Friday, June 4, 2010
A three-judge panel of the Ninth Circuit today ruled 2-1 to decline further review of Legal Services Corporation (LSC) restrictions on lobbying, class actions, attorney's fees, and client solicitation by legal service organizations that receive LSC funding. The ruling today in Legal Aid Services of Oregon v. Legal Services Corp. affirms the panel's November 2009 decision, and adds an order declining further review.
Plaintiffs in the case argued that the restrictions violated the First Amendment speech clause under the Court's 2001 decision in Legal Services Corp. v. Velazquez. The Court in Velazquez held that an LSC provision that restricted legal services attorneys to arguing only for their clients' benefits in public benefits cases (and prohibiting attorneys from challenging public benefits laws themselves)--the so-called "suits-for-benefits" exception--violated the First Amendment. In Velazquez, Justice Kennedy wrote for the majority that the suits-for-benefits exception distorted the legal system, in that it prevented attorneys from making a standard argument on behalf of their clients, effectively requiring them to fight for their clients with one hand tied behind their back. The Court in Velazquez ruled only on the suits-for-benefits exception; it declined to rule on the restrictions on lobbying, class actions, attorney's fees, and client solicitation--the restrictions at issue here.
The plaintiffs in Legal Aid Services of Oregon picked up on the distortion rationale in Velazquez and ran with it. They argued that the Court articulated a new unconstitutional conditions principle in Velazquez--a distortion test--and that the LSC restrictions at issue here violated it.
The Ninth Circuit panel flatly rejected this reading of Velazquez. The panel wrote that the Velazquez Court rested its holding on First Amendment limited public forum principles, not a new distortion test. The panel ruled that the distortion discussion in Velazquez was "ancillary to the Court's holding in the case."
In applying the limited public forum test, the panel upheld the LSC restrictions, rejecting both the plaintiffs' facial and as-applied challenges, because the restrictions are viewpoint neutral and because they allow for an alternative forum for communication (through the "program integrity rules," modeled after the rules upheld in Rust v. Sullivan, that allow an affiliate to engage in advocacy disallowed for the LSC funded organization).
But nothing in Velazquez commands this result. Justice Kennedy's opinion for the Court in fact rejects a formalist application of the limited public forum test and instead seems to combine public forum principles with the distortion principle advocated by the plaintiffs here. Consider this language from Velazquez:
When the government creates a limited public forum for speech, certain restrictions may be necessary to define the limits and purposes of the program. The same is true when the government establishes a subsidy for specified ends. As this suit involves a subsidy, limited forum cases . . . may not be controlling in a strict sense, yet they do provide some instruction. Here the program presumes that private, nongovernmental speech is necessary, and a substantial restriction is placed upon that speech. . . . The limitation forecloses advice or legal assistance to question the validity of statutes under the Constitution of the United States. . . .
By providing subsidies to LSC, the Government seeks to facilitate suits for benefits by using the State and Federal courts and the independent bar on which those courts depend for the proper performance of their duties and responsibilities. Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys in much the same way broadcast systems or student publication networks were changed in the limited forum cases we have cited. . . .
Perhaps the restrictions at issue in Legal Aid Services of Oregon would not have met this standard, either. But by framing the plaintiffs' facial challenge strictly in terms of the limited public forum analysis, the Ninth Circuit dodged an analysis of the attorney's role (merely to represent clients in court? or to advocate more broadly?) and of the importance of lobbying, class actions, attorney's fees, and client solicitation in the work of poverty lawyers. Had the panel more seriously considered the distortion rationale of Velazque, alongside the limited public forum principles at play in that case, it would have had to more seriously grapple with these important issues--and ruled more squarely on poverty lawyers' rights to help clients through other channels that private attorneys often take for granted.
The Second Circuit, the only other circuit to rule on the constitutionality of the restrictions, also upheld them in Brooklyn Legal Services Corp. v. Velazquez (Velazquez V) in 2006.
Thursday, June 3, 2010
Today the en banc Third Circuit heard oral arguments about two conflicting panel decisions from its judges rendered on the same day in early February :
J.S. v. Blue Mountain Sch. Dist., 593 F.3d 286 (3d Cir. 2010);
Layshock v. Hermitage Sch. Dist., 593 F.3d 249 (3d Cir. 2010).Both controversies involve students who, while off school premises, used a social networking site - - - myspace.com - - - to malign their principals by creating false profiles. Both students were suspended and brought First Amendment challenges.
Any discussion of students and their First Amendment rights begins with the 1969 case of Tinker v. Des Moines Independent Community School District in which the Court famously opined, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court nevertheless recognized that schools have an interest in discipline and maintaining order to accomplish their pedagogical goals. Thus, the Court held student expression within the schoolhouse gates may not be suppressed unless school officials reasonably conclude that the expression will “materially and substantially disrupt the work and discipline of the schools.”
The Tinker rule regarding materially and substantially disruption can be a difficult one to apply. In JS, the Third Circuit panel seemed quite worried about the potential for disruption and was “sufficiently persuaded that the [my space] profile presented a reasonable possibility of a future disruption, which was preempted only by [the principal’s ] expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators.” The majority of the panel credited the principal’s “concern about the profile” as “its particularly disturbing content, not a petty desire to stifle speech critical of him,” although the dissenting judge believed that the “profile was so outrageous that no one could have taken it seriously, and no one did.” The opinion contains details from the myspace profile; one’s interpretation of it might depend on the ways in which one knows middle school children. In Layshock, which involved a high school student, the district judge had found there was no nexus between the profile of the principal and any school disruption; the school district did not appeal that portion of the ruling.
The real problem posed by the JS and Layshock cases is the “schoolhouse gates.” Tinker seems to assume that persons beyond the schoolhouse gates have a full panoply of First Amendment rights, although in 2007 the Court in Morse v. Frederick - - - the BongHits4Jesus case - - - found a "school sanctioned event" during school time to watch the Olympic torch go by was within the metaphorical schoolhouse gates. But in JS and Layshock, the activity of posting the mock-profile occurs outside of school and indeed, the schools blocked the myspace site and the creators sought to exercise control over the profiles’ access. In both cases, how the principals learned of the profiles and how they expended great efforts to obtain the profiles should also be relevant to the “school house gates” issue.
Both Third Circuit panels upheld the district judges, and it is possible that the Third Circuit en banc could uphold both panel decisions, although not without some torturous reasoning.
Wednesday, June 2, 2010
There has been a spate of coverage in recent days of Tea Party calls for repeal of the Seventeenth Amendment--the 1913 Amendment that replaced the appointment of U.S. Senators by state legislatures with popular election. Just to cite a few pieces in just two outlets: David Firestone opined yesterday in the NYT; Ashby Jones responded in the WSJ Law Blog; Matt Bai wrote in today's NYT; Jones came back in today's WSJ Law Blog.
There appear to be two primary arguments against the Seventeenth Amendment. First, the Seventeenth Amendment took away the states' primary political check on the federal government, leading to a vastly oversized federal government that freely tramples the states and their "rights." Next, the Seventeenth Amendment took away the appointment of U.S. Senators from responsible and accountable state legislatures and put it in the hands of special interests (who pull the strings in state-wide senate elections). As a result, Senators represent Big [Fill in the Blank], and not the states. (The links in this paragraph go to The Tenth Amendment Center, a site full of material on "states' rights.")
Both arguments seem surprising in this political climate, where "states' rights" get frequent attention and where "states' rights" advocates seem to enjoy at least some political power at different levels of government. (Don't the arguments fold back on themselves if "states' righters" are able to elect their own senators? And if they can't garner the political support to elect their own senators, doesn't that say something about the voters' views on federal power and "states' rights," effectively negating the arguments?)
In any event, the issue has appeared in a handful of races this year, but has sometimes backfired. "Repeal the Seventeenth Amendment" doesn't appear to be a particularly effective rallying cry, for good reasons. First, there's no particular reason that voters should trust state legislatures more than themselves; repeal thus may sound anti-democratic and even elitist. Next, repeal isn't a particularly durable position: When the politics change, positions on repeal will, too. (If state legislatures were to appoint Senators who do not (by advocates' reckoning) sufficiently respect "states' rights," repeal advocates might call for reinstatement!) Finally, repeal of a constitutional amendment is a particularly difficult (and uncertain) way to achieve the result that advocates seek; they might much more easily promote the election of candidates favorable to their own positions. The call to repeal thus may sound to many voters like a political gimmick, not a serious constitutional position.
Tuesday, June 1, 2010
The Supreme Court today dismissed under the comity doctrine plaintiffs' federal court action alleging discriminatory state taxation against the State of Ohio. The Court in Levin v. Commerce Energy, Inc. ruled that comity required that such cases proceed first in the state courts.
(Comity counsels against lower federal court engagement in certain issues that are better left to the states, even when the federal courts have jurisdiction. State tax policy is a paradigmatic example: States rely upon taxation to carry out their functions, and federal courts should be especially cautious against disrupting state tax administration. Congress codified comity principles in the Tax Injunction Act (TIA), which prohibits lower federal courts from restraining "the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.")
The case involved Ohio's tax scheme for natural gas providers. Under the scheme, the State grants tax exemptions to public utilities that provide natural gas (called local distribution companies, or LDCs), but not to competing independent natural gas providers (called independent marketers, or IMs).
A group of IMs and consumers using IMs sued the Ohio Tax Commission in federal court, alleging that the exemptions violated the Commerce Clause and the Equal Protection Clause and seeking declaratory and injunctive relief invalidating the tax exemptions to the LDCs. (The plaintiffs did not seek equal tax exemptions for themselves; such relief would have required the federal court to enjoin collection of a tax under state law and thus would have been prohibited by the TIA.)
The plaintiffs argued that their case was governed by the Court's 2004 ruling in Hibbs v. Winn. In that case, the Court ruled that neither the TIA nor the comity doctrine blocked a federal taxpayer suit against the State of Arizona alleging that the State's tax credit program for children attending private schools violated the Establishment Clause. The Hibbs Court included a footnote, note 9, that appeared to restrict the reach of the comity doctrine: "[T]his Court has relied upon 'principles of comity' to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection."
The Court thus addressed whether the comity doctrine applied to the plaintiffs' case in light of the Hibbs ruling. The Court first noted that comity is broader than the TIA--that the comity doctrine might counsel against certain federal cases even when the TIA might allow them. It then distinguished Hibbs: First, unlike Hibbs, which involved a fundamental rights, this case involved only a "commercial matter"; next, the plaintiffs in this case were taxpayers seeking federal court aid to improve their economic position, not, as in Hibbs, third-party taxpayers; and finally, state courts are better suited to address the scheme, because "they are more familiar with state legislative preferences and because the TIA does not constrain their remedial options" as it does the federal courts.
The Court wrote that any one of these distinguishing features may not have compelled federal court forbearance, but the three together do. (Justice Ginsburg wrote for the majority in both today's case and in Hibbs.)
As to footnote 9: "The Court . . . did not deploy the footnote to recast the comity doctrine; it intended the note to convey only that the Establishment Clause-grounded case cleared both the TIA and comity hurdles."
The ruling thus rejects federal court intervention in cases involving discriminatory tax schemes where the plaintiffs stand to benefit directly from the ruling and where the scheme involves something other than a fundamental right or suspect classification.
But, importantly, the ruling also reaffirms and validates federal court intervention in cases involving civil rights. And while Hibbs took its lumps today--with Justices Kennedy, Scalia, and Thomas in concurrences remaining "doubtful" of the Court's rationale in Hibbs, and with Justice Alito in a separate concurrernce skeptical of the Court's efforts to distinguish Hibbs--the case remains intact, the "clarified" footnote 9 and all.
Monday, May 31, 2010
As for LGBT Pride month, Obama’s proclamation touts his Administration's accomplishments including passage of the Matthew Shepard act to include hate crimes based on gender identity or sexual orientation, renewal of the Ryan White CARE Act, and signing a Presidential Memorandum directing hospitals receiving Medicare and Medicaid funds regarding LGBT patients and their choice of visitors and decisionmakers. Obama also states he is working toward “repeal the Defense of Marriage Act,” protecting “the rights of LGBT families by securing their adoption rights, ending employment discrimination against LGBT Americans, and ensuring Federal employees receive equal benefits.” He also states, “I am also committed to ending "Don't Ask, Don't Tell" so patriotic LGBT Americans can serve openly in our military, and I am working with the Congress and our military leadership to accomplish that goal.”
In addition to LGBT Pride Month, it is also Great Outdoors Month. Obama's proclamation notes it is an innovation to “reconnect Americans with our great outdoors,” and is linked to “Let’s Move,” the First Lady’s effort to help “ children eat more nutritious foods, lead healthier lives, and increase their physical activity.”
In the National Oceans Month proclamation, Obama acknowledges the BP disaster: the “annual observance falls at a time of environmental crisis, as we continue our relentless efforts to stop and contain the oil spill threatening the Gulf Coast region. The oil spill has already caused substantial damage to our coastline and its natural habitats, and negatively impacted the livelihoods of Gulf Coast small businesses and communities. The environmental and economic devastation to the Gulf Coast region requires our continuing efforts to reverse the damage to our coastlines and revitalize affected areas.”
The Caribbean-American Heritage Month proclamation acknowledges the devastating earthquake in Haiti, and in the African-American music proclamation, Obama rhapsodizes about the “soulful strains of gospel, the harmonic and improvisational innovations of jazz, the simple truth of the blues, the rhythms of rock and roll, and the urban themes of hip-hop.”