Friday, September 2, 2016

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.


[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)

Ninth Circuit Denies Rehearing in California Concealed Carry Case

The Ninth Circuit today denied rehearing of its en banc decision in Peruta v. County of San Diego, upholding California's "good cause" requirement for a concealed carry permit against a Second Amendment challenge.

The ruling is a significant win for advocates of restricted and regulated concealed carry.

Recall that the full Ninth Circuit rejected the Second Amendment challenge to the "good cause" requirement earlier this summer. Plaintiffs petitioned for a rehearing, but the court denied it.

The ruling ends the case at the Ninth Circuit. The plaintiff's only option now is to petition for Supreme Court review. But without a ninth justice, the Court (if it accepted the case) would almost surely split 4-4, leaving the Ninth Circuit ruling in place--that is, leaving things exactly as they are now.

The plaintiffs petitioned for rehearing by arguing that the en banc majority mistakenly ruled that the Second Amendment doesn't protect a right to concealed carry (when the case was in fact about whether the "good cause" requirement infringed on the plaintiffs' right to carry at all outside the home); that the majority's approach conflicts with other courts; that the majority's approach "impermissibly relegates the Second Amendment to Second-class Status"; and that the "Decision Unnecessarily Intrudes on the Prerogatives of the State."

Today's two-page Order doesn't specifically address those claims; it simply rejects the plaintiffs' petition for rehearing.

The Ninth Circuit's case page is here, with all appellate court filings.

August 15, 2016 in Cases and Case Materials, News, Second Amendment | Permalink | Comments (2)

Friday, August 12, 2016

Sixth Circuit Foils FCC Effort to Expand Broadband Coverage through Preemption

The Sixth Circuit ruled this week in State of Tennessee v. FCC that the Federal Communications Commission lacked statutory authority to preempt states' laws that restricted municipalities from providing broadband Internet service outside their boundaries.

The ruling means that the FCC can't require states to permit municipalities to provide service outside their boundaries, at least in the Sixth Circuit, and at least unless and until Congress specifically authorizes the FCC to preempt in the Telecommunications Act of 1996.

Because areas outside the boundaries of these particular municipalities are unserved or under-served areas, the ruling also means that certain regions outside the municipalities' boundaries will continue to go with inadequate Internet service.

The case arose when Tennessee and North Carolina implemented restrictions on municipalities' ability to provide Internet service outside their territorial boundaries. Two municipalities in those states complained to the FCC, because they saw benefits to providing service, and thus wanted to provide service, outside their boundaries. The municipalities appealed to the FCC to preempt state laws restricting broader service.

The FCC responded by finding that broader service would serve the interests of the Telecommunications Act of 1996 (expanded broadband access, and all the benefits that this brings to communities), and by issuing an order preempting the portions of the state laws that prohibited municipalities from providing access beyond their boarders.

The states sued, arguing that the FCC lacked authority to preempt under the Act's preemption provision, Section 706. The court agreed.

The court said that the FCC's order ran headlong into the "Clear Statement Rule" and Nixon. Under the Clear Statement Rule, the FCC can't preempt a state action that allocates state decision-making; under Nixon v. Missouri Municipal League, that rule applies when a federal government preemption action "interpos[es] federal authority between a State and its municipal subdivisions," which, the Court said, "are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion." As the Sixth Circuit said,

Any attempt by the federal government to interpose itself into this state-subdivision relationship therefore must come about by a clear directive from Congress, and the FCC can only pick the decision maker here if there exists a clear statement to do so in Section 706.

According to the court, Section 706 contains no such clear statement.

So despite the Act's ambitious goals and broad delegation to the FCC to achieve those goals, the court said that the Act stops short of authorizing the FCC to preempt state laws restricting Internet access beyond a municipality's boarders.

Nothing in the ruling requires a state to adopt this kind of restriction, however, or forbids a state from specifically authorizing a municipality to expand access. But when it does--as Tennessee and North Carolina have done--the FCC cannot preempt it, at least in the Sixth Circuit, and at least unless and until Congress gives the FCC specific authorization to do so.

(The North Carolina case was in the Fourth Circuit when that court transferred it to the Sixth Circuit for consolidation with the Tennessee case.)

August 12, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Thursday, August 11, 2016

Officer's Allegations of Misconduct are Protected Speech

The Seventh Circuit ruled today in Kristofek v. Village of Orland Hills that a police officer's allegation of official misconduct in the higher ranks was protected speech under the First Amendment.

The ruling reverses the district court on the point and on its companion ruling that the police chief enjoyed qualified immunity. But the court rejected the officer's municipal liability claim.

The case arose when a part-time police officer, Kristofek, complained to colleagues and then to the FBI that a driver that he cited and detained may have been released, and charges dropped, because of official misconduct. (The driver's mother, a former township trustee, successfully intervened with local politicians and the police on behalf of her son. Kristofek thought that this might constitute official misconduct, based on a misconduct training that he attended.) Police Chief Scully then fired Kristofek.

Kristofek sued, arguing that his termination in retaliation for protected speech violated the First Amendment, and that the township was liable under Monell. The district court granted summary judgment to the defendants.

The Seventh Circuit reversed on the First Amendment claim. The court ruled that Kristofek spoke as a private citizen on a matter of public concern when he complained to his colleagues and to the FBI, and that the Pickering balance favored his speech. The court also denied qualified immunity to Scully.

But the court rejected Kristofek's Monell claim, because Scully didn't have authority to unilaterally fire Kristofek or to set department firing policy.

The ruling sends the case back for proceedings consistent with the opinion. But it also assigns the case to a new judge.

August 11, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, August 10, 2016

D.C. Circuit Rejects Appointments-Clause Challenge to SEC ALJs

The D.C. Circuit yesterday rejected a constitutional challenge to Security and Exchange Commission Administrative Law Judges, ruling that SEC ALJs are not "officers" or "inferior officers" whose appointments need to meet the requirements of the Appointments Clause.

The court also rejected a broadside attack against the way the D.C. Circuit analyzes whether any ALJ (SEC or not) is subject to the Appointments Clause.

The petitioner's challenge was novel and sweeping. A ruling in its favor could have been quite significant, potentially threatening the authority of SEC ALJs, certain ALJs in other agencies, and possibly even ALJs across the board (at least insofar as their appointments don't satisfy the Appointments Clause). But the petitioner's novel claims ran up against circuit law. The ruling is thus a decisive win, if not a totally unpredictable one, for the government.

The case turned on whether SEC ALJs are "officers" (who, under Article II, require presidential nomination and advice and consent of the Senate), "inferior officers" (who, under Article II, may be appointed by the President alone, the courts, or the head of a department, depending on what Congress says), or just employees (who are not covered by the Appointments Clause). Under circuit law, the line between "inferior officers" and employees, in turn, depends on (1) the significance of the matters resolved by the officials, (2) the discretion they exercise, and (3) the finality of their decisions.

The court said that decisions of SEC ALJs are not final under the third prong, and therefore SEC ALJs are employees, not subject to the Appointments Clause. That's because under the law the SEC itself makes the final decision, even if only by passively adopting an ALJ's decision. The court explained:

Until the Commission determines not to order review, within the time allowed by its rules, there is no final decision that can "be deemed the action of the Commission." As the Commission has emphasized, the initial decision becomes final when, and only when, the Commission issues the finality order, and not before then. Thus, the Commission must affirmatively act--by issuing the order--in every case. The Commission's final action is either in the form of a new decision after de novo review, or, by declining to grant or order review, its embrace of the ALJ's initial decision as its own. In either event, the Commission has retained full decision-making powers, and the mere passage of time is not enough to establish finality. And even when there is not full review by the Commission, it is the act of issuing the finality order that makes the initial decision the action of the Commission within the meaning of the delegation statute. . . .

Put otherwise, the Commission's ALJs neither have been delegated sovereign authority to act independently of the Commission nor, by other means established by Congress, do they have the power to bind third parties, or the government itself, for the public benefit.

The court went on to uphold the Commission's finding of liability and sanctions against the petitioner on other grounds.

August 10, 2016 in Appointment and Removal Powers, Cases and Case Materials, News, Separation of Powers | Permalink | Comments (0)

Monday, August 8, 2016

Court Boots Case by Libertarians and Greens to Participate in Presidential Debates

Judge Rosemary Collyer (D.D.C.) on Friday dismissed a case by the Libertarian and Greens against the Commission on Presidential Debates and others challenging their exclusion from the 2012 presidential debates and seeking to participate in the 2016 debates.

The ruling is hardly a surprise, despite the plaintiffs' mighty efforts to navigate well settled precedent.

The Libertarians and Greens argued that their exclusion under the Commission's 15% rule (a candidate needs 15% support in the polls to participate) violated antitrust laws and the First Amendment. But Judge Collyer held that they lacked standing, and that they failed to state a claim.

Judge Collyer said that the plaintiffs lacked standing, because their injury (lack of electoral support) was too speculative and was not traceable to Commission action (on the First Amendment claim) and because their injury wasn't a harm to the market (on the antitrust claim).

Judge Collyer went on to say that the plaintiffs failed to state a claim, because the Commission isn't a government actor subject to the First Amendment (on the free speech claim) and because they failed to allege an injury to competition in a commercial market (on the antitrust claim).

Given the plaintiffs' attempts to navigate well settled First Amendment law, Judge Collyer's ruling sometimes reads like a law exam answer--covering everything from the public function exception to the state actor doctrine, to right-to-access laws, to forum analysis, to the Jaybird primaries.

Despite the plaintiffs' efforts, however, they still lost. The ruling means that the Libertarians and Greens won't be at the 2016 presidential debates, at least not by court order.

August 8, 2016 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Wednesday, August 3, 2016

United States Supreme Court Stays Fourth Circuit Order in Transgender Bathroom Case

The Court today issued a stay in G.G. v. Glouster County School Board, the case from the Fourth Circuit concluding that Title IX's ban on sex discrimination,  20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity.  As we discussed,while the constitutional issues are not "front and center," the case implicates both the constitutional power of Executive branch agencies, federalism, and Equal Protection.

The stay opinion divides the Court, with Justices Ginsburg, Sotomayor, and Kagan dissenting without opinion. 

Justice Breyer - - - the crucial vote for the majority - - - writes separately to concur stating that he votes to grant the stay "as a courtesy" joining the four other Justices to "preserve the status quo (as of the time the Court of Appeals made its decision)," meaning presumably, before the Fourth Circuit rendered its decision.


[Caricature image of Justice Breyer by Donkey Hotey via]

August 3, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Gender, Separation of Powers, Supreme Court (US) | Permalink | Comments (1)

Friday, July 22, 2016

Alaska Supreme Court Holds Parental Notification Law Violates State Constitution's Equal Protection Clause

In its opinion in Planned Parenthood of the Great Northwest v. State of Alaska, the Alaska Supreme Court held unconstitutional the 2010 voter-enacted Parental Notification Law which required 48-hour advance parental notice before a physician may terminate a minor’s pregnancy, but importantly not before a physician could provide other care.  The court's majority opinion, authored by Justice Daniel Winfree, found that the Parental Notification Law violates the Alaska Constitution’s equal protection guarantee by unjustifiably burdening the fundamental privacy rights only of minors seeking pregnancy termination, rather than applying equally to all pregnant minors.

Although explicitly under the state constitution, the court's equal protection analysis is a familiar one and executed with great precision.  The court first identifies the classification - - - pregnant minors seeking termination and pregnant minors seeking to carry to term - - - and then identifies the level of scrutiny; because the right at stake is the fundamental one of reproductive choice is strict scrutiny. Applying the level of scrutiny, the court then examined the state's interests and the means chosen to effectuate those interests.

The court noted that to "justify differently burdening fundamental privacy rights, the State’s interests in doing so must be compelling," and that the State asserts two main interests as justifying the Notification Law’s disparate treatment of pregnant minors: (1) “aiding parents to fulfill their parental responsibilities” and (2) “protecting minors from their immaturity.” The court accepted that these were compelling interests, even as it refined the immaturity interest because "immaturity in and of itself is not a harm."  Instead, the court defined the interest in “protecting minors from their immaturity”  as "protecting minors from specific pitfalls and dangers to which their immaturity makes them especially susceptible" which in this case would be risks to mental and physical health and from sexual abuse.

The problem arose - - - as it so often does in equal protection - - - with the "fit" between the state's chosen means to effectuate its interests.  As to the parental responsibility interest:

We conclude that vindicating the State’s compelling interest in encouraging parental involvement in minors’ pregnancy-related decisions does not support the Notification Law’s disparate treatment of the two classes of pregnant minors. Parents do have an “important ‘guiding role’ to play in the upbringing of their children.” We have said that “it is the right and duty, privilege and burden, of all parents to involve themselves in their children’s lives; to provide their children with emotional, physical, and material support; and to instill in their children ‘moral standards, religious beliefs, and elements of good citizenship.’ ” But as the State acknowledged at oral argument, this must be true for all pregnant minors’ parents, not just those whose daughters are considering termination.

[footnotes omitted; emphasis added].  Similarly, regarding the minor's immaturity, the court concluded that the statute suffered from being

under-inclusive because the governmental interests asserted in this case are implicated for all pregnant minors — as they face reproductive choices and as they live with their decisions — and the asserted justifications for disparate treatment based upon a minor’s actual reproductive choice are unconvincing.

One of the complicating legal issues of the case was the effect of a previous decision regarding a parental consent law, which the concurring opinion argued precluded an equal protection analysis.  Instead, the concurring opinion argued that the 2010 statute was unconstitutional under the state constitution's privacy provision.

One of the five Justices of the Alaska Supreme Court dissented, arguing that the 2010 Parental Notification law violated neither equal protection nor privacy and was thus constitutional.

As the majority opinion notes, other states have similarly found state constitutional infirmities with parental notification laws. The Alaska opinion, however, is particularly well-reasoned and applicable to many state constitutions.

Alaska skies
Alaska Skies mural in Alaska Supreme Court via




July 22, 2016 in Abortion, Cases and Case Materials, Due Process (Substantive), Equal Protection, Family, Gender, Medical Decisions, Privacy, Sexuality, State Constitutional Law | Permalink | Comments (5)

Thursday, July 21, 2016

Fifth Circuit Says Texas Voter ID Violates the Voting Rights Act

The en banc Fifth Circuit yesterday ruled that Texas's voter-ID law, widely described as the most restrictive voter-ID law in the country, had a discriminatory effect in violation of Section 2 of the Voting Rights Act.

The ruling is a decisive victory for voting-rights advocates and opponents of Texas's voter-ID law. If the state appeals, it'll face an 8-member Supreme Court (assuming the Court would take the case). If the Supreme Court were to divide 4-4, the Fifth Circuit's ruling stays in place. (The Texas AG hasn't said yet what he plans to do, if anything.)

The sharply divided ruling sends the case back to the district court to fashion a remedy for the November elections.

We last posted on the case here.

Recall that Texas's voter-ID law was denied preclearance under the VRA, but Texas implemented the requirements as soon as the Supreme Court struck the coverage formula for preclearance in Shelby County.

This suit challenged the law under Section 2. The district court ruled that the law had a discriminatory purpose and a discriminatory effect in violation of Section 2.

The Fifth Circuit yesterday walked that ruling back, but just slightly. The court said that the district court erred in its analysis of discriminatory purpose, and sent the case back for further proceedings on that ground (because there may be sufficient evidence of discriminatory purpose, but the district court analyzed it the wrong way). But the court went on to agree with the district court that the law had a discriminatory effect.

Given the timing of the ruling (so soon before the fall elections), the Fifth Circuit instructed the district court to fashion a remedy for the law's discriminatory effect as to "those voters who do not have SB 14 ID or are unable to reasonable obtain such identification," with an eye toward one of the legislature's purposes, reducing voter fraud. That remedy could include something like voter registration cards, or an indigency exception to the ID requirement. The Fifth Circuit also instructed the lower court to "consider the necessity of educational and training efforts to ensure that both voters and workers at polling places are capable of making use of whatever remedy the district court selects."

The Fifth Circuit did not rule on the constitutional claims.


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

Monday, July 18, 2016

Court Rebuffs Challenge to Consumer Protection Chief, but Punts on Bureau Itself

Judge Ellen Segal Huvelle (D.D.C.) ruled last week in State national Bank of Big Spring v. Lew rejected a Recess Appointments Clause challenge to Consumer Protection Financial Bureau Director Richard Cordray. At the same time, the court declined to rule on the plaintiffs' separation-of-powers challenge to the Bureau itself.

The ruling is a decisive win for Director Cordray and actions he took during his period of recess appointment (before he was confirmed by the Senate). But it leaves open the question whether the CFPB itself it unconstitutional--a question that the D.C. Circuit could answer any day now.

This is just the latest case in a spate of challenges to Cordray's appointment and the CFPB. We posted on this case when the D.C. Circuit ruled that the plaintiffs had standing.

The plaintiffs argued that Director Cordray's recess appointment in January 2012 violated the Recess Appointments Clause. And they had good reason to think they were right: the Supreme Court ruled in NLRB v. Noel Canning that the President's recess appointments to the NLRB on the same day he appointed Cordray violated the Clause.

But Judge Huvelle didn't actually rule on that argument. That's because President Obama re-nominated Cordray in 2013, and the Senate confirmed him; he then (as validly appointed head of the CFPB) issued a notice in the Federal Register ratifying all the actions he took during his recess-appointment period. Judge Huvelle said that under circuit law the ratification cured any actions during this period that would have been invalid because of his invalid recess appointment.

But at the same time, the court punted on the plaintiffs' separation-of-powers challenge to the CFPB itself. That argument--which says that the CFPB invalidly combines legislative, executive, and judicial powers in the hands of a single individual--is currently pending at the D.C. Circuit in another case, PPH Corp. v. CFPB, and the court could rule any day now.

Judge Huvelle's ruling is a clear win for the CFPB and Cordray. But the real heart of opponents' claims against the Bureau are the ones now at the D.C. Circuit--that the CFPB violates the separation of powers.

July 18, 2016 in Appointment and Removal Powers, Cases and Case Materials, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, July 16, 2016

No Dice for Native American Casino Challenger

The D.C. Circuit yesterday upheld a lower court's dismissal of David Patchak's long-running attempt to stop the Match-E-Be-Nash-She-Wish Band's casino in Wayland Township, Michigan, based on a federal law that stripped the courts of jurisdiction over the case.

The ruling ends this dispute in favor of the Band and its casino, with little or no chance of further appeals.

The case started when David Patchak sued the Interior Department for putting certain land in Wayland Township in trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians to build a casino. Patchak, a neighboring property owner, argued that Interior lacked authority under the Indian Reorganization Act and sought damages for economic, environmental, and aesthetic harms.

The case went to the Supreme Court on justiciability grounds, and the Court ruled in 2012 that Patchak had prudential standing.

After that ruling came down, Congress enacted a stand-alone law that affirmed that Interior had authority to put the land in trust and divested the courts of jurisdiction over Patchak's case. The act, in relevant part, read:

NO CLAIMS -- Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.

The district court then dismissed Patchak's case, and yesterday the D.C. Circuit affirmed.

The court first rejected Patchak's claim that the jurisdiction-stripping provision violated the separation of powers. The court looked to the familiar distinction (recently sharpened by the Court's ruling in Bank Markazi) between a congressional act that applies a new legal standard in pending civil cases (which is OK) and an act that "prescribes a rule of decision" in those cases (which is not). The court said that this act falls squarely in the former class, even though Congress set the legal standard in a separate, stand-alone statute (and not the statute at issue in the case, the IRA).

The court next rejected Patchak's various individual-rights claims. The court said that the Act did not violate Patchak's First Amendment right to access the courts, because that right isn't absolute, and it yields to Congress's power to set the jurisdiction of the lower federal courts. The court said that the Act also did not violate Patchak's due process rights (because the legislative process provided Patchak any process that he might have been due) and the Bill of Attainder Clause (because the Act wasn't punishment).

Given the Supreme Court's powerful reaffirmation of congressional authority of federal court jurisdiction in Bank Markazi, the D.C. Circuit's ruling almost certainly ends Patchak's challenge.

July 16, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, July 14, 2016

Agency Power, Executive Power, and Gender Equality in School Bathrooms

While the constitutional issues are not front and center in the controversies and litigation over gender identity and school bathroom access, the disputes certainly implicate constitutional issues of equal protection, federalism, unconstitutional conditions, and executive/agency as well as judicial powers.

A Virginia school board has filed a stay application in the United States Supreme Court pending a petition for writ of certiorari to the Fourth Circuit's opinion in G.G. v. Glouster County School Board.  In G.G., a divided panel, reversing the senior district judge, concluded that Title IX's ban on sex discrimination,  20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity. (The senior district judge had not reached the Equal Protection claim, so it was not before the Fourth Circuit.)  In construing Title IX, the Fourth Circuit relied upon a January 7, 2015 opinion letter from the United States Department of Education, Office for Civil Rights, with a similar conclusion.  The Fourth Circuit accorded deference to the agency interpretation of Title IX under Auer v. Robbins (1997), because the relevant regulation was ambiguous - - - perhaps not in the plain meaning, but in its application:

Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading— determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity. [citation omitted].  It is not clear to us how the regulation would apply in a number of situations—even under the Board’s own “biological gender” formulation. For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.

The Fourth Circuit panel rejected G.G.'s request to have the case reassigned to another district judge, but did reverse, vacate, and remand the district court's order dismissing the complaint.  The Fourth Circuit panel, in an unpublished opinion on July 12, denied the school board's motion for a stay pending appeal, again with one dissent. 

The stay application in the United States Supreme Court pending a petition for writ of certiorari argues that the Fourth Circuit's opinion in an "extreme example" of judicial deference to an administrative agency and is the "perfect vehicle" for the Court's reconsideration of Auer v. Robbins (1997).  The motion notes that several Justices have signaled such a reconsideration might be warranted, notably the late Justice Scalia, as well as Alito and Thomas, and Chief Justice Roberts.  The application also argues that the DOE and DOJ have "seized momentum" and issued further instructions (citing a May 13 DOE  "Dear Colleagues" Letter) which would further solidify Auer deference, making action by the Court necessary.

Meanwhile, thirteen states have filed a complaint and application for preliminary injunction in Texas, based on the same letter:

On May 13, 2016, following years of incremental preambles (“guidances,” “interpretations,” and the like), Defendants informed the nation’s schools that they must immediately allow students to use the bathrooms, locker rooms and showers of the student’s choosing, or risk losing Title IX-linked funding. And employers that refuse to permit employees to utilize the intimate areas of their choice face legal liability under Title VII. These new mandates, putting the federal government in the unprecedented position of policing public school property and facilities, inter alia, run roughshod over clear lines of authority, local policies, and unambiguous federal law.

The central challenge is failure to conform with the Administrative Procedure Act, including notice and comment for rule-making.  However, the complaint also alleges that the federal government defendants "violated the Spending Clause" by engaging in "unconstitutional coercion" by "economic dragooning."  The complaint relies on that portion of the "Obamacare" case, NFIB v. Sebelius, in which a plurality found constitutional issues with the medicaid expansion program.
This portion of the complaint is less than 2 pages (in a 39 page document) and is cursory at best, although perhaps these arguments have the potential to be developed.
In short, it seems issues of gender-identity will be the subject of much litigation, perhaps even at the United States Supreme Court, in the next few years.

[image via]

July 14, 2016 in Cases and Case Materials, Current Affairs, Equal Protection, Executive Authority, Federalism, Fourteenth Amendment, Gender, Interpretation, Sexuality, Theory | Permalink | Comments (0)

Daily Read: When Justices Scalia and Kennedy Referenced Donald Trump

Justice Ginsburg's comments about presidential candidate Donald Trump have caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview. (Amy Howe for SCOTUSBlog has a great round-up of commentary on the controversy; Howard Bashman also has a good list).

But interestingly, Justice Scalia - - - as well as Justice Kennedy - - - broached the possibility of a Donald Trump presidential candidacy more than 25 years ago, in the 1989 oral arguments in Austin v. Michigan Chamber of Commerce.  The Court in Austin upheld the constitutionality of a Michigan statute that prohibited corporations, excluding media corporations, from using general treasury funds for independent expenditures in connection with state candidate elections, rejecting both First Amendment and Equal Protection claims, and recognizing a government interest in preventing corruption or the appearance of corruption in the political arena from large corporate treasuries.  Both Scalia and Kennedy dissented.  Twenty years later, the Court, 5-4, with Kennedy authoring the opinion and Scalia joining, overruled Austin in the controversial 2010 Citizens United v. FEC

Near the beginning of the Austin oral arguments, Justice Scalia uses Donald Trump, alluding to the wealth that would allow him to self-finance a campaign, as a comparison to corporate financing:

General Caruso, why is there a greater risk to the political process from an independent political expenditure by a family corporation, closely held corporation, eight family members, and they want to spend the corporation's money for a particular candidate whom they think will favor their business.

That... that is prohibited by this.

But if Donald Trump wants to come in and spend as much money as he likes, that is perfectly all right.

Why wouldn't it make much more sense, if you are worried about the problem, to establish an amount of money as the criterion?

A few moments later, Kennedy follows:

All right.

Then it... it seems to me that Justice Scalia's question indicates that you have to give a specific reason why a corporation of that type presents more [of] a danger than Donald Trump, and I didn't really hear the answer to that question.

Louis J. Caruso:  Well, the thing of it is--

Anthony M. Kennedy:  And it has to be answered in the terms of a compelling interest that is narrowly tailored.

 Did Justice Kennedy actually call Donald Trump a "danger" in 1989?


h/t Navid Khazanei

July 14, 2016 in Campaign Finance, Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, News, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, July 11, 2016

Ninth Circuit Upholds L.A.'s Mobile Billboard Ordinances Against First Amendment Challenge

In its opinion in Lone Star Security and Video v. City of Los Angeles, the Ninth Circuit upheld L.A.'s mobile billboard ordinances against a First Amendment challenge distinguishing the United States Supreme Court's 2015 Reed v. Town of Gilbert

Recall that in Reed, Justice Kagan separately concurred in the unanimous decision to warn that strict scrutiny was not always appropriate and that "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive."  Here, it seems that the Ninth Circuit panel has taken that advice, applying the relaxed standard of time, place, and manner doctrine rather than content-discrimination meriting strict scrutiny.

Image via
[It seems that this van would not violate the L.A. ordinances]

The L.A. ordinances are directed at "advertising signs" on vehicles or attached to vehicles.  Signs on vehicles - - - painted or permanently affixed - - - are allowed as long as they do not extend beyond the vehicle or make the vehicle unsafe.  Signs that attached to non-motorized vehicles, such as those on standalone trailers, are prohibited from parking on city streets.

Judge Mary Murguia, writing for the unanimous panel, concluded that the ordinances applicability to "advertising" did not render the ordinances content-based.  The opinion relied on a state case that construed advertising as displaying any message to the public rather than the content of that message and upheld an ordinance as applied to a nonprofit organization protesting animal cruelty.  Moreover,

The Supreme Court’s recent decision in Reed does not alter our conclusion. Unlike Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment, nor is any kind of mobile billboard exempted from regulation based on its content. There has been no suggestion that the ordinances apply differently to Lone Star Security’s political endorsements than to its commercial promotional campaigns, for example. Rather, an officer seeking to enforce the non-motorized billboard ordinances must decide only whether an offending vehicle constitutes a prohibited “advertising display” because its primary purpose is to display messages, as opposed to transporting passengers or carrying cargo. . . . In the case of the motorized billboard ordinance, an enforcing officer would simply need to distinguish between signs that are permanent or non-permanent, and larger or smaller than the vehicles to which the signs are affixed to determine whether the vehicle violates the ordinance.

[ellipses added; citations omitted].  Once having determined the correct standard was not strict scrutiny, the panel easily found that the ordinances survived review.

The parties do not dispute that the cities’ stated interests in traffic control, public safety, and aesthetics are sufficiently weighty to justify content-neutral, time, place, or manner restrictions on speech, nor could they.

As for the "narrow tailoring" required, the panel found that none of the ordinances were broader than necessary.  Additionally, the panel found that there were ample alternative channels for communication, including advertising. 

Appellants are free to disseminate their messages through myriad other channels, such as stationary billboards, bus benches, flyers, newspapers, or handbills. Appellants may also paint signs on vehicles and attach decals or bumper stickers. Although mobile billboards are a unique mode of communication, nothing in the record suggests that Appellants’ overall “ability to communicate effectively is threatened.”

The last quotation is from the United States Supreme Court's City of Los Angeles v. Taxpayers for Vincent (1984), on which Judge Murguia heavily relied.  However, for Judge John Owens, Taxpayers for Vincent has its own flaws. In a brief concurrence, Judge Owens suggested that the United States Supreme Court should take a "second look" at Taxpayers for Vincent.

This case is about ugly signs on vehicles, and no doubt I would not want these vehicles and their signs parked in front of my house. But under the ordinances at issue, a car with equally ugly decals—including a decal of a vehicle with an ugly sign—would not “go to jail,” but instead treat my curb like the upper left corner of a Monopoly board.

If “aesthetics” are to play a part in speech restriction, then such aesthetics should apply equally, decal or sign. Yet under Taxpayers for Vincent, the Court rejected the very point that I now make. See 466 U.S. 810–12 (rejecting the Ninth Circuit’s holding that “a prohibition against the use of unattractive signs cannot be justified on esthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located”). I think our court was right then, and the Supreme Court should reconsider this portion of Taxpayers for Vincent. As it currently stands, politicians can use Taxpayers for Vincent and its beholderish “aesthetics” to covertly ensure homogeneous thinking and political discourse. That is a dimension we should avoid. See The Twilight Zone: Eye of the Beholder (CBS television broadcast Nov. 11, 1960).

Judge Owens was not part of the Ninth Circuit panel that the Court reversed, although the third member of this Ninth Circuit panel - - - Judge Stephen Reinhardt - - - was.  Judge Reinhardt, born in 1931, may also have seen the original episode of The Twilight Zone to which Judge Owens, born more than a decade after its original airing, refers.





July 11, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Recent Cases, Speech, Supreme Court (US) | Permalink | Comments (0)

Thursday, July 7, 2016

Prosecutor Gets No Absolute Immunity for False Declaration in Support of Subpoena

The Ninth Circuit ruled this week that a prosecutor is not entitled to absolute immunity for swearing out a false declaration in support of a subpoena for medical records of an unindicted third-party witness in a murder trial.

At the same time, however, the court said that the prosecutor is entitled to absolute immunity for issuing the subpoena and using the medical records at trial.

The case arose when a prosecutor sought Detrice Garmon's medical records in preparation for Garmon's son's murder trial. Garmon was set to testify as an alibi witness in her son's trial, but she was scheduled to undergo brain surgery with an uncertain outcome before the trial date. So she gave a deposition. She also authorized her medical plan to disclose to the prosecution medical records related to her brain tumor.

But the prosecutor in the case instead swore out a declaration that Garmon was the murder victim, and issued a subpoena for all of Garmon's medical records. The prosecutor then used Garmon's unredacted records to impeach her at trial, and Garmon's son was convicted.

Garmon sued, but the trial court held (among other things) that the prosecutor enjoyed absolute immunity.

The Ninth Circuit reversed. The court applied the distinction between a prosecutor's advocacy functions (triggering absolute immunity) and a prosecutor's administrative or investigative functions (triggering the lesser qualified immunity). The court said that the prosecutor's declaration was more investigative, and only gets qualified immunity, while the prosecutor's subpoena and use of the records at trial was more advocacy, triggering absolute immunity.

The ruling means that the prosecutor in the case has some protection, but not absolute protection, against Garmon's civil rights suit based on the false declaration.

The court also rejected Garmon's argument that absolute immunity is unavailable against claims of unindicted third-party witnesses. The court's ruling aligns it with the Second, Sixth, and Seventh Circuits. There's no circuit that goes the other way.

The case now goes back to the trial court, where Garmon will have a chance to amend her complaint to square with Monell on municipal liability.

July 7, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (1)