recent New York lower court decision held that that parent companies could not. Lamarche v. Big Brothers/Big Sisters of America, ___Misc. 3d___(Richmond Co. Jan. 23, 2009). The reasoning was one of duty. The court held that a parent organization had no duty to a member of the public serviced by its NYC affiliate.
However, that NYC affiliate could be responsible for the actions of one of its volunteers. The court essentially applied a negligent hiring type of analysis and concluded that summary judgment to the defendant was inappropriate because of the volunteer's alcoholism and emotional past.
A New York Law Journal article about this case is available here (registration required).
Mitchell H. Rubinstein
Tuesday, November 20, 2007
The Supreme Court report contained in the November 2007 ABA Journal (copy not available on line) contains an article about the increasing use of amicus briefs in the Supreme Court by major law firms. This is due in part, says the article, because the Court is agreeing to hear less cases. Quoting Professor Kathleen Sullivan, the article states "with the shrinking docket, there are too may Supreme Court lawyers chasing too few cases on the merit."
Something to think about.
Mitchell H. Rubinstein