Friday, August 24, 2012
A sharply divided three-judge panel of the D.C. Circuit ruled in R.J. Reynolds Tobacco Co. v. FDA that the FDA's new regulations requiring textual warnings and graphic pictures depicting the negative health consequences of smoking violate the First Amendment. The ruling affirms an earlier ruling by Judge Richard Leon (D.D.C.), but applying a different level of scrutiny.
The panel split, together with the several different opinions (including Judge Leon's) as to the appropriate level of scrutiny, make this case a likely candidate for en banc review and, ultimately, Supreme Court review. The case offers a good opportunity to clarify the level of scrutiny for compelled speech that seems both commercial and non-commercial in different ways. In determining the standard, this case also offers a good opportunity to decide how to interpret Zauderer's correction-of-misleading-speech: Does Zauderer's rational basis review apply only when the government compels speech to correct currently misleading speech (as the majority says); or does it also apply when the government compels speech to correct historically misleading speech (as the dissent argues)? Finally, the case also offers a good opportunity to apply a level of scrutiny, where the compelled speech--including graphic pictures--is designed to inform consumers of the dangers of smoking and to reduce smoking.
Those questions were front and center for the D.C. Circuit. Judge Brown wrote the opinion, ruling that the Central Hudson intermediate scrutiny test was the appropriate standard. (The court thus rejected the Zauderer rational basis test, for largely the same reasons that Judge Leon rejected that test: because FDA's pictures were not designed to correct the same kind of misleading speech at issue in Zauderer and its progeny. But the court also rejected strict scrutiny (Judge Leon's test), saying that circuit law required application of Central Hudson's intermediate standard.)
Judge Brown wrote that the FDA's compelled textual warnings and graphic pictures were simply not sufficiently tailored under Central Hudson to meet its two interests--even if those interests were substantial. As to the FDA's interest in reducing smoking, the court ruled that the FDA failed to produce any evidence showing that pictures like this would cause smokers to quit and persuade non-smokers not to start. As to the FDA's interest in "effectively" informing consumers of the harms of smoking, the court said that this was too vague an interest and would allow the FDA itself to define "effectively," ultimately "render[ing] Central Hudson's 'substantial interest' requirement a complete nullity" and "eviscerat[ing] the requirement that any restriction 'directly advance' that interest." Op. at 29.
Judge Rogers dissented, arguing that the court didn't take sufficient account of the government's informational interest and that the compelled speech, with the exception of the inclusion of the toll-free number "1-800-QUIT-NOW," satisfied either Zauderer's rational basis review or Central Hudson's intermediate scrutiny. (Judge Rogers argued first that the compelled speech was accurate and designed to correct the tobacco companies' "decades-long campaign to deceive consumers" and thus fell squarely within Zauderer. Judge Brown rejected this approach, looking only to whether the tobacco companies' here-and-now statements were misleading.) Judge Rogers wrote that the FDA had amassed volumes of evidence showing that its warnings and pictures would best get consumers' attention and inform them of the dangers of smoking.
Who should help pay the costs of public transportation?
That's the underlying question posed by Edward Mangano, the Nassau County (Long Island) Executive suing Sheldon Silver, the longtime Speaker of the NY State Assembly. It's a dispute pitting suburban companies against urban interests. The NY Legislature in 2009 passed the Metropolitan Transit Authority (MTA) Tax to fund the transit authority that serves NYC and its suburbs. Basically, the law imposes a 34 cent tax per 100 dollars of payroll.
Applying state constitutional law principles, a Nassau County judge issued a six page ruling in Mangano v. Silver, that the MTA tax was a "special law" that did not serve a substantial state interest and therefore did not satisfy the state constitutional process requiring a Home Rule message or a message of necessity with two-thirds vote in each house. It's sure to be appealed: the stakes are high and the opinion superficial. Meanwhile, because the process rather than the substance is the issue, perhaps the matter will be solved by political maneuvering.
Thursday, August 23, 2012
A group of ICE officers sued DHS Secretary Janet Napolitano today in the United States District Court for the Northern District of Texas to halt the Department's deferred action program, which defers removal of qualifying aliens. (Deferred action is simply an exercise of executive discretion not to remove certain aliens; it's the administration's way of achieving the goals of the DREAM Act without a DREAM Act.) The administration has argued that the program is a valid exercise of prosecutorial discretion. We last posted on it here, including a link to a letter by immigration and constitutional law profs arguing that the action is fully constitutional (and outlining a handful of different ways that the administration might go about it).
It's not easy to get a case like this into the courts: by definition, it's hard to identify somebody who has been harmed (and thus who has Article III standing) by a non-action by the government. The ICE officers claim that they're harmed because their bosses, through deferred action, are forcing them to violate federal law and their oaths to uphold federal law and the Constitution. It's not clear that this will be enough; and even if it is, there's this problem: If the officers here have sufficient Article III harm, then any federal officer who has even a vague constitutional disagreement with his or her bosses' policies will be able to sue to stop them. There are other preliminary problems, too, maybe most obviously the political question doctrine and related separation-of-powers considerations.
The officers state five causes of action. First, the officers claim that deferred action requires them to violate federal law that requires them to detain any alien "who is not clearly and beyond a doubt entitled to be admitted." Next, they say that deferred action confers a benefit on qualifying aliens, the deferred action itself, that is not authorized by federal law. Third, the officers argue that deferred action confers the benefit of employment authorization on qualifying aliens without any statutory basis and "under the false pretense of 'prosecutorial discretion.'" Fourth, they say that deferred action amounts to a legislative act (as evidenced by the numerous DREAM Act bills in Congress that didn't pass) and thus intrudes on the powers of Congress. Finally, they claim that deferred action violates the executive's constitutional obligation to take care that the laws are faithfully executed.
Between the preliminary problems and the inherently weak claims, it's hard to see that this case has much of a future. But maybe it's not supposed to. The complaint--signed by Kris Kobach and apparently bankrolled by NumbersUSA, a group that advocates for "lower immigration levels"--seems as much designed to get the issue out in the public as it is to get the issue into the courts.
August 23, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
The Eighth Circuit ruled today in Miller v. Redwood Toxicology Laboratory, Inc. that a probationer, Miller, who was wrongly determined to have consumed alcohol in violation of his probation lacked standing to sue an alcohol testing company under a state false advertising law.
The case arose out of Miller's suit against Redwood Toxicology after Redwood submitted alcohol test results that indicated that Miller consumed alcohol in violation of his probation terms. Based on the results, Miller was taken into custody--for four-and-a-half months. But the judge at the contested probation violation hearing ruled that the state failed to meet its burden--in part because Miller had "significant incidental exposure" to alcohol that led to the result--and ordered his release.
Miller sued Redwood under the Minnesota False Statement in Advertising Act and common law negligence, arguing, among other things, that Redwood's test results led to his erroneous probation report, detention, lost income and work, lost liberty, and emotional harm.
The Eighth Circuit ruled that Miller lacked standing on the False Statement claim, because he didn't sufficiently allege causation. The court explained:
Indeed, Redwood did not file a probation violation against Miller. It was the State that filed the probation violation and incarcerated Miller. Too, it was the State that chose the particular test, ultimately established and implemented the cut-off levels for the probationers it tested, and interpreted the test results provided by Redwood accordingly. The amended complaint does not and cannot allege a causal connection between Redwood's actions and any presumed injury suffered by Miller sufficient for purposes of Article III.
Op. at 9. This holds, said the court, even though the state supreme court has said that a strict showing of causation is not required in a damages claim under the law. Whatever the state supreme court says about standing in the state's own courts, it cannot override Article III requirements for cases in federal court.
In contrast, the court ruled that Miller did have standing on his common law claims--based on Redwood's failure to warn him of its known false positive rate when it gave Miller the results. The court nevertheless dismissed these claims, too, though, saying that Miller failed to allege that Redwood violated its duty of care.
In a brief opinion, a panel of the Ninth Circuit interpreted the Constitution of the Commonwealth of the Northern Mariana Islands to provide no property interest in continued employment necessary for a due process claim by a Special Assistant to the Governor. More precisely, the Ninth Circuit deferred to the opinion of the Supreme Court of the Commonwealth of the Northern Mariana Islands, having certified the questions to the Supreme Court and attaching the court's opinion as an appendix to its own.
The Commonwealth Constitution, Article III, section 22, establishes an "Office of Special Assistant to the Governor for Women's Affairs," and provides that the "governor shall appoint a person, who is qualified by virtue of education and experience, to be the special assistant" and the "special assistant may be removed only for cause."
In Peter-Palican v. Government of Commonwealth of Northern Mariana Islands, Ms. Peter-Palican argued that the new governor's termination of her as Special Assistant to the Governor for Women's Affairs violated her due process rights.
The Ninth Circuit held that the "removal for cause" did not extend beyond the term of the governor who appointed her, adopting the Commonwealth's Supreme Court decision. Thus, Ms. Peter-Palican did not have the requisite property interest as a threshold for a due process inquiry.
The Ninth Circuit's determination that the Commonwealth Supreme Court is the final arbiter of its constitution comports with general federalism principles, although the Commonwealth of Northern Mariana Islands is not a state. Indeed, its status is rather unique, governed by the "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America," approved by Congress, and signed by President Ford in 1976. The Covenant exempts specific portions of the Constitution as well as specific federal laws (importantly, immigration and minimum wage laws) unless adopted by the Commonwealth.
The "removal for cause" provision in a constitution would seem to provide some protection from changing elected officials such as governors. Perhaps if the position were not a "special assistant to the governor" the Commonwealth Supreme Court - - - and the Ninth Circuit - - - would have viewed the matter differently.
Wednesday, August 22, 2012
Alaska became the latest state to lodge a constitutional challenge against Section 5 of the Voting Rights Act when it sued AG Eric Holder yesterday for declaratory and injunctive relief in the United States District Court for the District of Columbia. It's not clear that the case will even make it out of the starting gate, though. As we wrote here, the Shelby County case, also challenging Section 5 under the exact same theories, is almost surely going to the Supreme Court this Term.
The suit, State of Alaska v. Holder, takes on Section 5 both on its face and as applied to Alaska. The allegations are simple and familiar: Congress exceeded its authority under the Fourteenth and Fifteenth Amendments in reauthorizing Sections 4 and 5 of the VRA; and the VRA violates the principle of "equal sovereignty" and the Tenth Amendment.
Alaska, a covered jurisdiction under Section 4 of the VRA, says that preclearance is a hassle and potentially interferes with its ability to run its elections. The state cites DOJ's denial of preclearance earlier this year for a proposed new distribution scheme for the state's Spanish/Tagalog translation of its voter information pamphlet. It also cites an eleventh-hour preclearance of a redistricting plan, arguing that any later decision by DOJ (either way) might have interfered with the state's primaries.
While this case is disconnected to those events, it probably doesn't matter for standing. Judge Bates ruled in Shelby County that the County had standing based on its need, as a covered jurisdiction without the possibility of bailout, to prepare for preclearance--the time, expense, etc. So too here.
But even so, the case is unlikely to move forward, given the near certainty that the Supreme Court will pick up Shelby County this Term.
August 22, 2012 in Cases and Case Materials, Congressional Authority, Equal Protection, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 21, 2012
Fifth Circuit on Texas Planned Parenthood Regulation: No First Amendment Unconstitutional Conditions Problem
In its brief opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit has reversed the preliminary injunction issued by Judge Lee Yeakel against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion. Recall that last April Fifth Circuit Judge Jerry Smith quickly issued an emergency stay of that preliminary injunction, and a panel of the Fifth Circuit vacated that emergency stay almost as quickly.
Today, however, a different panel reversed and remanded Judge Yeakel's decision. The panel disagreed with Judge Yeakel's conclusions regarding unconstitutional conditions doctrine, noting that "Courts often struggle with when to apply the unconstitutional conditions doctrine, and the doctrine’s contours remain unclear despite its long history." Yet the panel's opinion adds to this lack of clarity. The panel opinion correctly notes that the unconstitutional conditions doctrine includes a "clear threshold premise;" A "funding condition cannot be unconstitutional if it could be constitutionally imposed directly.” Thus, "if the government could directly achieve the result in question, then it is unnecessary to assess the result within the unclear framework of the unconstitutional conditions doctrine."
Yet the panel then adds that although the Texas "restriction functions as a speech-based funding condition, it also functions as a direct regulation of the content of a state program," and is "therefore constitutional under the reasoning of Rust v. Sullivan." Rust v. Sullivan, of course, is an unconstitutional conditions case involving Title X funding, and the "state programs" to which the panel refers are in fact state-funded programs with arguably unconstitutional conditions. Instead, the panel concludes that "Texas’s restriction on promoting elective abortions directly regulates the content of the WHP [Women’s Health Program] as a state program. The policy expressed in the WHP is for public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech" (emphasis added). The court held that "Texas may deny WHP funds from organizations that promote elective abortions" because it is "a direct regulation of the definitional content of a state program, and it is therefore unnecessary to examine it within the framework of the unconstitutional conditions doctrine."
On the expansion to all affiliated organizations, the panel decided that the "Planned Parenthood mark" was "associated with the pro-abortion point of view." "Using a pro-abortion mark is, after all, a way of promoting abortion." Therefore, "Texas’s choice to disfavor abortion is eviscerated, just as it would be if the organizations promoted abortion through pamphlets or video presentations." Again, the panel decided this was a "direct regulation of the content of a state program" and there was "no reason to examine it within the framework of the unconstitutional conditions doctrine" despite the fact that it involved funding.
The panel remanded the case, however, including for analysis of the equal protection claim, which Judge Yeakel found resolved by the First Amendment claim.
Despite its odd doctrinal analysis, the Fifth Circuit's panel conclusion is clear: Texas can constitutionally target Planned Parenthood for defunding under the Women's Health Program subsidies.
A three-judge panel of the Seventh Circuit ruled last week in Levin v. Madigan that individual defendants were not entitled to qualified immunity against a plaintiff's equal protection claim.
As part of the ruling, the panel also held that the Age Discrimination in Employment Act, or ADEA, did not preclude the plaintiff's Section 1983 claim based on the Equal Protection Clause. This holding puts the Seventh Circuit at odds with every other circuit that's ruled on the question, creating a split. (District courts outside those circuits are themselves split.) Because of this, the panel circulated the opinion to all the judges on the Circuit; none voted for a rehearing en banc. This case looks like a good candidate for Supreme Court review.
Unless and until the case goes up, the Seventh Circuit's ruling means that the plaintiff's Section 1983 case against the individual defendants can move forward. The ruling says nothing about the merits.
The case arose out of a former assistant attorney general's suit against the Illinois attorney general, in both her official and individual capacities, and the state for firing him and replacing him with a younger attorney. The plaintiff sued for age discrimination under the ADEA and Section 1983 (under the Equal Protection Clause). The AG appealed the district court's denial of qualified immunity in her individual capacity.
The Seventh Circuit ruled that the ADEA did not displace the plaintiff's Section 1983 claim for violation of the Equal Protection Clause because (1) the ADEA's text and legislative history didn't expressly preclude a Section 1983 claim based on a constitutional violation and (2) the ADEA's rights and protections didn't line up with the rights and protections under Section 1983.
This portion of the opinion is at odds with every other circuit court to rule on the question.
The court went on to deny qualified immunity, because it was clearly established that age discrimination in employment violated the Equal Protection Clause, so long as the discrimination wasn't rationally related to a legitimate government interest.
Monday, August 20, 2012
Sections 7 and 8 of Georgia's immigration regulation statute, known as HB 87, were enjoined by federal district Thomas Thrash in June 2011, a few months after the law was passed.
Today, the Eleventh Circuit, in its opinion in Georgia Latino Alliance for Human Rights v. Governor of Georgia, upheld the injunction against Section 7 - - - the criminalization of transporting, harboring, or inducing to enter Georgia any "illegal alien" - - - finding the provisions preempted by federal law. The court found that the Georgia statute directly conflicted and was an obstacle to federal immigration law.
The court, however, reversed the injunction against Section 8 - - - the "show me your papers" provision - - - relying upon the Supreme Court's June opinion in Arizona v. United States. However, the Eleventh Circuit left open an "as applied challenge" to section 8, much as the Court did in Arizona v. US.
While the Eleventh Circuit spent a substantial portion of its 33 page opinion rejecting the state's challenge to plaintiffs' standing as well as the state's argument that there was no private cause of action under the Supremacy Clause or preemption, the preemption analysis is central and well-supported.
[image of Georgia flag/map via]
A sharply divided three-judge panel of the D.C. Circuit ruled on Friday in Grocery Manufacturers Ass'n v. EPA that three trade associations lacked standing to challenge EPA's "partial" waivers allowing the introduction of a new ethanol biofuel.
The ruling means that EPA's waivers stand, allowing the introduction of an unleaded gasoline blend containing 15 percent ethanol for use in model-year 2001 and newer light-duty motor vehicles and engines. The case also deepens a circuit split on the question whether prudential standing is jurisdictional (and therefore reviewable even if a party doesn't challenge it). The panel majority said yes--a holding that seems in tension with the direction of both the Supreme Court and the circuit itself.
Between these two issues--the underlying issue of EPA's authority to issue waivers for a new biofuel, and the issue whether prudential standing is jurisdictional--this case may make a good candidate for Supreme Court review.
The case arose out EPA's "partial" waivers of the Clean Air Act provision that prohibits manufacturers from introducing into commerce "any fuel or fuel additive for use by any person in motor vehicles manufactured after model year 1974 which is not substantially similar to any fuel or fuel additive" used in the federal emissions certification of those vehicles. 42 U.S.C. Sec. 7545(f)(1)(B). The CAA allows the EPA to grant a waiver, however, if it "determines that the applicant has established that such fuel or fuel additive or a specific concentration thereof, and the emission products of such fuel or fuel additive or specified concentration thereof, will not cause or contribute to a failure of any emission control device or system . . . to achieve compliance by the vehicle or engine with the emission standards with respect to which it has been certified." 42 U.S.C. Sec. 7545(f)(4) (emphasis added).
The waivers allowed manufacturers to introduce a new biofuel, E15 (an unleaded gasoline blend containing 15 percent ethanol), for light-duty motor vehicles and engines with a model year 2001 and newer. (E10, a different ethanol blend with just 10 percent ethanol, is already on the market. Put simply: E15 uses more corn.)
The plaintiffs, three different trade associations, sued, arguing, among other things, that EPA lacked authority to grant a "partial" waiver. (See (f)(4), above, and the phrase "any emission control device or system.") An intervenor argued that the plaintiffs lacked standing.
(Note that the government challenged neither Article III standing nor prudential standing. Under well settled law, the court can still address Article III standing, because it's jurisdictional. But the panel split on whether the court could address prudential standing: the majority wrote that it could (because it's jurisdictional); the dissent wrote that it could not (because it's not jurisdictional). (Judge Tatel wrote that circuit precedent required the court to rule that it's jurisdictional, even though the weight of authority seems to be going the other way.)
Chief Judge Sentelle and Judge Tatel agreed that two of the three trade associations lacked Article III standing, because their claimed harms were too far removed from the EPA's partial waivers. (The engine-products group claimed that EPA waivers would cause E15 to enter the market and cause damage to certain engines and create liability for those engine manufacturers. The court held that this was neither "concrete and particularized" nor "actual or imminent." The petroleum group claimed that the waivers would require refiners and importers to introduce E15 into commerce (because there'd be no other way to meet increasing renewable fuel requirements under federal law) and downstream firms to accommodate E15. The court said that the waivers caused neither of these results.)
They also agreed that the third plaintiff, the food producers, lacked prudential standing, because their interests weren't within the zone of interests to be protected or regulated by the statute. They said that the food producers, which argued that the waiver would cause corn prices to rise, drew on an interest protected by a different statute, not the CAA.
Judge Kavanaugh argued in dissent that both the food producers and the petroleum group had Article III standing, that prudential standing was non-jurisdictional, and that even if prudential standing were jurisdictional both had it.
(Judge Tatel agreed that the food producers had Article III standing, but because Judge Tatel also agreed with Chief Judge Sentelle that they lacked prudential standing, the case is dismissed.)
Judge Kavanaugh went on to argue that the EPA lacked authority to grant the partial waivers.
The Kansas Supreme Court ruled last week in In the Matter of the Care and Treatment of Ontiberos that state and federal due process require that the state provide counsel to a person in a civil proceeding to detain that person as a sexually violent predator.
The ruling means that persons subject to civil confinement as sexual predators under Kansas law get an attorney at trial, and that the attorney has to meet certain standards of performance. The case is a victory for advocates of the right to counsel in civil proceedings, even if it's not particularly groundbreaking. It also reminds us that even after the Supreme Court stepped back from granting a categorical right to counsel whenever liberty is at stake, due process may still demand counsel in certain civil cases.
The Kansas Sexually Violent Predator Act allows the state to detain a person upon a showing beyond a reasonable doubt that the person is a sexually violent predator. But the Act is ambiguous about a target's statutory right to counsel. (The Act says that any person subject to it is entitled to the assistance of counsel at every stage, but it also says that the state's failure to comply "in no way prevents the attorney general from proceeding against" the person.) Ontiberos, a prisoner subject to KSVPA proceedings, had an attorney at trial, but claimed that he was ineffective. The ambiguity of the statutory right to counsel, and Ontiberos's claim that his attorney was ineffective, allowed the court to rule first whether he had a constitutional right to counsel and next whether that counsel was ineffective.
The court ruled Ontiberos had a state and federal constitutional right to counsel. It applied the familiar three-part procedural due process balancing test in Mathews v. Eldrige and ruled that Ontiberos's liberty interest was quite high, the government's interest in saving money was comparatively low, and the risk of an erroneous deprivation of liberty without counsel was high, especially because the government was represented by counsel.
The court tipped its hat to the Supreme Court's 2011 ruling in Turner v. Rogers. That case held that there was no automatic right to counsel in a child support proceeding, even if that proceeding could result in a parent's 1-year imprisonment (for contempt), so long as sufficient alternative procedures were available. Even so, said the Kansas court, Turner didn't rule out a constitutional right to counsel in other civil cases (like this one) where the Mathews factors aligned more favorably for the claimant.
Instead, the court looked to Vitek v. Jones. In Vitek, the Supreme Court ruled that a prisoner had a right to counsel in a proceeding to transfer the prisoner to a mental hospital until his sentence expired, unless treatment was no longer necessary. The Kansas court said that Ontiberos's liberty claim (the first Mathews factor) was even greater than the liberty claim in Vitek, because without the KSVPA proceeding Ontiberos would have been released. (Remember: his sentence was coming to an end.)
Having found a right to counsel, the court then ruled that counsel had to meet the two-prong performance standard in Strickland v. Washington. The court said that this attorney didn't, and remanded the case to the trial court.