Thursday, September 22, 2016

Judge Slaps FEC for Erroneous Analysis of Political Committee

Judge Christopher R. Cooper (D.D.C.) ruled earlier this week that the controlling members of the FEC applied the wrong legal analysis in concluding that two groups were not "political committees" under federal campaign finance law. The ruling reverses and remands to the FEC for reconsideration.

The case matters because designation as a "political committee" triggers more stringent reporting requirements under campaign finance law. Judge Cooper's ruling makes it more likely that a group would be considered a "political committee," and thus marks a victory for campaign disclosure advocates.

The case arose when CREW lodged a complaint with the FEC that two groups, American Action Network and Americans for Job Security, were unregistered "political committees." Those groups spent money on TV ads and other electioneering communication in three congressional districts in the 2010 elections. In response to CREW's complaint, three FEC commissioners determined that the groups' "major purpose" wasn't "the nomination or election of a candidate," and therefore that they were not "political committees" under campaign finance law. The commissioners reasoned that the groups' electioneering communications--ads that mentioned a candidate, but that did not advocate for or against a candidate's election--shouldn't be considered in determining the "major purpose," and that groups' purposes over their entire history should be considered in determining their "major purpose."

Judge Cooper disagreed. He ruled first that under Buckley and its progeny, the commissioners should have considered the groups' electioneering communications in determining their "major purpose":

CREW's citations to legislative history, past FEC precedent, and court precedent certainly support the conclusion that many or even most electioneering communications indicate a campaign-related purpose. Indeed, it blinks reality to conclude that many of the ads considered by the Commissioners in this case were not designed to influence the election or defeat of a particular candidate in an ongoing race. . . . Instead, the Court will limit itself to identifying the legal error in the Commissioners' statements--that is, the erroneous understanding that the First Amendment effectively required the agency to exclude from its consideration all non-express advocacy in the context of disclosure.

Judge Cooper ruled next that the commissioners wrongly considered the groups' spending over their entire existence, instead of confining their analysis to spending within the most recent calendar year, in determining the "major purpose." He explained that a group's purpose can change over time:

The Commissioners' refusal to give any weight whatsoever to an organizations' relative spending in the most recent calendar year--particularly in the case of a fifteen-year-old organization like AJS--indicates an arbitrary "fail[ure] to consider an important aspect of the [relevant] problem."

Judge Cooper sent the case back to the FEC and ordered it "to conform with [this] declaration within 30 days." The FEC can, of course, appeal.

September 22, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, September 21, 2016

Tenther States Claim Sovereign Right Not to Pay Employees Overtime

Twenty-one states, led by Texas, sued the federal government this week over the Labor Department's new overtime rule. The complaint, which argues that the rule violates the Tenth Amendment and principles of state sovereignty, puts Garcia, long a thorn in the side of states'-righters, on the chopping block.

The suit challenges DOL regulations under the Fair Labor Standards Act that raise the threshold exemption for overtime pay. This means that employers now have to pay overtime to employees who earn up to $47,476, up from $23,660. (The FLSA only exempts "managerial" positions from the overtime requirement. DOL has long used a salary test as a proxy for "managerial" in its regulations, however.) The rule applies to both private-sector employers and states.

The states argue that the new rule will cost them money and require them to reshuffle spending priorities, interfering with their state sovereignty and violating the Tenth Amendment.

The Supreme Court at one time would have agreed. The Court ruled in National League of Cities v. Usery in 1976 that the FLSA minimum-wage requirement violated the Tenth Amendment for exactly these reasons. But less than a decade later, when it became clear that this approach couldn't work across the myriad federal regulations that applied to states in their non-sovereign capacity, the Court walked back. It ruled in Garcia v. San Antonio Metropolitan Transit Authority (1985) that the FLSA did not violate the Tenth Amendment, and that states had plenty of protection against federal overreach through the ordinary political process.

Now the plaintiffs in this latest lawsuit explicitly argue that Garcia should be overruled. They say that subsequent developments in the law have undermined the case, and that it's time to go back to National League of Cities.

The complaint speaks in terms of the additional burden to the states of the new DOL regulation, but its logic extends to any federal standard (like minimum wage, maximum hours, worker safety, etc.) imposed on the states. As a result, the case, if ultimately successful, would work a sea change in federal-state relations as they've existed since 1985, potentially across policy areas. That seems unlikely given the current composition of the Court. But who knows what might happen after the election.

The states also argue that the new regulation exceeds DOL authority under the FLSA, because the FLSA sets the overtime requirement based on job type ("managerial"), but the DOL regs set the requirement based on salary. This claim may have more traction (in the Fifth Circuit, at least, and possibly before the Supreme Court). It's similar to the core claim in the last state effort, also led by Texas, to challenge administrative action as a violation of the Constitution and the Administrative Procedures Act--in that case, the DAPA program. An evenly divided Supreme Court left in place the Fifth Circuit's ruling that DAPA violated the APA.

September 21, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Tenth Amendment | Permalink | Comments (0)

District Court Orders Texas to Halt its Nonsense Over Voter ID

After the Fifth Circuit ruled this summer that Texas's voter ID law violated the Voting Rights Act, and after a district court ordered the state to educate voters on voting requirements in light of that ruling (that voters need not produce ID), Texas continued to play games to dodge the courts' rulings and hassle voters. For example, the state issued misleading materials that mischaracterized language in the district court's order, and state officials threatened to investigate anyone who signed a declaration saying that they couldn't get the required ID.

So the district court issued a new order yesterday, requiring the state to re-issue press releases, edit printed material to go at polling places, edit its web-site and online materials, and "provide counsel for all Plaintiffs scripts and copy for documents and advertisements that have not yet been published for review and objection prior to publication."

The Texas AG is reportedly planning to seek Supreme Court review of the Fifth Circuit ruling this week.

The Brennan Center has all the litigation documents and a good overview of the case here.

September 21, 2016 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0)

Immigrant Children Between a Rock and a Hard Place on Right to Counsel Claims

The Ninth Circuit ruled yesterday that a federal district court lacked jurisdiction to hear a class-action claim by immigrant children that they have a right to counsel in deportation proceedings.

While the judges on the panel wrote separately to acknowledge the challenging barriers for unrepresented child-immigrants in the deportation process, the upshot of the ruling is that immigrant children remain between a rock and a hard place in lodging a right-to-counsel claim, and, thus, in the deportation process itself.

The case arose when immigrant children aged 3 to 17 filed suit in federal district court arguing that they had a constitutional and statutory right to counsel in deportation proceedings. The problem was that the Immigration and Naturalization Act provides for an appeal process in administrative deportation proceedings that permits an immigrant to appeal to a federal circuit court and consolidates "all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien .  .  only in judicial review of a final order . . . ." This means that an immigrant can raise deportation-related claims only in his or her direct appeal of an administrative deportation order, and not in a collateral process (like a separate case in district court).

The children argued that the INA's jurisdictional provision means that, as a practical matter, they could never raise a right-to-counsel claim on direct appeal of a deportation order. That's because one of two things could happen in deportation proceedings. First, an immigrant could have an attorney, in which case they wouldn't have standing to raise a right-to-counsel claim on direct appeal. Alternatively, an immigrant could not have an attorney. But in that case, given the complexities of the immigration process, a child couldn't adequately develop a record to successfully appeal (if they could even figure out how to appeal). (Immigration judges won't deal with the issue, so the children really would have to raise it on appeal to the federal circuit court.) So, they argued, they should be able to file a collateral class action in federal district court on the right-to-counsel claims.

The Ninth Circuit disagreed. The court ruled that the INA's jurisdictional provision directly answered the question: the children could only raise their right-to-counsel claims through the administrative deportation process and on direct appeal to the federal circuit court.

The panel judges wrote separately to acknowledge the unique challenges that immigrant children face in this labyrinthine process, and the practical difficulties in raising a right-to-counsel claim. They also wrote that there's wide agreement that children need an attorney in deportation proceedings. But in the end, according to the court, right to counsel is an issue to raise only on direct appeal.

Or: Congress could simply fix it by providing a statutory right to counsel for children in deportation proceedings.

September 21, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Tuesday, September 20, 2016

Divided Sixth Circuit Weighs in On Federal Gun Ban for Involuntary Commitment

A divided en banc Sixth Circuit last week reversed a district court's order dismissing an as-applied Second Amendment challenge to the federal ban on gun possession by anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution."

The ruling sends the case back to the district court to give the government a second chance to show that the federal ban meets intermediate scrutiny. The ruling doesn't end the case, and it doesn't say whether the ban violates the Second Amendment. It just sends the case back to give the government a second bite at the apple.

In short, the ruling says this: A person's long-ago involuntary commitment doesn't necessarily make them a danger today, and, without a safety valve for individuals who no longer pose a danger, the federal ban may sweep too broadly with respect to currently safe individuals.

The case arose when 74-year-old Clifford Tyler tried to buy a gun. Tyler was rejected by the county sheriff, because he had been involuntarily committed for less than 30 days in the 1980s. Still, despite not showing any evidence of mental illness in his latest check, in 2012, under federal law, 18 U.S.C. Sec. 922(g)(4), Tyler couldn't possession a firearm.

Moreover, federal law didn't allow any exception. It turns out that federal law used to permit an applicant, otherwise barred by Section 922, to apply to the Attorney General for an exception. But Congress de-funded that authority, and then transferred it to participating states. Tyler's state, Michigan, hadn't accepted it, so Tyler had no recourse.

The Sixth Circuit ruled that Tyler made out a case, at least sufficient to withstand a motion to dismiss. As an initial matter, the court held that Heller's list of "presumptively lawful regulatory measures" did not answer the questions. According to the court, that's because Section 922(g)(4) is a relatively new innovation, and doesn't have the kind of "historical pedigree" that would allow it to "give Heller conclusive effect." "In the absence of such evidence, it would be odd to rely solely on Heller to rubber stamp the legislature's power to permanently exclude individuals from a fundamental right based on a past involuntary commitment."

The court next turned to the two-part approach under circuit precedent and adopted in several other circuits. It ruled first that the ban "burdens conduct that falls within the scope of the Second Amendment, as historically understood." It particular, "historical evidence . . . does not directly support the proposition that persons who were once committed due to mental illness are forever ineligible to regain their Second Amendment rights." It ruled next that the ban failed intermediate scrutiny. It said that while the government had important enough interests (keeping guns out of the hands of risky people, protecting the community, and preventing suicide), the flat, lifetime ban was too broad. The court noted that some persons with a past commitment for a mental condition do not currently have a mental condition, and can safely possess a firearm. But without a procedure for an exception, the ban prohibits anyone with a past commitment from possessing a firearm.The ruling drew several separate opinions, both concurring and dissenting. As summed up by the principal opinion, "ten of us would reverse the district court; six of us would not. And at least twelve of us agree that intermediate scrutiny should be applied, if we employ a scrutiny-based analysis." Thus, the court remanded with specific instructions to allow the government to satisfy intermediate scrutiny by introducing additional evidence in support of the lifetime ban or additional evidence showing that the ban would be constitutional as to Tyler, because he would pose a risk to himself or others if he had a gun.

September 20, 2016 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Monday, September 19, 2016

Divided Fourth Circuit Upholds County Commissioner's Prayer

In its divided opinion in Lund v. Rowan County, North Carolina, the Fourth Circuit has held that the identity of the person leading a prayer opening the county Board of Commissioners meeting is irrelevant - - - even a prayer led by a Board member is within the ambit of Town of Greece v. Galloway (2014) and without a First Amendment Establishment Clause problem.

As the majority opinion, authored by Judge Steven Agee and joined by Judge Dennis Shedd, describes it:

At most Board meetings, the chairperson would call the meeting to order and invite the Board and audience to stand for the ceremonial opening. A designated commissioner would then deliver an invocation of his or her choosing followed by the pledge of allegiance. The content of each invocation was entirely in the discretion of the respective commissioner; the Board, as a Board, had no role in prayer selection or content. The overwhelming majority of the prayers offered by the commissioners invoked the Christian faith in some form. For example, prayers frequently included references to “Jesus,” “Christ,” and “Lord.”  It was also typical for the invocation to begin with some variant of “let us pray” or “please pray with me.” Id. Although not required to do so, the audience largely joined the commissioners in standing and bowing their heads during the prayer and remained standing for the pledge of allegiance.

Louis-Émile_Minet_Les_CharitonsThe litigation was begun before the United States Supreme Court issued its sharply divided opinion in Town of Greece v. Galloway upholding the practice of the town beginning its meetings with invited religious leaders providing prayers.  The Court essentially extended Marsh v. Chambers (1983), regarding legislative prayer in the Nebraska legislature, to town meetings despite their quasi-legislative and quasi-adjudicative function.  The Fourth Circuit extends Town of Greece to prayers by the elected officials (and arguably adjudicators) themselves: "the Supreme Court attached no significance to the speakers' identities in its analysis" of either Town of Greece or Marsh.  Indeed, as the Fourth Circuit majority notes, Justice Kennedy writing for the plurality in Town of Greece averred that the "principal audience" for the prayers is not the public but "lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing."  The Fourth Circuit therefore found that the district judge's conclusion that legislative prayer led by a legislator violates the Establishment Clause.

Judge Agee's opinion for the Fourth Circuit majority then took up the question of whether "some other facet" of the Board of Commissioner's praying practice took it "outside the protective umbrella of legislative prayer."  These four "guideposts" included the selection of the legislative prayer, the content of the prayer, selection of the prayer-giver, and the effect of the prayer "over time" as advancing a particular religion.  Judge Agee's opinion rejected each of these concerns.  First, the selection of the legislative prayer was not done by the "Board as a whole," but each of the five commissioners was in effect "a free agent."  Second, the majority found the content not objectionable because it did not cross the line into proselytizing: "There is no prayer in the record asking those who may hear it to convert to the prayer-giver’s faith or belittling those who believe differently. And even if there were, it is the practice as a whole -- not a few isolated incidents -- which controls." Third, the selection of the prayer-givers was not problematic, even though it was limited to the five commissioners.  The majority opinion here comes close to requiring a type of specific motive: "Absent proof the Board restricted the prayer opportunity among the commissioners as part of an effort to promote only Christianity, we must view its decision to rely on lawmaker-led prayer as constitutionally insignificant."  Fourth and last, the majority found no problem based on its analogies to Town of Greece and Marsh, in which the prayers were overwhelmingly Christian.

All-falling-faithsFor Judge J. Harvie Wilkinson III, dissenting, the prayer practices of the Rowan County Commissioners crossed the constitutional line into a violation of the Establishment Clause. Wilkinson, whose forthcoming book argues that the 1960s  were damaging "to our need for the sustenance of faith," here concludes that Rowan County is not welcoming to various faiths. He does not argue that the commissioner as prayer-leader is determinative, but it is one of the factors that distinguishes the Rowan County practice from Town of Greece, that makes it "a conceptual world apart."  For Wilkinson:

I have seen nothing like it. This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece. That case in no way sought to dictate the outcome of every legislative prayer case.

Wilkinson's opinion provides several examples that the plaintiffs, all non-Christians, found "overtly sectarian," including:

Our Heavenly Father, we will never, ever forget that we are not alive unless your life is in us. We are the recipients of your immeasurable grace. We can’t be defeated, we can’t be destroyed, and we won’t be denied, because of our salvation through the Lord Jesus Christ. I ask you to be with us as we conduct the business of Rowan County this evening, and continue to bless everyone in this room, our families, our friends, and our homes. I ask all these things in the name of Jesus, Amen.”

Judge Wilkinson noted that the "closed universe" of prayer-givers - - - the five Commissioners - - - over a period of years had led to a constriction in the religious identities represented that could communicate a message of non-belonging to citizens coming before the Board.  But Wilkinson's concern also extended into a concern about representative secular democracy itself:

Entrenching this single faith reality takes us one step closer to a de facto religious litmus test for public office. When delivering the same sectarian prayers becomes embedded legislative custom, voters may wonder what kind of prayer a candidate of a minority religious persuasion would select if elected. Failure to pray in the name of the prevailing faith risks becoming a campaign issue or a tacit political debit, which in turn deters those of minority faiths from seeking office. It should not be so.

The United States Supreme Court's now-eight Justices may not be eager to welcome another government prayer case into the docket so soon after the 5-4 decision Town of Greece, especially one that might result in a 4-4 split, affirming the Fourth Circuit's opinion.  And yet?  Perhaps the Rowan County Board of Commissioners prayer practices might be a step too far for one of the Justices who joined the Court's majority in Town of Greece?  Or perhaps for the Fourth Circuit en banc? 

 

[image via]

September 19, 2016 in Cases and Case Materials, Courts and Judging, Establishment Clause, First Amendment, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (0)

Friday, September 16, 2016

Plaintiff Can't Challenge Dog's Dismissal in Federal Court

The Seventh Circuit ruled today that a service-dog owner can't challenge a state judge's order banning the dog from the courtroom in federal district court. The ruling leaves the owner with state-court remedies, but no remedy in federal district court, for this violation of the Americans with Disabilities Act.

The case arose when a state court probate judge ordered Gloria Jean Sykes to stop bringing her service dog, Shaggy, to probate proceedings. Sykes uses Shaggy for assistance with her post-traumatic stress disorder, but the judge nevertheless ordered Shaggy out.

Sykes sued in federal district court, arguing that the judge's behavior toward her (critically questioning her need for Shaggy) and the order violated the ADA. The district court dismissed the case, and Sykes appealed.

The Seventh Circuit ruled that the Rooker-Feldman doctrine barred the suit. The Rooker-Feldman doctrine says that a lower federal court cannot exercise jurisdiction over cases brought by state court losers challenging state court judgments rendered before the district court proceedings commenced. "Claims that directly seek to set aside a state court judgment are de facto appeals which trigger the doctrine. But even federal claims which were not raised in state court, or that do not on their face require review of a state court's decision, may still be subject to Rooker-Feldman if those claims are inextricably intertwined with a state court judgment."

The court rejected Sykes's arguments that her ADA claim wasn't intertwined with the state court judgment (the Shaggy ban). In particular, the court rejected her argument that the judge's conduct, not just the order, violated the ADA, and that the practices in the courthouse violated the ADA (in the spirit of Tennesse v. Lane). The court said that the claim and the judgment were still intertwined: "[T]o provide any relief in response to the harm stemming from [the judge's] acts, her court order banning Shaggy would need to be set aside."

The court noted that Rooker-Feldman would permit the suit, for example, if the courthouse "had a policy of banning service animals." The court also noted that Sykes could have sought mandamus in the state courts, pursued an interlocutory appeal in the state courts, or filed a motion for a supervisory order under state court rules.

September 16, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Thursday, September 15, 2016

No Standing to Challenge Export of Chimps

Judge Ketanji Brown Jackson (D.D.C.) ruled in New England Anti-Vivisection Society v. U.S. Fish and Wildlife Service that the plaintiff organization lacked standing to challenge an export permit issued by the FWS for certain chimpanzees. The ruling means that this case ends (except NEAVS's FOIA claim), unless and until NEAVS successfully appeals.

The case arose when the FWS issued an export permit under the Endangered Species Act that allowed Yerkes National Primate Research Center to transfer eight of its chimpanzees to a zoo in the U.K. (The ESA requires an export permit in order to export endangered species.) NEAVS sued, lodging several causes of action, but the FWS moved to dismiss for lack of standing.

NEAVS argued that it had informational standing, "because the FWS's failure to collect the information necessary to conclude that the authorized export will 'enhance the survival' of the chimpanzee species." It argued that it had organizational standing, because FWS's permit decision would harm its ability to carry out a key mission--ending the use of animals in research, testing, and science education. And it argued that its members had individual standing, because those members formed strong bonds with the particular chimpanzees that will be exported, and that they hope to see them again.

The court held that NEAVS lacked informational standing, because Section 10(c) doesn't require an agency to collect the information that NEAVS cites. "By its terms, then, Section 10(c) creates a 'right to information[,]' but that right extends only to the information that the agency receives in connection with a permit application, and Congress did not impose any duty to make an affirmative effort to collect certain information as part of the permitting process . . . ."

The court held that NEAVS lacked organizational standing, because, under circuit precedent, its interests are simply too abstract. "NEAVS has not shown that [the] export permit impairs NEAVS's own activities or operations in any perceptible way. Indeed, the testimony that Plaintiffs have offered comes nowhere close to specifying how the permit interferes with NEAVS's ability to do its job . . . and, instead, NEAVS's declarant makes statements that are remarkably close to the kinds of general mission-frustration contentions that the D.C. Circuit has considered (and rejected) as a basis for finding organizational standing.

The court held that there was no individual standing, because "the dashed-hopes harm these individual plaintiffs allegedly have suffered" is not an injury in fact, and it "is also not even fairly traceable to FWS's decision to issue the export permit." And any aesthetic injury was to speculative, or was self-inflicted.

September 15, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Rough Day for Mike Pence at the Seventh Circuit

The Seventh Circuit had little patience at oral arguments yesterday for Governor Mike Pence's position defending his anti-Syrian-refugee policy in Indiana. Pence sought to appeal a lower court's preliminary injunction halting his policy, but the Seventh Circuit panel was all but outright hostile to Pence's arguments. The panel's pointed questions--and the Governor's utter lack of coherent responses--only revealed that Pence's policy (and his defense of it in this case) is just raw politics.

The arguments came just days after the White House announced that it would increase the total number of all refugees admitted next year.

The case came to the court after a lower court granted a preliminary injunction against Governor Pence's order that state agencies stop using federal Refugee Act funds to resettle Syrian refugees in Indiana "pending assurances from the federal government that proper security measures have been achieved." Under the policy, "[u]nless and until the state of Indiana receives assurances that proper security measures are in place, this policy will remain in full force and effect."

One of the groups that receives federal Refugee Act funds (through the state) to help resettle Syrians brought suit, arguing that Pence's order was preempted by the federal Refugee Act and that it violated Equal Protection and Title VI. The lower court granted a preliminary injunction, finding a likelihood of success on the merits of the discrimination claims and (without specifically holding) a likelihood of success on the preemption claim.

The Seventh Circuit panel focused on preemption and, in particular, Governor Pence's (lack of) authority to take federal resettlement funds designated for resettlement of refugees, including Syrians, but to refuse to use them to resettle Syrians. According to the panel, nothing in the Refugee Act authorizes a state governor to pick and choose among refugees in this way (although a state could decline to take Refugee Act funds altogether), and nothing delegates the power to a state governor to second-guess the State Department and the President himself on judgments about the which refugees present security concerns.

The Governor pointed to congressional testimony by the FBI that, according to the Governor, said that the government couldn't guarantee that Syrian refugees wouldn't pose a security risk.

But Judge Easterbrook pointed out that it's not the FBI's call--and it's certainly not a state governor's call. Under the Refugee Act, the State Department makes that call. And nothing gives a state governor the authority to discard the judgment of the State Department and the President himself as to the security risk of any particular group of refugees.

September 15, 2016 in Cases and Case Materials, Executive Authority, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Tuesday, September 13, 2016

Third Circuit Says City is Regulatory, not Market Participant, When Awarding Tax Subsidies

The Third Circuit ruled in Associated Builders v. City of Jersey City that the City's efforts to enforce labor standards through its tax subsidies is subject to challenge under the National Labor Relations Act, ERISA, and the dormant Commerce Clause. In particular, the court said that Jersey City acted as a regulator, not a market participant, when in awarded tax subsidies to developers on the condition that they enter into certain agreements with labor unions that bind the developers to negotiate with a union and cover employees in union negotiations, even if employees aren't a members.

The ruling only says Jersey City's practice is subject to NLRA, ERISA, and dormant Commerce Clause challenge--not that the practices violates them. That's now the question on remand.

The case arose when a developer challenged Jersey City's practice of offering tax subsidies on the condition that a developer execute a project labor agreement ("PLAs"), an agreement that requires developers to abide by a pre-hire collective bargaining agreement that covers all employees during the term of the project. As such, a PLA is an agreement between the developer and a labor union, and, because it's entered into with a labor union, it requires a developer to negotiate with the union and requires that all employees be represented by that union in negotiations--even if the developer doesn't ordinarily employ unionized labor, and even if the employees are not union members.

Jersey City argued that it fell under the "market participant" exception to the NLRA, ERISA, and the dormant Commerce Clause, and that therefore those provisions didn't apply.

But the Third Circuit disagreed. The court ruled that Jersey City wasn't a market participant, because, under the circuit test, "the City lacks a proprietary interest in Tax Abated Projects." The court ruled that Camps Newfound/Owatonna, Inc. v. Town of Harrison dictated the result. In that case, the Supreme Court held that Maine wasn't acting as a market participant when it provided "general exemption from real estate and personal property taxes for 'benevolent and charitable institutions incorporated' in the state, but provided more limited or no tax benefits to charities benefiting residents of other states. The court also distinguished Dep't of Revenue v. Davis, saying that in that case Kentucky sold the bonds, whereas Jersey City isn't selling anything.

The ruling sends this case back to the district court for a ruling on the merits.

 

September 13, 2016 in Cases and Case Materials, Dormant Commerce Clause, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Wednesday, September 7, 2016

Sixth Circuit Punts on Phantom Voting Suit

The Sixth Circuit ruled yesterday that the courts lacked jurisdiction over an anonymous complaint about the lengths of voting lines in Ohio in the 2016 primary election. The ruling means that this strange case is dismissed, and the district court's preliminary injunction keeping polling places open an extra hour is vacated. (That extra hour turns out not to have mattered in the results, anyway.)

The case arose when the district court clerk's office received a late election-day phone call complaining that a traffic accident in the Cincinnati area was making it tough for voters to get to the polls by the 7:30 closing time. The clerk contacted a district court judge, and the judge ordered certain polling places to stay open an extra hour. (Some did, some didn't, because of communications issues.)

The Ohio Secretary of State and two counties covered in the order appealed.

But there was a problem: The case had no plaintiff. (It also had no complaint, no caption, no case.)

The Sixth Circuit ruled that the courts lacked jurisdiction over this kind of phantom suit, because there was no standing. As the court explained, in language that can now go in every Con Law and Fed Courts textbook, "There is no plaintiff with standing if there is no plaintiff."

The majority went on to say that it was impossible to rule on whether the case was moot (under the capable-of-repetition-but-evading-review exception), because "it is impossible to say that this complaining party would not be subjected to the same action again," because, well, there's no plaintiff. (The dissent took issue with this conclusion.)

The court had a pretty simple solution to the jurisdictional issues: The clerk simply could have asked "Who is it?" But, alas, that didn't happen.

September 7, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, September 6, 2016

D.C. Circuit Tosses Case Challenging Digital Billboards

The D.C. Circuit today dismissed a case challenging Federal Highway Administration guidance allowing digital billboards. The ruling says that Scenic America, a non-profit that "seeks to preserve and improve the visual character of America's communities and countryside," lacked standing to challenge the guidance as violating notice-and-comment rulemaking and that it lost on the merits of its claim that the guidance was promulgated "contrary to law" in violation of the APA.

The ruling means that FHWA guidance that allows digital billboards stays on the books.

Under the federal Highway Beautification Act, the FHWA enters into agreements with states that detail things like size, lighting, and spacing standards for billboards along the interstate highways. Every state has one of these federal-state agreements ("FSA"); most were written in the '60s and '70s. FHWA regs say that states have to implement standards in their FSAs and submit their laws to the FHWA's regional offices for approval.

Nearly all of the FSAs contain a prohibition against "flashing," "intermittent," and "moving" lights.

In 2007, the national FHWA office issued a memo that said that this prohibition did not apply to digital billboards--those billboards lit by LED lights that change pictures every ten seconds or so. The effect of the guidance was to permit digital billboards under the FSAs. (Many states already permitted digital billboards, but at least two (Texas and Kentucky) did not. After the guidance came down, those two states also permitted digital billboards.)

Scenic America sued the FHWA, arguing that the 2007 guidance violated the APA's notice-and-comment requirement and that it violated the HBA.

As to the notice-and-comment claim, the D.C. Circuit ruled that Scenic America lacked standing (both organizational and representational). In particular, the court said that Scenic America's requested relief (vacating the guidance) wouldn't redress its injury (having to work harder to fight digital billboards), because other factors may have driven states to permit digital billboards, and vacating the guidance wouldn't necessarily mean that states would stop permitting digital billboards. In short: "Scenic asserts injuries that stem not directly from the FHWA's issuance of the 2007 Guidance, but from third parties not directly before the court--the Division Offices and the states."

As to the substantive HBA claim, the court ruled that Scenic America had standing, but lost on the merits. The court said that Scenic America had representational standing, because it had a member who was harmed by a digital billboard, and because

[i]f we were to find for Scenic on the merits of its claim, a point we must assume for standing purposes, we could only do so by effectively repudiating the FHWA's interpretation of the FSAs. Repudiation would provide much more robust relief than vacatur [the relief requested in the notice-and-comment claim]. Not only would it prohibit the agency from relying on that interpretation in any future rulemakings, it would also require the agency to subject extant billboards to either removal or an order requiring those billboards to operate in a manner that does not violate the FSAs, for instance by keeping the image displayed by the billboard constant and unchanging. Scenic's injury, clearly caused by the Guidance, is therefore redressable.

The court went on to reject the HBA claim on the merits, however, dealing Scenic America a complete loss in the case.

September 6, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Saturday, September 3, 2016

EnBanc Ninth Circuit Rejects Equal Protection Challenge to Tucson's City Council Election Scheme

In its en banc opinion in Public Integrity Alliance v. City of Tucson, the Ninth Circuit held that Tucson's "hybrid system" for electing members of its city council does not violate the Equal Protection Clause.  The staff summary succinctly describes this hybrid system:

Tucson is divided into six wards of approximately equal population, and each ward is allotted one seat on the six- member city council. Council members are elected through a hybrid system involving a ward-level partisan primary election and an at-large partisan general election. The top-vote getter from each party eligible for inclusion on the ward- level primary ballot advances to an at-large general election where she competes against the other candidates nominated from the same ward. In the general election, every Tucson voter may vote for one candidate from each ward that held a primary.

Tucson-logoImportantly, once elected, the city council members represent the entire city.  The challenge to this system rested upon a denial on the one-person one-vote principle in equal protection doctrine.  The challenger Public Integrity argued that either an entirely ward-based system or an entirely at-large system would be constitutional, but the hybrid combination resulted in For the challenger, the hybrid system means that Tucson voters are denied the right to participate in the primary elections for all but one of their representatives. 

The court noted that although primary elections are "indisputably" state action subject to the same constitutional constraints as general elections, this dis not mean that "primaries and general elections must be identically structured and administered." The court thus rejected the challenger's contention that Gray v. Sanders (1963) mandated that the primary and general election use the same geographical units.  Instead, the court applied the balancing test of Burdick v. Takushi (1992) for less than "severe restrictions."  (Recall that in Burdick, the Court upheld Hawai'i 's ban on write-in voting). The Ninth Circuit here found Tucson's restrictions minimal and found they were justified by Tucson's "important" interests including to "promote local knowledge and legitimacy, geographic diversity, and city-wide representation on the city council."  

Eleven (of the 29) active judges of the Ninth Circuit participated in this en banc opinion, authored by Judge Marsha Berzon, and affirming the district judge.  Judge Berzon's relatively brief and straightforward opinion provoked no dissenting or concurring opinions.  It does overrule a previous Ninth Circuit case decided in 1994 on the basis that it articulated a different standard than that required by Burdick.  Perhaps the clearest message from the court is that it deferred to a "careful longstanding choice" that is a "product of our democratic federalism" allowing experimentation even where "the best solution is far from clear."

September 3, 2016 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Opinion Analysis, State Action Doctrine | Permalink | Comments (0)

Friday, September 2, 2016

Ninth Circuit Says No Free Speech for Off-Campus Sexual Harassment

The Ninth Circuit ruled today in C.R. v. Eugene School District 4J that a student's sexually-harassing speech a few hundred feet off school property and as school was letting out was not protected by the First Amendment. The ruling upholds the school district's decision to suspend the student.

The case arose when C.J. and a group of students harassed two disabled students shortly after school let out and just a few hundred feet off school grounds. School administrators concluded that the harassment violated the school's policy on sexual harassment and suspended C.J. C.J. sued, arguing that his speech was protected by the First Amendment.

The Ninth Circuit rejected that claim. The court said that by either the "nexus" test or the "reasonably foreseeable" test used in other circuits, C.J.'s speech fell within the school's authority--and within the free-speech rules for schools. As to "nexus," the court said that the harassment "was closely tied to the school" based on location (close to the school, on a common student route home from school) and timing (just as school let out). As to "reasonably foreseeable," the court said that "[b]ecause the harassment happened in such close proximity to the school, administrators could reasonably expect the harassment's effects to spill over into the school environment."

The court went on to say that the speech was punishable under Tinker, because of its potential disruption to school activities.

September 2, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Boots Case Challenging Native Hawaiian Self-Governance

The Ninth Circuit ruled this week that the up-and-down case against the Native Hawaiian self-governance movement is now moot. The ruling ends the case, and the dispute--at least against Na'i Aupuni, the group supporting and sponsoring the self-governance effort--but leaves a draft constitution out there for potential future action (and likely accompanying future litigation).

The case started when the State of Hawaii enacted legislation and authorized funds to support a Native Hawaiian constitutional-drafting process. The State awarded a grant to Na'i Aupuni to convene a constitutional convention (including running an election for Native Hawaiian delegates) and running a vote on the draft constitution.

Plaintiffs sued, arguing that the process violated equal protection and the Voting Rights Act, because the delegate election discriminated by race. The plaintiffs moved for a preliminary injunction to stop defendants "from undertaking certain voter registration activities and from calling or holding racially-exclusive elections for Native Hawaiian." The trial court and Ninth Circuit denied an injunction, but the Supreme Court enjoined the counting of the ballots "pending final disposition of the appeal by" the Court.

At the same time, a separate group of Hawaii residents moved to intervene, arguing that the definition of "Native Hawaiian" was too restrictive.

Na'i Aupuni cancelled the delegate election and instead invited all 196 Native Hawaiian candidates to participate in the convention. (The plaintiffs filed a motion for civil contempt with the Supreme Court, but the Court denied it.) They produced a draft constitution for a Native Hawaiian government. But Na'i Aupuni decided not to run a ratification vote; instead, the group returned the unused grant money to the state and dissolved as an organization.

The plaintiffs then appealed the district court's order denying their motion for a preliminary injunction.

The Ninth Circuit this week ruled that the PI case was moot. The court said that Na'i Aupuni dissolved, and that there were currently no plans for any elections. The court said that it's not a case of voluntary cessation, because "the challenged conduct cannot be reasonably expected to start up again." The court also said that it's not capable-of-repetition-but-evading-review, because "[t]here is no reasonable expectation that the plaintiffs will be subject to the same injury again, given Na'i Aupuni's disavowal of any election."

The court did acknowledge that another group might move forward with a vote at some future time. But not Na'i Aupuni, and not now.

The court also denied the motion to intervene, saying that it, too, was moot. In any event, the prospective intervenors' interests weren't at stake in the litigation.

September 2, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (1)

Thursday, August 25, 2016

First Circuit Says Puerto Rico's AMT Violates the Dormant Commerce Clause

The First Circuit ruled today in Wal-Mart Puerto Rico, Inc. v. Zaragoza-Gomez that Puerto Rico's amendment to its Alternative Minimum Tax discriminates against interstate commerce in violation of the Dormant Commerce Clause.

The ruling means that Puerto Rico can't apply its amended AMT against Wal-Mart, the largest private employer in Puerto Rico. The ruling also strikes a blow at Puerto Rico's effort to deal with its fiscal crisis and to prevent multi-state corporations doing business in Puerto Rico from shifting profits off-island by purchasing goods and services from related mainland entities at artificially inflated prices.

The amended AMT provided for a graduated corporate tax on goods sold or transferred to the corporate taxpayer by a related party or home office outside of Puerto Rico (for example, Wal-Mart's offices in the mainland US selling to Wall-Mart Puerto Rico). The top rate, 6.5%, applied to corporate taxpayers with $2.75 billion or more in gross sales. Wal-Mart was the only company big enough to be subject to this rate. Moreover, "[f]or a retailer like Wal-Mart PR that engages in a high volume of transactions with low profit margins on each item sold, this feature of the AMT can result in a particularly high tax liability relative to income."

Wal-Mart sued, and the First Circuit struck the tax. The court said that the tax plainly discriminated against interstate commerce, because it taxed only interstate transactions. Moreover, the court said that the amended AMT wasn't the only way (and therefore wasn't necessary) to meet Puerto Rico's interest in stopping profit shifting:

The amended AMT is a blunt and unnecessary overinclusive approach to combating profit-shifting abuse. It essentially establishes an irrebuttable presumption that all intercorporate transfers to a Puerto Rico branch from related mainland activities are fraudulently priced to evade taxes. In fact, the Secretary all but admits that there are narrower alternatives that target profit-shifting. . . . Having identified numerous less restrictive alternatives to advance Puerto Rico's legitimate local purpose, we hold that the AMT is a facially discriminatory law that does not survive heightened scrutiny under the dormant Commerce Clause.

August 25, 2016 in Cases and Case Materials, Dormant Commerce Clause, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, August 23, 2016

Ninth Circuit Deals LA Hotel Workers a Win in Wage Preemption Dispute

The Ninth Circuit ruled in American Hotel and Lodging Association v. City of Los Angeles that federal labor law did not preempt LA's ordinance requiring a minimum wage for certain hotel workers in the city.

The ruling is a win for the city and for covered hotel workers. It denies the plaintiffs' motion for a preliminary injunction, but in terms that, as a practical matter, put an end to these claims. (The court ruled that federal law did not preempt, not only that that it likely did not preempt (the usual preliminary injunction standard). So the ruling tees up a city motion to dismiss these claims on the merits. And unless the plaintiffs have other claims, this ruling tees up a city motion to dismiss the entire case.)

The case arose when LA enacted an ordinance that required large hotels in the city, and smaller hotels near LAX, to pay workers $15.37 an hour (and provide other minimum benefits), unless they were covered by a collective bargaining agreement (the "collective-bargaining exemption"), and unless this wage would drive an employer into bankruptcy (the "hardship waiver"). American Hotel and Lodging Association and the Asian American Hotel Owners Association sued, arguing that the entire wage ordinance and the collective-bargaining exemption were preempted by the National Labor Relations Act, because they interfered with labor-management relations. The plaintiffs pointed to Machinists preemption (named for Int'l Ass'n of Machinists v. Wis. Emp't Relations Comm'n) which says that the NLRA implicitly preempts state restrictions on "self-help," like a strike or lock-out--things that "regulate the mechanics of labor dispute resolution." The plaintiffs moved for a preliminary injunction on this theory.

The Ninth Circuit flatly rejected the claim. The Ninth Circuit said that "[m]inimum labor standards, such as minimum wages, are not subject to Machinists preemption":

Such minimum labor standards affect union and nonunion employees equally, neither encouraging nor discouraging the collective bargaining processes covered by the NLRA. Minimum labor standards do technically interfere with labor-management relations and may impact labor or management unequally, much in the same way that California's at-will employment may favor employers over employees. Nevertheless, these standards are not preempted, because they do not "regulate the mechanics of labor dispute resolution."

The court said that minimum standards are merely background conditions of collective bargaining, not interferences with collective bargaining.

As to the collective-bargaining exemption, the court was even more direct, merely citing Lividas v. Bradshaw and its language that says that "familiar and narrowly drawn opt-out provisions" for collective bargaining agreements are valid, because they do not impact rights to collective bargaining.

August 23, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Wednesday, August 17, 2016

Seventh Circuit Says Criminal Possession of Cocaine Near "Youth Program Center" is Vague

The Seventh Circuit ruled this week that language in a state statute criminalizing the possession of cocaine near a "youth program center" was unconstitutionally vague. The ruling sends this case of hyper-aggressive prosecution back for resentencing (though the criminal law has been repealed).

The case arose when police arrested Walker Whatley at his father's home on an unrelated charge. The officer discovered a bag with just over three grams of cocaine in Whatley's pocket. Ordinarily, this would have constituted a Class C felony under state law, with a sentence of two to eight years. But because Whatley's dad lived 795 feet from the Robinson Community Church, Whatley was charged with a Class A felony of possessing more than three grams of cocaine within 1,000 feet of a "youth program center"--a charge that brought 20 to 50 years. Whatley was convicted and got 35 years--more than four times the maximum sentence for a Class C felony.

Whatley appealed through the state courts, and then brought a federal habeas claim. The district court rejected that claim, however, ruling that Whatley defaulted.

The Seventh Circuit reversed. The court ruled that the statute was unconstitutionally vague, because it defined "youth program center" as a facility with "regular" youth programs, and because "regular" didn't put a person of ordinary intelligence on notice of what was illegal. (The church hosted youth programs, but only a few times a week, and only for a few hours at a time.)

The court rejected the state court's reasoning that fair notice wasn't required, because the statute created strict liability; the court said that reasoning was "inconsistent with Supreme Court precedent that requires fair notice for all criminal statutes." "The lack of an intent element in the statute does not cure the vagueness problem; it makes it worse by making unknowing defendants absolutely liable for violating an indeterminate standard," that is, the definition of "youth program center."

The very harsh sentencing also played a factor:

In sum, a triad of factors convince us that the state courts were not simply wrong but unreasonable in applying federal law on vagueness in Whatley's case: (1) the use of the word "regular" in the definition of "youth program center" provides no objective standard, and thereby fails to place persons of ordinary intelligence on notice of the conduct proscribed and allows for arbitrary enforcement; (2) defendants are strictly liable for violating the terms of this nebulous sentencing enhancement, exacerbating the effect of the subjectivity; and (3) the consequences of violating this indeterminate strict liability provision are extreme: an increase in the sentencing range from 2-to-8 years to 20-to-50 years' imprisonment.

August 17, 2016 in Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis | Permalink | Comments (0)

Monday, August 15, 2016

Texas Attorney General Opinion: Prayer to Start Court Is Constitutional

Controversial Texas Attorney General Ken Paxton has issued an opinion today that the First Amendment's Establishment Clause is not violated if court were opened with a prayer.  He stated:

A court would likely conclude that a Justice of the Peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain as you describe is sufficiently similar to the facts in Galloway such that the practice does not violate the Establishment Clause.

Galloway is the United States Supreme Court's sharply divided 2014 opinion in Town of Greece v. Galloway which involved a town board meeting. Justice Kennedy's opinion for the Court in Galloway repeated referred to the issue as whether the "legislative prayer" approved by the Court in Marsh v. Chambers (1983) as part of a historical practice extended to a local legislature, despite the fact that some non-legislative functions occurred at the town board.  In the dissent for four Justices, Justice Kagan essentially argued that a prayer at the beginning of a trial was clearly unconstitutional.  Indeed, in his separate concurring opinion, Justice Alito seemingly agreed:

I am troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative hypotheticals. For example, the principal dissent conjures up the image of a litigant awaiting trial who is asked by the presiding judge to rise for a Christian prayer, of an official at a polling place who conveys the expectation that citizens wishing to vote make the sign of the cross before casting their ballots, and of an immigrant seeking naturalization who is asked to bow her head and recite a Christian prayer. Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today’s decision leads—to a country in which religious minorities are denied the equal benefits of citizenship.

Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.

At least for Attorney General Ken Paxton,  Justice Kagan's hypothetical was not as "highly imaginative" as Justice Alito averred.  Paxton's opinion recognizes that the only United States Circuit court opinion to directly consider the issue, North Carolina Civil Liberties Union Legal Found. v. Constangy (4th Cir. 1991), found opening court with prayers unconstitutional, but Paxton opines "other courts deciding the issue may disagree with Constangy that prayer in judicial settings lacks historical foundation."  Thus, Paxton states that "a Justice of the Peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain," would  not violate the Establishment Clause.

HenryVIII11

[image: Henry VIII at prayer with Black Book of the Garter via ]

 

August 15, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Interpretation, Religion, Supreme Court (US) | Permalink | Comments (0)

Ninth Circuit Requires Proof to Challenge Open Primary

The Ninth Circuit ruled in Democratic Party of Hawaii v. Nago that the plaintiff failed sufficiently to prove that Hawaii's open primary violated its First Amendment right of association. The ruling dismisses the case and keeps the state's open primary system in place.

The Democratic Party of Hawaii challenged Hawaii's open primary system as a facial violation of its associational rights. But the Party declined to submit evidence in support (showing, for example, that cross-over primary voters would influence the positions of candidates and result in candidates not supported by the Democrats), and maintained its position that the courts could decide the claim as a pure matter of law.

The courts disagreed. The Ninth Circuit said that the plaintiff had to submit proof to show that an open primary system infringed on associational rights--that the claim turns on a question of fact. And because the Democrats failed to provide any proof, their facial challenge had to fail.

August 15, 2016 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)