Thursday, August 17, 2017

Daily Read: Gorsuch To Give Speech at Trump Hotel Venue

As reported, the newest Supreme Court Justice, Neil Gorsuch, appointed by President Trump is scheduled to deliver a talk at the “Defending Freedom Luncheon,” hosted by the nonprofit Fund for American Studies, an invitation-only event to be held at the Trump Hotel in Washington, D.C.

34033716420_bd72e5fd56_bIt's not the conservative Fund for American Studies sponsorship that is attracting attention, but the venue of the private Trump Hotel. As the emoluments clauses challenges to Trump's alleged intermingling of his office and his personal profits proceed, it is possible that the issue will reach the United States Supreme Court, including facts about functions at the Trump Hotel in D.C.

As we've previously discussed, the Judicial Code of Conduct does not apply to Supreme Court Justices.  And even if it did, it is unclear that the appearance at the hotel - - - without a link to a specific pending case before the Court at this time  - - - would be encompassed or if the only remedy would be subsequent recusal from that case.

Nevertheless, given the controversy surrounding the nomination of Gorusch, this may not be the best look for a Justice intending to eschew continuing controversy.

[caricature of Justice Neil Gorsuch by Donkey Hotey via]

 

 

August 17, 2017 in Courts and Judging, Supreme Court (US) | Permalink | Comments (0)

Ninth Circuit Upholds San Francisco Sign Ordinance Against First Amendment Challenge

 In its opinion in Contest Promotions v. City and County of San Francisco, a panel of the Ninth Circuit upheld San Francisco's sign ordinances prohibiting off-site advertising (billboards) with an exception for noncommercial notices.

The plaintiff company is an advertiser that rents the right to post signs on the premises of third-party businesses advertising "contests in which passing customers can participate by going
inside the business and filling out a form."  It challenged two components of the Planning Code ordinances passed in 2002:

  • a general prohibition of new billboards and other off-site signs with a general permission for business on-site signs advertising that business;
  • an exemption for noncommercial signs.

Nypl.digitalcollections.510d47dd-bc7a-a3d9-e040-e00a18064a99.001.rJudge Susan Graber, writing for the unanimous panel and affirming the trial judge's dismissal of the complaint, rejected the plaintiff's primary argument that the First Amendment intermediate scrutiny standard of Central Hudson & Electric Corporation v. Public Service Commission of New York (1980) was elevated by IMS v. Sorrell (2011) and Reed v. Town of Gilbert (2015).  It relied on the June en banc Ninth Circuit in Retail Digital Network v. Prieto, rejecting a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products, in which the challengers had also argued that Sorrell required heightened scrutiny. It also relied on a 2016 panel opinion in Lone Star Security and Video v. City of Los Angeles, in which the Ninth Circuit upheld L.A.'s mobile billboard ordinances against a First Amendment challenge distinguishing Reed v. Town of Gilbert. 

As in RDN v. Prieto and Lone Star Security and Video, once the Central Hudson standard was deemed appropriate, its four-step application was fairly straightforward.  That the plaintiff's advertisements were legal and nonmisleading was not in dispute. Second, the court easily found that "a locality’s asserted interests in safety and aesthetics" met the requirement of substantial interests. The third step  and fourth steps, both relating to the "fit" and often, as the court acknowledges, not "entirely discrete," were also satisfied. The court found that the ordinance directly advanced the government interests and there was no "constitutional infirmity in the ordinance’s failure to regulate every sign that it might have reached, had Defendant (or its voters) instead enacted another law that exhausted the full
breadth of its legal authority."  The court rejected the plaintiff's analogy to City of Cincinnati v. Discovery Network, Inc. (1993) because in Discovery Network the newsracks that were banned were a small portion of newsracks (thus not actually serving the purpose of the ordinance) and that there was no requirement to ban all advertising, including noncommercial to achieve the purpose.  In essence, the court found that San Francisco's ordinances were not underinclusive.

While the case seems relatively straightforward, it is yet another indication that the appellate courts are not interpreting Sorrell and Reed as expansively as they might and Central Hudson remains entrenched.

[image: "Ice Sitting Contest," N Y Public Library Collection, via]

 

August 17, 2017 in First Amendment, Opinion Analysis, Recent Cases, Speech | Permalink | Comments (0)

Torture Case Against Psychologists Settles

The New York Times reported today that the torture case against two psychologists who designed the CIA torture program settled. We last posted here, when the district court ruled against the defendants' motion to dismiss and rejected the defendants' motion to exclude the Senate Select Committee on Intelligence Report on the CIA's Detention and Interrogation Program.

August 17, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News | Permalink | Comments (0)

Wednesday, August 16, 2017

California Sues Sessions Over Sanctuary Cities Policy

The State of California earlier this week joined Chicago and San Francisco in suing the federal government over DOJ's "sanctuary cities" policy. Our latest post, on Chicago's suit, is here.

California argues that its laws do not violate Section 1373 (they only limit detention beyond the scheduled release date in certain circumstances and require notification to the detainee of any ICE detention or interview request); that only Congress (and not DOJ) has authority to impose the Section 1373-condition on federal grants; that the condition doesn't provide clear notification to the state; and that DOJ's condition is unconstitutional (because it could require detention for 48 hours, and could violate the Fourth Amendment).

August 16, 2017 in Cases and Case Materials, Federalism, News, Spending Clause | Permalink | Comments (0)

Tuesday, August 15, 2017

Three Judge Court Finds Fault with Texas Redistricting Plan

 In its extensive and detailed opinion in Perez v. Abbott, a three judge court found problems including intentional racial discrimination in some aspects of Plan C235, the redistricting plan enacted by the Texas Legislature in 2013.

Authored by United States District Judge Xavier Rodriguez, joined by Chief Judge for the Western District of Texas District Judge Garcia, and Fifth Circuit Judge Jerry Smith, the panel opinion is another episode in the ongoing litigation regarding redistricting in Texas.  The opinion itself is an interlocutory order, with the remedial phase to follow.  Additionally, as in most redistricting litigation, there is a mix of determinations under the Voting Rights Act and the Equal Protection Clause.

Perhaps one of the more interesting issues in the case involves the court's findings regarding intentional discrimination. The court considered the Shaw v. Reno racial gerrymandering claims elaborating on the strict scrutiny standard if racial classifications could be proven.The court rejected the state's position that the discriminatory intent inquiry was limited to the drawing of district lines in 2013, but relying on Fifth Circuit precedent found that the challengers could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination." The court stated:

The decision to adopt the interim plans was not a change of heart concerning the validity of any of Plaintiffs’ claims . . . . {in previous litigation} and was not an attempt to adopt plans that fully complied with the VRA and the Constitution—it was a litigation strategy designed to insulate the 2011 or 2013 plans from further challenge, regardless of their legal infirmities. The letter from then-Attorney General Abbott to Speaker Joe Straus makes the strategy clear: Abbott advised that the “best way to avoid further intervention from federal judges in the Texas redistricting plans” and “insulate the State’s redistricting plans from further legal challenge” was to adopt the interim maps. Thus, Defendants sought to avoid any liability for the 2011 plans by arguing that they were moot, and sought to ensure that any legal infirmities that remained in the 2013 plans were immune from any intentional discrimination and Shaw-type racial gerrymandering claims.

The court did reject some of the challengers other claims, although finding that MALC (a Latino legislative caucus of Texas members in the House of Representatives) had standing, it rejected the claim that there was intentional discrimination in a specific "Latino opportunity district."

The court's summary of its more than 100 page opinion is useful:

  • In Part II, the Court concludes that the racially discriminatory intent and effects that it previously found in the 2011 plans carry over into the 2013 plans where those district lines remain unchanged. The discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy. The Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.
  • In Part IIIA, the Court concludes that Plaintiffs’ § 2 results claims in the DFW {Dallas-Fort Worth} area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part IIIB, the Court finds that the intentional discrimination found in DFW in Plan C185 is remedied in Plan C235, and that Plaintiffs failed to prove that any alleged cracking and packing that remains in DFW was intentionally dilutive.
  • In Part IV, the Court concludes that Plaintiffs’ § 2 results claims in the Houston area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part V, the Court finds that CD23 is a Latino opportunity district and there is no evidence of intentional discrimination/dilution.
  • In Part VI, the Court concludes that the Plan C235 configurations of CD35 and Nueces County/CD27 violate § 2 and the Fourteenth Amendment. These statutory and constitutional violations must be remedied by either the Texas Legislature or this Court.

 The court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered."

Map

August 15, 2017 in Courts and Judging, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, Opinion Analysis, Standing | Permalink | Comments (0)

On Remand, Ninth Circuit Says Spokeo Plaintiff Has Standing

The Ninth Circuit ruled today that Thomas Robins suffered a sufficiently concrete injury to establish Article III standing in his case against the consumer data website Spokeo, Inc. The case was on remand from the Supreme Court.

The case arose when Robins learned that Spokeo published false information about his age, marital status, wealth, educational level, and profession, and published a photo of a different person. Robins claimed that the false report affected his employment prospects. He sued under the Fair Credit Reporting Act, which authorizes consumers affected by a violation to sue, even if the consumer cannot show that the violation caused actual damages.

The Ninth Circuit previously ruled that Robins had standing, because he alleged that Spokeo violated his statutory rights under the FCRA. But the Supreme Court vacated that ruling, saying that even if Robins had statutory standing under the FCRA, he still had to show Article III standing--in particular, a concrete harm--and that the Ninth Circuit didn't engage with that question. The Court remanded the case for a determination.

The Ninth Circuit said today that Robins demonstrated a concrete harm and therefore satisfied Article III standing. The court drew on language in Spokeo that said that sometimes Congress enacts procedural rights to guard against a "risk of real harm, the violation of which may be sufficient in some circumstances to constitute injury in fact" under Article III. Congress may do this, the court explained, "[i]n some areas . . . where injuries are difficult to prove or measure." "Accordingly, while Robins may not show an injury-in-fact merely by pointing to a statutory cause of action, the Supreme Court also recognized that some statutory violations, alone, do establish concrete harm." According to the court, the test is when the congressionally conferred procedural right protects a plaintiff's concrete interests and where the procedural violation presents "a risk of real harm" to that concrete interest.

The Ninth Circuit ruled that Robins met that test. The court said that "Congress established the FCRA provisions at issue to protect consumers' concrete interests." Moreover, even though trivial (but technical) violations of the FCRA won't give rise to concrete harm under Article III (and therefore the plaintiff would need to allege more), in this case

it is clear to us that Robins's allegations relate facts that are substantially more likely to harm his concrete interests than the Supreme Court's example of an incorrect zip code. Robins specifically alleged that Spokeo falsely reported that he is married with children, that he is in his 50s, that he is employed in a professional or technical field, that he has a graduate degree, and that his wealth level is higher than it is. It does not take much imagination to understand how inaccurate reports on such a broad range of material facts about Robins's life could be deemed a real harm.

The court rejected Spokeo's argument that Robins's harm was too speculative, because Robins met the court's risk-of-real-harm standard.

The ruling means that Robins's case against Spokeo can proceed to the merits.

August 15, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Seventh Circuit Says No Free Speech Retaliation Claim for Policymakers

The Seventh Circuit ruled that state workers' compensation arbitrators did not have a free-speech claim against the governor for not re-appointing them in retaliation for their earlier lawsuit against the governor for changes to the worker-compensation system.

The case is notable, because the court applied restrictive circuit law on policymakers' First Amendment retaliation claim (and not the more general, and more speech-friendly, Pickering test for most public employees), and because the court applied this law to a claim for retaliation for a lawsuit (and not a more familiar form of public speech, like an op-ed).

The case arose when Illinois changed its workers' compensation law. Among other changes, the state changed the appointment schedule for workers' compensation arbitrators. In particular, it terminated all arbitrators' six-year appointments effective July 1, 2011, and provided for executive appointments (with advice and consent of the state senate) for staggered three-year terms for future arbitrators.

Some of the arbitrators sued, arguing that the change violated due process. While that suit was pending, the governor appointed and reappointed arbitrators, but not the plaintiffs in the due-process suit. So they sued again, this time for retaliation for exercising their First Amendment rights in bringing the original due-process suit. They claimed that the governor declined to reappointment them only because they filed that earlier suit, which, they claimed, was "important to, in a public forum, hash out concerns . . . regarding the workers' compensation reforms and to outline that the governor of the State of Illinois had violated the United States Constitution."

The district court tossed the suit, concluding, under Pickering, that the earlier due-process suit was not speech on a matter of public concern.

The Seventh Circuit affirmed, but on a slightly different ground. The Seventh Circuit applied its "policymaker corollary" to Pickering--a circuit rule that derives from Elrod v. Burns and Branti v. Finkel. In those two cases, the Supreme Court said that as a general matter government employers can't fire public employees on the basis of political affiliation. But the Court also recognized an exception for employees who occupy policymaking or confidential positions, thus ensuring that elected officials wouldn't be "undercut by tactics obstructing the implementation of policies . . . presumably sanctioned by the electorate."

The Seventh Circuit's "policymaking corollary" takes the Elrod and Branti exception a step farther, to policymakers' speech:

Instead, under the "policy-maker corollary to the Pickering analysis, the First Amendment does not prohibit the discharge of a policy-making employee when that individual has engaged in speech on a matter of public concern in a manner that is critical of superiors or their stated policies."

The court concluded that the arbitrators were "policymakers," because "the position authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement," and because "the position entails the exercise of a substantial amount of political (as distinct from professional) discretion." It further concluded that the due-process lawsuit amounted to "speech . . . in a manner that is critical of superiors or their stated policies."

The ruling ends the arbitrators' case.

August 15, 2017 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, August 11, 2017

Eighth Circuit Upholds Nebraska Funeral Picketing Statute in First Amendment Challenge

 In its opinion in Phelps-Roper v. Ricketts, a panel of the Eighth Circuit, affirming the district judge, rejected First Amendment facial and as-applied challenges to Nebraska's funeral picketing law, §28-1320.01 et seq. 

The Nebraska statute was prompted by the activities of the "Westboro Baptist Church" (WBC) organization, of which Shirley Phelps-Roper is a leader, in picketing military funerals as their opposition to "homosexuality."  Recall that in 2011, the United States Supreme Court held that the First Amendment protected Reverend Fred Phelps's hateful and harmful speech at the funeral of Marine Lance Corporal Matthew Snyder against state tort claims of intentional infliction of emotional distress and intrusion upon seclusion.  Recall also that the constitutionality of ordinances and statutes seeking to regulate funeral protests has been previously challenged by the WBC and Phelps.

Here, the unanimous panel, in an opinion authored by Judge Bobby Shepherd, held that the Nebraska statute survived a facial First Amendment challenge.  The Eighth Circuit en banc had previously upheld the City of Manchester, Missouri's ordinance as a constitutional time, place, and manner restriction, but the Nebraska statute differed because the place restriction extends the distance between the picketers and the funeral from 300 to 500 feet and the time restriction is “from one hour prior to through two hours following the commencement of a funeral,” instead of Manchester’s “during or within one hour before or one hour after the conducting of a funeral.” Nevertheless, the court held that the Nebraska statute, like the Manchester ordinance, "serves a significant government interest, is narrowly tailored, and leaves open ample alternative channels for communication."

The as-applied challenge centered on one Omaha protest in 2011, with Ms. Phelps-Roper claiming that the Omaha police treated her differently than others (viewpoint discrimination), that she was forced well beyond the 500 foot buffer zone, and that the police allowed others to interfere with her message. The Eighth Circuit discussed the evidence for each claim and affirmed the trial judge's findings that there was no constitutional violation.  On the interference claim, the Eighth Circuit discussed the Sixth Circuit en banc decision in Bible Believers v. Wayne County (2015), but found the situation clearly distinguishable and there was no violence at the WBC funeral event.  as the opinion declared,

WBC is not entitled to its own bubble-ensconced pedestal surrounded by chalk lines or yellow tape any more than those opposed to WBC messages are entitled to a heckler’s veto. Law enforcement has a duty to enforce the laws equally without regard to the viewpoints expressed.

The opinion is thorough yet succinct, with little that merits continued litigation.  Perhaps we might be nearing the end of the First Amendment funeral protest saga.

 

 

August 11, 2017 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Eighth Circuit Says No Standing to Sue Governor, AG for State's Roving Stops Law

The Eighth Circuit ruled this week that a dump truck driver lacked standing to bring a facial challenge to a state's roving-stop statute against the governor and state attorney general. But at the same time the court said that the plaintiff could move forward on his as-applied claim against the superintendent of the state highway patrol for declaratory and injunctive relief.

The case challenges Missouri's law that authorizes the highway patrol to stop commercial vehicles and inspect them for compliance with size- and weight-requirements, even without probable cause. Calzone, a dump-truck driver who was stopped under the act, sued the governor, state AG, and superintendent of the highway patrol in their official capacities for nominal monetary damages and injunctive and declaratory relief, arguing that the law was unconstitutional on its face and as applied.

The court ruled that Calzone didn't have standing to sue the governor or AG, because they weren't directly responsible and authorized to enforce the statute. The court said that he did have standing to sue the superintendent for declaratory and injunctive, however, because she was directly responsible for enforcement.

The court went on to rule that the statute wasn't facially unconstitutional, because it satisfied the three-part test for searches in "closely regulated industries" under New York v. Burger.

That leaves only Calzone's as-applied claim for declaratory and injunctive relief against the superintendent. (Calzone sued the superintendent in her official capacity, so couldn't recover damages under Section 1983.) The court remanded this claim to the district court for further proceedings.

August 11, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Third Ciruit Issues Mixed Ripeness Ruling in Preenforcement Challenge to Escheat Law

The Third Circuit ruled this week that a case challenging Delaware's escheat law, prior to an investigation under the law, was ripe in one respect, even though it mostly was unripe. The ruling allows just one piece of the case to move forward--an as-applied procedural due process challenge.

The case arose when Delaware appointed a private auditing firm, Kelmar Associates, to investigate Plains All American Pipeline under the state's escheat law. Kelmar sent Plains a document request to initiate the investigation; Plains complained to the state; the state backed Kelmar; and Plains sued. Plains argued that the escheat law violated the Fourth Amendment, and the Ex Post Facto, Equal Protection, and Takings Clauses on their face, and the Due Process Clause as applied; it also argued that the law was void for vagueness and was preempted by federal law. It sought declaratory and injunctive relief.

The court applied its own "refined" test for ripeness, which looks to (1) the adversity of the parties' interests, (2) the conclusiveness of the judgment, and (3) the utility of the judgment. As to adversity, the court said that Plains couldn't demonstrate a sufficient harm, and that Plains didn't face an Abbott Labs Hobson's choice, to establish adversity. As to conclusiveness, the court said that Plains's challenges required further factual development for a ruling. And as to utility, the court said that the investigation currently requires Plains to do nothing: "Plains 'would take the same steps whether or not it was granted a declaratory judgment.'"

But, in contrast, the court ruled that Plains's as-applied procedural due process claim was ripe for review. The difference: Plains challenged the appointment of Kelmar as a violation of procedural due process. And because that harm already occurred, Plains could move forward to the merits. (Success on the merits, of course, is a different question.)

August 11, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Ripeness | Permalink | Comments (0)

Thursday, August 10, 2017

Federal Judge Declares Louisiana's Restriction on Non-Native Born Marriage Applicants Unconstitutional

 In an opinion in Vo v. Gee, Senior United States District Ivan L.R. Lemelle declared Louisiana's Act 436 violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Act 436 amended the requirements to obtain a Louisiana marriage license so that an applicant born outside of the United States must submit a copy of the person's birth certificate under the raised seal or stamp of the vital statistics registration authority of the person's place of birth, with additional requirements if the document is not in English, and a valid and unexpired passport or an unexpired visa accompanied by a Form I-94 issued by the United States, verifying that the applicant is lawfully in the United States.  Viet "Victor" Ahn Vo, naturalized as a United States citizen at the age of 8, was nevertheless denied a marriage license because he did not have a birth certificate.  Vo was born in Indonesia in a refugee camp to parents who were Vietnamese nationals, relocating to Louisiana when Vo was three months of age.

Nypl.digitalcollections.510d47e2-d195-a3d9-e040-e00a18064a99.001.rOn the equal protection issue, Judge Lemelle stated that the "birth certificate provisions that the Louisiana legislature enacted creates classifications that distinguish between United States citizens on the basis of their national origin," and thus merits strict scrutiny, requiring a compelling government interest which the statute serves by narrowly tailored means. Without discussing any interests put forward by the state, Judge Lemelle concluded that the "State of Louisiana fails to demonstrate in their opposition that this classification based on national origin furthers a compelling governmental interest."  The judge therefore concluded there was an equal protection violation.

On the due process challenge, Judge Lemelle cited the "fundamental right to marry" under Obergefell v. Hodges as well as the Zablocki v. Redhail (1978) test of directly and substantially interfering with marriage as warranting strict scrutiny.  The judge rejected Louisiana's claim that a subsequent amendment to the act that allows for a judicial waiver in some cases cures the constitutional defects or rendered the case moot. (Recall that in Zablocki itself the statute allowed a judicial waiver of the bar for past due child support payments as an impediment to marriage).  Instead, Judge Lemelle noted that "the failure of the State of Louisiana to proffer any evidence of why this regulation passes constitutional muster" and held it violated due process.

The bulk of Judge Lemelle's relatively brief opinion addresses the more procedural issues of summary judgment and injunction standards, perhaps because the constitutional issues were clear as Louisiana seemingly conceded. Nevertheless, this is an important opinion regarding the issue of differential treatment for non-native born citizens.

 

 

August 10, 2017 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fundamental Rights, Opinion Analysis, Race | Permalink | Comments (0)

Torture Case Against Psychologists to Move Forward

Judge Quackenbush (E.D. Wash.) ruled earlier this week that the torture case against psychologists who helped design and implement the CIA's "enhanced interrogation techniques" can move forward. The jury trial is set to commence on September 5.

Judge Quckenbush rejected the defendant's argument that the case raises a political question; that the defendants enjoy absolute derivative sovereign immunity; that the Alien Tort Statute doesn't confer jurisdiction over the plaintiffs' claims; and that the defendants are not liable for violating international law. The court also rejected the defendants' motion to exclude the Senate Select Committee on Intelligence Report on the CIA's Detention and Interrogation Program.

At the same time, the court rejected the plaintiffs' motion for partial summary judgment on the ATS claim. The court said that "the issue of aiding and abetting liability under the ATS present complicated issues of both fact and law. Neither side has demonstrated judgment as a matter of law is appropriate."

The ruling keeps the case on track for trial on the merits.

 

August 10, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News | Permalink | Comments (0)

Tuesday, August 8, 2017

Chicago Sues DOJ Over Sanctuary Cities Conditions

The City of Chicago filed suit this week against the U.S. Department of Justice over the Department's conditions on a federal law-enforcement grant designed to clamp down on sanctuary cities. The suit is just the latest escalation in the running disputes between "sanctuary" jurisdictions and the Trump Administration. We posted most recently here.

Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City's long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance. DOJ announced some time ago that it would require grant recipients to comply with Section 1373 (which requires state and local authorities to communicate with federal authorities regarding the immigration status of individuals in their custody). More recently, DOJ announced that it would also require recipients to give the federal government notice of release of any individual at least 48 hours before the scheduled release (the notice condition) and to give federal immigration officials unlimited access to local police stations and law enforcement facilities to interrogate any suspected non-citizen held there (the access condition).

Chicago claims as an initial matter that it complies with Section 1373. That's because its Welcoming Policy prohibits officers from collecting immigration information from individuals in the first place, not from communicating information to federal officers. "[T]hus there is no information for the City to share (or restrict from sharing)." And "[m]oreover, if Chicago officials happen to come across immigration status information, they are not restricted from sharing it with federal officials."

As to the conditions themselves, Chicago argues that they exceed the grant requirements that Congress wrote into the Byrne JAG program; that only Congress, and not the Executive Branch, can add or change the statutory conditions on the program; and that the conditions violate federal conditioned-spending rules. As to the last, Chicago says that the conditions "are not germane to the Byrne JAG funds it has received for over a decade," that the notice and access conditions would require the City to violate the Fourth Amendment (by requiring that the City continue to hold individuals without probable cause for 48 hours, that the access condition, that the conditions are ambiguous, and that they are unconstitutionally coercive. The City also argues that each condition unconstitutionally commandeers it and its officers.

The case is in the Northern District of Illinois.

August 8, 2017 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, Music, Separation of Powers, Spending Clause | Permalink | Comments (0)

Sunday, August 6, 2017

Third Circuit Rejects Next-Generation ACA Contraception-Requirement Challenge

A divided three-judge panel of the Third Circuit last week rejected a challenge to the contraception requirement under the Affordable Care Act by a self-described non-religious, anti-abortion nonprofit and three of its employees. The case represents the next generation of challenges to the requirement--after Hobby Lobby (a for-profit corporation with a religious objection) and Zubik v. Burwell (dealing with religious non-profits).

The plaintiff, Real Alternatives, is a non-profit, self-described non-religious, anti-abortion organization that objected to the contraception requirement on Equal Protection and statutory grounds. In particular, the organization and three of its employees argued that the requirement violates equal protection, because "if a religious organization may be exempted from the Contraceptive Mandate, then non-religious entities with an identical stance on contraceptives must be exempted as well." They also challenged the requirement under the Administrative Procedures Act. The three employees also argued that the requirement violated the Church Amendment and the RFRA.

The court rejected all of these challenges. As to equal protection, the court said, quite simply, that Real Alternatives, as a non-religious group, is not "similarly situated to a religious employer, such that the Exemption must be available to the group . . . ." In other words, Real Alternatives can't shoehorn itself into an exemption created for religious employers by way of the Equal Protection Clause, because, well, it's not religious. The court went on to say that "respecting church autonomy" by creating an exemption for churches (and not secular non-profits) is a "legitimate purpose--one that not only satisfies rational basis review but also is enshrined in the constitutional fabric of this country."

The court rejected the APA claim based on the same standard (under a different name): the requirement isn't "arbitrary and capricious" under the APA, for the same reasons that it satisfies rational basis review under equal protection.

As to the Church Amendment, the court said that the plaintiffs lacked standing, because they "purchase their health insurance from a company in the health insurance market, not from HHS or an HHS-administered health insurance program that falls under the purview of the Church Amendment."

Finally, as to RFRA, the court said the requirement didn't create a substantial burden on the employees' religious exercise, because merely being covered by insurance only gives the employees a choice to access a service, not a substantial burden on their religious exercise:

It is still up to the employee to decide what to do with those options, to seek out relevant providers, to submit claims for reimbursement for the service he or she selects, and so on. The act complained of--the filling out of a form that triggers eligibility for reimbursement for services the employee chooses to use (or not)--has not changed, and it in no way amounts to the sort of "substantial" burden consistently found contrary to RFRA. And the possibility that others might avail themselves of services that the employees find objectionable is no more burdensome than filling out the form . . . .

Judge Jordan dissented, arguing that the employees "adequately pled and provided sufficient evidence to demonstrate that the Contraceptive Mandate is a substantial burden on their free exercise of religion" under RFRA. (Judge Jordan joined the other parts of the majority opinion.)

August 6, 2017 in Cases and Case Materials, News, Opinion Analysis, Religion | Permalink | Comments (0)

Eighth Circuit Rejects Temporary Injunction Against State Robocall Statute

The Eighth Circuit last week rejected a plaintiff's request for a temporary injunction against a Minnesota statute restricting robocalls. The court ruled that the plaintiff wasn't likely to succeed on his First Amendment claim.

The statute bans robocalls, except "(1) messages from school districts to students, parents, or employers, (2) messages to subscribers with whom the caller has a current business or personal relationship, or (3) messages advising employees of work schedules." A later amendment also exempts "messages from a nonprofit tax-exempt charitable organization sent solely for the purpose of soliciting voluntary donations of clothing to benefit disabled United States military veterans and containing no request for monetary donations or other solicitations of any kind."

A political consultant challenged the law, arguing that, given the exceptions, it was an illegal content-based restriction on speech.

The Eighth Circuit disagreed, at least at this preliminary stage. The court first severed the military-veteran-donation exception from the rest of the statute. It then ruled that the other exceptions weren't content-based; instead, they were based on assumed implied consent of the target of the robocall:

[T]he permissions granted in the Minnesota statute do not reflect a content preference; they are based on an assumption of implied consent. The State does justify the statute in part based on an interest in protecting residential privacy against disruptive calls, but this interest is not grounded in a preference for certain content. Where a subscriber has impliedly consented to receipt of pre-recorded mesages, the caller may place a robocall about political campaigns, work schedules, or any other topic. Where there is no such implied consent, automated calls are banned entirely, regardless of their content. [The plaintiff] does not contend that the statute forbids him to communicate with any subscriber who has impliedly consented to receipt of his robocalls.

The court rejected the plaintiff's argument that Citizens United, Reed v. Town of Gilbert, or Matal v. Tam change this result. "[T]he statute does not prefer certain speech based on content, and does not disfavor certain ideas over others. The statute as a whole disfavors robocalls to strangers, but it allows them with consent. . . . The exceptions depend on the relationship between the caller and the subscriber, not on what the caller proposes to say."

August 6, 2017 in Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Seventh Circuit Rebuffs Preliminary Challenge to Same-Day Voter Registration Law

The Seventh Circuit ruled last week that plaintiffs were unlikely to succeed on the merits of their challenge to Illinois's same-day voter-registration law. The ruling sends the case back to the district court for proceedings on the merits, although the ruling strongly suggests that the law is constitutional.

The case, brought by a Republican congressional candidate in the 2016 election and a county Republican party, alleged that Illinois's same-day registration law violated the Equal Protection Clause, because an opt-out provision would disadvantage voters in smaller counties, and thus comparatively boost Democratic voter turnout.

The law requires counties to provide same-day voter registration. But it includes an opt-out for smaller counties that don't have an electronic pollbook. Still, the law requires those counties to offer election-day registration at "the election authority's main office," as well as at "a polling place in each municipality where 20% or more of the county's residents reside if the election authority's main office is not located in that municipality."

The plaintiffs sought and received a preliminary injunction in the district court, but the Seventh Circuit stayed it before the 2016 election. Last week the Seventh Circuit vacated the injunction altogether.

The court said that the law didn't severely burden voters' constitutional right to vote, and so the district court improperly applied strict scrutiny. The court went on to say that the plaintiffs didn't demonstrate a likely success on the merits even under the less rigorous balancing test under Burdick v. Takushi. It concluded:

Even though [the Illinois law] does not force quite as many options on the smaller counties as it does on the 20 largest counties, it permits every county to adopt the default same-day rules, and it provides realistic same-day options even in the smaller places. This, couples with the lack of any data about which groups are disadvantaged and how, dooms the injunction.

August 6, 2017 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0)

Ninth Circuit Hands Partial Victory, but Ultimate Defeat, to Wiretap Subject

The Ninth Circuit ruled last week that Maricopa County officials violated federal law when they sought and obtained a wiretap, but that that the subject couldn't recover damages, because the officials acted in good faith and consistent with Arizona law and long-standing practices.

The ruling adds to a complicated body of law on federal preemption under the Omnibus Crime Control and Safe Streets Act of 1968 of state law authorizing wiretaps. The Ninth Circuit aligned with the approach of the First Circuit, and asked whether state procedural protections were "in substantial compliance with the federal law."

The case arose when County Attorney Montgomery, pursuant to state law, authorized a deputy to apply for a wiretap. The deputy obtained an order, and officials intercepted eight conversations between Manuela Villa and her daughter in 2011 and 2012. Officials, pursuant to long-standing state practice, then did not immediately deliver the recordings to the state court that authorized the wiretap.

Villa sued under Title III, arguing that officials violated Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, and that Title III preempted Arizona law that authorized the wiretap. In particular, Villa argued that County Attorney Montgomery, acting pursuant to state law, improperly delegated the authority to apply for a wiretap order to his deputy, in violation of Title III, which requires the "principal prosecuting attorney" to apply for a wiretap. Villa also argued that Deputy Brockel, acting pursuant to long-standing practice, failed to timely submit the recordings to the state court that authorized the wiretap, in violation of a Title III requirement that officials submit intercepted conversations to the authorizing court "[i]mmediately upon the expiration of the period of the order, or extensions thereof."

The Ninth Circuit first ruled that Villa lacked Article III standing to seek declaratory and injunctive relief. The court said that she could demonstrate no individualized future harm that would justify prospective relief. The court rejected Villa's taxpayer-standing claim out of hand, and held that she "does not allege that she is more likely than any other member of the public to have her future conversations illegally intercepted." Because Villa lacked standing for prospective relief, the court said that she also lacks standing to pursue prospective relief on behalf of a putative class.

In contrast, the court held that Villa did have standing to pursue individual damages for past interceptions, but, as below, couldn't actually recover.

The court held next that Title III preempted Arizona law, and that Arizona officials violated Article III. As to authorizing wiretaps, the court adopted the standard set by the First Circuit: "so long as the state wiretapping statute, considered as a whole and as interpreted by state courts, is in substantial compliance with, and is therefore equal to, Title III, state wiretaps are permissible." The court said that Arizona's statute, which authorizes a principal prosecuting attorney to delegate authority to apply for a wiretap to a deputy, didn't meet the standard: "substantial compliance with Title III requires that the principal prosecuting attorney indicate, as part of the application process, that he or she is personally familiar with all of the 'facts and circumstances' justifying his or her 'belief that an order should be issued,'" but that the Arizona statute permitted the "principal prosecuting attorney to state that he or she is [only] generally aware of the criminal investigation . . . ."

As to making the recordings available to the court that approved the wiretap, the court said that "long-standing practice" at the time of Villa's wiretap, in which "county officials submitted recordings of intercepted conversations for sealing only at the conclusion of an entire criminal investigation," was "not in substantial compliance" with federal law. But the court went on to say that a practice of submitting recordings within 10 days would be in compliance with the Act.

But even though the court concluded that officials violated the Act, it also ruled that Villa couldn't recover damages, because the officials acted in good faith, consistent with Arizona law or long-standing practices. (Good faith is a defense under a Title III cause of action.)

August 6, 2017 in Cases and Case Materials, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Preemption, Standing | Permalink | Comments (0)

Friday, August 4, 2017

D.C. Circuit Keeps Obamacare Subsidy Case Alive

The D.C. Circuit earlier this week allowed 17 states and the District of Columbia to intervene in the suit challenging federal subsidies to insurance companies under the Affordable Care Act.

The development keeps the appeal alive, even as President Trump considers halting the payments. Such a move before this week's ruling would have mooted the appeal. But now that the states can defend the payments, and oppose Judge Collyer's ruling, it's not entirely clear whether President Trump can stop the payments, or whether the D.C. Circuit might stop him if he tried.

Recall that House Republicans sued the Obama Administration for making payments to insurance companies under the ACA, even though the line-item for those payments was zero funded. The payments were designed under the ACA to subsidize insurance companies for providing affordable plans on the exchanges. But Congress allocated no money to the line-item designated for the subsidies. The Obama Administration nevertheless made payments, drawing money from another, related account. (Without the payments, insurance rates would skyrocket on the exchanges, or insurers would have pulled out, or both.)

House Republicans sued, and Judge Rosemary Collyer (D.D.C.) ruled in their favor. But she stayed her injunction pending appeal. President Trump then inherited the appeal from the Obama Administration, allowing him to drop the appeal, leave Judge Collyer's decision in place, and stop the payments. (If President Trump dropped the appeal, Judge Collyer's stay pending appeal would have gone away.) He could even have cited Judge Collyer's ruling as a reason for stopping payments, perhaps diffusing some of the political blow-back from such a move.

But President Trump didn't drop the appeal. Moreover, he has continued the payments, even as he repeatedly suggests that he might stop. Bipartisan lawmakers have encouraged him to continue payments. A final decision is due from the White House this week.

Now, with this most recent order from the D.C. Circuit, allowing states to join the suit, the appeal will continue (with the states now defending the payments, even as the Trump Administration doesn't), and Judge Collyer's stay will remain in place, at least until the D.C. Circuit rules on the case. While the stay itself doesn't prevent the President from halting payments, the states' intervention might: Because the D.C. Circuit said that the states demonstrated sufficient harm if the subsidies stop (a condition of intervention), it's not entirely clear that President Trump can stop them. And even if he can, it's not clear that the D.C. Circuit might not prevent him from stopping them (in order not to harm the states).

In other words, the states' intervention might tie the President's hands by forcing him to continue payments, even though the parties to the lawsuit might otherwise agree to stop the payments and let the case go moot.

The uncertainty here comes, on the one hand, from the fact that the President can probably stop the payments whenever he wants, irrespective of the states' intervention or Judge Collyers' ruling and stay. But on the other hand if the states argue that the President has to make payments under the ACA (and not just that he can't be prevented from making payments), then the D.C. Circuit could stop the President from halting payments. This week's ruling suggests, but does not specifically say, that the D.C. Circuit is leaving this latter option open.

But it gets even weirder. The D.C. Circuit might not even rule on the merits. That's because the states will surely challenge the House's standing to bring the case in the first place. If the D.C. Circuit kicks the case on standing grounds, that'll undue Judge Collyer's decision against the payments.

For now, the ball's in the President's court.

August 4, 2017 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

AG Moves to Clamp Down on Sanctuary Cities Through Public Safety Partnership Program

Attorney General Jeff Sessions announced yesterday that DOJ will "tak[e] . . . into account" a city's "sanctuary" status in determining eligibility for the Department's new Public Safety Partnership program. AG Sessions accompanied the announcement with letters to Albequerque, Baltimore, San Bernadino, and Stockton--cities that had expressed an interest in participating in the PSP--asking for information related to their sanctuary policies.

The move adds a new program, the PSP, to some other Justice programs that are also unavailable to "sanctuary" jurisdictions--those jurisdictions that restrict their officers from communicating with federal authorities regarding the citizenship or immigration status of individuals in detention. In this way, the move is yet one more attempt by DOJ to encourage jurisdictions to drop their sanctuary policies.

AG Sessions initiated the PSP program in June. It provides training and technical assistance to local jurisdictions "to address violent crime in their communities." The Department initially selected twelve jurisdictions to participate in the program.

Earlier, the Department moved to clamp down on "sanctuary" jurisdictions by requiring them to drop their sanctuary policies as a condition of qualification for certain Justice grants. (In particular, DOJ said that jurisdictions that failed to comply with Section 1373 would not qualify for certain DOJ and DHS grants. Section 1373 says that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.") DOJ adopted this policy as a way to implement President Trump's facially overbroad sanctuary cities executive order.

AG Sessions didn't go so far as to categorically deny sanctuary jurisdictions from the PSP program, however. Instead, he said that "[b]y taking simple, common-sense considerations into account, we are encouraging every jurisdiction in this country to cooperate with federal law enforcement." Specifically:

In determining which jurisdictions to select, the Department will ask interested jurisdictions the following questions:

1.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that U.S. Department of Homeland Security (DHS) personnel have access to any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States?

2.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities provide at least 48 hours advance notice, where possible, to DHS regarding the scheduled release date and time of an alien in the jurisdiction's custody when DHS requests such notice in order to take custody of the alien?

3.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities will honor a written request from DHS to hold a foreign national for up to 48 hours beyond the scheduled release date, in order to permit DHS to take custody of the foreign national?

AG Sessions tied the PSP program to the no-sanctuary-policies condition by arguing that sanctuary cities threaten public safety: "By protecting criminals from immigration enforcement, cities and states with so-called "sanctuary" policies make all of us less safe." AG Sessions presumably drew the connection at least in part in order to satisfy the relatedness requirement for federal conditioned spending programs under South Dakota v. Dole. (Under South Dakota, a federal conditioned spending program must (1) be in the "general welfare," (2) state the condition clearly, (3) be related to the condition, and (4) not turn pressure to participate into compulsion to participate.)

August 4, 2017 in Executive Authority, Federalism, News, Spending Clause | Permalink | Comments (0)

Thursday, August 3, 2017

Senate Blocks President Trump from Making Recess Appointments

The Hill reports that Senator Lisa Murkowski (R-Alaska) set nine pro forma sessions for the Senate over the August recess. The move means that the body will be in session every three days, even if only very briefly (just to gavel in, then immediately gavel out), so that it won't formally adjourn for the recess. Without an adjournment (more particularly, without formally going into a "recess"), President Trump can't use his recess appointment power.

Senate Republicans effectively used this tactic to frustrate President Obama's efforts to fill key executive slots. In 2014, the Supreme Court sided with the Senate on the practice in NLRB v. Noel Canning. The Court in that case held as a general matter that the Senate is in session when it says it is, and it's not when it says it's not. In particular, it held that a Senate schedule with a pro forma session every three days does not constitute a "recess" under the Recess Appointments Clause (unless the Senate says so). So when the Senate sets an every-three-day pro forma schedule over the August "recess," it similarly isn't in "recess" under the Recess Appointments Clause. And President Trump therefore can't make recess appointments.

August 3, 2017 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (1)