Saturday, July 28, 2012
As the 2012 Olympics get under way in London, participants, attendees and viewers may think they are watching a modern re-enactment of the Greek classical practice also known as the Olympics. The United States Supreme Court, in its majority opinion by Justice Powell in the 1987 case of San Francisco Arts and Athletics v. U.S. Olympic Committee, pointed out the differences:
The ancient Olympic Games lasted 5 days, whereas the modern Olympics last for 10 days. The ancient Games always took place in Olympia in southern Greece; the modern Olympic Games normally move from city to city every four years. (As an effort to reduce nationalism, cities, as opposed to countries, host the modern Olympic Games.) In ancient Greece there may have been a burning fire for religious sacrifice, since the Olympic Games were part of a religious festival. The torch relay, however, was an innovation of the modern Olympic Committee. The closest parallel to the modern opening parade was the opening of the ancient Games with the chariot race. As the chariots entered the arena and passed the judges, a herald called out the names of the owner, his father, and his city. There was no general parade of athletes by locality, as in the modern Games, and the athletes were naked, not uniformed. Athletes were eligible only if they were male, freeborn Greeks. There is no indication that the ancient Olympics included an “Olympic anthem” or were organized by an entity called an “Olympic Committee.” The awards in ancient Greece were wreaths of wild olive, rather than the gold, silver, and bronze medals presented at the modern Olympics.
Olympics, 483 U.S. at 541 n.18.
The purpose of these distinctions was to support the claim that "Olympics" was not an ancient and now generic term that could be adopted by others, but a specific term owned by the United States Olympic Committee, established by Congressional statute in 1896. The Committee had brought suit against the "Gay Olympics" for using the term. Interestingly, according to the Gay Olympics Brief, the US Olympic Committee did not seek to similarly prohibit other groups that used the term "Olympics" such as the International Police Olympics; Armenian Olympics; Olympic of Ballet; Olympics of the Mind; Senior Olympics; Golden Olympics; Firemen's Olympics; United States Skill Olympics; Virginia Golden Olympics; Wrist-Wrestling Olympics; Crab-Cooking Olympics; Dog Olympics; Nude Olympics; Rat Olympics; WackyOlympics; Xerox Olympics; Alcoholic Olympics.
The Court thus rejected the Gay Olympics First Amendment argument, with Justices O'Connor dissenting in part, and Brennan and Marshall dissenting.
I discuss the case and the use of the term "Olympics" as well as other ancient Greek terms such as "democracy," in an article available on sssrn.
[image: Olympic Rings hanging from London Bridge, 2012, via]
Thursday, June 21, 2012
The usual First Amendment rule for public-sector union fee assessments for non-members is that unions have to provide notice and an opportunity to opt out of those portions of the fees that go to non-bargaining, political activities. These are called "non-chargeable" expenses. (Non-union members can't opt out of that portion of the fees that goes to collective bargaining activities--the "chargeable" expenses. This rule prevents non-members from free-riding on the union's regular, collective-bargaining activities.) The Court crafted the rule in Teachers v. Hudson.
The case today, Knox v. SEIU, however, dealt with a special assessment--not a regular, annual assessment--that the union initially said would go entirely to non-chargeable expenses, that is, the union's political opposition to California's proposed measures to clamp down on unions. The case thus tested Hudson's applicability to special assessments.
Justice Alito's majority opinion said that the First Amendment requires that unions provide notice and an opportunity to opt in to special union assessments that are used for non-bargaining, political purposes. Relative to the Hudson opt-out rule, the holding puts a thumb on the scale against unions in collecting special assessments--because it means that non-members have to affirmatively elect to pay for special assessments, rather than allowing the unions to issue notice and opportunity to opt out. This was a significant, if narrow, holding.
But Justice Alito's opinion did much more. In particular, it took direct aim at the traditional rule for regular, annual assessments, the Hudson rule, that unions have to provide notice and an opportunity to opt out. The opinion all but said that this rule violated the First Amendment.
If so, this would deal a significant blow to public-sector unions in agency shops and their non-bargaining activities.
Justice Alito's opinion is rife with references to the "extraordinary" benefit that unions get under the Hudson rule at the expense of non-members' associational rights, strongly suggesting that the rule is unconstitutional--and that five on the Court are ready to revisit it.
For example, Justice Alito writes that "Our cases to date have tolerated this "impingement," [the Hudson process] and we do not revisit today whether the Court's former cases have given adequate recognition to the critical First Amendment rights at stake." Op. at 10. More: "By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate." Op. at 14. And:
Acceptance of the free-rider argument as justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly--one that we have found to be justified by the interest in furthering "labor peace." But it is an anomaly nevertheless.
Op. at 11.
In the context of special assessments, but with reasoning that would seem to apply equally to regular assessments, Justice Alito wrote:
Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union's political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment? Shouldn't the default rule comport with the probable preferences of most nonmembers? And isn't it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues? An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. . . . .
Op. at 11 to 12.
In short, the opinion seems to tee up the next case, dealing with the regular assessment, Hudson process--and similarly putting a thumb on the scale against the unions there.
Justice Sotomayor wrote a concurrence, joined by Justice Ginsberg, that called the majority on its overreach with regard to the regular assessment Hudson rule. Justice Sotomayor also called the Court on its creation of the new opt-in rule for special assessments.
The concurrence underscores the fact that there was a way to rule against the union special assessment here, while still stopping short of the sweeping majority approach and taking aim at the long-settled Hudson rule.
In other words, the availability of Justice Sotomayor's narrower approach tells us that each of the five in the majority could have elected to rule more narrowly. But they didn't. In other words, each of the five in the majority seems to be on board with the strong signal that the Hudson rule itself is unconstitutional.
Justice Breyer wrote a dissent, joined by Justice Kagan. Justice Breyer wrote that the process in this case complied with Hudson. That is, the union provided adequate notice and opportunity to opt-out under the circumstances--even if that opportunity came late. In other words, given the variances in union spending from year-to-year, unions can only estimate future assessments based on past expenditures. (This system ensures that objecting nonmembers can recoup the offending expenditures over time.) Thus in the next regular assessment--the one immediately after the special assessment--the union has to estimate expenditures based on total prior year expenditures (including the special assessment). The notice and opportunity to opt out in the next year covers those nonmembers who objected to the special assessment. And in this case, that worked out to their benefit; they even got a little windfall. Justice Breyer said that this process, while "imperfect," satisfied Hudson and satisfied the First Amendment.
A divided Supreme Court today ruled in Knox v. SEIU that a union must provide notice and opt-in for a proposed special assessment in a public-sector agency shop. We covered the background and oral arguments here.
The majority opinion leaves long-standing rules about union assessments for public-sector agency shops hanging by a thread. In addition to its ruling on special assessments--a question that was open before this case--the ruling takes sharp issue with the idea that the First Amendment permits a public-sector union to provide notice and opt-out for its regular, annual assessments.
The ruling is a blow to unions' ability to collect special assessments. It says that the First Amendment requires notice and opt-in for those. But the ruling also signals the majority's discontent with the long-standing rules on regular assessments. The ruling all but held those rules--notice and opt-out--unconstitutional. (Those rules, of course, were well beyond the scope of the case. But the majority sent a strong signal that it would consider their constitutionality, if not outright rule them unconstitutional, if given even half a chance.)
Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justices Sotomayor and Ginsburg concurred in the judgment, and argued that the majority's ruling--requiring notice and opt-in--went far afield of the arguments and briefing. Justices Breyer and Kagan dissented.
We'll provide more analysis shortly.
Friday, June 8, 2012
A three-judge panel of the D.C. Circuit ruled today in Libertarian Party v. D.C. Board of Elections and Ethics that the Board did not violate the Libertarian Party's First Amendment speech and association rights and its Fifth Amendment equal protection rights by declining to produce an exact count of the votes received by Bob Barr, the Libertarian candidate in the 2008 presidential election.
The Libertarians claimed that the Board's failure to provide an exact count of votes received meant that they couldn't tell how much support they had in D.C. and that they couldn't determine whether they met the 5 percent national threshold to qualify for public funding in the next election. Here's the gist:
[A] voter who casts a valid write-in ballot for a declared candidate like Barr is entitled to know whether she has acted in concert with other like-minded voters or whether her vote is a lone statement in the political wilderness. The voting public is entitled to know how Barr fared at the polls. The Libertarian Party is entitled to know whether its stature has grown or been diminished by the votes cast for Barr. None of this vital information, laden with associative and communicative value, is available if the Board fails to count and report the Barr vote.
The court rejected the claims. It ruled that the Board's failure to provide an exact count was a reasonable, nondiscriminatory restriction on the constitutional rights of voters and therefore valid with only an "important regulatory interest." The court said that the Board had a sufficient interest in saving money by not counting votes of a candidate for reasons other than determining the winner of an election. Moreover, the court said that the Libertarians could always get the ballots via the FOIA, and count them themselves.
Monday, April 30, 2012
In an opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, Judge Lee Yeakel issued a preliminary injunction 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. Before moving to the preliminary injunction standard, Judge Yeakel quickly rejected the state's Eleventh Amendment immunity argument.
The bulk of Judge Yeakel's 25 page opinion is devoted to the unconstitutional conditions argument. He concluded that the "affiliate" regulation was so broad that it infringed on plaintiffs First Amendment speech and associational rights. Any state interest in "respect for fetal life after viability" was not adequately served by the extensive prohibition. The argument that state funding "frees up" other money to provide abortions "extends too far."
The judge also found the equal protection argument had merit. By exempting hospitals, but applying the regulation to the 49 health centers, the regulation created a classification. The classification itself only implicated rational basis scrutiny, but it did infringe upon a fundamental right, thereby meriting strict scrutiny. In a very brief analysis, the judge expressed doubts whether the Texas regulation could satisfy even the lowest standard.
Finding the other factors for granting a preliminary injunction also weighed in favor of the plaintiffs, the judge enjoined the regulation and set a hearing for May 18.
[image: from PLanned Parenthood Ass'n of Hidalgo County via]
Tuesday, April 17, 2012
Judge James E. Boasberg (D.D.C.) yesterday denied the plaintiffs' motion for a preliminary injunction in their facial First Amendment challenge against the federal ban on contractor donations to candidates for federal office, political committees, and parties in connection with federal elections.
The case, Wagner v. FEC, arose out of three federal contractors' claims that the so-called pay-to-play ban violates free speech. The contractors refiled their claim in federal district court after they agreed to abandon their expedited en banc review at the D.C. Circuit (permitted under the FECA). They argued that the ban violates the First Amendment and Fifth Amendment equal protection and sought a preliminary injunction.
Judge Boasberg denied the injunction, ruling that they lacked a likelihood of success on the merits of either claim.
Judge Boasberg applied "closely drawn" scrutiny, not strict scrutiny, to the ban and ruled that it served a sufficiently important interest and was closely drawn to achieve that interest. As to the interest, Judge Boasberg wrote that "[t]here can thus be no doubt that preventing 'pay-to-play' deals or pressure on contractors to give--or the appearance that either is occurring--is sufficiently important to warrant restrictions on political contributions by federal contractors." As to "closely drawn," Judge Boasberg looked to the history of the ban:
When Congress first enacted the ban on political contributions by federal contractors, it was responding to a recent history of corruption. As just discussed, the ban was originally passed in 1940 on the heels of the "campaign-book racket," in which those seeking government contracts were effectively required to buy copies of the Democratic campaign book at highly inflated prices in order to secure government business. In the wake of this scandal, it was eminently reasonable for the legislature to ban contributions by federal contractors. Doing so would not only insulate prospective contractors from pressure to give money to politicians, but it would also help ensure a merit-based system of awarding contracts and "reassure citizens that its politicians are acting on their behalf and not on behalf of the highest bidder." Because . . . Congress reacted to recent scandals in imposing the ban on contractor contributions, its restrictions are more easily characterized as closely drawn. . . .
An absence of [current] corruption does not necessarily mean, however, that the ban is no longer needed. It could simply be an indication that the ban is working.
Op. at 11-12. Judge Boasberg also looked to the contractors' other ways of expressing political support and association as a factor suggesting that the ban is a good fit for the government end. (Note that the ban allows contracting corporations to donate by way of their PAC.)
As to equal protection, Judge Boasberg ruled that intermediate scrutiny applied, and that the contractors did not demonstrate a likelihood of success in comparing their ban to FECA treatment of government employees, contracting corporation officers or PACs, or sole proprietor contractors--all of whom may contribute. Judge Boasberg said that these others did not raise the same kind of problems that contracting corporations raised, and that these retained their own distinct identity (and could contribute under their distinct identity).
Saturday, March 31, 2012
Wisconsin's controversial Act 10 has been declared unconstitutional in part by federal district judge William Conley in a summary judgment opinion in Wisconsin Education Association Council v. Walker.
Judge Conley ruled against the plaintiffs' equal protection challenge to Act 10's classification between emergency public employees and "general" public employees. However, Judge Conley held that Act 10's requirement of annual recertification of general employees unions violated equal protection guarentees and Act 10's prohibition of dues withholding for general employees violated the first amendment.
In considering the dues witholding provision, Judge Conley noted that
Act 10 was enacted in the maelstrom of a political sea change in Wisconsin, the Act itself being the principal lightening rod around which the tumult reached its heights, at least to date. Whether or not the prohibition on automatic dues deductions for most public unions, but not those who supported the new Governor and Legislature, was an intentional act to suppress the speech of those who opposed then, it has that appearance.
The "maelstrom" to which Judge Conley referred is ongoing. The state Government Accountability Board has just unanimously ordered a recall election for Governor Scott Walker (pictured above) who spearheaded Act 10. Earlier this month, a state judge held Wisconsin's voter identification law unconstitutional under the state constitution, a ruling that is being appealed to Wisconsin's troubled Supreme Court.
Judge Conley's order required "a return to automatic dues deductions for all members of public unions no later than May 31, 2012," in order to "give sufficient time for the defendants to seek a stay of this injunction from the Seventh Circuit Court of Appeals, and for government entities to adopt a workable procedure to return to automatic deductions should the Seventh Circuit deny a stay, while balancing the plaintiffs’ and their now-voluntary members’ rights to a return to payroll deductions."
[image: Scott Walker via]
Saturday, January 21, 2012
A three-judge panel of the Ninth Circuit this week rejected an as-applied challenge to the two-phase Washington state election system held over from the Supreme Court's ruling in Washington State Grange v. Washington State Republican Party (2008).
Recall that the state's election system under Initiative 872, or I-872, created a "top two" primary in which the primary operates to reduce the number of candidates in the general, rather than to select party nominees. It works like this: Primary candidates can designate any "major or minor party preference, or independent status"; the top two vote-getters in the primary (even if they designated the same party preference) go on to compete in the general.
The Washington State Republican Party challenged I-872 on its face, aguing that it violated its First Amendment associational rights, because it forced it to associate (or share its name) with candidates that it might not endorse. The Supreme Court upheld I-872 against the facial challenge in 2008. But the Court left open the question whether Washington's primary ballots would in fact confuse voters, thus potentially violating associational rights as applied.
The Ninth Circuit answered that question on Thursday. The court noted that Washington adopted each of the four suggestions offered by the Supreme Court in Grange to avoid voter confusion. These included clarifications on the ballots themselves and voter educational material to ensure that voters would not confuse a candidate's preference for a party as a party's endorsement of that candidate. The panel also held that the plaintiffs failed to produce evidence of actual voter confusion. Between the ballot fixes and the lack of evidence of actual voter confusion, the court held that there was no severe burden on the party's associational rights.
The court also rejected the Libertarian Party's ballot access claim. The Libertarians argued that the top-two primary made it much more difficult for their candidates to compete in the general election. The court said that the system provided a level playing field for all parties, and that, while a top-two system may make it more difficult for minor party candidates to move on to the general, "[t]his additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems. See Cal. Democratic Party v. Jones (2000)." (Citation omitted.)
Sunday, January 15, 2012
Republican Presidential Candidate Rick Perry has appealed from the district court's order denying his First Amendment claim for a preliminary injunction.
In the emergency motion for injunction pending appeal, Perry's attorneys argue that the requirements for laches - - - lack of diligence by plaintiff and prejudice to defendant - - - were not satisfied.
[image: Governor Rick Perry, 2006, via]
Saturday, January 14, 2012
In the opinion in Perry v. Judd (with Gingrich, Huntsman, and Santorum as intervenors), Judge John Gibney of the Eastern District of Virginia denied the motion for preliminary injunction seeking to allow the Republican candidates on the ballot on the grounds of laches.
Perry and the other candidates not on the ballot argue that the Virginia process violates the First and Fourteenth Amendments. Virginia Code, §24.2-545(B), requires that the required petitions be "signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth." Additionally, the provision gives the State Board authority over the petition process: the Board has mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary.
In considering the First Amendment merits of the challenge, the judge found the Supreme Court's 1999 decision in Buckley v. American Law Foundation "instructive," especially regarding Virginia's requirement that the petition circulator be a resident of Virginia (as part of the "eligible voter" requirement). While the Virginia requirement is less restrictive, it nevertheless "limits the number of voices who can convey the candidates' messages, thereby reducing 'the size of the audience [the candidates] can reach.' " (Opinion at 16). Applying strict scrutiny to this political speech, the judge was "skeptical" that the state's proferred interest (the ability to subpoena petition circulators) was compelling.
On the other hand, the judge found the statute's 10,000 signature requirement would likely survive First Amendment scrutiny. He reasoned that such a number - - - 0.2% of the state's registered voters and 0.5% of the voters who voted in the last statewide election - - - cannot be seriously argued to be "unduly burdensome." In further support, he noted that six Republican candidates complied with the same rules four years ago for the 2008 primary election.
The judge's opinion conducts a separate analysis for laches - - - noting that it is an affirmative defense - - -rather than including it within the standards for preliminary injunction. (Recall that the last two factors of the established four-factor test are whether the equities tip in the movant's favor and whether the injunction is in the public interest.) Laches as an affirmative defense to equitable relief is well-established; as relief for a First Amendment violation, less so. However, considering the requirements of lack of diligence and prejudice to the respective parties, Judge Gibney found that the Candidates were not diligent - - - they should have "brought in an army of out-of-state circulators" as soon as possible (July 1 for Huntsman, Santorum, and Gingrich; August 13 for Perry who did not declare his candidacy until that date).
The judge rejected the candidates' argument that they did not have standing until the State Board rejected their ability to appear on the ballot. The Board rejected their claim because they did not have the 10,000 required signatures. But Judge Gibney essentially states that they should have disregarded (or perhaps challenged) the petition circulator qualification that arguably prevented them from obtaining the 10,000 signatures well before failing to obtain the 10,000 signatures. As Judge Gibney phrases it, the candidates "slept on their rights to the detriment of the defendants."
Thus, had the candidates "filed a timely suit," the judge would have granted a motion on the residency required and allowed non-residents to gather signatures, the candidates would have presumably been able to obtain 10,000 signatures, and Perry, Huntsman, Santorum, and Gingrich would be on the Virginia presidential Republican primary ballot.
Although an appeal seems likely, as of now, Virginia Republicans will have a choice between Ron Paul and Mitt Romney.
[image: Republican Candidates, 2012, via]
January 14, 2012 in Association, Current Affairs, Elections and Voting, Federalism, Fifteenth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 11, 2012
The Supreme Court heard oral argument yesterday in Knox v. SEIU, the case testing whether a union had to issue a special opt-out notice to nonmembers when it increased its assessment mid-year. The case comes to the Court on nonmembers' First Amendment challenge--whether the failure to provide a special opt-out notice violates their speech and associational rights not to support the union's political (i.e., non-bargaining) activities. But as the argument yesterday suggests, it could turn on something much more practical: how to craft a rule that would give a union enough flexibility to adjust its assessments mid-year, while still respecting nonmembers' rights to opt-out of supporting the union's political agenda. Or it could turn on something else entirely: standing.
In the ordinary course of things, the union collects dues once a year and issues a notice--a Hudson notice, after Chicago Teachers Union v. Hudson (1986)--that allows nonmembers to opt-out of dues that would go to the union's political expenditures (but not dues that would go to the union's collective bargaining expenditures). The union here regularly anticipated dues for the next year based on audited prior year expenditures and issues a Hudson notice that reflected that. This was a practical solution, designed to estimate the union's coming year expenditures while protecting nonmembers from supporting the union's political activities that nonmembers may not wish to support. No party challenged this basic procedure.
But in 2005, shortly after the union issued its 2005 Hudson notice, the union increased its assessment slightly to fund its opposition to anti-union ballot initiatives. The union did not issue a separate Hudson notice for this increase, although nonmembers could have objected under the 2005 Hudson notice and the 2006 Hudson notice. (The 2005 Hudson notice did not include the mid-year increase, but it did say that dues and fees were subject to change. The 2006 Hudson notice did include the mid-year increase, because, as above, the estimate in each year's Hudson notice is based on last year's actual audited expenditures.)
Nonmembers claimed that this violated their First Amendment rights to not support causes they don't agree with. Again: They didn't challenge the fundamental Hudson process, just the lack of a Hudson notice for the 2005 mid-year increase.
The district court granted summary judgment for the plaintiffs, but the Ninth Circuit reversed. After the Court granted cert., the union sent all nonmembers a notice that permitted them to obtain a refund of the increased assessment and a $1 bill, representing nominal damages. The union claimed that this satisfied the district court order and argued that it mooted the case.
The argument yesterday focused a good deal on mootness. The plaintiffs tried to persuade the Court that the union's mid-year increase without a separate Hudson notice was capable of repetition but evading review, while the union argued that its eleventh-hour notice gave the plaintiffs all the relief they could possible get even under the district court's order. There were skeptics on the bench on both sides. For example, Justices Ginsburg and Kagan both suggested that the capable-of-repetition exception usually applies to cases involving injunctive relief, and this case doesn't. On the other side, Chief Justice Roberts and Justice Kagan both suggested that the plaintiffs said that the union's notice didn't satisfy the district court's order--a live dispute--and that the union can't say that there is no standing at the Supreme Court, while there is standing at the district court (even if only on the question whether the union's notice satisfied its order).
Despite the significant focus on mootness, however, Chief Justice Roberts also moved both parties along to the merits. On the merits, the Court treated the question as a choice between (1) a forced loan by the nonmembers to the union to support political causes they don't wish to support and (2) a practical solution that gives the union flexibility to adjust assessments mid-year while still respecting nonmembers' right to opt-out.
The plaintiffs pressed for a rule that would require a Hudson notice each time there was a "material alteration in the obligations that are imposed upon nonmembers," without regard to the reason for the assessment. But it's not clear that that rule is workable, or that it is efficient, or that it would benefit (and not hurt) nonmembers. Justice Breyer put it this way:
It's peculiar, because in the circumstances where the extra assessment is all going to go to chargeable [non-political] activities, in fact that means economically speaking the following year the objector will be better off, not worse off, because there is a higher pecentage of the total fee that's being paid to chargeable activities.
Response: "Justice Breyer, the reason for the notice is these people may not trust the union. They -- they may choose to challenge the amount of the fee."
This may not be enough, though. The plaintiffs also conceded that the union could shift funds mid-year to use more than anticipated on political activities--without a separate Hudson notice. This practice would be even less transparent than the practice that the union followed here. This point did not go unnoticed, particularly by Justices Breyer and Kagan. Justice Sotomayor added that she didn't see how the mid-year increase amount to a loan, especially when nonmembers could object with the next Hudson notice and when in any event they ultimately benefit from it (for the reasons that Justice Breyer said).
On the other side, Justice Alito described the practice here as a forced loan, without interest, for activities that nonmembers may not support. He said that the stakes could be quite different for nonmembers, if the percent of nonchargeable and chargeable costs are reversed, and asked "why should [nonmembers] not be given a notice at that time and given the opportunity not to give what would be at a minimum an interest-free loan for the purpose of influencing an election campaign?"
Justices Breyer and Sotomayor returned to the practical: they wanted to know from the union how much of a hassle it would be to provide a special notice with each mid-year increase. Answer: the magnitude of the hassle may be high, but the union's attorney didn't know how often unions would have to do this.
Justice Kennedy reminded the union that there are significant First Amendment interests at issue here:
And the point there was that you're taking someone's money contrary to that person's conscience. And that's what the First Amendment stands against.
Justice Kennedy also threw a bit of a curve ball toward the end of the union's argument, suggesting that "even collective bargaining involves a core political judgment." This position would erase the distinction between chargeable and nonchargeable costs and could undo even the routine Hudson practice that the union employs. No party went so far, and no other Justice picked up on this point, however. It's not even clear that Justice Kennedy intended much by it: he prefaced this line of questioning with "just in the way of background."
If the Court avoids fully wrestling with Justice Kennedy's larger question and thus avoids potentially upsetting a routine practice that nobody seems to object to (as seems nearly certain), and if the Court gets past mootness (as seems far less certain), the case will likely come down to the practical: How best to allow the union some flexibility, while respecting nonmembers' rights to opt-out. But Justice Kennedy's point is a reminder of the stakes; and even in a very practical calculus, for this Court it could mean a thumb on the scale of the nonmembers.
Friday, November 18, 2011
The latest installment in the continuing saga of the quest for anonymity by "Protect Marriage" members and supporters is the Ninth Circuit's denial of the emergency appeal.
As we most recently discussed, on a remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes. Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative. The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization. The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.
In this latest round, the John Doe plaintiffs sought to "enjoin the Washington Secretary of State from further releasing the R-71 petitions, the Intervenors from distributing the petitions, and the district court from further disclosing the identity of Protect Marriage Washington’s John Doe parties and witnesses in the district court’s unredacted order."
In its brief opinion, over one dissent, the Ninth Circuit panel stated it "preliminarily believes that the appeal is moot due to the release of R-71 petitions" and thus held that the plaintiff/ appellants’ "renewed emergency motion for an injunction pending appeal is denied."
Tuesday, October 25, 2011
The Seventh Circuit today rejected the free speech claim of a frustrated candidate for promotion in the Cook County Sheriff's Office. The case, Brown v. County of Cook, arose out of a sargeant's claim that he was denied promotion to lieutenant after he failed to support the Sheriff--and indeed supported his opponent--in the Sheriff's earlier election and re-election campaigns.
The plaintiff, Thomas Brown, brought the case under Rutan v. Republican Party of Illinois, another political patronage case coming out of Illinois, holding that "[u]nless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms."
But Brown didn't even get that far. Instead, the case turned on whether patronage was even a motivating factor. Judge Posner wrote that the Seventh Circuit just this month affirmed its burden-shifting approach to that question:
If Brown presented evidence at the summary judgment phase of the litigation that could convince a reasonable jury that his political affiliation was a motivating factor in his being passed over, the burden would shift to [Sheriff] Sheahan to present evidence that could convince a reasonable jury that Brown's political affiliation was not a "but for" cause of the discrimination. . . .
To restate [our standard] in simpler terms, if Brown can prove that he would have been denied promotion because of his political affiliation alone, then to avoid an adverse judgment Sheahan would have to show that even so Brown would have been denied promotion for some other reason, in which event his political affiliation had no causal significance. If Sheahan can meet that burden, it is as if he had told Brown "I can't promote you because there's no opening for another lieutenant, but if there were I still wouldn't promote you, because you made a donation to my opponent five years ago." There would be no constitutional violation because if Sheahan was being truthful Brown would not be worse off as a result of his political affiliation than if he'd contributed to Sheahan's campaign instead.
Op. at 2-3.
The problem here: Brown had no evidence. None. And what he did produce did far more to entertain Judge Posner than it could ever do to prove his case. The opinion's a good read, and the case is a good lesson in how not to win a First Amendment claim under Rutan.
Thursday, October 13, 2011
Occupy Switzerland?: European Court of Human Rights Finds A Violation of Free Association Rights of RHINO
RHINO - - - an acronym for two alternative French slogans, translated as “Vacant buildings inhabited again” and “Let’s carry on living in the buildings we occupy” - - - was an association established in Geneva, Switzerland in 1988.
After years of activities consistent with its slogans, including squatting in a building with its famous "red horn" (pictured left), legal action terminated not only the possession but the organization itself. Owners of the occupied properties sought a dissolution of the RHINO association "on the grounds that its aims were unlawful." The Swiss courts agreed to dissolve the association.
The European Court of Human Rights, however, has held that the dissolution violated Article 11, "freedom of association," of the European Convention on Human Rights. The dissolution of the association was not proportionate and necessary in a democratic society, and there was no showing that alternative less restrictive measures were available to prevent "disorder." The Court therefore ordered money damages (65,651 euros) and costs to be paid by Switzerland to RHINO.
There were also related eviction proceedings in the Swiss courts; these are also before the European Court of Human Rights.
Monday, September 26, 2011
Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues.
Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."
The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.
More information, including registration information is here. The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18.
September 26, 2011 in Affirmative Action, Association, Conferences, Current Affairs, Equal Protection, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Privacy, Race, Recent Cases, Scholarship, Speech, Supreme Court (US), Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, August 1, 2011
In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011). The judge enjoined the Kansas state defendants from any further enforcement or reliance on athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.
The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.
Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights. The judge found there was a substantial likelihood of success on both of these claims.
First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment. The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity. Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”
As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict. The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded.
Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan. Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional." Thus, the judge focused on the First Amendment right of association.
Discussed in both of the Planned Parenthood claims was the legislative intent of the statute. Was the intent of the statute directed at Planned Parenthood? The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute. The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:
Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor vote
of the session.
Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.” The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.
August 1, 2011 in Abortion, Association, Cases and Case Materials, Current Affairs, Eleventh Amendment, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Preemption, Privacy | Permalink | Comments (0) | TrackBack (0)
Monday, June 13, 2011
The Supreme Court ruled today in Nevada Commission on Ethics v. Carrigan that a legislative vote is not protected speech under the First Amendment and that a state recusal statute therefore did not violate the Constitution.
The ruling leaves untouched the widespread practice in states and Congress to require legislators to recuse themselves from voting when they have a conflict of interest. The Nevada law at issue here reached farther than most--perhaps any--other recusal law. And so the ruling, unanimous on the core holding that recusal laws do not violate the First Amendment, gives wide latitude to states and Congress in their efforts to enact and enforce aggressive and expansive recusal laws.
The case involved Nevada's Ethics in Government Law, which requires public officials to recuse themselves from voting on, or advocating the passage of or failure of, "a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by . . . [h]is commitment in a private capacity to the interests of others." Under the Law, such commitment includes, e.g., a member of the officer's household or the officer's relative and--at issue here--"[a]ny other commitment or relationship that is substantially similar."
Petitioner Michael Carrigan was an elected member of the Sparks City Council. As a Commissioner, Carrigan voted to approve an application for a hotel and casino project, the "Lazy 8." But, as it turned out, Carrigan's long-time friend and campaign manager, Carlos Vasquez, was a paid consultant for the Red Hawk Land Company, which proposed the Lazy 8 project and would benefit from it. Thus the conflict.
Before the vote, Carrigan consulted with the City Attorney, who advised him that disclosing the relationship would satisfy his obligations under the Law and that he could go ahead and vote on the measure. But after Carrigan voted, the Nevada Commission on Ethics initiated an investigation and found that Carrigan violated the Law.
Carrigan sued in state court, arguing that the Law violate the First Amendment. A divided Nevada Supreme Court agreed, applied strict scrutiny, and ruled the Law unconstitutionally overbroad.
The Supreme Court reversed. In a unanimous opinion by Justice Scalia, the Court held that the Law did not violate the Speech Clause in the First Amendment. All but Justice Alito joined Justice Scalia's opinion that Carrigan's legislative vote wasn't even protected speech; Justice Alito concurred in part and concurred in the judgment, but wrote that Carrigan's legislative vote was speech (but that the Law did not violate the First Amendment).
Justice Scalia wrote that early congressional recusal laws and rules--including laws and rules that were in place when Congress voted on the First Amendment--along with the absence of any objection to such laws on speech grounds suggest that recusal laws are consistent with the First Amendment. Moreover, states have a long tradition of enacting recusal laws.
Justice Scalia wrote that Carrigan's vote wasn't speech, because he was simply channeling the will of his constituents (and not engaging in an independent expressive act):
[A] legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. . . . In this respect, voting by a legislator is different from voting by a citizen. While "a voter's franchise is a personal right," "[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process.
Op. at 8.
Justice Alito concurred in the judgment, but disagreed that a legislative vote isn't speech. Referencing Doe v. Reed (2010), holding that disclosure of signatures on referendum petitions does not violate the First Amendment, Justice Alito wrote,
Just as the act of signing a petition is not deprived of its expressive character when the signature is given legal consequences, the act of voting is not drained of its expressive content when the vote has a legal effect. If an ordinary citizen casts a vote in a straw poll on an important proposal pending before a legislative body, that act indisputably constitutes a form of speech. If a member of the legislative body chooses to vote in the same straw poll, the legislator's act is no less expressive than that of an ordinary citizen. And if the legislator then votes on the measure in the legislative chamber, the expressive character of that vote is not eliminated simply because it may affect the outcome of the legislative process.
Op. at 3 (op. of Justice Alito). But Justice Alito came to the same result as the others--that the recusal law did not violate the First Amendment--because of Justice Scalia's evidence from early Congresses and from state practices.
Justice Kennedy concurred with Justice Scalia's opinion but wrote separately to warn that the Nevada Law could be applied to restrict or to chill protected speech and association. But the problems he raised were not before the Court.
[Image: Sparks City Hall, City of Sparks web-site]
Thursday, May 12, 2011
President Obama's draft executive order requiring government contractors to disclose their political donations came under attack on two fronts today--in a joint hearing by the House Committee on Oversight and Government Reform and the House Committee on Small Business, and in a letter from a bipartisan quartet in the Senate.
The draft EO requires that "all entities submitting offers for federal contracts to disclose certain political contributions and expenditures that they have made within the two years prior to submission of their offer." This was the White House's answer to the failure of the Disclose Act in the Senate--a modest attempt to shine light on the political activities of government contractors, the only sector over which the executive might require such disclosure without the aid of Congress. (The Disclose Act itself was a modest attempt to shine light on the political activities of corporations in the wake of Citizens United v. FEC, the Supreme Court case last term that overturned spending limits on corporations and labor unions under the First Amendment, but that upheld disclosure requirements.)
But the draft EO hit a roadblock: Charges in Congress that it would polticize government contracting, and allow the administration to target its political enemies.
Those worries hit a high point today in the House joint committee hearing, titled "Politicizing Procurement: Will President Obama's Proposal Curb Free Speech and Hurt Small Business?" The hearing was stacked with opponents of the draft EO, all of whom testified that the draft EO would, well, curb free speech and hurt small business. The lone supporter (other than the OMB rep), representing the Women's Chamber of Commerce, testified that the draft EO would increase transparency and ensure that procurement is based on "fair competition and not unscrupulous, undisclosed "pay to play" campaign donations." The administration sent OMB Administrator for Federal Procurement Policy Daniel Gordon as a compromise fter Jack Lew, the head of OMB, declined to appear (sparking threats of subpoena by the committee chairs).
At the same time, Senators Joe Lieberman, Claire McCaskill, Susan Collins, and Rob Portman sent a letter to President Obama opposing the draft EO because it would politicize procurement.
There were even some murmurings that President Obama lacked authority to issue the EO--that it wasn't sufficiently tied to federal procurement to come within executive authority.
Wednesday, April 13, 2011
The Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights yesterday held a hearing titled, "The Fair Elections Now Act: A Comprehensive Response to Citizens United."
The Subcommittee considered S. 750, the Fair Elections Now Act, which creates a public financing system for congressional elections. The system would encourage campaigns based on small donations (under $100) from in-state contributors: candidates would need a certain number of such donations to qualify for public financing; and the system would match small donations up to five times the donation. The Act would also cap the rates for television ads for participating candidates at 80 percent of the lowest charge during periods before the election and provide advertising vouchers for participating candidates.
According to Monica Youn of the Brennan Center, who testified yesterday, participants in public financing systems can compete in a post-Citizens United world, provided that the system offers candidates sufficient funds:
But the experiences of jurisdictions with public financing demonstrates that, as long as such systems offer candidates sufficient funds to run viable campaigns, publicly financed candidates can run competitive and successful races even in the face of high levels of hostile independent spending.
Under the Fair Elections Now Act, participating Senate candidates would get $1.25 million, plus another $250,000 per congressional district in their state, split 40 percent for the primary and 60 percent for the general. But they would also qualify for matching funds at five times the contribution for each contribution of $100 or less from in-state contributors, up to three times the initial allocation for the primary, and again for the general. And they would benefit from the television ad cap plus vouchers (worth $100,000 for each congressional district in their state).
The Brookings Institution estimates that the average cost of a Senate seat in 2008 was $7,500,052.
Tuesday, November 30, 2010
Judge Norman Moon (W.D. Va.) today dismissed Liberty University v. Geithner, a case filed by state lawmakers, a doctor, Liberty University, and individuals challenging the federal healthcare reform legislation. The plaintiffs argued that the legislation exceeds Congress's Article I authority, and that it violates the Tenth Amendment, the religion clauses, the Religious Freedom Restoration Act, equal protection, free speech and free association, Article I, Section 9's prohibition against unapportioned capitation or direct taxes, and the Guarantee Clause.
Judge Moon ruled that the state lawmakers lacked standing by virtue of their opposition to federal reform. The doctor lacked standing, because his claims that reform may interfere with his ability to provide quality care for his patients were too vague. Judge Moon ruled that other plaintiffs have standing; the case is ripe; and it's not barred by the Anti-Injunction Act.
On the merits, Judge Moon ruled that Congress acted within its authority under the Commerce Clause in enacting the individual health insurance mandate. Judge Moon wrote that
The conduct regulated by the individual coverage provision--individuals' decisions to forego purchasing health insurance coverage--is economic in nature, and so the provision is not susceptible to the shortcomings of the statutes struck down by the Court in Lopez and Morrison. Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care. The "fundamental need for health care and the necessity of paying for such services received" creates the market in health care services, of which nearly everyone is a participant." . . . Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.
Op. at 27 (quoting Thomas More Law Ctr., another challenge to federal health care reform). Judge Moon had less trouble concluding that the employer mandate fell within Congress's Commerce Clause authority:
As defendants correctly point out, it is well-established in Supreme Court precedent that Congress has the power to regulate the terms and conditions of employment. . . .
The requirement imposed by the Act on employers to offer a minimum level of health insurance resembles the requirement imposed by the [Fair Labor Standards Act] on employers to offer a minimum wage upheld in Darby, and Plaintiffs fail to distinguish the two.
Op. at 31.
As to the Tenth Amendment, Judge Moon ruled that Congress had authority (and therefore the Tenth Amendment is no bar), Congress can regulate in the area of insurance (and therefore federal reform doesn't infringe upon an area reserved to the states, or upon state sovereignty), and state participation is voluntary (and therefore there's no commandeering of states or state officials).
As to the Establishment Clause, Judge Moon ruled that the religious exemptions to the individual mandate were permissible accommodations under Cutter v. Wilkinson. The exemptions do not differentiate based on faiths, they are based upon a secular government purpose, and they do not lead to excessive government entanglement with religion.
As to Free Exercise and the Regligious Freedom Restoration Act, Judge Moon ruled that the federal law does not require the plaintiffs to pay for abortion, in violation of their religious practices. "Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered." Op. at 43.
Judge Moon ruled that the religious exemptions also did not violate equal protection. "Accordingly, with no reason to believe the exemptions were designed to favor or penalize a particular religious group, I proceed to analyze the exemptions under rational basis review." Op. at 46. The exemptions, toward the end of accommodating religion, clearly satisfied rational basis review.
As to speech and association, Judge Moon ruled that federal reform does not require the plaintiffs to support or associate with individuals who obtain an abortion in violation of free speech and association. "The Act does not require health plans to cover abortion, and it ensures that at least one policy offered through each health benefit exchange will not cover non-excepted abortion services." Op. at 49. Any required association is minimal. And the federal act does not require the plaintiffs to speak on, or to support, abortion.
As to taxes, Judge Moon ruled that the penalties for noncompliance are not taxes; instead they are "mere incident[s] of the regulation of commerce." Op. at 52 (quoting Head Money Cases.)
Finally, as to the Guarantee Clause, Judge Moon rejected the plaintiffs' claim that the federal act gives Congress the ability to veto private choices about health care and thus gives the federal government absolute sovereignty over the people. "The Act does no such thing; nothing prevents the people and their representatives from amending or repealing the Act through the democratic process." Op. at 53.
November 30, 2010 in Association, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, Federalism, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Religion, Ripeness, Speech, Standing, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)