Tuesday, September 2, 2014

Seventh Circuit Upholds Indiana's Right-to-Work Law

A sharply divided three-judge panel of the Seventh Circuit today upheld Indiana's "right to work" law against federal preemption and other constitutional challenges.  The ruling means that Indiana's law stays on the books--a serious blow to unions in the state.  But the division invites en banc review and even Supreme Court review of this bitterly contested issue.

The case, Sweeney v. Pence, tested the constitutionality of Indiana's "right to work" law, enacted in February 2012.  That law prohibits any person from requiring an individual to join a union as a condition of employment.  As relevant here, it also prohibits any person from requiring an individual to "[p]ay dues, fees, assessments, or other charges of any kind or amount to a labor organization" as a condition of employment.  In short, it prohibits mandatory "fair share" fees--those fees that non-union-members have to pay for the collective bargaining activities of a union (but not the union's political activities), in order to avoid free-riding. 

The law deals a blow to unions, because it allows non-members to escape even representational fees (or "fair share" fees, those fees designed to cover only a union's collective bargaining and employee representational costs, but not political expenditures), even as federal law requires unions to provide "fair representation" to all employees, union or not.  This encourages "free riders," non-member employees who take advantage of union activities but decline to pay for them.

The plaintiffs, members and officers of the International Union of Operating Engineers, Local 150, AFL-CIO, argued that the National Labor Relations Act preempted Indiana's law and that the law violated various constitutional individual-rights protections.  The preemption argument turned on two provisions of the NLRA, Sections 8(a)(3) and 14(b).  Section 8(a)(3) provides,

It shall be an unfair labor practice for an employer . . . by discrimination in regard to hire or tenure or employment or any term or condition of employment to encourage or discourage membership in any labor organization.

Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein . . . .

Section 14(b) says,

Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

The Union argued that under this language a state may ban an agency-shop agreement (a requirement that all employees pay full union dues, whether or not they are members), but not a lesser union-security arrangement (like a fair share requirement).

The majority disagreed.  The court said that Indiana had broad rights to restrict union-security agreements, including fair share.  It first pointed to Supreme Court cases (Retail Clerks I and II) that held that Section 14(b) allowed a state to ban an agency-shop agreement.  It then read the term "membership" in Section 14(b) quite narrowly, to include non-members who were required to pay fair share fees.  (That's right: the court said that non-members were part of the "membership" under Section 14(b).)  The court said that the final clause of Section 14(b) therefore leaves room for states to ban complete union-security agreements (like agency shops) and also lesser union-security agreements (like fair share).  It said that some states had these laws on the books when Congress passed Section 14(b), and that some states have them on the books today.  "The longevity of many of these statutes, coupled with the lack of disapproval expressed by the Supreme Court, suggests to us that Indiana's right-to-work law falls squarely within the realm of acceptable law." 

The majority also rejected the plaintiffs' individual-rights arguments, under the Takings Clause, the Contracts Clause, the Ex Post Facto Clause, the Equal Protection Clause, and the Free Speech Clause.

Judge Wood dissented.  She argued that under the majority's approach, Indiana's law amounted to an unconstitutional taking (because, along with the duty of fair representation, it required the union to do work for non-members without pay).  She said the better approach (under constitutional avoidance principles)--and the one more consistent with the language of the NLRA and Retail Clerks I and II)--said that the NLRA preempted Indiana's law.

The sharp disagreement on the panel, the uncertain state of the law, and the contentiousness of the underlying issue all suggest that this case is ripe for en banc review and, ultimately, Supreme Court review.  If so, this case could be the next in a recent line of anti-union rulings chipping away at fair share.

September 2, 2014 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Daily Read: Gabriel Arkles Talking to (Con)LawProfs Talking to Trans* Students

Now that classes have begun, it's a good time for lawprofs to think about how we teach and interact with our students.

ArklesPublished in the on-line "Footnote Forum" of City University of New York's law review, Professor Gabriel Arkles(pictured) has some very specific things to say about the trans* and gender non-comforming students in our classes.  In his essay, Improving Law School for Trans* and Gender Nonconforming Students: Suggestions for Faculty, Arkles provides details of practices that "need improvement" and often specific suggestions for change.  Here's one of special note for ConLawProfs:

Practice in need of change: In discussing Equal Protection doctrine, a constitutional law professor says, “But is sex really an immutable characteristic? Don’t some people get ‘sex changes’?” The class laughs, and the professor moves on.

This comment makes trans* people into the butt of a joke, assumes that no trans* people are in the room, gives no substantive attention to trans* issues in constitutional law, and plays into myths about trans* healthcare.

Arkles' essay is a thought-provoking and must-read this semester.

September 2, 2014 in Gender, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2014

Daily Read: Zephyr Teachout on (Anti-) Corruption

In her new book, Corruption from Harvard University Press, ConLawProf Zephyr Teachout argues that campaign finance reform is constitutional and that the anti-corruption principle is one that originalists should embrace rather than disparage.

CorruptionHere's a bit from the publisher's description:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.

For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.

Teachout has argued her position in op-eds in the Washington Post and in Politico after the Court's decision last term in McCutcheon v. FEC, (more of our McCutcheon discussion is here, here, here, and here). 

Teachout wuAdditionally, Teachout - - - along with Tim Wu, also a law professor - - -  is running for state wide office in New York.  Teachout is running for Governor against the incumbent Andrew Cuomo and Wu is running for Lieutenant Governor in next week's primary election.  (Teachout prevailed in lawsuits brought by the Cuomo campaign challenging her eligibility based on residency).   Interestingly, the New York Times endorsed Wu, but did not endorse either Teachout or Cuomo in the Governor's race, citing Teachout's lack of demonstrated "breadth of interests and experience needed to govern a big and diverse state" and Cuomo's  failure to keep his "most important promise" of addressing "corruption."  The primary is September 9.

September 1, 2014 in Books, Campaign Finance, Current Affairs, First Amendment, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0) | TrackBack (0)

District Judge Enjoins Portions of Texas' Restrictive Abortion Law, HB 2

The latest installment in the continuing saga of HB 2, Texas' restrictive abortion law, occurred late Friday with Judge Lee Yeakel enjoining the admitting privileges requirement and the ambultory-surgical-center requirement in his 21 page  opinion  in Whole Woman's Health Center v. Lakey.

Recall that a panel of the Fifth Circuit in March upheld the admitting privileges provision of controversial  Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis, after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional. 

This new opinion considers the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement. 

In considering the testimony and evidence in the bench trial, Judge Yeakel found that the "experts’ testimony substantially contradicted each other and, predictably, reached opposing conclusions," noting that this is "the nature of expert testimony."   But the judge did use some of that testimony, as well as carefully considering the parties' stipulations. 

The court concludes that the act’s ambulatory-surgical—center requirement, combined with the already in-effect admitting-privileges requirement, creates a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women. The obstacles erected for these women are more significant than the “incidental effect of making it more difficult or more expensive to procure an abortion.” [citing Casey].  The court concludes that the overall lack of practical access to abortion services  resulting from clinic closures throughout Texas as a result of House Bill 2 is compelling evidence of a substantial obstacle erected by the act.  

The judge also concluded "that the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them."  And, perhaps most interestingly, the judge explicitly considered the legislative intent of HB2:

An abortion regulation is also violative of a woman’s right to an abortion if it was adopted with the purpose of erecting a substantial obstacle to a woman’s ability to choose a previability abortion. [citing Gonzales v Carhart]. Because the act’s two requirements have the effect of creating an undue burden, an additional finding that the act was passed with the purpose of erecting a substantial obstacle is not required in order to declare the act unconstitutional. However, the court  concludes, after examining the act and the context in which it operates, that the ambulatory-surgical- center requirement was intended to close existing licensed abortion clinics. The requirement’s  implementing rules specifically deny grandfathering or the granting of waivers to previously licensed  abortion providers. This is in contrast to the “frequent” granting of some sort of variance from the  standards which occur in the licensing of nearly three-quarters of all licensed ambulatory surgical  centers in Texas. Such disparate and arbitrary treatment, at a minimum, suggests that it was the intent of the State to reduce the number of providers licensed to perform abortions, thus creating a substantial obstacle for a woman seeking to access an abortion. This is particularly apparent in light of the dearth of credible evidence supporting the proposition that abortions performed in ambulatory  surgical centers have better patient health outcomes compared to clinics licensed under the previous regime.  

[emphasis added].

Thus, the judge enjoined the enforcement of HB2.  

The Attorney General of Texas is sure to appeal. 

September 1, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, August 29, 2014

Sovereign Immunity Protects Official's Determination of Streambed Ownership

The Ninth Circuit ruled this week in Lacano Investments v. Balash that state sovereign immunity barred a suit against a state official for his determination that streambeds claimed by the plaintiffs were owned by the State of Alaska.  The court said that the relief plaintiffs requested--declaratory relief and an injunction prohibiting the defendants from claiming title to the lands beneath the waterways--was the funcational equivalent of quiet title, a claim that under Idaho v. Coeur d'Alene Tribe of Idaho does not fall within Ex parte Young.

The case arose when an Alaskan official determined pursuant to the federal Submerged Lands Act of 1953 that certain streambeds over which the plaintiffs claimed ownership were in fact owned by the State of Alaska.  The plaintiffs said that they owned the streambeds pursuant to a federal land patent granted the year before Alaska became part of the Union.  When the official then determined that the streambeds belonged to the state, the plaintiffs sued, seeking declaratory and injunctive relief.

Under Ex parte Young, the plaintiffs could sue a state official for injunctive relief and dodge state sovereign immunity under the Eleventh Amendment.  But the Supreme Court limited Ex parte Young in Coeur d'Alene, holding that the Eleventh Amendment barred a suit that was "the functional equivalent of a quiet title action."  That's because that kind of claim "implicate[d] special sovereignty interests"--the historical and legal importance of submerged lands to state sovereignty.  The Coeur d'Alene Court explained that "if the Tribe were to prevail, Idaho's sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its Treasury."

The plaintiffs argued that Coeur d'Alene was distinguishable, because the plaintiffs in that case sought to divest the state of its title (and not, as here, the other way around), and because a ruling for the plaintiffs in Coeur d'Alene would have deprived the state of all regulatory power over the property (and not so here).  The court didn't bite, however.  The court also rejected the plaintiffs' argument that Coeur d'Alene is no longer good law.  Instead, the court applied Coeur d'Alene, ruled that the plaintiffs' claim was quiet-title-like, and held that the claim was therefore barred by state sovereignty under the Eleventh Amendment.

The ruling means that the plaintiffs' case is dismissed.

August 29, 2014 in Cases and Case Materials, Eleventh Amendment, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Texas Supreme Court: Injunction Prohibiting Future Defamation an Unconstitutional Prior Restraint But . . .

In its unanimous opinion today in Kinney v. Barnes, the Texas Supreme Court (pictured) considered the constitutionality of requested relief on an injunction in a defamation case for removal/ deletion of speech that has been adjudicated defamatory, and that "prohibits future speech that is the same or similar to the speech that has been adjudicated defamatory." 

The court held that an injunction of the former type would be constitutional, while the latter would not.

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The court's opinion, authored by Justice Debra Lehrmann, squarely rested its conclusion on state constitutional law, TEX. CONST. art. I, § 8, even as it relied heavily on United States Supreme Court cases on prior restraint under the First Amendment.  However, the court specifically declined to "determine whether the Texas Constitution provides greater protection than the First Amendment on the specific issue presented to us, as the U.S. Supreme Court has not definitively addressed it." 

The trial and intermediate appellate court both granted summary judgment in favor of the defendant based on the unconstitutionality of the relief sought.  However, the court found that an injunction could

order Barnes to remove the statements at issue from his websites (and request that third-party republishers of the statements do the same) upon a final adjudication that the statements are defamatory. Such an injunction does not prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected in the context in which it was made. As such, it is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.

This would be true assuming that the standards for an injunction were otherwise met, with the understanding that damages are the preferred remedy for defamation.  However, as to future statements, an injunction would be an impermissible prior restraint, in part because it would be almost necessarily overbroad:

The particular difficulty in crafting a proper injunction against defamatory speech is rooted in the contextual nature of the tort. In evaluating whether a statement is defamatory, the court construes it “as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement.” [citation omitted].  Given the inherently contextual nature of defamatory speech, even the most narrowly crafted of injunctions risks enjoining protected speech because the same statement made at a different time and in a different context may no longer be actionable. Untrue statements may later become true; unprivileged statements may later become privileged.

Yet in some ways, this observation highlights the problem with the removal of the adjudged defamatory statement.  It too is contextual and time-bound, but arguably this becomes (temporarily) determined if there is a finding that it is defamatory. 

The court rejected the notion that "the Internet is a game-changer" and also rejected the assertion of the importance of "cyber-bullying and online hate speech": "It is enough to say that neither of those is at issue here."

August 29, 2014 in Courts and Judging, First Amendment, Speech, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

Tenth Circuit Upholds NLRB Ruling with Recess Appointment

The Tenth Circuit yesterday upheld an NLRB order by a Board panel that included Craig Becker, one of President Obama's recess appointments to the Board.  The court suggested that the parties might have challenged the NLRB order under the Supreme Court's ruling this summer in Noel Canning (which held that President Obama lacked authority under the Recess Appointment Clause to appoint certain members to the Board).  But because the parties didn't raise the argument--and instead actively steered the court away from the point--the court didn't rule on the Board's quorum, and instead upheld the order on the merits.

The order at issue came from an NLRB panel that included Craig Becker, a recess appointee during a two-plus week recess of the Senate.  The Supreme Court wrote in Noel Canning that a Senate recess less than ten days is "presumptively too short" to allow the President to make an appointment pursuant to the Recess Appointment Clause.  Under that language, Becker's appointment isn't presumptively invalid.  But the Tenth Circuit also suggested that it wasn't necessarily valid:

To be sure, the Supreme Court stopped short of validating every appointment made during a recess ten days or longer.  One might even read the majority opinion as leaving the door open for future challenges to some such appointments: from the proposition that shorter than ten days is usually too short it doesn't follow that ten days or longer is always enough.

Still, the court didn't touch the issue, because the parties didn't argue it.  ("We don't often raise arguments to help litigants who decline to help themselves, especially when the litigants have consciously waived the arguments by steering us away from them and toward the merits instead.")  Instead, the court upheld the order on the merits.

August 28, 2014 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Utah District Judge Finalizes Judgment on Unconstitutionality of Polygamy Prohibition

In a brief  Memorandum and Judgment  in Brown v Herbert federal district judge Clark Waddoups has finalized his conclusion - - - and made appealable - - - his previous decision that Utah's anti-bigamy statute is partially unconstitutional.  

Recall that the Utah provision at issue criminalized bigamy as defined as including when a married person "purports to marry another person or cohabits with another person."  

Sister-wives-419-250x150The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book.  The show includes "commitment ceremonies" between Cody brown and subsequent wives.   They are represented by ConLawProf Jonathan Turley who blogs about this judgment, including the possibilities of appeal, here.

It does seem that given the breadth of the statutory proscription on "bigamy" that includes  cohabitation, an appeal might be ill-advised.   A strict enforcement of the statute would mean that anyone whose divorce was not final and who cohabited with another person might be guilty of bigamy. 

[image via]

August 28, 2014 in Due Process (Substantive), Fourteenth Amendment, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

The Difficulty of Discussing the Facebook Threats Going to Supreme Court in Elonis v. United States

As we noted in June, the United States Supreme Court has granted certiorari in Elonis v. United States, a case regarding a criminal conviction for threats against his estranged wife and others posted on Facebook.   We've had to amend that post for reasons explained below.

As presented in the certiorari question, the issue is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

However, in its Order, the Court stated:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."

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Thus, Elonis will be a case in which the statutory interpretation and the First Amendment are intertwined.

The Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof.  There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate. 

The doctrine of "true threats" has long been a fraught one.  As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech.  The Court's grant of certiorari may - - - or may not - - - indicate that some Justices found that Elonis's facebook postings failed to rise to the level of true threats.  Undoubtedly, however, this case will be watched not only by those interested in "free speech on the internet" but also by those interested in "intimate partner violence."

At times, this inquiry becomes grammatical.  For example, the Third Circuit found that a particular posting that Elonis claimed was conditional and therefore could not be a "true threat," could have reasonably been found by a jury to be a true threat. 

The Third Circuit extensively quotes the facebook postings of Elonis.

But for bloggers, requoting this language can run afoul of the policies of internet providers, servers, and search engines regarding profanity and "adult content."   It's an interesting illustration of the limits of the First Amendment by the state action doctrine.  It leaves the blogger with several choices, including trying to use dashes or asteriks in words or attempting to link more specifically to the opinion for the quoted passages (although links are also covered by most "adult content" policies, albeit more difficult to detect).

It will be interesting to see what language choices are made by the advocates, the Court, and those reporting on the opinion.

 

August 28, 2014 in Current Affairs, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2014

Sixth Circuit Rejects First Amendment Challenge by "Bible Believers" Excluded From "Arab International Festival"

A divided Sixth Circuit considered the problem of the hecklers' veto, as well as free exercise and equal protection claims, in its opinion today in Bible Believers v. Dearborn County, with the majority of the panel finding that the district judge's grant of summary judgment in favor of the government should be affirmed.

450px-Megaphone-redThe controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach."  Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"),  a "severed pig's head on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment."   A crowd gathered, seemingly mostly of children, who yelled back and threw items at the preachers.  A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct: "You need to leave. If you don’t leave, we’re going to cite you for disorderly. You’re creating a disturbance. I mean, look at your people here. This is crazy!”  They were eventually escorted out. 

On the free speech claim, the opinion written by Judge  Bernice Donald found there was little disagreement that the Bible Believers "engaged in protected speech" and "that the Festival constituted a traditional public forum." 

More contentious, however, was whether the  government's actions were "content neutral."  The court first concluded that the operations plan was to "ensure safety and keep the peace" and thus to be evaluated under the standard of Ward v. Rock Against Racism.   But the court also extensively analyzed whether the heckler's veto principle was operative: "[l]isteners’ reaction to speech is not a content-neutral basis for regulation,” citing Forsyth Cnty. v. Nationalist Movement (1992).  Yet raising listener "reactions" circles back to the issue of whether the speech was protected and the court  discussed two Supreme Court cases from the mid-twentieth century—Terminiello v. City of Chicago, 337 U.S. 1 (1949), and Feiner v. New York, 340 U.S. 315 (1951)— as providing "some initial boundaries for the heckler’s veto doctrine."   In applying these cases, as well as Cantwell v. Connecticut, 310 U.S. 296 (1940) (as Sixth Circuit precedent), the court, referencing a video from Festival incident, found that there was actual violence and that law enforcement was simply discharging their duty to maintain the peace and removing the speakers for their own protection.

For Judge Eric Clay, dissenting, "law enforcement is principally required to protect lawful speakers over and above law-breakers."  Judge Clay also notes that it was the government that moved for summary judgment and that reliance on a video is problematical:

The key fact in our case, by contrast, is the question of Plaintiffs’ intent. That is not a fact shown on the videotape—it is an idea that existed in the mind of the speakers. Jurors might conceivably find an intent to incite based on inferences drawn from Plaintiffs’ sermonizing. We judges are prohibited from doing so.

While there are free exercise, equal protection, and municipal liability isses, the majority treats these summarily, and clearly the central issue is speech that provokes - - - and may be intended to provoke - - - a violent reaction from a crowd. 

August 27, 2014 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 26, 2014

Divided DC Circuit Grants Standing to Challenge Battle of Blair Mountain Historic Preservation

In its split opinion in Sierra Club v. Jewell, a panel of the DC Circuit Court of Appeals has held that a coalition of groups have standing to challenge the revocation of listing on the National register of Historic Places for Blair Mountain Battlefield in West Virginia.

As the first paragraph of the opinion by Judge Srinivasan reminds us:

The Battle of Blair Mountain is the largest armed labor conflict in our nation’s history. Blair-1921-miners-turning-in-guns-6052-copyIn late August 1921, after years of tension between coal miners and coal companies, more than 5,000 West Virginia coal miners began a march to Logan and Mingo Counties, West Virginia. They aimed to unionize and liberate fellow miners living under martial law. When they reached Blair Mountain, a 1,600-acre area in Logan County, they encountered roughly 3,000 armed men. Those men, mostly hired by coal companies, manned a ten-mile defensive line across Spruce Fork Ridge, including Blair Mountain. They dug trenches, mounted machine guns, and dropped homemade bombs. The miners responded with gunfire of their own. The Battle endured for several days, causing numerous casualties. President Harding sent federal troops to quell the fighting, and the coal miners surrendered.

 In this case, the battle again features coal companies, but on the other side are environmental and historic preservation groups.  The registration of the Battlefield on the National Register, which would arguably prevent surface mining, was hard-fought.  One criteria is that a majority of property owners not object, but after the Battlefield was listed, "a number of objections" from a "law firm representing several coal companies" were determined not to have been counted, and the Battlefield was delisted.  It is this delisting that is being challenged.

The district judge found that the challengers did not satisfy any of the classic elements of standing.  On appeal, the majority of the panel found that the challengers satisfied all three. 

Probably most controversial is the initial requirement of "injury in fact" that is both "concrete and particularized" and "imminent."   The panel rejected the coal companies amicus argument that the challengers cannot suffer an injury in fact because they possess no "legal right to enter the Battlefield area."  It is this absence of  "legal right" that Senior Judge Sentelle, dissenting, rests his disagreement.  For the majority, however, the challengers could enjoy and observe the land from surrounding areas, including public roads: "there is no reason that the cognizability of aesthetic and associated interests in a particular site could turn on owning a legal right to enter or view the property."  Thus, their injury was sufficiently concrete and particularized.   As to the imminence of injury, while the district judge had stressed the non-use of the existing mining permits for the past decade, the appellate panel noted that in a letter objecting to the registration of the Battlefield, the coal companies stated that they had an "expectation of developing" the coal in the site.

More complicated are the questions of causation and redressibility, "two sides of the causation coin," because they involve the interplay of the federal registration requirements and West Virginia law, and specific issues regarding the initial approval of mining permits as opposed to permit renewals.  The panel stated that the challengers must only show that their argument is "non-frivolous" and not convince the court that their interpretation on the merits is correct, in order to satisfy the standing causation and redressibility requirements.

Thus, the battle of Blair Mountain will be proceeding to yet another round. 

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[image of Blair Mountain Battle via; image of West Virginia autumn colors via]

August 26, 2014 in Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Sunday, August 24, 2014

Ninth Circuit Upholds Ban on Solicitation at LAX

The Ninth Circuit ruled last week in International Society for Krishna Consciousness of California, Inc. (ISKCON) v. City of Los Angeles that the ban on continuous or repetitive solicitation at Los Angeles International Airport--including a ban on solicitation in parking lots and sidewalks--did not violate the First Amendment.

This final ruling ends this long-running case, which worked its way back and forth between the trial court, appeals court, and state courts for nearly two decades.

The provision at issue, Section 23.27(c) of the Los Angeles Administrative Code, bans solicitation in the LAX terminal, sidewalks, and parking lots.  ISKCON wished to solicit in these areas and argued that the ban violated free speech.

The Ninth Circuit applied familiar forum analysis and ruled that the terminal, surrounding sidewalks, and parking lots were non-public forums and that the government's reasons for the ban--reducing congestion and fraud at LAX--were legitimate.  The court said that changes to security and the resulting reduction in space available for passengers since 9/11 made the government's interests stronger than the interests in Int'l Soc'y for Krishna Consciousness, Inc. v. Lee (Lee I) (upholding the Port Authority's ban on solicitation in New York City's airport terminals).  ISKCON goes a step farther than Lee I, however, in that it specifically upholds the ban on sidewalks and parking lots, too.  As to sidewalks, the court said,

In all events, [the government's] interest in reducing congestion only heightened along LAX's narrow, oft-crowded sidewalks, which span but twelve feet in certain areas.  Furthermore, [the government's] interest in protecting against fraud and duress is just as strong on the sidewalks as it is inside the terminals.

The ruling aligns the Ninth Circuit with the Eleventh, which upheld a similar ban in ISKCON Miami, Inc. v. Metropolitan Dade County

August 24, 2014 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

State May Require Provider to Accompany Developmentally Disabled Client to Church

The Ninth Circuit ruled last week in Williams v. State of California that a state law requiring residential community care service providers to accompany developmentally disabled clients to religious services did not violate the First Amendment.  The very brief per curiam ruling simply incorporated the district court's order granting the state's motion to dismiss.

The plaintiffs in the case, residential community care facilities and employees, sued the state after the state cited the plaintiffs for violating their obligations to a client--in particular, for failing to accompany a client to Jehovah's Witness services in violation of the state's Lanterman Developmental Disabilities Services Act.  Several of the service providers' employees objected to accompanying the client to services, because, they argued, to do so would violate their own religious freedom.

The district court's opinion, adopted in whole by the Ninth Circuit, took the plaintiffs to task for sloppy pleading and argument, and went on to reject their Free Exercise and Establishment Clause claims.  As to the Free Exercise claim, the district court held that the Lanterman Act was a law of general applicability, and had a rational basis--"to allow developmentally disabled persons to approximate the lives of nondisabled persons."  As to the Establishment Clause claim, the court said that the Act had a secular purpose (same as above), a primary effect that neither advances nor inhibits religion (because it applies to all manner of community activities, religious or not, and to all religions equally), and no excessive government entanglement with religion. 

The plaintiffs' claims were weak, even non-starters, from the get-go, but they didn't help themselves with sloppy pleading, undeveloped arguments, and an apparent complete lack of response to certain court requests.  All this made it easy for the Ninth Circuit simply to adopt the district court's ruling as its own and to affirm the dismissal of the case.

August 24, 2014 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, August 21, 2014

Florida Federal District Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In his 33 page  opinion  today in Brenner v. Scott, Judge Robert Hinkle of the Northern District of Florida found that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes § 741.04(1) violated the Fourteenth Amendment.

Judge Hinkle first determined that the "right asserted by the plaintiffs is a fundamental right as that term is used in due-process and equal-protection jurisprudence," noting that almost every court that has addressed the issue since the Supreme Court’s 2013 decision in Windsor has said the answer is yes, and concluded that that "view is correct."  Given that there is a fundamental right, he continued:

That leaves for analysis the second step, the application of strict scrutiny. A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest. A variety of justifications for banning same- sex marriages have been proffered by these defendants and in the many other cases that have plowed this ground since Windsor. The proffered justifications have all been uniformly found insufficient. Indeed, the states’ asserted interests would fail even intermediate scrutiny, and many courts have said they would fail rational- basis review as well. On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive. All that has been said there is not repeated here.

Judge Hinkle did take the opportunity, however, to specifically discuss the procreation argument, finding that "Florida has never conditioned marriage on the desire or capacity to procreate."

Like other judges, Judge Hinkle used Justice Scalia's dissenting language from Lawrence v. Texas to note that moral disapproval in the marriage context is the same as moral disapproval in the sodomy context. 

Judge Hinkle's opinion then analyzed the requirements for a preliminary injunction, finding them satisfied. But he also held that a stay was warranted; it would have been difficult to rule otherwise in light of the previous stays, including the one just yesterday by the United States Supreme Court.

August 21, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

The Next Campaign Finance Law to Go Down?

Judge Christopher R. Cooper (D.D.C.) earlier this week in Rufer v. FEC granted a plaintiff's motion to send its First Amendment challenge to the restriction on contributions to political parties to the en banc D.C. Circuit for consideration.  But in the same ruling, Judge Cooper denied a motion to temporarily enjoin the law.

The seemingly mixed ruling means that the court sees the challenge as both including "substantial, non-frivolous constitutional claims that are not clearly foreclosed by Supreme Court precedent" (thus meeting the statutory standard for appointment of an en banc circuit court under FECA) and "in tension with forty years of Supreme Court jurisprudence upholding contribution limits to political parties" (thus failing the likely-to-succeed-on-the-merits standard for a preliminary injunction).

In plain language, the ruling seems to reflect the court's view that while current Supreme Court doctrine supports contribution limits to political parties, that's likely to change. 

He's probably right.

But Judge Cooper's decision is not a ruling on the merits.  It only sends the constitutional question to the en banc D.C. Circuit ("after developing an appropriate factual record"), thus fast-tracking it to the Supreme Court, and presages the likely end result with this Supreme Court: the federal limit on contributions to political parties will almost surely go down.

The case was brought by the national and state Republicans and Libertarians challenging the federal restriction on base contributions to political parties.  The plaintiffs argued that they could segregate contributions for independent expenditures in separate accounts, and therefore avoid quid pro quo corruption or its appearance--the two government interests that the Court has said justify contribution limits to candidates and political parties.  Judge Cooper said it better:

This case sits at the confluence of two currents of First Amendment jurisprudence concerning federal campaign finance: the constitutional permissibility of limiting contributions to federal candidates and political parties, and the constitutional impermissibility of limiting contributions to independent entities whose campaign expenditures are not coordinated with candidates or parties.  Plaintiffs rest their challenge on the latter current; the FEC resists it on the former.

Judge Cooper ruled that the plaintiffs' free speech challenge to the contribution limits raised significant enough questions to justify sending the issue to the en banc D.C. Circuit, a procedure available under FECA designed to get important issues quickly before a full circuit court and ultimately the Supreme Court.  But at the same time, Judge Cooper denied a plaintiff's motion for a preliminary injunction, ruling that well settled (for now) Supreme Court precedent meant that the plaintiffs couldn't show that they were likely to succeed on the merits.

Taken together, the two sides of this ruling mean that the court understands the current state of the law, but can also read the tea leaves--which say that the law's likely to change.

Judge Cooper's decision isn't a ruling on the merits.  Still, it fast-tracks the case to the en banc D.C. Circuit and then, inevitably, to the Supreme Court.  It also presages the likely result in this Supreme Court: contribution limits to political parties will almost surely go down.

August 20, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

No Head-of-State Immunity for Finance Minister

Judge James E. Boasberg (D.D.C.) ruled earlier this week in Sikhs for Justice v. Singh that while Manmohan Singh enjoyed head-of-state immunity from suit in U.S. federal court for acts committed while he was Prime Minister of India, that immunity did not extend to acts he took earlier, when he was Finance Minister.  They ruling means that the plaintiff's case against Singh for acts he took while Finance Minister can move forward, but that Singh is immune from suit for acts he took while Prime Minister.

Plaintiffs Sikhs for Justice alleged that Singh tortured and killed Indian Sikhs during his time as Prime Minister and before, when he was Finance Minister.  The group filed suit in the D.C. District while Singh was Prime Minister, but Singh then left office (or, rather, got voted out).  The government filed a Suggestion of Immunity, arguing that Singh enjoyed head-of-state immunity for acts he committed as Prime Minister.  But it didn't state a position on immunity for acts before Singh became Prime Minister, when he was Finance Minister.

Judge Boasberg ruled that Singh wasn't immune for those acts.  In a case of apparent first impression, Judge Boasberg said that "[w]hile Singh's alleged acts as Finance Minister are not 'private' per se, they did not occur in the course of his official duties as head of state; accordingly they are not encompassed within the purview of head-of-state immunity."

Judge Boasberg, however, adopted the government's position and granted immunity for acts taken while Singh was Prime Minister.  Judge Boasberg also ruled that Singh enjoyed risidual immunity for those acts after he left office.

The upshot is that the plaintiff's case can proceed against Singh for acts he took as Finance Minister, but not for acts he took as Prime Minister, even after he left office.

August 20, 2014 in Cases and Case Materials, Courts and Judging, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

UDC Law Review Covers Civil Gideon

The University of the District of Columbia Law Review just issued its symposium edition on the right to counsel in civil cases, or Civil GideonThe full list of articles and links to the full texts are here.  John Pollock, staff attorney at the Public Justice Center in Baltimore and coordinator of the National Coalition for the Civil Right to Counsel, wrote the introduction, with a background on the Civil Gideon movement and updates on progress; a direct link to Pollock's article is here.

August 20, 2014 in Courts and Judging, Fundamental Rights, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Supreme Court Issues Stay in Virginia Same-Sex Marriage Case

In Bostic v. Schaefer in late July, a divided panel of the Fourth Circuit held that Virginia's ban on same-sex marriage was unconstitutional and in mid-August, a majority of the panel refused,  without analysis, to grant a stay of its opinion.

Today, as widely anticipated, the United States Supreme Court did grant a stay in its Order in McQuigg v. Bostic.  Here's the entire text:

The application for stay presented to The Chief Justice and by him referred to the Court is granted, and the issuance of the mandate of the United States Court of Appeals for the Fourth Circuit in case No. 14-1167, is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

The stay shall remain in effect "in the event the petition for certiorari is granted," an event many believe is quite likely.

 

August 20, 2014 in Courts and Judging, Family, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Can City of Ocala Ban the Saggy Pants Style on Government Property?

This summer, the city of Ocala, Florida passed Ordinance 2014-44 , prohibiting the style of saggy pants on city property.  Tonight, the city officials will reconsider the ordinance in light of threatened legal action.

Ocala is not the first municipality to try to ban the style.  But these bans have constitutional issues.  While First Amendment challenges of free expression have not been successful on the grounds that the style does not convey the necessary particularized message,  challenges based on substantive due process do have merit. 

The ordinances generally state as their purposes "decency" and "morals," but there is a problem prohibiting showing underwear.  Here's the language from the Ocala ordinance:

It is unlawful for any person, while on city owned property, to knowingly or intentionally wear pants below the person's natural waistline in a manner that leaves the person's underwear or bare buttocks exposed. A person's underwear is "exposed" if, when measured vertically, more than two inches of it is visible. A person's bare buttocks is "exposed"person's intergluteal cleft is visible.

 As a judge from another Florida city - - - Riveria Beach - - - held, such a ban violates basic liberty interests under the due process clause.  As for the "intergluteal cleft" being visible, there are real questions whether that can constitutionally be included in "indecent exposure." 

It is oft-stated that "saggy pants" are a foolish style.  But fashions, of course, change.  In a 1937 case, People v. O’Gorman, 274 N.Y. 284, 8 N.E.2d 862 (1937),  New York’s highest court struck down a Yonkers ordinance that prohibited any person over the age of 16 from appearing in public “in a bathing costume” or “in other than customary street attire.”   The defendants included a woman who wore “white sandals, no stockings, yellow short pants and a colored halter, with a yellow jacket over it and no hat”  and a man who “had on white sneakers, white anklets, short socks, yellow trunks, short pants, a blue polo shirt, brown and white belt, no hat.”  Maybe they looked “foolish” to their contemporaries, but as the court declared, the “Constitution still leaves some opportunity for people to be foolish if they so desire.”  

Moreover, it's important to be attentive to the equal protection problems that the criminalization of saggy pants raises.

There is more discussion and analysis of saggy pants bans and the limits of criminalizing indecent exposue in Dressing Constitutionally (Cambridge University Press, 2013).

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August 20, 2014 in Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 19, 2014

Third Circuit Holds Philadelphia Police Campaign Contribution Rule Violates First Amendment

Can a city prohibit police officers from making monetary contributions to political campaigns, including contributions to their union's political action committee?  The Third Circuit, in its opinion in Lodge No. 3, Fraternal Order of Police v. City of Philadelphia concludes that such a rule violates the First Amendment.

465px-Whistle_Cop_Sept_1920The history behind the prohibition is a fascinating one, which the court's opinion by Judge Thomas Hardiman discusses as great length because one "cannot understand" the prohibition without "reference to Philadelphia's efforts to combat patronage" given its unsavory history.   As the court explains:

The nefarious relationship between Philadelphia’s Republican machine and its police force culminated in September 1917 with the scandal of the “Bloody Fifth” Ward, where officers beat an opposition candidate, terrorized his supporters, and killed a detective who attempted to intervene. The incident led to the arrest of the mayor and the conviction of six police officers, as well as public outcry for the insulation of the civic bureaucracy from politics. Amidst these calls for reform, in 1919 the Pennsylvania Assembly granted Philadelphia a new Charter, which enacted a series of reforms aimed at reducing corruption within government and the police department.

 The present rule, adopted in 1951, prohibits political contributions by police officers as a method of combating corruption and promoting public confidence.  The court analyzed the prohibition under United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995), requiring the government "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."  The Third Circuit agreed with the district court, although not with much enthusiasm, that the recited harms were real.  However, the Third Circuit disagreed with the district judge that the second prong was satisfied, holding that the regulation did not alleviate the harms in a sufficiently direct and material manner.

In part, the direct and material failure was based on the exclusive application to police officers:

The City also fails to persuade us why the contribution ban should apply only to the police, and not to the approximately 20,000 other individuals in its employ. The record shows that the Republican machine historically extracted political assessments from all civic employees: the practice was so pervasive that, in the early 20th century, the machine collected contributions from 94 percent of the city’s workforce. If the Charter ban’s purpose was to end such compulsory wage contributions, it is unclear why the City would enforce the ban only against the police. Moreover, the City has made no attempt to show that the Democratic Party’s recent dominance in Philadelphia politics was achieved through corruption.

As the court notes, the regulation also applied to firefighters, but the Philadelphia firefighters’ union "in a case remarkably similar to this one, successfully challenged the ban as an unconstitutional infringement on its members’ First Amendment rights" in 2003 and the city did not appeal.  Moreover, the court notes that the city is "simultaneously condoning political activities by the police that have similar, if not more pernicious, implications" than the contribution bar.

The Third Circuit also relies on recent United States Supreme Court cases on campaign finance such as McCutcheon v. FEC and Citizens United v. FEC, gaining support for its conclusion that the regulation violates the First Amendment.

The opinion notes that the city has other ways to achieve its goals: "for example, the prohibition of automatic paycheck deductions, or greater enforcement of existing anti-solicitation measures."  Even as it says it is "loath to disturb" a rule that has been in effect for decades given Philadelphia's history of corruption, the court makes clear that the rule has outlived its usefulness - - - and its constitutionality.

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August 19, 2014 in Campaign Finance, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)