Wednesday, March 28, 2018

SCOTUS Hears Oral Arguments in Challenge to Maryland's Partisan Gerrymandering

In oral arguments in Benisek v. Lamone, the United States Supreme Court again confronted the the constitutionality of gerrymandering on the basis of political party. Recall that the Court heard arguments earlier in this Term in Gill v. Whitford involving the state of Wisconsin and centering on the Equal Protection Clause challenge. In Benisek, involving Maryland, recall that a divided three judge court denied the motion for preliminary injunction, but with Fourth Circuit Judge Paul Niemeyer arguing that the redistricting of Maryland's Sixth District diluted the votes of Republicans in violation of the First Amendment.

The Benisek argument before the Supreme Court did center the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. Arguing for Maryland, Steve Sullivan sought to distinguish the two doctrines, with Justice Kagan responding:

JUSTICE KAGAN:  But we would be looking at the same things.  We would be looking at the same kind of direct evidence, the same kind of statements.  We would be looking at the same circumstantial evidence that has to do with where the lines were drawn and how they were drawn.  So it's -- it's all the same kind of evidence, isn't it?

Sullivan sought to distinguish the two doctrines and stated that while there may be similar types of evidence, the Court had not applied "the First Amendment retaliation rubric to that analysis," as the challengers suggested. However, Chief Justice Roberts offered another comparison:

CHIEF JUSTICE ROBERTS: Well, one difference between -- one difference between the race and partisanship is that we've always recognized that a certain degree of partisanship is acceptable.  We've never recognized that a certain degree of racial discrimination is acceptable.

2048px-Maryland_regions_map
The earliest moments of the oral argument offered a possible procedural escape hatch. The three judge court had denied the preliminary injunction and the possibility that any remedy could occur before the 2018 election seemed unlikely.  Moreover, the Justices questioned Michael Kimberly, attorney for the plaintiffs-challengers, regarding the lateness of the challenge, with Chief Justice Roberts asking about the elections that have been held in 2012, 2014, and 2016 before the challenge - - - relevant to the preliminary injunction factor of irreparable harm.

Justice Breyer offered a strategy for determining whether there are manageable standards and if so, what the standard should be.  (Recall that Justice Breyer outlined a several-step possible standard in the oral argument in Gill v. Whitford).  Justice Breyer noted that there are three cases - - - Wisconsin (Gill v. Whitford); Maryland (Benisek); and "the one we are holding, I think, is North Carolina" - - - with different variations. He began by asking the attorney for the challengers what he thought of reargument for the three cases:

JUSTICE BREYER:  * * * * What would you think of taking the three cases and setting them for reargument on the question of standard and there we'd have all three variations in front of us and we would enable people who have an interest in this subject generally to file briefs, and we'd see them all together and they could attack each other's standards or they could support each other's standards or they could attack any standard?  But there we'd have right in front of us the possibilities as -- as -- as thought through by lawyers and others who have an interest in this subject.

****
Winslow_Homer_-_Blackboard_(1877)I raise it because I want to think if there's some harm in doing that that I haven't thought of.  Is there some reason - would it be harmful to somebody? Because I do see an advantage.  You could have a blackboard and have everyone's
 theory on it, and then you'd have the pros and cons and then you'd be able to look at them all and then you'd be able see perhaps different ones for different variations and, you know, that's -- maybe there are different parts of gerrymandering that rises in different circumstances, dah-dah-dah. You see the point.

Later, in a colloquy with the attorney for Maryland, Justice Breyer again surfaced his proposal:

That's why I was thinking you've got to get all these standards lined up together, you know, and you have to have people criticizing each one back and forth and see if any of them really will work or some work in some cases and some work in other cases and it depends on the type you have.I -- I mean, that isn't squarely addressed by the lawyers because they're focused on their one case, et cetera.

Will there be a reargument?  It's difficult to tell.  But if there is, one might expect more than one brief that outlines the possible standards, with their advantages, disadvantages, and possible results in different cases, suitable for a "blackboard."

[image: Winslow Homer, Blackboard, 1877, via

March 28, 2018 in Association, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Oral Argument Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Tuesday, March 27, 2018

Daily Read: Janet Calvo on DACA and State Professional Licensing

Who needs a professional license? In California, anyone wishing to be an accountant, acupuncturist, cosmetologist, court reporter, bedding salesperson, landscape architect, pharmacist, teacher, real estate agent, pest control operator, or teacher, among many others. Yet the type of immigration status that should be a prerequisite for obtaining a state professional license has not been consistent, at least until California did implement a remedy. And in New York, with a different array of immigration regulations for professional licensing, a different type of remedy was eventually decided upon.

Delia_Boccardo_make-upIn her article Professional Licensing and Teacher Certification for Non-Citizens: Federalism, Equal Protection and a State’s Socio-Economic Interests, in Columbia Journal of Race and Law, Professor Janet Calvo analyzes the intersection of Equal Protection doctrine and the Tenth Amendment to argue that states have the constitutional responsibility as well as the constitutional power to remove immigration barriers to state licensing requirements. Distinguishing among categories of immigration status raises equal protection concerns and, as the Second Circuit has held, constitutional violations. Additionally, licensing is a traditional state function which Congress can regulate to some extent but not totally commandeer.

As Calvo argues, California and New York each took a unique path to solving the licensing issue, yet taken together, they offer a map to other states, organizations, and communities seeking to address similar problems.

 

March 27, 2018 in Equal Protection, Federalism, Fourteenth Amendment, Profiles in Con Law Teaching, Tenth Amendment, Theory | Permalink | Comments (0)

Wednesday, March 14, 2018

Federal District Judge: Equal Protection Prohibits Policy Banning Transgender Student from Facilities

In his opinion in M.A.B. v. Board of Education of Talbot County, United States District Judge George Russell, III of the District of Maryland denied the motion to dismiss by the school board of a challenge to its decision to require M.A.B., a transgender boy, to use restrooms and locker rooms for girls.

Judge Russell first found that the school's decision violated Title IX, 20 U.S.C. § 1681(a), entering the murky waters left by the United States Supreme Court's stay and vacation of the Fourth Circuit's decision in G.G. v. Glouster County School Board after the Trump Administration change interpretation of the anti-discrimination policy.

Judge Russell also decided that the school's decision violated the Equal Protection Clause, in an extensive discussion relying upon the developing transgender equal protection doctrine, including the Seventh Circuit's 2017 decision in Whitaker v. Kenosha Unified School District as well as the Eleventh Circuit's decision in Glenn v. Brumby, the only two circuits to have ruled on the issue, and district court cases in the school context such as Evanacho v. Pine-Richland School District and those regarding the transgender military ban such as Doe v. Trump and Stone v. Trump

Judge Russell found that classifications based on transgender status merit intermediate scrutiny for two reasons. First, he found that transgender classifications were tantamount to sex classifications, specifically discussing sex-stereotyping.

Second, he found that "transgender individuals are, at minimum, a quasi-suspect class," under a four-factor test similar to that first articulated in Carolene Products footnote 4:

  • whether the class has been historically “subjected to discrimination;”
  • whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society;"
  • whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;”  and
  • whether the class is “a minority or politically powerless.” 

FootnoteJudge Russell then analyzed each of these factors, with an interesting reference in a footnote, and found them satisfied, concluding that intermediate scrutiny was appropriate, and quoting the standard as that articulated in United States v. Virginia (VMI). 

While Judge Russell's opinion seemed to cast some doubt on whether the school board's proffered privacy rationale could satisfy the "important" prong, especially as described in VMI, he noted that the procedural posture of the decision was a motion to dismiss. However, even assuming privacy was an important interest, he concluded that the means chosen - - - the banning of the transgender male student from male bathrooms and locker rooms - - - was not substantially related to the privacy interest. Again, Judge Russell quoted Whitaker rejecting the school board's attempt to distinguish it on the basis that locker rooms were not at issue in the Seventh Circuit case and stated that Whitaker's "reasoning applies with similar force."Judge Russell then countered the school board's argument that "if M.A.B. changing clothes in the designated restrooms makes him feel humiliated and embarrassed, as well as alienated from his peers, then students who use those restrooms for greater privacy will feel the same way," with four separate reasons why the argument was flawed. For example, Judge Russell wrote that the school board's argument "overlooks the entire context surrounding the Policy:  "It singles M.A.B. out, quite literally because it does not apply to anyone else at the High School, and marks him as different for being transgender."  On the contrary, Judge Russell wrote, "a boy who makes the personal choice to change clothes in a single-use restroom or stall does not experience any such singling out at the hands of his school."

Judge Russell, however, did not grant M.A.B.'s motion for preliminary injunction, given M.A.B.'s status for the current school year, but "aware that the parties likely hope for a resolution to this case before the following school year," directed "the parties to confer and submit to the Court a joint proposed scheduling order." 

March 14, 2018 in Equal Protection, Fourteenth Amendment, Gender, Opinion Analysis, Recent Cases, Sexuality | Permalink | Comments (0)

Monday, February 12, 2018

Ninth Circuit Recognizes Right to Intimate Association for Police Employee

In its opinion in Perez v. City of Roseville, a panel of the Ninth Circuit reversed a district judge's granting of summary judgment to the government on a constitutional challenge by Janelle Perez to her termination from the City of Roseville after an internal affairs investigation into her "romantic relationship" with a fellow officer. The investigation noted that both officers "are married and have young children."

Authored by Judge Reinhardt, the opinion noted that its conclusion was required by Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), in which the Ninth Circuit held that the city violated Thorne's constitutional rights when it relied on her private, non-job-related sexual conduct as a clerk-typist in refusing to hire her as an officer, without “any showing that [her] private, off-duty personal activities ... [had] an impact upon [her] on-the-job performance,” or contravened “specific policies with narrow implementing regulations.” Likewise, Roseville failed to "introduce sufficient evidence that Perez’s affair had any meaningful impact upon her job performance."

Interestingly, the Ninth Circuit identifies a circuit split on the issue: We recognize that, since Thorne, at least two other circuits have adopted rules that appear to be in some tension with our case. See Coker v. Whittington, 858 F.3d 304, 306 (5th Cir. 2017) (concluding Constitution not violated where two sheriff’s deputies were fired for moving in with each other’s wives before finalizing divorce from their current wives because the Sheriff’s policies were supported by a rational basis); Seegmiller v. LaVerkin City, 528 F.3d 762, 770 (10th Cir. 2008) (upholding termination of officer on basis of extramarital affair under rational basis test because there is no “fundamental liberty interest ‘to engage in a private act of consensual sex’”). > Affair_at_the_InnHowever, the Ninth Circuit rejects the "approach taken by the Fifth and Tenth Circuits" for two reasons. First, there is the "binding precedent" of Thorne:

Because the State’s actions in this case “intrude on the core of a person’s constitutionally protected privacy and associational interests,” we must analyze them under “heightened scrutiny.” Thorne, 726 F.2d at 470. Moreover, even if we were to agree that the Department’s action here need only satisfy rational basis review, Thorne explains that it cannot survive any level of scrutiny without either a showing of a negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation. Id. at 471. Under our precedent, the Department must do more than cite a broad, standardless rule against “conduct unbecoming an officer.”

Second, the "Fifth and Tenth Circuits fail to appreciate the impact of Lawrence v. Texas, 539 U.S. 558 (2003), on the jurisprudence of the constitutional right to sexual autonomy." 

"Lawrence did much more than merely conclude that Texas’ anti-sodomy law failed the rational basis test. Instead, it recognized that intimate sexual conduct represents an aspect of the substantive liberty protected by the Due Process Clause. As such, the constitutional infirmity in Texas’ law stemmed from neither its mere irrationality nor its burdening of a fundamental right to engage in homosexual conduct (or even private consensual sexual conduct,  Rather, Texas’ law ran afoul of the Constitution’s protection of substantive liberty by imposing a special stigma of moral disapproval on intimate same-sex relationships in particular. As the Court explained, the liberty protected by the Due Process Clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are of the same sex or not, married or unmarried. . . . Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has “traditionally viewed a particular practice,” such as extramarital sex, “as immoral.” Thus, without a showing of adverse job impact or violation of a narrow, constitutionally valid departmental rule, the Constitution forbids the Department from expressing its moral disapproval of Perez’s extramarital affair by terminating her employment on that basis.

[citations omitted].

Thus, the Ninth Circuit holds that Thorne, decided 20 years before Lawrence was correct and the Fifth and Tenth Circuit opinions, both decided after Lawrence, do not give Lawrence proper effect.

Concurring, Judge Tashima stresses that Perez was a probationary police officer and thus the government need not have provided reasons. However, when the government did provide reasons "those reasons all arose in such short order after the internal affairs review that a reasonable inference may be drawn that they may have been pretextual." Additionally, the majority opinion held that the government had no right to qualified immunity because the rights were clearly established, again relying on Thorne, decided in 1983.

The majority panel opinion rejected a procedural due process claim and a gender discrimination claim.The court thus reversed the summary judgment in favor of the government and remanded the case for further proceedings given the factual disputes regarding the actual reasons Perez was termination. 

February 12, 2018 in Association, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Procedural Due Process, Sexuality | Permalink | Comments (0)

Monday, January 15, 2018

Daily Read: MLK and Affirmative Action

For Martin Luther King day, a good read is Professor David B. Oppenheimer's article Dr. King’s Dream of Affirmative Action, available on ssrn

Oppenheimer mentions the plans of the President and Attorney General Sessions to challenge affirmative action policies in higher education as a form of discrimination against white people and predicts that they will eventually use  Dr. King’s “I Have A Dream” speech as evidence that Dr. King would be supporting their position if he were still alive.  The President's Proclamation for MLK Day does not mention affirmative action (or civil rights), but does allude to King's most famous speech by including the arguably "color-blind" rejecting judgment based on "color of their skin" in favor of "content of their character." (The Proclamation states "Dr. King advocated for the world we still demand — where the sacred rights of all Americans are protected, rural and urban communities are prosperous from coast to coast, and our limits and our opportunities are defined not by the color of our skin, but by the content of our character.")

Martin_Luther_King_Jr_NYWTS_4Yet as Professor Oppenheimer argues it is simplistic - - - and incorrect - - - to conclude that Martin Luther King's political theorizing can be reduced to a convenient "color-blind" position. Oppenheimer writes:

While I have found no instance of Rev. Dr. Martin Luther King, Jr. ever using the term “affirmative action,” forty-eight years after his assassination his name is often invoked in the affirmative action debate by opponents of race-based affirmative action, who cite Dr. King’s “I have a dream” speech as evidence that he supported “color-blind” policies, and thus presumably would have opposed race-conscious affirmative action. But when we examine the historical record it is clear that while Dr. King dreamed of a time when racism – and thus race – would be irrelevant, he was a supporter of both of these forms of affirmative action. On the one hand, he spent much of the last six years of his life actively promoting what we would describe today as race-conscious affirmative action, including the use of racial quotas in employment. Specifically, from 1962-68 Dr. King orchestrated and implemented “Operation Breadbasket,” a civil rights boycott campaign that demanded employment quotas for Black American workers based on their numbers in a workforce, neighborhood or city. Yet on the other hand, with regard to class-based affirmative action, Dr. King supported a massive war on poverty.  In advocating for special benefits for poor Americans he sometimes used color-blind language and pointed out that it would benefit poor whites as well as poor Blacks, while at other times he justified it as an example of the kind of reparations to which Black Americans were entitled under the equitable remedy of restitution for unpaid wages.

In his discussion of the constitutional law doctrine and theory surrounding affirmative action, Oppenheimer includes the United States Supreme Court's reaction to organized efforts to mandate affirmative action in Hughes v. Superior Court for Contra Costa County (1948) in which the Court stated:

that the picketing here involved, and upon which the judgment of contempt is based, was for the attainment of an unlawful objective, viz.: not to induce Lucky [grocery store] not to discriminate against, but, rather, expressly to compel Lucky to discriminate arbitrarily in favor of, one race as against all others in the hiring of a portion of its clerks; and that therefore the injunction was properly issued and the judgment of contempt should stand. With this position, upon the record here, we must agree.

Oppenheimer writes that while the Supreme Court was willing to affirm the legitimacy of protesting discrimination, but unwilling to give any approval to demands for proportional hiring, the demands for "proportional hiring nonetheless persisted, and would become a critical part of Dr. King’s campaign for racial justice in the last six years of his life."

It seems pretty clear that MLK supported what is now known as  "affirmative action."

 

 

January 15, 2018 in Current Affairs, Equal Protection, First Amendment, Fourteenth Amendment, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0)

Saturday, January 13, 2018

Eighth Circuit Rejects Challenge to Missouri's Onerous Hair-Braiding License Requirements

In a very brief opinion in Niang v. Caroll, a unanimous panel of the Eighth Circuit affirmed a district judge's grant of summary judgment to Missouri against a challenge to the state's licensing requirements for "African-style hair braiders."  In short, the Missouri statutes require a license for barbers and cosmetologists that is granted only to those who complete a "costly and time-intensive training course - - - 1,000-hours for barbering and 1,500-hours for hairdressing" and passage of exam.  Moreover, Missouri conceded that "only about 10 percent of the required training courses is relevant to African-style braiders, and that almost all the exams do not test on braiding." 

The Eighth Circuit applied the most deferential of rational basis standards.  In rejecting the challengers' argument that the license requirement was not rationally related to any legitimate government interest, the court not only found that the state interests of protecting consumers and ensuring public health and safety were legitimate, but also recognized two other interests supplied by the district judge: stimulating more education on African-style braiding and incentivizing braiders to offer more comprehensive hair care.  As to the means chosen, the Eighth Circuit found that it was sufficiently reasonable: "the fit between the licensing requirement and the State’s interest is imperfect, but not unconstitutionally so." 

The Eighth Circuit also rejected the Equal Protection argument focused on the classification between braiders and barbers/cosmetologist, finding that the statutory definitions of "hair dressing" included braiding.

Lurking beneath the litigation, of course, is the racial classification, but this remains unaddressed.  Indeed, it would be a difficult argument on which to prevail absent other facts.

1024px-IBK-20

For Constitutional Law professors looking for a good example of "anything goes" rational basis as exemplified by Railway Express Agency v. New York (1949) (which the Eighth Circuit does not cite), as well as Dandridge v. Williams (1970) and  Heller v. Doe (1997), both of which the court does cite, this brief opinion is noteworthy.

For persons who want to practice the profession of braiding without being subject to onerous and irrelevant licensing requirements, the remedy may have to be in the legislature.

[image by  Chidi "Lex Ash" Ashimole  via]

January 13, 2018 in Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Teaching Tips | Permalink | Comments (1)

Friday, January 12, 2018

SCOTUS to Hear Texas Redistricting Case

The United States Supreme Court has announced it will hear Abbott v. Perez, a redistricting case decided by a three judge court in Texas.

Recall that the lengthy opinion under both the Equal Protection Clause and the Voting Rights Act included a finding of intentional racial discrimination by the Texas legislature.  The three judge court found that the plaintiffs could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination." 

Texas_counties_map

The addition of Abbott v. Perez to the Court's docket heralds the 2017-2018 Term as a major one for redistricting, adding to the partisan gerrymandering cases of Gill v. Whitford (argued in October) and Benisek v. Lamone, and continuing to confront issues of racial gerrymandering as in last term's cases of Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris.

 

January 12, 2018 in Elections and Voting, Equal Protection, Fifteenth Amendment, Fourteenth Amendment, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Thursday, January 11, 2018

Federal District Judge Rejects Challenge to Alabama Voter Identification Law

In his opinion in Greater Birmingham Ministries v. Merrill, United States District Judge L. Scott Cooler granted summary judgment to the state in a challenge to Alabama's Photo Identification statute, Ala. Code § 17-9-30, passed in 2011 and first operative in 2014.  Plaintiffs argued that the photo identification law violated the Fourteenth Amendment's Equal Protection Clause and the Fifteenth Amendment's guarantee that the "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

Because the Alabama voter photo identification statute did not make an explicit racial classification, the plaintiffs had the burden of demonstrating that the statute had both racial intent and racial effect as the United Sates Supreme Court made clear in Arlington Heights v. Metro. Hous. Dev. Corp. (1977) and Washington v. Davis (1976).  Judge Cooler recited the Arlington Heights factors for intent - - - usually the more difficult prong to prove - - - but then determined that "such an undertaking is not necessary in this case," because plaintiffs did not show effect.  Judge Cooler concluded that in this case, "the Photo ID Law does not in fact discriminate on the basis of race." (emphasis in original).

Essentially, Judge Cooler rejected the relevance of expert testimony regarding the racial impact:

Also according to Dr. Siskin, 1.37% of white registered voters, 2.44% of Black registered voters, and 2.29% of Hispanic registered voters may not currently have an acceptable photo ID. Frankly, the discrepancy in photo ID possession rates among white, Black, and Hispanic registered voters in Alabama is miniscule. In other words, it appears that very few registrants of any racial group may presently be affected by the Photo ID Law. Nonetheless, the numbers show that Black and Latino registered voters are almost twice as likely as white voters to lack an acceptable photo ID for voting. Although Secretary Merrill’s expert’s numbers differ somewhat (Dr. Hood estimated that .87% of white, 1.44% of Black, and 1.26% of Hispanic registered voters lack photo ID), Secretary Merrill does not dispute that registered voters of color in Alabama are statistically more likely than white voters to lack the required photo ID.

Interestingly, Judge Cooler continued with an allusion to the high voter turnout in the hotly contested Alabama Senate race:

It is worth noting that any conclusions reached from this evidence must be qualified by the fact that the studies were completed in July 2016, and the actual possession rates are certainly in flux as voters who want them obtain photo IDs. Indeed, since the analyses were done, there has been a Presidential election and a special election to choose Alabama’s U.S. Senator. Many people who may not have had ID more than a year ago could have gotten one since, particularly if they wanted to participate in those elections.

But in the end, Dr. Siskin’s estimate does not matter. This is because a person who does not have a photo ID today is not prevented from voting if he or she can easily get one, and it is so easy to get a photo ID in Alabama, no one is prevented from voting.

 Judge Cooler then discussed the requirements for obtaining photo identification and concluded:

In sum, the “impact” of the law should not be measured by how many people lack a given ID at a given point in time, but by whether someone without an ID can easily get one. In Alabama, the law has no discriminatory impact because it does not prevent anyone from voting, not when free IDs are issued in every county, or at home, under conditions that any registered voter can meet.

Returning to the issue of intent, Judge Cooler found that "there is no evidence that the Alabama Legislature believed that a photo ID law would disadvantage minority voters, particularly after providing means for people without an ID to receive one free of charge."  Not surprisingly, Judge Cooler also denied the plaintiffs' claim under the Voting Rights Act.

Given the contentious state of efforts to prevent "voter fraud" that may be linked to efforts to suppress the vote by non-white voters, this is sure to be appealed.

Alabama_A&M_GOTV_rally

UPDATE: Notice of Appeal and Statement from LDF-NAACP here

January 11, 2018 in Elections and Voting, Equal Protection, Fifteenth Amendment, Fourteenth Amendment, Opinion Analysis, Race, Reconstruction Era Amendments | Permalink | Comments (0)

Thursday, January 4, 2018

Ninth Circuit on Idaho's Ag-Gag Law: Portions Violate First Amendment

In its opinion in Animal Defense League Fund v. Wadsen, a divided panel of the Ninth Circuit largely affirmed the injunction of Idaho's so-called "Ag-Gag" law, Idaho Code § 18-7042.

Recall that Chief Judge B. Lynn Winmill concluded that portions of the statute violated the First Amendment and enjoined them in 2015. The Idaho statute created a new crime, “interference with agricultural production" and provided that

A person commits the crime of interference with agricultural production if the person knowingly:
(a) is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;
(b) obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;
(c) obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility's operations . . .
(d) Enters an agricultural production facility that is not open to the public and, without the facility owner's express consent or pursuant to judicial process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility's operations;
(e) ****

On appeal, the Ninth Circuit majority opinion, authored by Judge Margaret McKeown and joined by Judge Richard C. Tallman, affirmed the finding that subsections (a) and (d) violated the First Amendment, but held that subsections (b) and (c), criminalizing misrepresentations to obtain records and secure employment are not protected speech under the First Amendment and do not violate the Equal Protection Clause. In his partial dissent, Judge Carlos Bea argued that subsection (a), criminalizing misrepresentations to enter a production facility,should survive constitutional review.

Nypl.digitalcollections.510d47e0-5cd6-a3d9-e040-e00a18064a99.001.wWhat might be called the ethical center of the litigation is exemplified by the famous novel The Jungle (also discussed by the federal district judge) in which Upton Sinclair highlighted conditions in the meat-packing industry and which was based on the author's time working incognito in a packing plant. But the majority opinion also observes that the appeal "highlights the tension between journalists’ claimed First Amendment right to engage in undercover investigations and the state’s effort to protect privacy and property rights in the agricultural industry."

But the doctrinal center of the court's analysis of the Idaho statute criminalizing misrepresentation is the United States Supreme Court's fractured opinion in United States v. Alvarez (2012), holding unconstitutional the federal "stolen valor" statute criminalizing falsely claiming to have been awarded a military medal.

Nypl.digitalcollections.37f230d0-089e-0133-f34a-58d385a7b928.001.vIn short, the majority found that subsection (a)'s misrepresentation provision was protected speech under Alvarez subject to exacting scrutiny, which it did not survive, especially given the potential for selective prosecution and its overbreadth. On the other hand, subsection (b) pertaining to obtaining records was not protected speech under Alvarez because unlike subsection (a)'s "false statements made to enter property, false statements made to actually acquire agricultural production facility records inflict a property harm upon the owner, and may also bestow a material gain on the acquirer" and the provision is aimed at conduct. Somewhat similarly, subsection (c)'s criminalization of obtaining employment is not protected speech under Alvarez since the statements were made for material gain. The majority interestingly observed that it was almost as if "the Idaho legislature drafted this provision with Alvarez by its side," but interestingly did not observe that this provision would have criminalized Upton Sinclair as he researched his novel. Finally, subsection (d), the recordings clause, was not within the false statements analysis of Alvarez, but was a content-based prohibition that failed strict scrutiny.

With the proliferation of ag-gag laws, this Ninth Circuit opinion is sure to be relied on by the Tenth Circuit as it considers a district court 2017 decision in Animal Defense Fund v. Herbert holding Utah's ag-gag law unconstitutional under the First Amendment.

 [Images from NYPL public domain collection] 

 

January 4, 2018 in Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Second Circuit Finds Denial of Permit to "Wandering Dago" Food Truck Unconstitutional

In its unanimous panel opinion in Wandering Dago, Inc. v. DeSito, the Second Circuit reversed the district court and held that the the denial of a permit to operate a food truck at the Empire State Plaza in Albany violated the First Amendment as well as the Equal Protection Clause. 

Recall from our discussion of the district court's 2016 decision that the issue involved a program in a facility owned by the state of New York and operated by the state Office of General Services (OGS) under Commissioner RoAnn Desito. In the summers of 2013 and 2014, OGS administered "The Empire State Plaza Summer Outdoor Lunch Program," permitting vendors to operate food trucks for limited hours on the plaza, intended to provide "lunch options to the approximately 11,000 State employees who work at Empire State Plaza, as well as for visitors to the Capitol, State Museum, performing arts center" and various monuments and memorials in New York's capital city.

WD Food TruckAs the list of applicants was being processed, the application for "Wandering Dago" attracted attention of OGS employees, one who "recognized the term 'dago' as 'a highly offensive term for Italians,'" and after conducting a "computer search" to determine whether this was true, his conclusion was not only "confirmed" but it was "revealed" that the term has been "used to refer to people of Spanish and Portuguese descent, as well as Italians." OGS denied the application "on the grounds that its name contains an offensive ethnic slur and does not fit with OGS' policy of providing family-friendly policy." Wandering Dago's application the next year was similarly rejected.

The Second Circuit's opinion, authored by Judge Susan Carney, concluded that the case was clearly governed by the United States Supreme Court's recent decision in Matal v. Tam ("The Slants" case) finding that the "disparagement" provision in the trademark statute constituted viewpoint discrimination and failed strict scrutiny.  The district judge's decision was rendered before the Supreme Court's opinion, but she had rejected the applicability of the en banc Federal Circuit's  opinion in  In Re Simon Shiao Tam because she concluded the lunch program was a nonpublic forum.  For the Second Circuit, however, the rejection of Wandering Dago's application based on viewpoint merited strict scrutiny under the First Amendment whether or not that "speech is categorized as commercial speech, speech in a public forum, or speech in a nonpublic forum."

Moreover, the Second Circuit held that the government's rejection of the lunch truck was not shielded by the doctrines of government speech (or government contractor speech).  The district judge had held that the lunch program was "government speech," relying on Walker v. Texas Sons of Confederate Veterans in which the Court found that Texas's program of specialty license plates was government speech and therefore not subject to the First Amendment. The Second Circuit opinion contains a full discussion of the record, but ultimately finds it "implausible" that the public would view the Wandering Dago truck as New York's speech. The Second Circuit again analogized to Matal v Tam, in which the Court rejected a government speech claim.  As in Matal, the United States government did not "dream up" the trademarks, it "merely registered them," and similarly here, the New York Office of Government Services did not "dream up" the food truck's branding.

The Second Circuit applied strict scrutiny, even while noting that New York did not argue it could satisfy the standard, in order to "complete the analytical picture."  Not surprisingly, the court found that the denial of the permit failed strict scrutiny.

More surprisingly, the Second Circuit also reversed the district judge's grant of summary judgment to the government on the Equal Protection Clause claim.  In a brief passage, the court found that there was selective enforcement of the permit scheme with "intent to inhibit or punish the exercise of constitutional rights." This finding rested on New York's granting of permits to other vendors applying to participate in the Lunch Program, including the “Slidin’ Dirty” truck. Thus, the court concluded that Wandering Dago was being discriminated against for its free speech constitutional rights "in branding itself and its products with ethnic slurs."

While it is possible that New York will seek certiorari, it seems more likely that the state will accede to the decision and perhaps change its lunch program to make it less a permit scheme and more a government-sponsored "speech" event.

 

January 4, 2018 in Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Wednesday, January 3, 2018

Daily Read: The Meme of Voter Fraud

With the termination by Executive Order of the Presidential Advisory Commission on Election Integrity, also known as the "voter fraud commission," it's a good time to (re)read Atiba Ellis's article from 2014, The Meme of Voter Fraud.

Professor Ellis argues that "meme theory" offers a useful methodology to analyze the origins, evolution, and persistence of voter fraud rhetoric. For Ellis, a "meme" is not only a cute internet cat photo with changing words, but an "idea that spreads from person to person within a culture and replicates along with other ideas to form an ideology or worldview." The meme of "voter fraud" on his account is the latest iteration of the ideology that some people are deemed “unworthy” of the vote.

Ellis addressed the relevancy of the meme of voter fraud as it was being deployed by Trump shortly after the 2016 election (and which led to the creation of the commission).  Ellis wrote that the problem with Trump's use of the voter fraud meme is that

2674975700000578-2985770-image-m-45_1425868236814It seeks to rig our thinking about democracy. Because a meme persuades through appeal and not logic, makes facts completely irrelevant when the story is too good. This doesn’t matter much with cat videos, but Mr. Trump’s rigged election meme are dangerous because they detach us from facts as our basis for making real-world decisions.

To believe that millions of certain voters are illegitimate simply because someone says so is to trade in an ideology of exclusion. America did this for the majority of its history with the effect of excluding women, African Americans, and naturalized immigrants in favor of property-holding white men.

While the termination of the presidential commission might be seen as a rejection of the voter fraud meme, the official Statement of the Press Secretary is less than a disavowal:

Despite substantial evidence of voter fraud, many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry. Rather than engage in endless legal battles at taxpayer expense, today President Donald J. Trump signed an executive order to dissolve the Commission, and he has asked the Department of Homeland Security to review its initial findings and determine next courses of action.

This claim of "substantial evidence" seems to indicate that meme persists.

UPDATE: The President's tweets, which arguably have the status of official statements, confirm that the meme of voter fraud has not been abandoned:

 

January 3, 2018 in Current Affairs, Elections and Voting, Executive Authority, Fifteenth Amendment, Fourteenth Amendment, Race, Scholarship | Permalink | Comments (0)

Wednesday, October 4, 2017

Daily Read: Redistricting and Gerrymandering Primer

 Trying to get up to speed on the law of redistricting and gerrymandering after the oral argument in Gill v. Whitford

A terrific source is the Congressional Research Service Report, Congressional Redistricting Law: Background and Recent Court Rulings, by L. Paige Whitaker, from March 2017. 

Like all CRS reports, this one is relatively brief (23 pages) and written for an intelligent but not necessarily fully conversant audience. The discussion of partisan gerrymandering on pages 13-16 provides an excellent background to Whitford, including a discussion of Vieth v. Jubelirer (2004) and Justice Kennedy's pivotal role:

The deciding vote in Vieth, Justice Kennedy, concluded that while the claims presented in that case were not justiciable, he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” Further, Justice Kennedy observed, that while the appellants in this case had relied on the Equal Protection Clause as the source of their substantive right and basis for relief, the complaint also alleged a violation of their First Amendment rights. According to Justice Kennedy, the First Amendment may be a more relevant constitutional provision in future cases that claim unconstitutional partisan gerrymandering because such claims “involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” In contrast, Justice Kennedy noted, an analysis under the Equal Protection Clause emphasizes the permissibility of a redistricting plan’s classifications. When race is involved, Justice Kennedy reasoned, examining such classifications is appropriate because classifying by race “is almost never permissible.” However, when the issue before a court is whether a generally permissible classification—political party association—has been used for an impermissible purpose, the question turns on whether the classification imposed an unlawful burden, Justice Kennedy maintained. Therefore, he concluded that an analysis under the First Amendment “may offer a sounder and more prudential basis for intervention” by concentrating on whether a redistricting plan “burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.”

[footnotes omitted].  The CRS Report also has a great discussion of the three-judge court decision in Gill v. Whitaker.

In general, the report "analyzes key Supreme Court and lower court redistricting decisions addressing four general topics":

(1) the constitutional requirement of population equality among districts;

(2) the intersection between the Voting Rights Act and the Equal Protection Clause; (although the Report was produced before the Court's decision in Cooper v. Harris  it discusses the then-pending case);

(3) the justiciability of partisan gerrymandering; and

(4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.

An objective and great resource for anyone working on these issues in constitutional law.

 

October 4, 2017 in Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Teaching Tips | Permalink | Comments (0)

Thursday, September 28, 2017

Federal Judge Upholds New York's Prohibition of Ballot Selfies or Polling Site Photographs Against First Amendment Challenge

 In his opinion in Silberberg v. Board of Elections of New York, Senior District Judge P. Kevin Castel upheld the constitutionality of two New York provisions restricting photographs related to elections.  N.Y. Election Law §17-130(10) makes it a misdemeanor to show one's ballot after it has been prepared for voting to any person and has been interpreted to prohibit the taking and posting on social media of so-called "ballot selfies." Less centrally, the New York City Board of Elections had a policy that prohibits photography at polling sites. The challengers argued that both of these provisions infringed on their First Amendment rights.

Recall that Judge Castel had previously denied a motion for preliminary injunction against the ballot-selfie statute.  However, Castel's main rationale was based on the preliminary injunction standards, and heavily weighed the age of the statute (enacted in 1890) against the timing of the lawsuit (13 days before the election).

In the present opinion, Judge Castel, after a bench trial, more carefully analyzed the First Amendment claims. On the N.Y. Election Law §17-130(10) challenge, he concluded that despite the age of the statute, it plain language, underlying purpose, and likely legislative intent all supported the interpretation that the statute did prohibit ballot-selfies.  He then concluded that the statute did restrict political speech and was thus subject to strict scrutiny.

Judge Castel relied in large part on Burson v. Freeman (1992) in which the Court upheld a prohibition of campaigning within 100 feet of a polling place, noting that the Tennessee statute at issue in Burson was also first enacted in 1890 and "intended to combat the same evils that the 1890 New York statute was intended to combat; vote buying and voter intimidation." Judge Castel found that both of these interests were compelling as well as actual.  Distinguishing the recent First Circuit decision in Rideout v. Gardner, Judge Castel reasoned:

Plaintiffs urge this Court to follow Rideout v. Gardner, where the First Circuit, in upholding the district court’s injunction against the enforcement of a New Hampshire statute updated in 2014 to specifically prohibit the sharing via social media of a digital photograph of a marked ballot, found that the statute did not address an “actual problem in need of solving.”  In that case, decided on summary judgment, virtually no specific evidence was presented regarding vote buying or voter intimidation in New Hampshire. In the present case, ample evidence has been presented regarding vote buying and voter intimidation in New York, both historic and contemporary. And New Hampshire is not New York City. New York elections were bought and sold for decades before the introduction of the Australian ballot reforms. The statute was an appropriate response to the political corruption in New York in 1890 and is a valid measure today to prevent that history from repeating itself.

 [citations omitted]

Miss_E._S._O'Brien_putting_her_vote_into_the_box_at_the_City_Hall_Brisbane_1947_(27895206401)Judge Castel also found the criminalization was narrowly tailored, again relying in large part on Burson. Castel also noted that the challengers had put forth no acceptable alternative and also discussed the issue of "social coercion," reasoning that employers and other organizations could use the ballot selfie to "enforce political orthodoxy."

As an alternative ground, Judge Castel concluded that the election statute was not necessarily subject to strict scrutiny because although it was a content-based restriction, it occurred in a non-public forum. The polling site was not a public forum: the sites are "opened by the government only for the specific purpose of enabling voters to cast ballots and are not historically open for public debate or speech."  Relatedly, the ballot itself is not a public forum, relying on cases such as Burdick v. Takushi (1992). Judge Castel then found that the restrictions were "reasonable."

In a few pages, Judge Castel dispatched the challenge to the City's unwritten policy of prohibiting photography at polling places.  Judge Castel found this 20 year old policy was content-neutral and again relied on the finding that the polling sites were not public fora. However, even if the sites were public fora, there were ample alternative means for political expression.

Judge Castel therefor rendered final judgment for the government defendants, allowing for appeal to the Second Circuit.  Given the First Circuit's opinion in Rideout with a contrary result, this may be the next step to a circuit split on the issue of ballot selfies.

[image via]

September 28, 2017 in Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Friday, September 22, 2017

Court Rebuffs Challenge to New Jersey's Bail Reform Law

Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.

The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.

The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.

The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."

Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)

Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.

The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:

Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.

As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)

Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."

As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.

September 22, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (1)

Wednesday, September 20, 2017

Arizona Supreme Court Accords Parental Status to Same-Sex Married Partner

 In its opinion in McLaughlin v. McLaughlin (Jones), the Arizona Supreme Court interpreted the United States Constitution to require that the statutory presumption of parentage applies to a woman in a same-sex marriage in the same way as would to a man in a different-sex marriage.

The Arizona Supreme Court relied on the United States Supreme Court's 2015 decision in Obergefell v. Hodges as well as the Court's per curiam opinion a few months ago in Pavan v. Smithreversing the Arkansas Supreme Court's divided decision to deny a same-sex parent's name be listed on the child's birth certificate.  The Arizona Supreme Court in McLaughlin, echoing Pavan, quoted Obergefell as constitutionally requiring same-sex married couples be afforded the “constellation of benefits the States have linked to marriage.”

The majority opinion of the Arizona Supreme Court, authored by Chief Justice Scott Bales, rejected the interpretation of Obergefell advanced by Kimberly McLaughlin, the biological mother, that "Obergefell does not require extending statutory benefits linked to marriage to include same-sex couples; rather, it only invalidates laws prohibiting same-sex marriage."  Instead, Chief Justice Bales wrote that that such a "constricted reading is precluded by Obergefell itself ad the Supreme Court's recent decision in Pavan v. Smith."  Moreover, as in Pavan, the statute itself did not rest on biology but sought to sideline it.  The marital presumption assigns paternity based on marriage to the birth mother, not biological relationship to the child.  Thus, any differential treatment cannot be justified and the statute was unconstitutional as applied.

As a remedy, Judge Bales' opinion concluded that the extension of the presumption rather than striking the presumption was proper, relying on yet distinguishing the Court's recent decision in Sessions v. Morales-Santana.  It was on this issue that one Justice dissented, contending that the court was rewriting the statute.  Two other Justices wrote separately to concur on the remedy issue, noting that the majority must follow the United States Supreme Court and "circumstances require us to drive a remedial square peg into a statutory round hole," but "nothing in the majority opinion prevents the legislature from fashioning a broader or more suitable solution by amending or revoking" the statute.

Perhaps the Arizona legislature will see fit to abolish the marital presumption for all children?

1600px-Fountain_of_the_Mothers_of_Macedonia

 image via

 

September 20, 2017 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

Sunday, September 3, 2017

Tenth Circuit Recognizes Substantive Due Process Right for Child Placed in Father's Custody

 In its unanimous panel opinion in D.T. v. Patton (and the Denver Department of Health and Human Services), the Tenth Circuit recognized a claim for substantive due process and rejected qualified immunity based on a social worker's removal of the adolescent child, D.T., from his mother and recommending to the court that D.T. be placed with his father, who sexually abused him.

The court distinguished the landmark case of DeShaney v. Winnebago County Department of Social Services (1989), in which the United States Supreme Court held, in somewhat similar circumstances, that state officials are not liable for private-violence under the Fourteenth Amendment.  The court relied on the "danger-creation" exception to the DeShaney doctrine, which allows liability if  a state actor affirmatively acts to create, or increase a plaintiff’s vulnerability to, danger from private violence." The court cited the Tenth Circuit's 2001 decision in Currier v. Doran, noting that "all circuits" have carved out a similar exception (in addition to the special-relationship exception), although the United States Supreme Court has not ruled on such exceptions.  

Writing for the majority, Judge Scott Matheson extensive opinion discussed both DeShaney and Currier, including the elements developed in Currier:

  • the charged state entity and the charged individual actors created the danger or increased plaintiff’s vulnerability to the danger in some way;
  • plaintiff was a member of a limited and specifically definable group;
  • defendants’ conduct put plaintiff at substantial risk of serious, immediate, and proximate harm;
  • the risk was obvious or known;
  • defendants acted recklessly in conscious disregard of that risk; and
  • such conduct, when viewed in total, is conscience shocking.

Candlelight_Master_Young_Boy_SingingJudge Matheson's opinion then analyzed analyzed each of these.  Of central importance was the fact that the social worker knew of the father's previous conviction of attempted sexual assault on a minor, his step-daughter, as well as the father's violation of probation for contacting her and his failure to fulfill his sex offender treatment with regard to that conviction, in addition to "other charged offenses including misdemeanor wrongs to minors and misdemeanor domestic violence."  The social worker omitted these facts as well as her concerns about them from the court because of her supervisor's comments and her resultant fear she would be terminated from her employment if she shared these facts.  Moreover, she failed to investigate D.T.'s situation once he was placed in his father's home, and recorded her visits to the home that did not actually occur.

On qualified immunity, the court found that Currier clearly established a right that she violated. The court rejected the social worker's arguments attempting to draw lines between her pre-placement and post-placement conduct. The court also rejected the social worker's claims to avoid responsibility by sharing it with her "team" or assigning it to her supervisor.  The court found that she was the major actor and withheld facts from her team.  And while her supervisor might also be liable,

Ms. Patton’s reasons for deleting parts of her initial report to the juvenile court that outlined her concerns about T.D.’s placement with Mr. Duerson (i.e., to avoid being fired) support that she knew of the danger posed to T.D. in Mr. Duerson’s home and that she consciously disregarded that risk.

The court thus affirmed the grant of summary judgment to D.T. by the district judge.

Concurring, Judge Mary Beck Briscoe, who has been on the Tenth Circuit since 1995, expressed her belief that Currier was wrongly decided in 2001 and conflicts with DeShaney. For Judge Briscoe,

As a general matter, I find it hard to conclude that a social worker can be “responsible for” the independent decision of a judge who ultimately orders a change of custody. But, even if we assume such responsibility exists, we cannot transform omissions or failures to act into affirmative conduct merely by considering them “in the general context of” a custody recommendation. The only affirmative act that could be found in Currier is the recommendation itself, which, in my view is no different from the affirmative recommendation in DeShaney that Joshua be returned to his father’s custody. . . . This makes the state the permanent guarantor of a child's safety.

Yet the United States Supreme Court failed to grant certiorari in Currier and there is little here to make it likely that a petition for certiorari would not have the same result.

[image "Young Boy Singing" circa 1650 via]

 

September 3, 2017 in Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Opinion Analysis, Sexuality | Permalink | Comments (0)

Tuesday, August 22, 2017

District Judge Finds Arizona Anti-Ethnic Studies Law Violates Fourteenth and First Amendments

 In his opinion in González v. Douglas, United States Circuit Judge A. Wallace Tashima, sitting by designation in the District of Arizona, found that Arizona Revised Statutes §§15-111 and 15-112, the so-called anti-ethnic studies law eliminating the Tucson Unified School District's Mexican-American Studies (MAS) program violated the Fourteenth and First Amendments.

Recall that the law, passed in 2010, prohibits any school or charter school from including in its program of instruction any courses or classes that:

  • Promote resentment toward a race or class of people; 
  • Are designed primarily for pupils of a particular ethnic group; or
  • Advocate ethnic solidarity instead of the treatment of pupils as individuals

Recall also that in 2013, Judge Tashima upheld most of the statute in a facial challenge based on the First and Fourteenth Amendments on summary judgment.

On appeal, in Arce v. Douglas, the Ninth Circuit concluded that subsections (3) and (4) of the statute, while not facially discriminatory, raised Equal Protection Clause issues because of evidence of their discriminatory purpose in enactment or enforcement, and found there might be First Amendment viewpoint discrimination, and remanded the case.

In his opinion on remand, Judge Tashima found both an equal protection and First Amendment violation after a non-jury trial in an opinion with extensive findings of fact. As the Ninth Circuit had instructed, Judge Tashima considered the equal protection issue regarding racial intent in light of the Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) factors:

  • (1) the impact of the official action and whether it bears more heavily on one race than another;
  • (2) the historical background of the decision;
  • (3) the specific sequence of events leading to the challenged action;
  • (4) the defendant’s departures from normal procedures or substantive conclusions; and
  • (5) the relevant legislative or administrative history.

Judge Tashima's opinion carefully analyzes each of the factors. He noted that the anonymous blog posts of  then-Senator John Huppenthal, who  was chairman of the Senate Education Accountability and Reform Committee at the time the statute was passed, were "the most important and direct evidence that racial animus infected the decision to enact A.R.S. § 15-112." Judge Tashima rejected the defendants' argument that Huppenthal’s public statements, which were facially neutral as to race, should be considered more probative of his true intent. Instead,

The blog comments are more revealing of Huppenthal’s state-of-mind than his public statements because the guise of anonymity provided Huppenthal with a seeming safe-harbor to speak plainly. Huppenthal’s use of pseudonyms also shows consciousness of guilt. Had Huppenthal, a public official speaking in a public forum on a public issue, felt that his inflammatory statements were appropriate, he would not have hidden his identity. 


 In looking at the legislative history, Judge Tashima also focused on Huppenthal, who along with other officials used "code words" to refer to Mexican-Americans.  These code words included “Raza,” “un-American,” “radical,” “communist,” “Aztlán,” and “M.E.Ch.a,” were employed as derogatory terms. "In Huppenthal’s own words, the term “Raza” became “shorthand for . . . communicating with Republican primary voters” in the Tucson community." Then, considering the application of the statute to the Tucson program, Judge Tashima noted that Huppenthal had become Superintendent of Public Instruction, with an enforcement process rife with irregularities.  Essentially, it seemed that Huppenthal and other officials, believed they knew what really happened in the classrooms, with no need to investigate or believe evidence contrary to their preconceived notions.  In sum, "the passage and enforcement of the law against the MAS program were motivated by anti-Mexican-American attitudes."

On the First Amendment claim, Judge Tashima relied upon Island Trees Union Free Sch. Dist. No. 26 v. Pico (1982), that there may be a  First Amendment violation if the reasons offered by the state, "though pedagogically legitimate on their face, in fact serve to mask other illicit motivations."  Judge Tashima found that while the "stated policy" of the statute was to "reduce racism in schools, which is a legitimate pedagogical objective," the plaintiffs' argument that this was only a pretextual objective, and that the "statute was in fact enacted and enforced for narrowly political, partisan, and racist reasons was valid, "because both enactment and enforcement were motivated by racial animus" as found in deciding the Fourteenth Amendment claim.

 Given the previous rulings and Judge Tashima's extensive findings of fact including on credibility, the ruling that the enforcement of the statute is unconstitutional may be the final chapter in the lengthy saga of Arizona's anti-ethnic studies statute.
 
Painel_Paulo_Freire
 
[ image: Painel Paulo Freire by Luiz Carlos Cappellano via]
 
 

August 22, 2017 in Courts and Judging, Equal Protection, First Amendment, Fourteenth Amendment, Race | Permalink | Comments (0)

Second Circuit Rules Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

 In its opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, a divided panel of the Second Circuit affirmed the district judge's holding that the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment.

As the opinion by Judge Barrington Parker states:

We arrive at essentially the same conclusion as the district court. Specifically, we agree that: (i) the Ordinance restricts speech based on its content and is therefore subject to the First Amendment; and (ii) the Ordinance fails the Central Hudson test because it is an overbroad commercial speech prohibition.

Like the district judge, the Second Circuit carefully applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980). The court rejected the Town's argument that "each proposed employment transaction by a day laborer whom the Ordinance targets would be an under-the-table illegal employment arrangement, in violation of immigration, tax, and labor laws," and thus concerned illegal activity removing it from Central Hudson's first prong. Instead, the court quoted the district judge's interpretation that the ordinance clearly applied to any person.The court also noted the similar conclusion by the Ninth Circuit in its 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.  

Us-ny)oybIn applying the remainder of the Central Hudson test, while the Second Circuit majority found that there was a substantial interest in traffic safety and that the ordinance sought to directly advance that interest, it concluded that the ordinance was not narrowly drawn: "The Ordinance does not require any connection between the prohibited speech—solicitation of employment—and the asserted interest—traffic and pedestrian safety." Moreover, the court also found

it significant that the Ordinance does not apply to the most common forms of solicitation involving the stopping of vehicles on public rights of way, such as the hailing of a taxi or a public bus. These exemptions strongly suggest that in the great majority of situations, stopping a vehicle on a public right of way creates no inherent safety issue. Entirely prohibiting one speech-based subset of an activity that is not inherently disruptive raises the question whether the Town’s actual motivation was to prevent speech having a particular content, rather than address an actual traffic and pedestrian congestion issue.

Thus, the majority concluded that the ordinance violated the First Amendment.

The majority also affirmed the district judge's conclusion that the plaintiff organizations had standing to challenge the ordinance; dissenting Judge Dennis Jacobs vehemently disagreed.  Judge Jacobs stressed that the Second Circuit disapproves of "representational standing," requiring that the organization have injury as an organization. He characterized plaintiff Centro de la Comunidad Hispana de Locust Valley (“Centro”) as an organization that barely exists except as a "vehicle" for the litigation. (To call it an “unincorporated membership organization” is "a boast.").  He noted that the plaintiff, The Workplace Project, is not in the Town of Oyster Bay but in the Town of Hempstead and that any "supposed interference with the organizational mission of serving day laborers is conjectural, vague, and generalized." Without discussing Central Hudson, dissenting Judge Jacobs also concluded that while the majority's analysis has "persuasive force" as to a portion of the ordinance, its remedy of injunction against the entire ordinance was too broad.

Despite the split in the panel opinion, this may be the end of the litigation for the Oyster Bay ordinance.

 

August 22, 2017 in Cases and Case Materials, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Tuesday, August 15, 2017

Three Judge Court Finds Fault with Texas Redistricting Plan

 In its extensive and detailed opinion in Perez v. Abbott, a three judge court found problems including intentional racial discrimination in some aspects of Plan C235, the redistricting plan enacted by the Texas Legislature in 2013.

Authored by United States District Judge Xavier Rodriguez, joined by Chief Judge for the Western District of Texas District Judge Garcia, and Fifth Circuit Judge Jerry Smith, the panel opinion is another episode in the ongoing litigation regarding redistricting in Texas.  The opinion itself is an interlocutory order, with the remedial phase to follow.  Additionally, as in most redistricting litigation, there is a mix of determinations under the Voting Rights Act and the Equal Protection Clause.

Perhaps one of the more interesting issues in the case involves the court's findings regarding intentional discrimination. The court considered the Shaw v. Reno racial gerrymandering claims elaborating on the strict scrutiny standard if racial classifications could be proven.The court rejected the state's position that the discriminatory intent inquiry was limited to the drawing of district lines in 2013, but relying on Fifth Circuit precedent found that the challengers could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination." The court stated:

The decision to adopt the interim plans was not a change of heart concerning the validity of any of Plaintiffs’ claims . . . . {in previous litigation} and was not an attempt to adopt plans that fully complied with the VRA and the Constitution—it was a litigation strategy designed to insulate the 2011 or 2013 plans from further challenge, regardless of their legal infirmities. The letter from then-Attorney General Abbott to Speaker Joe Straus makes the strategy clear: Abbott advised that the “best way to avoid further intervention from federal judges in the Texas redistricting plans” and “insulate the State’s redistricting plans from further legal challenge” was to adopt the interim maps. Thus, Defendants sought to avoid any liability for the 2011 plans by arguing that they were moot, and sought to ensure that any legal infirmities that remained in the 2013 plans were immune from any intentional discrimination and Shaw-type racial gerrymandering claims.

The court did reject some of the challengers other claims, although finding that MALC (a Latino legislative caucus of Texas members in the House of Representatives) had standing, it rejected the claim that there was intentional discrimination in a specific "Latino opportunity district."

The court's summary of its more than 100 page opinion is useful:

  • In Part II, the Court concludes that the racially discriminatory intent and effects that it previously found in the 2011 plans carry over into the 2013 plans where those district lines remain unchanged. The discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy. The Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.
  • In Part IIIA, the Court concludes that Plaintiffs’ § 2 results claims in the DFW {Dallas-Fort Worth} area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part IIIB, the Court finds that the intentional discrimination found in DFW in Plan C185 is remedied in Plan C235, and that Plaintiffs failed to prove that any alleged cracking and packing that remains in DFW was intentionally dilutive.
  • In Part IV, the Court concludes that Plaintiffs’ § 2 results claims in the Houston area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part V, the Court finds that CD23 is a Latino opportunity district and there is no evidence of intentional discrimination/dilution.
  • In Part VI, the Court concludes that the Plan C235 configurations of CD35 and Nueces County/CD27 violate § 2 and the Fourteenth Amendment. These statutory and constitutional violations must be remedied by either the Texas Legislature or this Court.

 The court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered."

Map

 

UPDATE: Stay

August 15, 2017 in Courts and Judging, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, July 27, 2017

Federal Judge Finds First Amendment Violation by Politician Blocking Constituent on Facebook

 In a well reasoned opinion in Davison v. Loudon County Board of Supervisors, United States District Judge James Cacheris of the Eastern District of Virginia found that a politician who reacted to a constituent's comment on her "official" Facebook post by deleting his comment and banning him from her Facebook page violated the First Amendment.

Phyllis Randall, Chair of the Loudon County Board of Supervisors, maintained a Facebook page, entitled "Chair Phyllis J. Randall." She generally "uses the Facebook page to share information of interest with the County she serves," and Judge Cacheris provided several examples of the types of postings - - - precisely the type of postings one would expect - - - relating to proclamations such as "Loudon Small Business Week" and photographs of herself at conferences or other events. 

As a threshold matter, Judge Cacheris determined that there was state action.  This state action, however, could not be attributed to the defendant County Board of Supervisors, but only as to Phyllis Randall. Although the Facebook page was not the "property" of the county and would not revert to it when Randall left office, Randall "used it as a tool of governance." The judge found that Randall used the page to communicate with her constituents and the page reflects her efforts to "swathe" it with "the trappings of her office." Further, there were other government employees who assisted with the page.  Moreover, the specific act of banning the constituent Davison arose out of public rather than private circumstances.  Davison had apparently complained about the corruption of Randall's colleagues on the Board (the actual post, having been deleted by Randall, was not before the judge). 

Judge Cacheris referenced two of the Supreme Court's decisions last Term - - - Packingham v. North Carolina opinion, noting that Facebook had become a vital platform for speech and the exchange of ideas, and Matal v. Tam, noting that if anything is clear, "it is that speech may not be disfavored by the government simply because it offends." The judge held that it was unnecessary to decide what type of "forum" under the First Amendment the Facebook page might be, given that under no forum is viewpoint discrimination permissible. Here, the judge held, Randall clearly banned Davison because of the opinion he expressed.  There was no neutral policy (such as a ban on profanity) which was being neutrally applied.

Online_Privacy_and_the_Founding_Fathers
The judge observed that Davison was banned only for a short time - - - Randall retracted her ban the next morning - - - and that during this time, Davison had adequate means to communicate his message through other avenues.  Nevertheless, the judge stated that

Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards.  By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.

The judge issued a declaratory judgment in favor of Davison, who represented himself pro se, on the First Amendment claim, although the judge rejected a procedural due process claim that Davison had also advanced.

This case should serve as a wake-up call for politicians who use their "official" Facebook pages in ways that may violate the First Amendment.  The case may also be a harbinger of decisions to come in the ongoing litigation challenging the President's practice of "blocking" people on Twitter.

[image by Matt Shirk via]

July 27, 2017 in Current Affairs, First Amendment, Fourteenth Amendment, Opinion Analysis, Procedural Due Process, Recent Cases, Speech, Web/Tech | Permalink | Comments (1)