Thursday, February 16, 2017
In its unanimous opinion in State v. Arlene's Flowers, the Supreme Court of Washington upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding.
The owner of Arlene's Flowers argued that the anti-discrimination statute was not applicable to her and if it did, it violated her constitutional rights of free speech, free exercise, and free association under the First Amendment as well as under the Washington state constitution.
On the First Amendment claims, the court found that Arlene's Flowers argument regarding compelled speech failed because the owner's flower arranging did not meet the threshold of expression. The court relied on Rumsfeld v. FAIR to hold that the owner's
decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As [she] acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. [She] also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need." Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock.
The court rejected the applicability of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1985), as well as a litany of other United States Supreme Court cases regarding this threshold of expression. In essence, the court emphasized that it was the sale of all flowers from her shop rather than any particular floral arrangement that was at issue in the case.
On the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
However, the analysis of free exercise under the Washington state constitution, article I §11 was not so simple because Washington has not always adopted the Smith standard when reviewing claims under its state constitution. Nevertheless, the court found that even subjecting the Washington anti-discrimination law to strict scrutiny, the statute survives. The court "emphatically" rejected the claim that there was no compelling interest of the state in flowers for weddings: the "case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."
Finally, the court rejected Arlene's Flowers' argument regarding free association, noting that all of the cases upon which she relied were not businesses. As to the business itself, the court also upheld a finding of personal liability of the owner, the person who had refused service.
The United States Supreme Court has denied petitions for writ of certiorari in similar cases, but it is highly likely that a petition for certiorari will follow, especially given the nomination of Neil Gorsuch to the Court.
February 16, 2017 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Speech, State Constitutional Law | Permalink | Comments (0)
The Sixth Circuit ruled yesterday that a lower court should go ahead and rule on a First Amendment challenge to Tennessee's Campaign Finance Disclosure Act, and not wait for the outcome of a state administrative proceeding in a different case. The court also hinted toward a likely outcome: the Act violates the First Amendment.
The decision overturns the lower court's invocation of Pullman abstention and orders the lower court to move ahead to the merits. But the Sixth Circuit still gave the lower court a chance to certify interpretation of the state law to the Tennessee Supreme Court (but suggested that this wouldn't really help).
The case arose when two parents of school-aged children formed an unincorporated group to advocate in an upcoming school board election. The group planned to spend less than $250 on independent expenditures, and not make any direct campaign contributions to candidates.
But group members learned that Tennessee law might regulate their activities. The Tennessee Campaign Financial Disclosure Act defines a "political campaign committee" as "a combination of two (2) or more individuals, including any political part governing body, whether state or local, making expenditures, to support or oppose any candidate for public office or measure." The Act goes on to require committees to pay an annual registration fee, appoint a treasurer, maintain a separate bank account, file financial disclosure statements, and keep financial records--all things that the two members weren't prepared to do.
So they sued in federal court, arguing that the Act violated the First Amendment. But the district court punted, invoking Pullman abstention, and citing a pending state administrative proceeding involving the application of the Act to a different group.
The Sixth Circuit reversed. The court said that Pullman abstention wasn't appropriate here, because the state administrative proceeding dealt with different issues (and not the ones that the plaintiffs raised here), because the Act wasn't "so ambiguous as to necessitate abstention," and because the Act wasn't really susceptible to a limiting construction that would save it from a First Amendment challenge.
The court left open an option for the district court to certify a question on the construction of the Act to the Tennessee Supreme Court. But it also suggested that certification wouldn't do any good, because the Act says what it says.
Saturday, February 4, 2017
In a Temporary Restraining Order, United States District Judge James Robart enjoined the federal government from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban."
Judge Hobart's Order is brief and concludes that there is a likelihood of success on the merits, although it does not specify which of the claims is likely to succeed. Washington State's complaint contains 7 counts claiming violations of constitutional guarantees of Equal Protection, Establishment Clause, and Procedural Due Process, as well as statutory violations of the Immigration and Nationality Act (2 counts), Foreign Affairs and Restructuring Act, the Administrative Procedure Act (2 counts), and the Religious Freedom and Restoration Act (RFRA).
The Judge's finding that Washington faces the "immediate and irreparable injury" requirement for preliminary relief might also be a comment on the merits of Washington's standing (which we first discussed here) to bring the suit, and would be pertinent to the standing of the state of Hawai'i, which has also sued. Judge Robart found:
The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inﬂicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States" operations, tax bases, and public funds.
Additionally, in the Order's one paragraph Conclusion, Judge Robart implicitly invokes the Marbury v. Madison aspects of the controversy. Here is the entire last paragraph:
Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a TRO against certain actions taken by the Executive in the context of this speciﬁc lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulﬁll its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described TRO is necessary, and the States’ motion (Dkt. ## 2, 19) is therefore GRANTED.
The morning after the Judge's Order, the President from his vacation home "tweeted" his disapproval, maligning the judge but seemingly committed to pursue further judicial process.
February 4, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Procedural Due Process, Race, Separation of Powers, Standing | Permalink | Comments (2)
Friday, February 3, 2017
Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.
Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.
The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process. There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered. Again, Lawfare is maintaining a collection of all the primary source documents.
The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.
The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.
Tuesday, January 31, 2017
San Francisco filed suit today against President Trump over his executive order stripping sanctuary cities of federal grants.
San Francisco argues that the EO violates the anti-commandeering rule, that its funding provision turns persuasion into compulsion, and that the funding threat includes federal money that has nothing to do with immigration enforcement--all in violation of federalism principles in the Tenth Amendment.
Recall the EO's federal-funding-for-compliance provision:
the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1371 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.
8 U.S.C. Sec. 1373(a), in turn, prohibits local governments from "sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual."
As an initial matter, San Francisco argues that it actually complies with 1373, because it doesn't prohibit officials from communicating with the feds regarding "citizenship or immigration status," even though it restricts communications on other matters.
The City goes on to argue that 1373, taken together with the EO, commandeers state and local governments in violation of the anti-commandeering rule, because it regulates "States in their sovereign capacity," "limit[s] state authority to regulate internal affairs and determine the duties and responsibilities of state employees," and "ultimately forc[es] States to allow their employees to use state time and state resources to assist in the enforcement of federal statutes regulating private individuals." Moreover, the EO "commandeers state and local governments, violating the Tenth Amendment to the United States Constitution by, inter alia, compelling them to enforce a federal program by imprisoning individuals subject to removal at the request of the Federal government when those individuals would otherwise be released from custody."
As to preenforcement review, San Francisco argues that it "faces the imminent loss of federal funds and impending enforcement action if it does not capitulate to the President's demand that it help enforce federal immigration law. At least one jurisdiction has already succumbed to this presidential fiat." (The complaint also outlines the many other harms the city says it suffers, and will suffer, under the EO.)
Wednesday, January 25, 2017
President Trump's EO today threatening to revoke federal funding for sanctuary cities runs right up against NFIB v. Sebelius, the Supreme Court's Obamacare decision, penned by Chief Justice John Roberts. In other words: It is unconstitutional.
Recall that the Court in NFIB ruled that Obamacare's Medicaid expansion violated federalism principles, because Obamacare threatened a state that declined to expand Medicaid with a potential loss of all federal Medicaid funding. Chief Justice Roberts wrote that the provision was "a gun to the head" of states, and that the threatened loss of Medicaid funding "is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion." The Court "saved" the provision, however, by ruling that the federal government could withhold the additional Obamacare funding for Medicaid expansion from any state that declined to expand Medicaid under Obamacare. It just couldn't withhold all Medicaid funding.
Enter Trump's policy on sanctuary cities. President Trump's EO says that it's the policy of Executive Branch to "[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law." So far, so good, if NFIB is part of law, as it is.
But the EO goes on to say that "the Attorney General and the Secretary . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary."
This goes much farther than Obamacare's Medicaid expansion: The EO threatens to revoke all federal funding to a jurisdiction, with just a small caveat, and with no overriding "except as mandated by law" clause.
If Obamacare was a "gun to the head," this is much more. (Maybe a nuclear bomb to the head?) Moreover, most of the federal funding at stake has nothing to do with immigration, pretty clearly violating the "germaneness" or "relatedness" requirement from South Dakota v. Dole.
Whatever one thinks about NFIB, or even the animating federalism principles that the Court applied, President Trump's EO goes much, much farther. And whatever one thinks about sanctuary cities, President Trump's approach is quite clearly out of constitutional bounds.
Thursday, December 15, 2016
President Obama's 2016 Proclamation regarding Bill of Rights Day stresses the evolving nature of the Bill of Rights protections:
As it was originally created, the Bill of Rights safeguarded personal liberties and ensured equal justice under the law for many -- but not for all. In the centuries that followed its ratification, courageous Americans agitated and sacrificed to extend these rights to more people, moving us closer to ensuring opportunity and equality are not limited by one's race, sex, or circumstances. The desire and capacity to forge our own destinies have propelled us forward at every turn in history. The same principles that drove patriots to choose revolution over tyranny, a country to cast off the stains of slavery, women to reach for the ballot, and workers to organize for their rights still remind us that our freedom is intertwined with the freedom of others. If we are to ensure the sacred ideals embodied in the Bill of Rights are afforded to everyone, each generation must do what those who came before them have done and recommit to holding fast to our values and protecting these freedoms.
Two and a quarter centuries later, these 10 Constitutional Amendments remain a symbol of one of our Nation's first successful steps in our journey to uphold the rights of all citizens. On Bill of Rights Day, we celebrate the long arc of progress that transformed our Nation from a fledgling and fragile democracy to one in which civil rights are the birthright of all Americans. This progress was never inevitable, and as long as people remain willing to fight for justice, we can work to swing open more doors of opportunity and carry forward a vision of liberty and equality for generations to come.
As for how "Bill of Rights Day" became a named day - - - if not a true holiday - - - my previous discussion is here.
The NYT reports that some Democratic state AGs plan to borrow a page from Republican AGs' playbook: sue the President:
The strategy could be as simple as mirroring the blueprint laid out by their Republican colleagues, who made something of a legal specialty of tormenting President Obama. Conservative attorneys general in states including Texas, Virginia and Florida have sued the Obama administration dozens of times, systematically battering Mr. Obama's signature health care, environmental and immigration policies in the courts.
Monday, December 5, 2016
As an orientation for assessing the argument, Lessig trenchantly reminds us:
In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim. When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim, and held that the Equal Protection Clause regulated how Florida could recount its votes. That conclusion led 5 justices to conclude the recount couldn’t continue. George Bush became president.
Lessig provides some scholarly sources and reveals he is planning a law review article on the applicability of Bush v. Gore and equal protection principles to the "winner take all" electoral college process.
But he also shares a first take of a legal argument drafted by Jerry Sims, an Atlanta attorney. Here's Sims's Georgia example:
In Georgia, for example, we have 16 Electors and approximately 44% of all voters cast ballots for Clinton. Yet the Clinton Voters receive no representation within the State’s Electors. They are left with no voice whatsoever in the election of the President by the Electoral College, their votes are for all practical purposes thrown away. If Georgia were electing a single candidate then a winner-take-all result would be proper, but in an election of 16 Electors, the Clinton votes are not being given equal dignity with the Trump votes. Of course the state could argue that there is a single slate of Electors is up for election. But therein lies the rub, the State is not free to disregard the one man one vote rule by arbitrarily framing the election of 16 Electors as though it is an election of a single office holder. That argument would be a pretext designed to deny any voice to the voters for the candidate not winning the plurality of the vote within the State, even though in reality multiple representatives are being selected to vote in a second election for a single candidate. This system leaves minority voters in Georgia with no voice whatsoever in the final real election. Thus, if the election is viewed by the State as a statewide election, then Electors should be allocated proportionately, in order to give every vote equal dignity and weight, thereby electing a delegation of Electors that actually represents all of the voters within the State. Under this methodology every vote counts. Proportional allocation of Electors respects the one man one vote principle while preserving the small state bias. It merely eliminates the likelihood of a President being elected who did not win the popular vote and did not win because of the small State bias embedded in the Constitution.
Sims links to a spread sheet that provides the data for other states.
The equal protection framework relies on Bush v. Gore and Reynolds v. Sims, as well as Williams v. Rhodes (1968).
It's certainly worth considering.
Monday, November 28, 2016
Judge Christopher R. Cooper (D.D.C.) today rebuffed state arguments that a new Treasury rule governing state escheat claims of title and for payment of U.S. Treasury bonds did not violate the Constitution. The ruling ends this case (unless and until appealed) and means that the Treasury rule, designed to ensure that state judgments on the abandonment and ownership of Treasury bonds are accurate, stays in place.
The ruling is a blow to states like Kansas that sought to make it easier to show that a Treasury bond was abandoned, and that the state owned it, and therefore could redeem it.
The case came on the heels of some regulatory and judicial back-and-forth on the issues of whether and how states could take title to Treasury bonds under state escheat laws, redeem the bonds, and keep the proceeds. At one point in the back-and-forth, Kansas adopted a title-escheatment statute, which conveyed title of abandoned bonds to the state. Treasury agreed to redeem bonds in the state's possession, but, under its regs, not those escheated bonds not in its possession. So Kansas sued.
As that case was pending, Treasury enacted new regs. The new regs gave Treasure the "discretion to recognize an escheat judgment that purports to vest a state with title to a [matured by unredeemed] savings bond . . . in the state's possession" when there is sufficient evidence that the bond has been abandoned. But the rule does not recognize "[e]scheat judgments that purport to vest a state with title to bonds that the state does not possess." In short, in order for a state to claim payment, the rule provides that (1) states must have possession of the bonds, (2) they must have "made reasonable efforts to provide actual and constructive notice of the state escheatment proceeding" and an opportunity to respond to all interested parties, and (3) there must be sufficient evidence of abandonment.
Kansas and others sued again, this time arguing that the new rule was arbitrary and capricious in violation of the APA, that it violates the Appointments Clause and the Tenth Amendment, and that it illegal confers the power to review state court judgments to a federal agency.
As to Appointments, the plaintiffs argued that the Treasury official who signed and promulgated the rule, Fiscal Assistant Secretary David A. Lebryk, appointed as an inferior officer, exercised authority as a principal officer in violation of the Appointments Clause. The court disagreed, pointing to the Fiscal Assistant Secretary's work, including the work on the new rule, which "is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate."
As to review of state judgments, the plaintiffs argued that the new rule permits Treasury to judge the due process and sufficiency-of-evidence in state court proceedings under the three prongs listed above. But the court said that "[t]wo bodies of law are at issue: a state law of escheat and a federal law of bond ownership," and that "[s]tate court judgments are final regarding the former, but Treasury--by operation of the Supremacy Clause and pursuant to its statutorily-delegated authority--may promulgate rules to define the latter." The court also said that Treasury's due process review is not aimed at implementing constitutional protections (as an appellate court might), "but at facilitating reliable determinations of abandonment."
Finally, as to the Tenth Amendment, the court said that Treasury promulgated the rule pursuant to statutory authority from Congress, enacted within Congress's constitutional authority, and so the rule raised no Tenth Amendment problem.
(The court also rejected the plaintiffs' APA claim.)
Friday, November 25, 2016
The Ninth Circuit ruled this week that the Interstate Commerce Commission Termination Act preempted an Oregon state environmental measure as it related to repairs on a tourist rail line.
The ruling means that the state "removal-fill law," which requires a state permit for the removal of any amount of material from waters designated as Essential Salmonid Habitat, does not apply to the repair project.
The case arose when the Port of Tillamook Bay, which owns railways in Oregon, contracted with the Oregon Coast Scenic Railroad, which operates tourist trains on a portion of the Port's tracks, to repair some of the track. But when Oregon Coast started work, the Department of State Lands sent Oregon Coast a cease and desist order, alleging that the repair work would violate the state's removal-fill law. Oregon Coast sued, arguing that the federal ICCTA preempted Oregon's removal-fill law.
The Ninth Circuit agreed. The court ruled that the ICCTA preempts if an activity is (1) "transportation" (2) "by rail carrier" and (3) "as part of the interstate rail network." The court noted that the parties agreed that the activity was "transportation" under the ICCTA. It went on to say that the work was "by rail carrier," because "the repair work performed by Oregon Coast is 'an integral part of [the Port's] provision of transportation by rail carrier.'" Finally, the court held that the work was "part of the interstate rail network," because the line, while not currently attached to an interstate rail line, once was attached to an interstate rail line, and, when the repairs were finished, would once again be attached to an interstate rail line.
The court said that under ICCTA preemption, the work falls under the exclusive jurisdiction of the federal Surface Transportation Board, and that state regulation--including environmental regulation--is preempted.
Tuesday, November 22, 2016
Judge Amos L. Mazzant (E.D. Tex.) granted a nationwide injunction today against the Obama Administration in enforcing its new overtime rules.
The ruling is a blow to President Obama's effort to update the overtime requirements through administrative rulemaking, and not legislation. The nationwide injunction seems extreme, but, as Judge Mazzant noted, this district-court-issuing-a-nationwide-injunction-thing seems to be a growing trend among district court judges striking President Obama's administrative initiatives.
At the same time, the new Trump Administration will almost surely undo these rules, anyway.
So the big loser is the lower-income (between $23,660 to $47,892 per year), salaried worker. That person, covered by the now-enjoined rule, won't qualify for overtime. (The court said that the FLSA requires a "duties" test. So if DOL can reissue regs around duties, some of these workers may still qualify. But don't count on this with the new administration.)
The government can appeal, but the conservative Fifth Circuit seems likely to affirm. And again: The Trump Administration will almost surely undo this, anyway.
Recall that DOL issued rules raising the "executive, administrative, and professional" exemption from the FLSA requirement that employers pay overtime to workers. In particular, DOL issued rules that said that employees who earn up to $47,892 per year (up from $23,660 per year) fell outside the exemption, and therefore qualified for mandatory overtime. The new rules also set an automatic update that adjusts the minimum salary level every three years.
States and business organizations sued, arguing that the rules violated the Administrative Procedures Act, because they weren't authorized by the FLSA. The state plaintiffs threw in a claim that the new rules and the entire FLSA violated the Tenth Amendment and federalism principles. Because this claim ran headlong into Garcia (which upheld the application of the FLSA to the states), the states, for good measure, went ahead and boldly argued that the court should overturn Garcia.
The court agreed with the APA claim, but disagreed about Garcia. As to the APA, the court said that the language of the FLSA--"executive, administrative, and professional" employees are exempt from the overtime mandate, and that DOL can promulgate regs to implement this exemption--required that the government consider employees' duties, and not just income, in determining whether an employee qualifies. Because the new regs only considered income, they violated the FLSA.
As to Garcia: the court flatly rejected the call to overturn it. This is hardly a surprise: It's still good law, after all. It seems the states were banking on a favorable ruling from the Fifth Circuit and a split Supreme Court. (That sounds familiar.)
Or they were banking on a differently comprised Court entirely--one friendly to their anti-Garcia claim. And who knows? Now they might get it.
Friday, November 18, 2016
The Sixth Circuit ruled today that a local "right-to-work" ordinance was not preempted under the National Labor Relations Act, but that provisions banning hiring-hall agreements and dues-checkoff requirements are preempted.
The mixed ruling hands a partial victory to union opponents (by upholding the local "right-to-work" ordinance) and a partial victory to unions (by striking the hiring-hall and dues-checkoff bans).
Hardin County, Kentucky, enacted a so-called "right-to-work" ordinance, which prohibited employers and unions from requiring union membership or dues as a condition of employment. The ordinance also prohibited "hiring-hall" agreements (which require prospective employees to be recommended, approved, referred, or cleared by a union) and "dues-checkoff" provisions (which require employers to automatically deduct union dues and fees). Unions sued, arguing that the ordinance was preempted.
The Sixth Circuit disagreed on "right-to-work" and agreed on hiring-hall and dues-checkoff provisions.
The court ruled that the "right-to-work" provision was saved from preemption and was not field-preempted. The court looked to Section 14(b) of the NLRA:
Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.
The court held that Hardin County law is "State law" under this provision, and so saved from preemption by the plain terms of the Act. The court went on to say that it couldn't be field-preempted under the NLRA, because, well, it was saved under Section 14(b). ("It follows that Section 14(b)'s explicit exception of the state right-to-work laws from preemption trumps operation of implicit field preemption.")
As to the hiring-hall and dues-checkoff bans, the court held that these did not fall within the Section 14(b) exception. It held that the dues-checkoff ban was preempted by the Labor Management Relations Act, and that hiring-hall ban was explicitly permitted under the NLRA.
The Ninth Circuit ruled today in Atay v. County of Maui that a local initiative to ban genetically engineered crops was preempted by federal and state law. The ruling ends this effort in Maui County, Hawaii, to ban GE crops.
The citizens of Maui County voted for an ordinance that banned the cultivation and testing of GE plants. The ordinance was designed "to protect organic and non-GE farmers and the County's environment from transgenic contamination and pesticides, preserve the right of Maui County residents to reject GE agriculture, and protect the County's vulnerable ecosystems and indigenous cultural heritage."
The Ninth Circuit ruled that the ordinance was preempted. The court held that the federal Plant Protection Act expressly preempted the GE ban as to crops that the Animal and Plant Health Inspection Service has deregulated. The PPA preemption provision says that "no State or political subdivision of a State may regulate the movement in interstate commerce of any . . . plant . . . plant pest, noxious weed, or plant product in order to control . . . eradicate . . . or prevent the introduction or dissemination of a . . . plant pest, or noxious weed, if the Secretary has issued a regulation or order to prevent the dissemination of the . . . plant pest, or noxious weed within the United States." The Secretary, through the APHIS, has done just that, so the court said that Maui's ban was preempted. (As to the interstate commerce element, the court said that GE seeds and plants flow across state lines, and that Congress specifically recognized in the PPA that "all plant pests, noxious weeds, plant products, articles capable of harboring plant pests or noxious weeds regulated under this chapter are in or affect interstate commerce.")
As to those crops not regulated by the APHIS, the court said that the PPA didn't impliedly preempt the ban, but Hawaii state law did. The court looked to Hawaii preemption law, which applies a "comprehensive statutory scheme" test to determine field-preemption, and held that Hawaii's statutory scheme fit the bill. (The Ninth Circuit handed down another case today with a similar state preemption holding, that one striking Kauai County's pesticide regulations.)
The ruling ends this local effort to ban GE crops.
Thursday, November 17, 2016
The Tenth Circuit ruled in Mojsilovic v. State of Oklahoma that the state's sovereign immunity barred the plaintiffs' forced-labor claim under the federal Trafficking Victims Protection Reauthorization Act. The ruling ends this case.
The plaintiffs, Danijela and Aleksandar Mojsilovic, were hired by the University of Oklahoma on H-1B visas to conduct DNA sequencing and issue typing and to make transfectants and tissue cultures. Their supervisor, Dr. William Hildebrand, forced them to work longer hours than permitted by their visas, without pay, for his private corporation, Pure Protein, on threat of having their visas revoked. The Mojsilovic's sued under the TVPRA, seeking monetary damages under the Act; the University asserted sovereign immunity; and the district court dismissed the case.
The Tenth Circuit affirmed. The court ruled that Congress enacted the TVPRA under its Commerce Clause authority (and not its Thirteenth Amendment authority), and so could not abrogate state sovereign immunity under the Eleventh Amendment. In any event, the court said that any abrogation wasn't sufficiently clear in the language of the TVPRA. (The TVPRA applies to "whoever," without specifically naming "states.")
The ruling, while not surprising under the Court's abrogation doctrine, illustrates the impact of the rule that Congress cannot abrogate state sovereign immunity using its Commerce Clause authority. It means that states and state agencies can get away with trafficking, slavery, involuntary servitude, forced-labor, and the like without incurring TVPRA liability.
Congress could, of course, change this by making clear that the TVPRA is enacted under the Thirteenth Amendment and clearly abrogating state sovereign immunity.
Wednesday, November 16, 2016
The Sixth Circuit ruled this week that the Bankruptcy Code prevented citizens and organizations in Detroit, which is is Chapter 9 bankruptcy proceedings, from suing the city for certain constitutional violations.
The ruling gives Detroit a free pass on certain civil rights--because it is in bankruptcy. Indeed, the court goes so far as to say (based on almost no authority) that because the financial conditions in Detroit are so bad, federalism considerations even more support a reading of the Bankruptcy Code that bars certain civil rights actions against the city.
The lesson: If you're out to have your constitutional rights violated, do it in a city that's not in bankruptcy, with really big financial problems.
The case arose when Detroit citizens and organizations sued the city in the Eastern District of Michigan for turning off thousands of residents' water for nonpayment and refusing to negotiate. The plaintiffs sought declaratory and injunctive relief; they brought due process and equal protection claims (among others) under 42 U.S.C. Sec. 1983 and Monell.
The district court then transferred the case to bankruptcy court and consolidated it with Detroit's Chapter 9 case. The plaintiffs moved for a TRO, and the city moved to dismiss pursuant to 11 U.S.C. Sec. 904 (in the Bankruptcy Code). That section says:
Notwithstanding any power of the court, unless the debtor consents or the plan so provides, the court may not, by any stay, order, or decree, in the case or otherwise, interfere with--
(1) any of the political or governmental powers of the debtor;
(2) any of the property or revenues of the debtor; or
(3) the debtor's use or enjoyment of any income-producing property.
The Sixth Circuit ruled, with little analysis, that each of these three conditions applied, and therefore the bankruptcy court had no power to issue declaratory or injunctive relief, and therefore the case must be dismissed.
Along the way, the court had some pretty surprising things to say about federalism and protection of rights. For example, the court wrote that Section 904 is essentially a federalism protection for a city like Detroit, and a city in bankruptcy--and especially one with really bad financial problems--ought (perhaps paradoxically) to have more protection against constitutional-rights claims (than a city in a regular district court) because of it. Here's how the court put it:
That a federal court's power should be more constrained in the chapter 9 context than in a typical Monell action also makes sense. Monell plaintiffs may claim damages and prospective injunctive relief, such as the implementation of a training program that better protects citizens' constitutional rights, provided they make the appropriate showing. We agree that the Tenth Amendment is not a barrier to a federal court's authority over a municipality in that setting.
But a discrete change in policy in a particular office or department of local government is far removed from the complete financial overhaul undertaken in a municipal reorganization. Detroit's case is a good example. "At the time of filing, the City had over $18 billion in escalating debt, over 100,000 creditors, hundreds of millions of dollars of negative cash flow," failing infrastructure, and "a crumbling water and sewer system." The bankruptcy court bore responsibility for approving a plan of adjustment equally vast in its aim to remedy these conditions. Concerns for state sovereignty loom larger with so much at stake. "As a state-federal cooperative enterprise conducted in delicate circumstances in which state sovereignty must be respected, Congress has been sedulous to assure that the bankruptcy power not be used in municipal insolvencies in a manner that oversteps delicate state-federal boundaries." The massive scale of a municipal bankruptcy simply provides more opportunities for excessive federal court interference.
Apparently only one other court, a bankruptcy court, had used federalism in the way the Sixth Circuit did to support its Section 904 analysis, because that's the only case (in two versions) that the Sixth Circuit cited in support of its federalism claims.
Surprisingly, the court said that this reasoning applies equally to the plaintiffs' request for declaratory relief. (It's not entirely clear how declaratory relief alone interferes with any of the three categories in Section 904.)
All this said, the ruling probably doesn't extend to other civil rights claims that don't involve a "contract" with the government. This case ended up in the bankruptcy court because the residents had a water-services "contract" with the city that fell under the city's bankruptcy. A different kind of claim (police brutality, for example) wouldn't involve a "contract," (hopefully) wouldn't get kicked to bankruptcy, and therefore wouldn't get dismissed under Section 904.
The Second Circuit last week rejected claims that the federal government exceeded its authority and violated the Enclave Clause in taking about 13,000 acres of land in central New York into trust on behalf of the Oneida Indian Nation of New York.
The ruling is a victory for the Nation and its ability to self-govern. In particular, under federal land-into-trust law, it means that the Nation's land is not subject to state and local taxes and zoning and regulatory requirements, and that (unless the Nation consents) New York lacks criminal and civil jurisdiction over Nation members on the land.
The ruling is also a reaffirmation of the federal government's land-into-trust powers, by which the federal government can take state land into trust for Native American nations, and the very limited restrictions on federal power to take and regulate land under the Enclave Clause. (The Enclave Clause, Art. I, Sec. 8, cl. 17, is a favorite of those who argue against federal authority to hold and regulate lands other than Washington, D.C., even though that reading is not supported by the text, history, or precedent of the Clause.)
The case arose when the federal government took about 13,000 acres of land in New York into trust on behalf of the Oneida Indian Nation, pursuant to authority under the Indian Reorganization Act. (The dispute goes back much farther, however.) The Oneida Nation already owned the land--it purchased it on the private market--but sought the trust in order to govern itself and avoid state taxes and certain regulations. Plaintiffs (two towns, a civic organization, and some individuals) sued, arguing that the land-into-trust procedures violated the Indian Commerce Clause, state sovereignty, and the Enclave Clause. (Plaintiffs asserted that they'd be harmed by the Nation's casino, and the inability to collect taxes on the land where it sits.)
The Second Circuit flatly rejected those claims. The court ruled that under the Indian Commerce Clause the federal government has plenary authority to regulate with respect to Native American nations, including authority to take land in trust for nations, and that this authority wasn't correlated to the Interstate Commerce Clause or otherwise bound only to purely intra-state activities. The court also ruled that no constitutional provisions protected "state sovereignty" as against the land-into-trust procedures.
As to the Enclave Clause claim, the court, drawing on longstanding precedent, wrote that "state consent is needed only when the federal government takes 'exclusive' jurisdiction over land within a state." (This follows from precedent and the plain language of the Clause itself: "The Congress shall have Power . . . To exercise exclusive Legislative in all Cases whatsoever, over such District . . . as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings[.]") Because the federal government's land-into-trust procedures leave some authority to a state (like civil and criminal law as against non-members, and the power to impose a sales tax on sales to non-members), it did not need "Cession of" the state under the Enclave Clause.
Friday, November 4, 2016
In her opinion in Hill v. Williams, United States District Judge Christine Arguello enjoined Colorado Revised Statute § 1-13-712(1), which prohibits a voter from “show[ing] his ballot after it is prepared for voting to any person in such a way as to reveal its contents.” In late October, the Denver District Attorney issued a news release reminding voters that posting an image of a completed ballot - - - a "ballot selfie" - - - was a misdemeanor. Two separate sets of plaintiffs thereafter sued to enjoin the Colorado statute as a violation of the First Amendment.
As Judge Argeullo explains,
Colorado uses an all mail-in ballot election. Every registered voter who registered to vote on or before October 31, 2016, has received a mail-in ballot to complete at home. Individuals who did not register by that date are allowed to register at the polling places and vote up to, and including, Election Day. Moreover, voters who have obtained ballots in the mail are still allowed to vote in person on Election Day. . . . The Deputy Secretary of State testified that she anticipates between 100,000 and 750,000 Coloradans will vote in person on November 8, 2016.
The ballot selfie prohibition thus included photographs at polling places as well as photographs of ballots completed for mailing.
The judge first rejected the state's arguments that the plaintiffs lacked standing or that the case was already moot. The judge likewise rejected the argument that an injunction would alter election laws and procedures immediately before an election. Despite the timing, the judge stated that the plaintiffs' request (and her injunction) was narrowly crafted, and further noted that "if local rules at polling places prohibit the use of cameras due to privacy concerns, nothing in this Court’s Order prohibits the enforcement of those rules."
In the discussion of the First Amendment merits, the judge applied intermediate scrutiny for purposes of the preliminary injunction and concluded that the statute failed. The judge also accepted that voter fraud was a significant government interest. However, the judge found the means chosen were not sufficiently narrowly tailored to serve that interest: the statute prohibits a wide range of conduct and does not include a mens rea related to voter fraud. Moreover, other extant laws could achieve the purpose of preventing voter fraud.
Thus, the judge entered a preliminary injunction against the defendant prosecutors
from enforcing Colorado Revised Statute § 1-13-712(1) by prosecuting, referring for prosecution, and/or investigating violations thereof, or instructing any person to remove from publication any photograph or image of that person’s voted ballot, unless such violations or publication is in connection with violations of other criminal laws. Nothing in this Order shall alter the ability of Defendants or other officials to enforce any other laws, rules, or regulations related to the administration of the election, including those rules in effect at polling places.
This opinion contrasts with the opinion regarding the New York statute. Like the New York statute, the Colorado statute is longstanding (section § 1-13-712 was passed in 1891, but was most recently amended in 1980), and both lawsuits were filed close to the pending election. However, Judge Arguello balanced the First Amendment interests in favor of the individuals and issued a narrow but effective injunction.
Thursday, November 3, 2016
In his opinion in Republican Party of Pennsylvania v. Cortes, United States District Judge for the Eastern District of Pennsylvania Gerald Pappert has rejected the Equal Protection, Due Process, and First Amendment constitutional challenges to the state election code provision §2687(b) requiring poll watchers to be qualified electors of the county in which they serve.
The challenge argues that the code provision violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment by hampering poll watchers’ fundamental right to vote. The "crux of this argument," as Judge Pappert states, is "that if a qualified, registered voter casts a valid ballot in one county and a fraudulent ballot is cast for a different candidate in another county, the fraudulent ballot effectively negates the valid ballot, and the qualified, registered elector’s vote is diluted." But Judge Pappert rejected any applicability of Reynolds v. Sims's vote-dilution, noting that the vote-dilution theory here is "based on speculation that fraudulent voters may be casting ballots elsewhere in the Commonwealth and the unproven assumption that these alleged instances of voter fraud would be prevented by the affected poll watchers were they not precluded from serving at these locations." Additionally, the challengers argued that the code provision arbitrarily distinguished between voters by county, a classification which the challengers conceded in the hearing would merit only rational basis scrutiny. Indeed, Judge Pappert found that the entirety of the Fourteenth Amendment challenge to the code provision was subject to rational basis scrutiny given that the fundamental right to vote was not actually being burdened.
Judge Pappert also rejected the claim that Section 2687(b) infringes on the rights to free speech and association under the First Amendment by narrowing the pool of potential watchers at any polling place to the county level. The judge noted that plaintiffs cited no authority for the proposition that poll-watching is protected by the First Amendment or that it constitutes "core political speech." Instead, it is a state-created function and is subject to limitations by the state. It is distinguished from petition-circulators, for example, because "poll watchers do not discuss or advocate for a political candidate or viewpoint, either explicitly or implicitly." Instead, poll watchers, whatever their private motivations may be, are "performing a public function delegated by the state."
In addition to finding that the constitutional claims failed to satisfy the likelihood of success on the merits necessary to warrant a preliminary injunction, Judge Pappert also found the other factors for preliminary injunction lacking. Additionally, Judge Pappert noted that the Plaintiffs "waited until eighteen days before the election to bring the case": "There was no need for this judicial fire drill and Plaintiffs offer no reasonable explanation or justification for the harried process they created." Moreover, should the code be enjoined, "poll watchers would be allowed to roam the Commonwealth on election day for the first time in the Election Code’s seventy-nine year history—giving the Commonwealth and county election officials all of five days’ notice to prepare for the change."
Judge Pappert, a former Attorney General of Pennsylvania, has authored a very well-reasoned 28 page opinion likely to withstand any appeal. And although the opinion does not mention it, election-watchers are well aware of the context of the Pennsylvania situation: As reported, Republican Presidential Candidate Donald Trump has exhorted people in the more rural portions of the state to "Go down to certain areas and watch and study make sure other people don't come in and vote five times." Meanwhile, the Pennsylvania Democratic Party filed a complaint against the Pennsylvania Republican Party and the Trump Campaign for voter intimidation violating the Ku Klux Klan Act.
Friday, October 28, 2016
The Court today has granted certiorari in Glouster County School Board v. G.G.
As we previously discussed, while the constitutional issues are not in the foreground, it does involve important equality issues for transgender and gender nonconforming students as well as issues of Exceutive - - - or perhaps more properly, administrative agency - - - power.
The Court's Order limits the grant to Questions 2 and 3, thus eliminating the issue of the viability of "Auer deference" from consideration. The Questions presented in the certiorari petition are:
(1) Whether the court should retain the Auer v. Robbins doctrine despite the objections of multiple justices who have recently urged that it be reconsidered and overruled;
(2) whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and
(3) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.