January 27, 2012
Sixth Circuit: Jury Must Hear Graduate Student's Refusal to Counsel Gay Clients
The Sixth Circuit today in its opinion in Ward v. Polite remanded the First Amendment free speech and free exercise of religion claims of a graduate counseling student disciplined because she would not counsel a gay client in her required student practicum. The panel reversed the grant of summary judgment in favor of Eastern Michigan University.
This case may bring to mind a very similar situation from Augusta State University, Georgia, Keeton v. Anderson-Wiley, that we discussed earlier, in which the Eleventh Circuit held that the student-counselor did not have valid First Amendment claims. However, the Sixth Circuit distinguished Keeton at length:
At one level, the two decisions look like polar opposites, as a student loses one case and wins the other. But there is less tension, or for that matter even disagreement, between the two cases than initially meets the eye. The procedural settings of the two cases differ. In Keeton, the district court made preliminary fact findings after holding a hearing in which both sides introduced evidence in support of their claims. Not only are there no trial-level fact findings here, but Ward also gets the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.
The two claimants' theories of constitutional protection also are miles apart. Keeton insisted on a constitutional right to engage in conversion therapy—that is, if a "client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong and then try to change the client's behavior." That approach, all agree, violates the ACA [American Counseling Association] code of ethics by imposing a counselor's values on a client, a form of conduct the university is free to prohibit as part of its curriculum. Instead of insisting on changing her clients, Ward asked only that the university not change her—that it permit her to refer some clients in some settings, an approach the code of ethics appears to permit and that no written school policy prohibits. Nothing in Keeton indicates that Augusta State applied the prohibition on imposing a counselor's values on the client in anything but an even-handed manner. Not so here, as the code of ethics, counseling norms, even the university's own practices, seem to permit the one thing Ward sought: a referral.
The two decisions in the end share the same essential framework and reasoning. They both apply Hazelwood to curricular speech at the university level, and they both show that the even-handed enforcement of a neutral policy is likely to steer clear of the First Amendment's free-speech and free-exercise protections. Both decisions also are consistent with Christian Legal Society, which considered whether a Christian organization at a law school could insist that its members adhere to certain faith-based codes of conduct. The Court held that the law school's antidiscrimination policy, requiring registered student organizations to accept all comers, did not violate the First Amendment on its face, yet it remanded the case to determine whether the school selectively enforced the policy against some organizations but not others. While Keeton involved Augusta State's across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today's case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward.
The Sixth Circuit's attempt to distinguish its opinion from Keeton - - - mostly on procedural and factual grounds - - - seems persuasive. Yet the distinctions may be too finely wrought.
On remand, the district court will be considering injunctive relief. As to damages, the question of qualified immunity remains. Clearly, however, the Sixth Circuit found that there was no valid facial challenge and affirmed the dismissal of some defendants.
[image: Vincent Van Gogh, Stone Bench in the Asylum at Saint-Remy (The Stone Bench), via]
January 26, 2012
Third Circuit: Federal Buy America Act Does Not Preempt State Law
A three-judge panel of the Third Circuit ruled this week in Mabey v. Schoch that the federal Buy America Act and implementing regulations do not preempt Pennsylvania's Steel Act. Both acts require the use of steel made in the United States for public works projects funded by the federal and state governments, respectively. But the Buy America Act has broader exceptions, including, importantly, a provision that says that the Act is satisfied when a project "[i]ncludes no permanently incorporated steel or iron materials."
The case arose after the state, citing the state Steel Act, declined to use Mabey's temporary bridge on a project, because Mabey gets its steel from the United Kingdom. Pennsylvania previously contracted with Mabey, notwithstanding the state Steel Act. But it apparently changed its policy, decided to enforce the Steel Act against Mabey, and, according to Mabey, forced Mabey to cancel four of its state contracts.
Mabey sued, alleging that exception in the federal Buy America Act preempted the state Steel Act, and that its temporary bridge met the federal Act's provision relating to "no permanently incorporated steel or iron materials." The Third Circuit rejected this claim. It ruled that another section of the federal Buy America Act and its regulations, read as a whole, did not clearly reflect congressional intent to preempt; instead, they left room for states to issue more stringent regulations--exactly what Pennsylvania did here. Thus, the state's Steel Act restrictions applied with their full force to Mabey.
The court also rejected Mabey's Dormant Commerce Clause, Contract Clause, and equal protection claims. As to the dormant Commerce Clause, the court ruled that the Steel Act fell under the market participant exception (because Pennsylvania was a market participant when it contracted for public works) and, moreover, that Congress authorized Pennsylvania to discriminate against interstate commerce through the federal Buy America Act. The court said that the state's late-coming enforcement of the Steel Act against Mabey didn't violate the Contract Clause, because the Act was on the books since Mabey started contracting with the state, and the state agency's decision to enforce it didn't amount to "legislative authority subject to scrutiny under the Contract Clause." And finally the court ruled that the state didn't violate the Equal Protection Clause, because the state's action--first not enforcing, then enforcing, the Steel Act--was rational: "A state agency could rationally determine that application of domestic steel requirements to items used at the discretion of the contractor is too onerous and difficult to enforce."
Chaskalson on Constitutionalism and Administrative Law
"It is probably inevitable that there should be some tension between judges and politicians in a country like ours where the Constitution entrenches the rule of law, and makes provision for an independent judiciary, and judicial review of legislative and executive action. This is inherent in the separation of powers . . ."
The "county like ours" is South Africa and the speaker is former Arthur Chaskalson. Chaskalson, pictured right with Nelson Mandela, was a drafter of the South African Constitution and Chief Justice of the South African Constitutional Court,
While certainly steeped in the South Africa Constitution, Chaskalson's recent speech, reproduced as an essay on Pierre de Vos' Constitutionally Speaking, is worth a read for all constitutionalists.
January 25, 2012
House Republicans Seek White House Health Care Reform Memos
Republicans in the House Energy and Commerce Committee wrote to the White House demanding memos on White House deliberations on health care reform referenced in Ryan Lizza's piece in The New Yorker, The Obama Memos: The Making of a Post-Post-Partisan Presidency. Republicans argued that the White House now waived any claim of executive privilege over the memos (although the White House has apparently never made such a claim).
According to the letter, the House Energy and Commerce Committee has been looking into "negotiations and agreements made between representatives from the White House Office of Health Reform (WHOHR) and various health care industry stakeholders regarding health care reform legislation" for over two years now. Republicans on the Committee say that the White House has refused to cooperate by turning over internal memos. But they also say that those memos made their way to Lizza, and that the White House has now waived any assertion of executive privilege:
Finally, while the White House has so far studiously avoided asserting executive privilege and has simply refused to provide the requested information, by voluntarily providing this information to a reporter the White House has waived any right to refuse production of these materials based on claims of privilege.
A footnote to this sentence reads:
In In Re Sealed Case the D.C. Court of Appeals addressed this issue when it held the White House had waived claims of privilege in regards to documents it voluntarily revealed to third parties outside the White House.
The Republicans' request is appropriately tailored to the documents they seek (and claim have been voluntarily released) under the approach to the executive privilege and the deliberative privilege In Re Sealed Case, but there's no indication that the White House voluntarily released them to Lizza--that Lizza didn't get them from some other source, or that the White House provided only selected information from them (and not the memos themselves). Absent a voluntary release of the memos themselves, the White House almost certainly has not waived any available privilege. And In Re Sealed Case suggests that the White House is under no obligation to assert the privilege until the Committee seeks to compel release (although In Re Sealed Case dealt with a different situation--an assertion of privilege against the OIC, not a congressional committee).
Press Freedom Index: US Falls
Most Americans take pride in the First Amendment's guarantee of freedom of the press: "Congress shall make no law . . . abridging the freedom of speech, or of the press."
However, Reporters Without Borders has ranked the United States 47th in its Press Freedom Index issued today. This is below nations such as Canada (10), Australia (30), and the UK (28), as well as Spain (39), Slovenia (36), El Salvador (37), Niger (29), and Czech Republic (14).
The US is generally placed much higher on the index. According to the report, the US "owed its fall of 27 places to the many arrests of journalist covering Occupy Wall Street protests." Here's one example.
January 24, 2012
Fourth Circuit Rejects Padilla's Civil Claims
A three-judge panel of the Fourth Circuit yesterday rejected Jose Padilla's civil claims against Donald Rumsfeld and other high-level government officials growing out of his designation as an enemy combatant and his military detention. The ruling, Lebron v. Rumsfeld, is at least in part in tension with a recent Seventh Circuit ruling (now on appeal to the en banc Seventh Circuit, and discussed below) and two recent district court rulings--one from the Western District of Washington and the other from the District of Columbia.
Padilla sued the officials for constitutional violations under Bivens and for violations of the Religious Freedom Restoration Act. He sought declarations that his designation and detention were unconstitutional and that the policies that led to his treatment were unconstitutional, an injunction against future designations and detentions, and nominal monetary relief. The district court rejected his Bivens and RFRA claims, and ruled that he lacked standing for injunctive relief.
The Fourth Circuit affirmed. The panel applied the two-part framework in Wilkie v. Robbins (2007) and ruled (1) that special factors counseled against a Bivens remedy and (2) that Padilla had alternative forms of relief. The panel said that separation-of-powers principles counseled against a Bivens remedy, in particular: military matters like this are the province of the political branches, and the courts lack the expertise and risk upsetting the military command structure and intelligence gathering activities.
The panel also said that Padilla had other forms of relief, in particular habeas.
The ruling on special factors and separation of powers is in tension with similar recent rulings by the Seventh Circuit and two district courts. Thus in Vance v. Rumsfeld a three-judge panel of the Seventh Circuit ruled that separation-of-powers principles like those at issue here did not stand in the way of the plaintiffs' Bivens remedy. The U.S. District Court for the District of Columbia ruled similarly in Doe v. Rumsfeld. Both cases involved U.S. citizen plaintiffs (like Padilla)--an important point of distinction for the Seventh Circuit panel, which distinguished Ali v. Rumsfeld (D.C. Cir. 2011) and Arar v. Ashcroft (2d Cir. 2009), both of which rejected Bivens claims of aliens. (We posted on the cases here.)
The Western District of Washington extended Vance and Doe just last month in Hamad v. Gates. That court ruled that separation-of-powers principles did not counsel against a Bivens claim of an alien. The court ruled that alienage didn't matter for the special factor analysis.
The ruling on alternative relief is not so obviously in tension with Vance and Doe. The plaintiffs in those cases were U.S. citizens detained overseas at Camp Cropper, without available access to habeas. (Whatever one thinks about the Fourth Circuit's ruling that habeas as a reasonable alternative to a Bivens claim in the Wilkie calculus, the plaintiffs in Vance and Doe didn't even have that.)
The panel ruling in Vance was vacated and is now on appeal to the en banc Seventh Circuit. Oral arguments are set for February 8.
The Fourth Circuit also ruled that the defendants enjoyed qualified immunity against Padilla's RFRA claim, because it wasn't clearly established that RFRA would apply to military detention.
Finally, the court ruled that Padilla lacked standing on his claim for injunctive relief. It ruled that Padilla couldn't show that he'd be subject to re-designation or re-detainment, and, in any event, it won't happen for a long time: He's now facing more than 17 years on resentencing in his criminal case.
January 24, 2012 in Cases and Case Materials, Courts and Judging, Executive Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (2) | TrackBack
January 22, 2012
Tenth Circuit Finds Banning Registered Sex Offenders from Libraries Unconstitutional
The City of Albuquerque issued an "Administrative Instruction" banning registered sex offenders from "all public libraries" and further that "Library staff shall send a letter to every sex offender who has a library card and inform them they are no longer allowed in our libraries." In its opinion in Doe v. City of Albuquerque, the Tenth Circuit affirmed the district judge's grant of a summary judgment in Doe's favor on the First Amendment claims.
Much of the 44 page opinion is devoted to standards: for summary judgment, for appellate review, and for facial constitutional challenges. The applicable First Amendment standard is from Ward v. Rock Against Racism, 491 U.S. 781 (1989): “even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Yet is the interaction of these standards, and the procedural posture of the case, that leads the Tenth Circuit to affirm the district court's finding that the library policy is unconstitutional.
It seems that the City argued there was “no burden upon the City to prove anything,” so it did not submit any evidence as to the Ward factors in opposing Doe’s summary judgment motion," and continued to advance that same argument on appeal. Thus, the Tenth Circuit found that there was no satisfaction of the narrowly tailored prong or the ample alternative channels for communication prong under Ward.
The Tenth Circuit panel's conclusion stresses the narrowness of its holding and seems to encourage the City to "try again":
Our conclusion that the district court’s grant of summary judgment must be affirmed does not reflect a pronouncement on the ultimate legality or merit of the City’s ban. We are sympathetic to the City’s desire to ensure that its public libraries provide a safe, welcoming environment for its patrons, especially children. We therefore are especially mindful of concerns that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment.
Although we hold these concerns, as an appellate court we are constrained by the record. And this record shows that in response to a motion for summary judgment, the City provided no evidence as to two dispositive Ward factors as to which it had the burden on summary judgment. While we are perplexed by the City’s strategic decision here, it binds our hands in this case.
We note that our decision does not signal the death knell of the City’s efforts, if it wishes to pursue them, to restrict access of registered sex offenders to the City’s public libraries. We can imagine such an effort succeeding through a revised ordinance where it is shown that the restriction satisfies the three-prong time, place and manner Ward test.
Yet it may not be as easy to satisfy a rigorous application of the Ward test as the Tenth Circuit implies, at least if the narrowly tailored and alternative means of communication prongs are taken seriously.