Monday, October 12, 2015

Campaign Finance and Enforcement

The NYT reported yesterday that just 158 elite families and the companies they control have provided nearly half the money in the early part of the 2016 presidential election.

The are overwhelmingly white, rich, older and male, in a nation that is being remade by the young, by women, and by black and brown voters. Across a sprawling country, they reside in an archipelago of wealth, exclusive neighborhoods dotting a handful of cities and towns. And in an economy that has minted billionaires in a dizzying array of industries, most made their fortunes in just two: finance and energy. . . .

Not since before Watergate have so few people and businesses provided so much money early in a campaign, most of it through channels legalized by the Supreme Court's Citizens United decision five years ago.

At the same time, Ciara Torres-Spelliscy writes at the Brennan Center that DOJ is stepping up to enforce campaign finance crimes:

The Federal Election Commission is still living up to its unfortunate nickname as the Little Agency That Wouldn't. This means that in the pricey and already in full swing 2016 presidential election, the FEC is likely to be sitting on its hands instead of enforcing the law. But would be scofflaws do have something to worry about: the Justice Department is on the beat.

October 12, 2015 in Campaign Finance, First Amendment, News | Permalink | Comments (0)

Columbus Day - - - Or Indigenous Peoples Day?

The 2015 Presidential Proclamation for Columbus Day includes an acknowledgement that the celebration of Columbus is controversial among many:

Though these early travels expanded the realm of European exploration, to many they also marked a time that forever changed the world for the indigenous peoples of North America. Previously unseen disease, devastation, and violence were introduced to their lives -- and as we pay tribute to the ways in which Columbus pursued ambitious goals -- we also recognize the suffering inflicted upon Native Americans and we recommit to strengthening tribal sovereignty and maintaining our strong ties.

As the Washington Post reports, many cities are replacing Columbus Day with Indigenous Peoples Day, including Seattle. The state of South Dakota legislated the day as "Native American Day" in 1990 - - - although no other state seems to have followed suit.  The day remains a federal holiday.

A lively commentary by James Nevius over at The Guardian calls Christopher Columbus a "lost sadist," but also interestingly argues that the holiday's "sentiments are superfluous," given the United States' development.  In a more scholarly vein, Kevin Bruyneel has argued that the holiday serves as a consolidation of white settler identity; his article, The Trouble with Amnesia: Collective Memory and Colonial Injustice in the United States, takes calendar holidays as its theme and is worth a read over at ssrn.

Gräff Matthias, Christoph Kolumbus landet auf San Salvador, via

October 12, 2015 in Current Affairs, History, News | Permalink | Comments (0)

Wednesday, October 7, 2015

How to Write a Constitution to Prevent Violence

Nic Cheeseman and Alexander Noyes give tips in the Washington Post on writing a constitution to prevent violence and promote peace in Africa. (An upcoming Tanzanian vote provides the backdrop.)

Cheeseman (Oxford) is the author of Democracy in Africa: Successes, Failures, and the Struggle for Political Reform.

Their lessons, largely drawn from Cheeseman's book:

-Constitutional design is important, but very different kinds of constitutions can work.

-Political inclusion can bring great benefits, to a point.

-Power-sharing carries large risks, if not done right.

-But failing to share power also comes with risks.

-There's no one-size-fits-all model for every country.

October 7, 2015 in Comparative Constitutionalism, News | Permalink | Comments (1)

Tuesday, October 6, 2015

Judge Allows Challenge to D.C. School Funding to Move Forward

Judge Tanya Chutkan (D.D.C.) last week denied the District of Columbia's motion to dismiss key parts of a claim by D.C. charter schools that the D.C. government under-funded them in comparison to District public schools. The lengthy ruling is laden with analysis on the constitutional relationship between Congress and the District, much of it indeterminate, reminding us just how complicated this relationship can be.

The plaintiff charter schools brought the case, arguing that the D.C. government funneled extra money to D.C. public schools, but not charter schools, in violation of the District Clause and Home Rule Act, the Supremacy Clause, and the School Reform Act. In particular, the plaintiffs argued that the D.C. government violated the Home Rule Act by altering a a congressional act (the School Reform Act) without specific congressional authorization. The District countered that it has authority under the Home Rule Act to amend or repeal the School Reform Act, because the School Reform Act applies only to the District.

Judge Chutkan ruled that neither the case law nor the Home Rule Act tells when Congress acts in tandem with the D.C. City Council (so that the Council could alter a congressional act), or when Congress has the final word--at least in the abstract. So she turned to the text and history of the School Reform Act to answer the question here. But Judge Chutkan said that the School Reform Act was similarly indeterminate. She wrote that the Act's apparent mandatory language on equal school funding for charters and public schools wasn't dispositive, because "if the District can (and has) repealed Acts of Congress that used the term 'shall,' then that term alone cannot necessarily delineate Congress' intent with respect to the Council's authority.'" Moreover, Judge Chutkan said that the legislative history of the School Reform Act didn't answer the question. The upshot: "As it stands, the uniform funding formula is on the books, and it is not clear whether it has been violated, whether it has been amended or repealed by Council enactments (through Congressional acquiescence or otherwise), or whether the challenged actions do not implicate or conflict with the funding formula at all." She thus denied the District's motion to dismiss the District Clause, Home Rule Act, and School Reform Act claims. The ruling means that these claims can move forward.

In contrast, Judge Chutkan did dismiss the plaintiffs' Supremacy Clause claim. That's because the Supremacy Clause doesn't apply to congressional acts over D.C.; the District Clause does. The analysis is the same, Judge Chutkan wrote, but the Supremacy Clause doesn't do the work.

October 6, 2015 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis, Supremacy Clause | Permalink | Comments (0)

Monday, October 5, 2015

The Civil Rights Issue of Our Time: The Supreme Court

ConLawProf Rick Hasen (UC Irvine, Election Law Blog) wrote in a wide-ranging piece last week at TPM that the composition of the Supreme Court itself is "the most important civil rights cause of our time."

And according to Hasen, it's one that progressives don't pay enough attention to.

Consider what's at stake in the next presidency:

Justice Ruth Bader Ginsburg will be nearly 84, Justices Antonin Scalia and Anthony Kennedy will be over 80, and Justice Stephen Breyer will be 78. Although many Justices have served on the Court into their 80s and beyond, the chances for all these Justices remaining through the next 4 or 8 years of the 45th President are slim. Indeed, the next president will likely make multiple appointments to the Court.

And it matters:

Had a President Kerry or President Gore appointed more liberal Justices instead of Chief Justice Roberts and Justice Alito, the Supreme Court probably would not have struck down Washington, D.C.'s gun control law in the Heller case; it would not have approved the constitutionality of the federal partial-birth abortion ban in Gonzales v. Carhart; it would not have struck down Seattle school district's affirmative action plan in Parents Involved; and it would not have struck corporate campaign finance limits in Citizens United or a key portion of the Voting Rights Act in Shelby County.

October 5, 2015 in News | Permalink | Comments (0)

Friday, October 2, 2015

Daily Read: Chief Justice Roberts at Ten

The inimitable Linda Greenhouse in "A Chief Justice Without A Friend" notes that John Roberts is unpopular as he celebrates his decade on the bench.

I can’t think of a chief justice who has been so uniformly vilified by both left and right.

The attacks from the left are logical enough. It’s the fire from the right that merits closer observation than it has generally received. Sure, it’s titillating in a man-bites-dog sort of way. But it’s also revealing of an ideological transformation now underway in how an increasingly influential segment of the conservative elite views the role of courts.

A good quick read, with a link to The Nation special issue - - - The Case Against the Roberts Court - - - which is likewise worth a read.



October 2, 2015 in Courts and Judging, Current Affairs, Supreme Court (US) | Permalink | Comments (0)

Thursday, October 1, 2015

Court Grants Review of Bias of Pennsylvania State Supreme Court Justice in Death Penalty Case

The Court has granted certiorari in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around former Chief Justice of the Pennsylvania Supreme Court Ronald Castille (pictured). 


Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013.  Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."

One of those people on death row is Terrence Williams, the petitioner in Williams v. Pennyslvania.  Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief.  Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty.  Williams' claim, moreover, is based on prosecutorial misconduct. 

Williams relies on Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court.  [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness].  Recognizing this distinction, Williams also relies on Atena Life Insurance v. Lavoie (1986), and notes there is a circuit split regarding bias when the biased decided is only one member of a multi-member tribunal.

October 1, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Supreme Court (US) | Permalink | Comments (0)

Court Grants Certiorari in First Amendment Political Activity by Public Employee Case

The United States Supreme Court has granted certiorari in Heffernan v. Paterson in which the Third Circuit's opinion affirmed summary judgment for the City of Paterson against a First Amendment claim for retaliatory action against police officer Jeffrey Heffernan. 

At issue is whether the mistaken belief of a supervisor that an employee was engaging in political activity.  The police officer was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn."  Heffernan insisted that he was not involved in the campaign and actually did not support the same candidate as his mother.

The petition for certiorari argues that there is a split in the circuits on this issue.



There seems to be a lack of clarity in the circuits on this issue. 



October 1, 2015 in First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0)

Wednesday, September 30, 2015

California Court Upholds Anti-Paparazzi Law Against First Amendment Challenge

California's so-called anti-paparazzi law has been upheld against a facial First Amendment challenge by a state appellate court in its opinion in Raef v. Superior Court of Los AngelesRecall that Paul Raef was charged under California Vehicle Code, section 40008, subdivision (a) which increases the punishment for reckless driving and other traffic offenses committed with the intent to capture an image, sound recording, or other physical impression of another person for a commercial purpose for his  "alleged high-speed pursuit of pop star Justin Bieber and failure to stop when police attempted to pull him over."  The court concluded that the Vehicle Code provision is a law of general application that does not single out the press for special treatment, does not target speech, and is neither vague nor overbroad.

Banksy, "Photo Rat" via

The court reasoned that Vehicle Code section 40008 is not limited to paparazzi chasing celebrities or reporters gathering news. Instead, the statute targets “any person” who commits an enumerated traffic offense with the intent to capture the image, sound, or physical impression of “another person” for a commercial purpose.  The court distinguished both Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue (1983), finding a paper and ink tax unconstitutional,  and Simon & Schuster, Inc. v. Members of New York State Crime Victims Board (1991), holding NY's "Son of Sam" law unconstitutional. 

In considering the expressive activity of taking photographs, the court considered ACLU v. Alvarez in which the Seventh Circuit held unconstitutional a broad anti-eavesdropping statute prohibiting video recording of police officers.  But  the court reasoned that even assuming "that the intent to take a photograph or make a recording of another person generally is entitled to First Amendment protection as a speech-producing activity, we are not persuaded that section 40008 punishes that intent per se or that the commercial purpose requirement imposes a content-based restriction on speech."

Instead, the court relied on Wisconsin v. Mitchell (1993) - - - even as it recognized the differences in the enhanced penalties for a bias crime - - - to conclude that it is the conduct not the intent that is being punished:

the conduct which section 40008 targets is not garden-variety tailgating, reckless driving, or interference with the driver’s control of a vehicle. It involves “relentless” pursuits of targeted individuals on public streets, as well as corralling and deliberately colliding with their vehicles. Such goal-oriented conduct hounds the targeted individuals, causing them to react defensively and escalating the danger to the violators, the targeted individuals, and the public. Because the predicate statutes do not require that the traffic offenses be committed with a specific intent and for a particular purpose, it cannot be said that the conduct they punish is indistinguishable from that subject to section 40008.

The court also rejected the argument that the statute made a content-based distinction of "commercial purpose", based in last Term's opinion in Reed v. Town of Gilbert. Relatedly, the court found that Reed's language did not support any finding that the California statute was targeted at First Amendment activity.  "Since the legal sanction is triggered by the noncommunicative aspects of the violator’s conduct, any incidental effect on speech does not necessarily raise First Amendment concerns."  And finally, the court found that any incidental burden on speech survives intermediate scrutiny.

As to overbreadth and vagueness, the court reiterated the standard for a facial challenge and noted that

   To the extent that Raef and amici are concerned about “the possibility of overzealousness on the part of the arresting officer and not vagueness in the criminal statute,” their concerns “can be adequately dealt with in the course of prosecution of individual cases on their individual facts.” . . . . Hypothetical concerns over potential misuse of the statute to unfairly target the press do not justify invalidating it on its face.

Thus it seems Paul Raef may be raising the as-applied challenges to his prosecution under the statute.

September 30, 2015 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Seventh Circuit Upholds Chicago's Weed and Fence Ordinances

In its opinion in Discount Inn v. City of Chicago, the Seventh Circuit has rejected constitutional challenges to the city's fence and weed ordinances, affirming the district judge's dismissal of the complaint.  The plaintiff, a corporation that Judge Posner's opinion for the unanimous panel notes is inadequately identified in the record, sought "recovery of the fines that it has paid for violating" the ordinances —"it claims to have been fined more than twenty times." 

Discount Inn alleged that the challenged ordinances violate the prohibition in the Eighth Amendment of “excessive fines.”  Basically, Judge Posner rejects this claim with a simple statement: "A fine topped off at $600 can hardly be deemed an excessive penalty for violating the ordinance."

Discount Inn also alleged that the challenged "weed ordinance is vague and forbids expressive activity protected by the First Amendment."  Posner does recognize that it is possible that plants could have an expressive dimension:

The gardens of Sissinghurst Castle and of Giverny might well be recognized as works of art were they in the United States. There may be gardens in Chicago, whether consisting of native or other plants, that are or should be recognized as works of art.

However, he ultimately dispatches the First Amendment claim thusly:

the plaintiff’s claim that the free‐speech clause insulates all weeds from public control is ridiculous. It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or in‐ tends or aspires to exhibit them in museums or flower shows. Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.

Thus, this should be a rather routine affirmance of a dismissal. 

However, Judge Posner has taken the opportunity to provide some discourse - - - and some illustrations - - - of "weeds."  Posner writes:

there is an ambiguity in the concept of a “weed,” an ambiguity brought out by comparing “weed” to ”native plant.” A native plant, like a weed (or perhaps it could be thought of as an elite type of weed), is “born” and matures normally without human intervention although it may also have been deliberately planted. It need not be destructive. In contrast, an “invasive plant species” enters either naturally or by human transport into an area in which native or other valued plants are growing, and squeezes out or otherwise injures or destroys those plants. Cf. 40 C.F.R. § 166.3, defining “invasive species” for purposes of federal pesticide regulations as “any species that is not native to [a particular] eco‐system, and whose introduction does or is likely to cause economic or environmental harm or harm to human health.”

Here is one of the five photographs included in the 16 page opinion:


This image, like the other images in the opinion, and some of the discussion, is not in the record.

This opinion seems more confirmation of ConLawProf Josh Blackman's labeling of Judge Posner as the "most flagrant, and brazen offender" of the appellate rule against fact-finding. 

Nevertheless, coupled with the Second Circuit's decision on "credit card surcharges," this case could be a great introduction in First Amendment: Neither prices nor weeds are speech.

September 30, 2015 in Courts and Judging, First Amendment, Opinion Analysis | Permalink | Comments (0)

Tuesday, September 29, 2015

Daily Video: Chemerinsky & Volokh Discuss the First Amendment and the Roberts Court

Worth a watch:

A dialogue between ConLawProfs Erwin Chemerinsky & Eugene Volokh on the topic of  "THE FIRST AMENDMENT & THE ROBERTS COURT," moderated by Kelli Sager, and sponsored by The First Amendment Salon, spearheaded by ConLawProf Ron Collins and in association with the Floyd Abrams Institute for Freedom of Expression at Yale Law School.

Chemerinsky and Volokh agree with each other more than might be anticipated.


The First Amendment and the Roberts Court


September 29, 2015 in First Amendment, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0)

Second Circuit Upholds New York's Credit Card Surcharge Prohibition

Reversing United States District Judge Jed Rakoff who had declared unconstitutional New York General Business Law § 518 prohibiting sellers from imposing a surcharge on customers who use credit cards, the Second Circuit's opinion in Expressions Hair Design v. Schneiderman held that the law does not violate either the First Amendment or the Due Process Clause.

The expressive element in the challenge to pricing regulation is not immediately obvious.  But as Judge Debra Ann Livingston's opinion for the unanimous panel explains:

Section 518 does not prohibit all differentials  between the price ultimately charged to cash customers and the price ultimately charged to credit‐card customers; it forbids charging credit‐card customers an additional amount above the regular price that is not also charged to cash customers, but it permits offering cash customers a discount below the regular price that is not also offered to credit‐card customers. (That is, it allows what we have termed “cash discounts.”) To illustrate, if a seller’s regular price is $100, it may not charge credit‐card customers $103 and cash customers $100, but if the seller’s regular price is $103, it may charge credit‐card customers $103 and cash customers $100.

Plaintiffs’ submissions reveal that they are claiming First Amendment protection for two distinct kinds of pricing schemes. First, Plaintiffs aver that they would like to post only a single price for their goods and services and charge more than that price to credit‐card customers, but are prohibited from doing so by Section 518.  (Five Points Academy: “It is not our intention to display two separate prices for each good and service that we offer, but rather to display—with roughly equal prominence—a single set of prices and the credit card surcharge amount.”); (Expressions Hair Design: “We would like to . . . characterize the price difference as  a 3% credit‐card surcharge on top of the listed cash price.”). In other words, Plaintiffs are seeking First Amendment protection for the kind of straightforward single‐sticker‐price scheme that Section 518 clearly prohibits. Second, Expressions Hair Design (the only Plaintiff to do so) currently posts two different prices for its services—one for credit‐card customers and one for cash customers—and fears being prosecuted for characterizing this price differential as a “surcharge,” or for telling its customers that credit costs “more.”

The court is clear that prices are not expressive.  It also rejects the argument that the statute actually bans an expressive label it disfavors ("credit-card discount") while permitting one a label it approves ("cash discount").  As the court explains,

Plaintiffs’ chief error—or, perhaps more accurately, the central flaw in their argument—is their bewildering persistence in equating the actual imposition of a credit‐card surcharge (i.e., a seller’s choice to charge an additional amount above the sticker price to its credit‐card customers) with the words that speakers of English have chosen to describe that pricing scheme (i.e., the term “credit‐card surcharge”).

Yet this was also the error of the district judge who applied the test from Central Hudson and concluded the NY law failed it.

The court also rejected the arguments that the NY statute is unconstitutional as applied to Expressions Hair Design's "dual price" scheme and an overbreadth challenge to other "hypothetical" pricing schemes.  The court found that the New York courts had not ruled on such questions and that Section 518 was "readily susceptible" to a narrowing construction that would eliminate the constitutional issues.  The court declined to certify the question to the New York Court of Appeals.

Finally, the court very succinctly resolved the due process vagueness challenge by finding that the statute had a "core meaning that can reasonably be understood."

Thus, sellers doing business in New York are again constitutionally prohibited from imposing credit card surcharges.  Cash discounts, however, remain permissible.


September 29, 2015 in Due Process (Substantive), First Amendment, Interpretation, Opinion Analysis | Permalink | Comments (0)

SEC Target Can't Jump the Gun (to Federal Court)

The D.C. Circuit ruled in Jarkesy v. SEC that the target of an SEC administrative proceeding has to run the administrative course before he can challenge the proceeding in federal court for violating his constitutional rights.

The ruling aligns with a recent Seventh Circuit decision, but is at odds with some of the district courts that have ruled on the question.

The SEC brought an administrative proceeding against George Jarkesy, charging him with securities fraud. Before the SEC ruled on the case, but after Jarkesy's co-respondents settled (in a way that didn't look good for Jarkesy), Jarkesy sued in federal court to stop the proceeding, arguing that it violated various constitutional rights.

The district court dismissed Jarkesy's case, and the D.C. Circuit affirmed.

The court applied the two-part framework in Thunder Basin Coal Co. v. Reich and held (1) that congressional intent to require a litigant to proceed exclusively through the SEC's statutory scheme of administrative and judicial review was "fairly discernible in the statutory scheme" itself and (2) that Jarkesy's claims were "of the type Congress intended to be reviewed within [the SEC's] statutory structure."

The court rejected an argument that Jarkesy's case was like the plaintiffs' challenge in Free Enterprise Fund v. PCAOB. In that case, the Supreme Court sustained district-court jurisdiction over the plaintiffs' facial constitutional challenge to Sarbanes-Oxley. The court also rejected an approach that would distinguish between different types of constitutional challenges (allowing some on collateral attack, but not allowing others). The court explained:

We do not read the Free Enterprise Court's characterization of the plaintiffs' claims in that case, however, to define a new category of collateral claims that fall outside an otherwise exclusive administrative scheme. In its subsequent decision in Elgin [v. Department of the Treasury], the Court considered and rejected the idea that one could divine an exception to an otherwise exclusive administrative scheme based on the distinction between various types of constitutional challenges. "[A] jurisdictional rule based on the nature of an employee's constitutional claim would deprive the aggrieved employee, the MSPB, and the district court of clear guidance about the proper forum for the employee's claims at the outset of the case," the Court wrote, dismissing the plaintiffs' proposed line between constitutional challenges to statutes and other types of constitutional arguments to be "hazy at best and incoherent at worst." The Elgin Court also rejected the dissent's proffered rule making an exception to the CSRA scheme specifically for facial attacks on statutes. The Court explained that "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge."

September 29, 2015 in Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Monday, September 28, 2015

D.C. Circuit to Rehear Judgment Vacating Military Commission Conviction

The D.C. Circuit announced that it would rehear en banc a panel's earlier judgment vacating the military commission conviction of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacked.

A panel this past June vacated al Bahlul's conviction for inchoate conspiracy. The panel said that the conviction violated Article III because it was based on "the purely domestic crime" of inchoate conspiracy, which is not an offense under the international law of war.

The panel's summer ruling was a victory for al Bahlul and a blow to the government in conducting military commission trials. But the court's latest ruling gives it a second bite at this apple. The ruling vacates the panel's summer judgment and sets oral argument before the entire court for December 1, 2015.

September 28, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0)

Con Law Scholars Forum at Barry

The Barry University Law School Student Chapter of the American Constitution Society is hosting its Second Annual Constitutional Law Scholars Forum, Friday, April 1, 2016, in Orlando.

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea of the editing stage. The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment. (The Forum is not accepting proposals from students at this time.)

The deadline to submit proposals is December 1, 2015.

E-mail proposals to Ms. Fran Ruhl, Faculty Assistant, at, and to Professor Eang Ngov at, with "Constitutional Law Scholars Forum" in the subject line. Submissions should include a short abstract (300 words max) and biography (150 words max).

There are no conference fees, but participants have to pay their own travel expenses.

The Conference organizer is Professor Eang Ngov,, tel. (312) 206-5677.

September 28, 2015 in News, Scholarship | Permalink | Comments (0)

Ninth Circuit Rejects Franchisers' Constitutional Challenges to Seattle's $15 Minimum Wage

Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage.  Recall that the complaint challenged  the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.

Photo by Steve Rhodes via

The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine.  The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce."  Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:

 We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.

 The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause.  The Ninth Circuit panel concluded:

[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.

The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously.  The Ninth Circuit applied the lowest form of rational basis scrutiny  - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.

The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech"  was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."

Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.

The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors.  But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.

Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility.  Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.

September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Wednesday, September 23, 2015

Deputy Sheriff Gets No First Amendment Protection from Political Reprisal

The Eleventh Circuit ruled that a deputy sheriff does not enjoy First Amendment protection from retaliation in employment for her political beliefs. That's true, the court held, even when local law bans political retaliation against certain covered employees, including the deputy sheriff. The court also rejected the deputy sheriff's Equal Protection claim for gender discrimination.

The case arose when John Darr beat incumbent Sheriff Johnson in the sheriff race in Columbus, Georgia. Darr substantially reorganized the staff, including taking away significant responsibilities from Deputy Sheriff Terri Ezell. According to the court, Ezell "has a long and path-breaking record of law enforcement service for [the Columbus Consolidated Government]." She also supported Johnson (against Darr) in the sheriff race.

Ezell brought a First Amendment claim against Darr and the CCG for retaliating against her based on her political affiliation. Recognizing that circuit law said that a deputy sheriff enjoyed no First Amendment rights against political retaliation (because "the nature of the sheriff-deputy relationship is such that a sheriff must be able to require absolute loyalty from his deputies for his office to be effective"), Ezell argued that local law classified her position within the CCG civil service and prohibits employment decisions based on political patronage. In other words, she said that the CCG civil service system changed the nature of her position for First Amendment purposes in a way that gave her protection against political retaliation, notwithstanding circuit law.

The court rejected this argument. The court said that the touchstone of First Amendment protection for retaliation is the relationship between the deputy sheriff and the sheriff--a question of law--and that this isn't changed by the CCG civil service system. The court said that nothing in the local law could change the fundamental relationship between the offices for First Amendment purposes. This meant that Ezell was subject to circuit law, and that she enjoyed no First Amendment protection.

The court also rejected Ezell's Equal Protection claim based on gender discrimination. The court held that there was no factual dispute that Darr shifted Ezell's responsibilities in order to address problems in the local jail (which Ezell previously supervised)--a non-discriminatory explanation--and that Ezell couldn't show that this was a pretext.

September 23, 2015 in Cases and Case Materials, Equal Protection, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, September 22, 2015

No Constitutional Claim for Former Embed Journalist

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit this week dismissed a case of a former embed journalist against Defense Department officials for terminating his embed status in violation of the First Amendment and the Administrative Procedure Act.

The ruling may reveal a rift on the court over the sweep of sovereign immunity in a constitutional case for non-monetary, specific relief against government actors in their official capacity--that is, over the meaning or sweep of Clark v. Library of Congress (D.C. Cir.). The issue is critically important for access to justice.

The case arose when NATO officials terminated Wayne Anderson's embed status after he posted pictures that violated the Ground Rules for embeds. Anderson sued the Secretary of Defense and DoD officials in their individual and official capacities, seeking reversal of the memo terminating his embed status and declaratory relief (but no monetary damages).

Anderson appealed the lower court's dismissal, but only as to the defendants in their official capacities. He alleged a claim for retaliation under the First Amendment and a violation of the Administrative Procedure Act. (Anderson's precise arguments were a little muddied, and maybe included a procedural due process claim, too.)

The D.C. Circuit ruled that the government enjoyed sovereign immunity against a suit against the defendants in their official capacities, and did not waive it through the APA. (The APA might have provided a statutory waiver of immunity, except that it exempts "military authority exercised in the field in time of war.")

The court went on to say that Anderson's claim was also moot. That's because the Afghanistan mission was drawn down, and NATO (not a party to the suit) led the embed program. In other words, the court said that it couldn't grant any relief to Anderson. But the court noted that Anderson could re-apply for the current embed program.

Judge Srinivasan concurred and dissented. He argued that the government did not enjoy sovereign immunity, citing Clark v. Library of Congress (D.C. Cir.). In that case, the court declined to apply sovereign immunity to shield the government from suit for non-monetary, specific relief for officials' unconstitutional behavior. The Clark court wrote, "Clark's claims for non-monetary, specific relief are not barred by sovereign immunity. It is well-established that sovereign immunity does not bar suits for specific relief against government officials where the challenged actions of the officials are alleged to be unconstitutional or beyond statutory authority."

Judge Srinivasan also argued that the case was not moot, given that the "government has not shown that the transition to a NATO-led mission has made it impossible for the court to provide any relief bearing on a United States journalist's ability to embed."

September 22, 2015 in Cases and Case Materials, Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Second Circuit Grants Standing to Challenge NY's Criminalization of "Gravity Knives"

A gravity knife is “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device,” according to New York Penal Law §265.00 (5).  It is clear that having one is criminal possession of a weapon in the fourth degree, a misdemeanor punishable by no more than one year in prison.  It is less clear, at least according to the plaintiffs in Knife Rights, Inc. v. Vance, exactly what a gravity knife is: what if a person possesses a "common folding knife" that he is unable to open with a "wrist flick," but that someone else (presumably more talented) can open with a "wrist flick."? 

The Second Circuit's opinion in Knife Rights, Inc. v. Vance, however, is concerned not with the due process challenge to the New York law, but the Article III standing of the plaintiffs seeking to challenge it. 

circa 1613 via

Almost two years after the district judge's opinion dismissing all plaintiffs, the Second Circuit has affirmed the lack of standing of the organizational plaintiffs, Knife Rights and Knife Rights Foundation, but reversed as to the individual plaintiffs, Copeland and Perez, as well as Native Leather, a retail knife store.

In applying the well-established test for Article III standing - - -(1)  ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likelihood that the injury ‘will be redressed by a favorable decision.’ - - - the Second Circuit disagreed with the district judge that the plaintiffs had not established an injury in fact. 

Indeed, the three individual plaintiffs had been prosecuted under the statute.  Copeland and Perez, an artist and an art dealer, both carry knives for their work.  Perez was stopped by law enforcement in 2010 in Manhattan for a

metal clip protruding from his pocket. Inquiry revealed the clip to be part of a Gerber brand common folding knife that Perez had purchased approximately two years earlier at Tent & Trail, an outdoor supply store in Manhattan. Plaintiffs assert that the charging officers were unable themselves to flick open Perez’s knife, but based on the possibility that someone could do so, they issued Perez a desk appearance ticket charging him with unlawful possession of a gravity knife.

Copeland was similarly stopped in 2010, but although he had previously shown his knife to NYC police officers to inquire about the legality of its possession and those officers were "unable to flick open the knife and so returned it to Copeland, advising that its possession was legal," when he was stopped, the officers were "able to open the knife by “grasping the knife’s handle and forcefully ‘flicking’ the knife body downwards” and, thus, issued Copeland a desk appearance ticket for violating the statute.

As to the store, Native Leather, it had entered into a deferred prosecution agreement with District Attorney Vance, which included the payment of fines and a "compliance program" to stop selling "gravity knives."

The Second Circuit easily found that the plaintiffs' alleged an imminent threat of prosecution.  The court rightly distinguished the controversial case of City of Los Angeles v. Lyons (1983) involving the police practice of choke-holds, by noting that the plaintiffs here seek to engage in the very conduct that is being subjected to criminalization.  The court denied the organization's standing by concluding that its monetary injury incurred by supporting persons prosecuted under the statute would not be adequately redressed by the injunctive relief sought in the complaint.  (The district court had denied leave to amend, which the Second Circuit affirmed).

The plaintiffs ability to move forward with the merits of their challenge to the New York statute criminalizing specific - - - or as alleged, not sufficiently specific - - - knives seems long overdue. 

September 22, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Opinion Analysis, Standing | Permalink | Comments (0)

Monday, September 21, 2015

D.C. Circuit Upholds Part, and Strikes Part, of Long Gun Registration Law

A divided panel of the D.C. Circuit today upheld portions of the D.C. long-gun registration law, even as the court struck other portions. The mixed ruling has a little for both sides in the debate over gun rights.

This case follows previous rulings in which the court upheld handgun registration requirements and a ban on assault weapons and magazines with a capacity in excess of 10 rounds.

The court applied its familiar two-part framework, asking first whether a provision impinges on a right protected by the Second Amendment, and, if so, second whether the provision satisfies intermediate scrutiny. Here are the results:

Basic Registration: Upheld. The court said that a basic registration requirement for long-guns did not impinge on Second Amendment rights, and therefore didn't even trigger intermediate scrutiny. The court followed its own ruling on registration of handguns, saying that the only difference between the two is the "historical pedigree" of registration requirements for handguns (which registration for long-guns lacks).

The court held that all other requirements, below, did infringe on Second Amendment rights, and therefore applied intermediate scrutiny (with different results):

In-Person Registration, Fingerprinting, and Photographing: Upheld. The court held that an in-person registration requirement, a fingerprinting requirement, and a photograph requirement for an application for a long-gun license were all sufficiently tailored to meet D.C.'s interest in public safety. The court said that these requirements would "help to deter and detect fraud and thereby prevent disqualified individuals from registering firearms" and (as to the photograph requirement) "facilitat[e] identification of the owner of a registered firearm during any subsequent encounter with the police." "The additional requirement that registrants appear in person to be photographed and fingerprinted is but a corollary necessary to implement those requirements."

Bringing the Firearm to Registration: Struck. The court said that the requirement that an applicant bring the firearm to registration was not tailored to promote public safety. "On the contrary, common sense suggests that bringing firearms to the MPD would more likely be a threat to public safety . . . ."

Re-registration Every 3 Years: Struck. The court held that D.C.'s requirement to re-register every three years was not sufficiently tailored to promote public safety, because officials can already conduct background checks on permit holders (without re-registration), the regular registration process should take care of firearms transfers, and D.C. law already requires owners to report lost weapons (obviating the need to use the re-registration process to locate lost or stolen weapons).

Registration Fees: Upheld. The court upheld reasonable registration fees, $13 per firearm and $35 for fingerprinting.

Education Requirements: Upheld and Struck. The court upheld training requirements going to the safe use of firearms, but it struck a testing requirement on D.C. gun laws as not sufficiently tailored to promote public safety.

One Pistol Per Month Rule: Struck. The court struck this limit, because D.C.'s evidence failed to show that it would promote public safety. Moreover, "taken to its logical conclusion, that reasoning [limiting registrations in order to limit firearms present in the home, in order to promote public safety] would justify a total ban on firearms kept in the home."

Judge LeCraft Henderson wrote separate and would have upheld all the requirements under intermediate scrutiny.


September 21, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)