Thursday, August 25, 2016
The First Circuit ruled today in Wal-Mart Puerto Rico, Inc. v. Zaragoza-Gomez that Puerto Rico's amendment to its Alternative Minimum Tax discriminates against interstate commerce in violation of the Dormant Commerce Clause.
The ruling means that Puerto Rico can't apply its amended AMT against Wal-Mart, the largest private employer in Puerto Rico. The ruling also strikes a blow at Puerto Rico's effort to deal with its fiscal crisis and to prevent multi-state corporations doing business in Puerto Rico from shifting profits off-island by purchasing goods and services from related mainland entities at artificially inflated prices.
The amended AMT provided for a graduated corporate tax on goods sold or transferred to the corporate taxpayer by a related party or home office outside of Puerto Rico (for example, Wal-Mart's offices in the mainland US selling to Wall-Mart Puerto Rico). The top rate, 6.5%, applied to corporate taxpayers with $2.75 billion or more in gross sales. Wal-Mart was the only company big enough to be subject to this rate. Moreover, "[f]or a retailer like Wal-Mart PR that engages in a high volume of transactions with low profit margins on each item sold, this feature of the AMT can result in a particularly high tax liability relative to income."
Wal-Mart sued, and the First Circuit struck the tax. The court said that the tax plainly discriminated against interstate commerce, because it taxed only interstate transactions. Moreover, the court said that the amended AMT wasn't the only way (and therefore wasn't necessary) to meet Puerto Rico's interest in stopping profit shifting:
The amended AMT is a blunt and unnecessary overinclusive approach to combating profit-shifting abuse. It essentially establishes an irrebuttable presumption that all intercorporate transfers to a Puerto Rico branch from related mainland activities are fraudulently priced to evade taxes. In fact, the Secretary all but admits that there are narrower alternatives that target profit-shifting. . . . Having identified numerous less restrictive alternatives to advance Puerto Rico's legitimate local purpose, we hold that the AMT is a facially discriminatory law that does not survive heightened scrutiny under the dormant Commerce Clause.
Tuesday, August 23, 2016
The Ninth Circuit ruled in American Hotel and Lodging Association v. City of Los Angeles that federal labor law did not preempt LA's ordinance requiring a minimum wage for certain hotel workers in the city.
The ruling is a win for the city and for covered hotel workers. It denies the plaintiffs' motion for a preliminary injunction, but in terms that, as a practical matter, put an end to these claims. (The court ruled that federal law did not preempt, not only that that it likely did not preempt (the usual preliminary injunction standard). So the ruling tees up a city motion to dismiss these claims on the merits. And unless the plaintiffs have other claims, this ruling tees up a city motion to dismiss the entire case.)
The case arose when LA enacted an ordinance that required large hotels in the city, and smaller hotels near LAX, to pay workers $15.37 an hour (and provide other minimum benefits), unless they were covered by a collective bargaining agreement (the "collective-bargaining exemption"), and unless this wage would drive an employer into bankruptcy (the "hardship waiver"). American Hotel and Lodging Association and the Asian American Hotel Owners Association sued, arguing that the entire wage ordinance and the collective-bargaining exemption were preempted by the National Labor Relations Act, because they interfered with labor-management relations. The plaintiffs pointed to Machinists preemption (named for Int'l Ass'n of Machinists v. Wis. Emp't Relations Comm'n) which says that the NLRA implicitly preempts state restrictions on "self-help," like a strike or lock-out--things that "regulate the mechanics of labor dispute resolution." The plaintiffs moved for a preliminary injunction on this theory.
The Ninth Circuit flatly rejected the claim. The Ninth Circuit said that "[m]inimum labor standards, such as minimum wages, are not subject to Machinists preemption":
Such minimum labor standards affect union and nonunion employees equally, neither encouraging nor discouraging the collective bargaining processes covered by the NLRA. Minimum labor standards do technically interfere with labor-management relations and may impact labor or management unequally, much in the same way that California's at-will employment may favor employers over employees. Nevertheless, these standards are not preempted, because they do not "regulate the mechanics of labor dispute resolution."
The court said that minimum standards are merely background conditions of collective bargaining, not interferences with collective bargaining.
As to the collective-bargaining exemption, the court was even more direct, merely citing Lividas v. Bradshaw and its language that says that "familiar and narrowly drawn opt-out provisions" for collective bargaining agreements are valid, because they do not impact rights to collective bargaining.
Wednesday, August 17, 2016
The Seventh Circuit ruled this week that language in a state statute criminalizing the possession of cocaine near a "youth program center" was unconstitutionally vague. The ruling sends this case of hyper-aggressive prosecution back for resentencing (though the criminal law has been repealed).
The case arose when police arrested Walker Whatley at his father's home on an unrelated charge. The officer discovered a bag with just over three grams of cocaine in Whatley's pocket. Ordinarily, this would have constituted a Class C felony under state law, with a sentence of two to eight years. But because Whatley's dad lived 795 feet from the Robinson Community Church, Whatley was charged with a Class A felony of possessing more than three grams of cocaine within 1,000 feet of a "youth program center"--a charge that brought 20 to 50 years. Whatley was convicted and got 35 years--more than four times the maximum sentence for a Class C felony.
Whatley appealed through the state courts, and then brought a federal habeas claim. The district court rejected that claim, however, ruling that Whatley defaulted.
The Seventh Circuit reversed. The court ruled that the statute was unconstitutionally vague, because it defined "youth program center" as a facility with "regular" youth programs, and because "regular" didn't put a person of ordinary intelligence on notice of what was illegal. (The church hosted youth programs, but only a few times a week, and only for a few hours at a time.)
The court rejected the state court's reasoning that fair notice wasn't required, because the statute created strict liability; the court said that reasoning was "inconsistent with Supreme Court precedent that requires fair notice for all criminal statutes." "The lack of an intent element in the statute does not cure the vagueness problem; it makes it worse by making unknowing defendants absolutely liable for violating an indeterminate standard," that is, the definition of "youth program center."
The very harsh sentencing also played a factor:
In sum, a triad of factors convince us that the state courts were not simply wrong but unreasonable in applying federal law on vagueness in Whatley's case: (1) the use of the word "regular" in the definition of "youth program center" provides no objective standard, and thereby fails to place persons of ordinary intelligence on notice of the conduct proscribed and allows for arbitrary enforcement; (2) defendants are strictly liable for violating the terms of this nebulous sentencing enhancement, exacerbating the effect of the subjectivity; and (3) the consequences of violating this indeterminate strict liability provision are extreme: an increase in the sentencing range from 2-to-8 years to 20-to-50 years' imprisonment.
Monday, August 15, 2016
The Ninth Circuit ruled in Democratic Party of Hawaii v. Nago that the plaintiff failed sufficiently to prove that Hawaii's open primary violated its First Amendment right of association. The ruling dismisses the case and keeps the state's open primary system in place.
The Democratic Party of Hawaii challenged Hawaii's open primary system as a facial violation of its associational rights. But the Party declined to submit evidence in support (showing, for example, that cross-over primary voters would influence the positions of candidates and result in candidates not supported by the Democrats), and maintained its position that the courts could decide the claim as a pure matter of law.
The courts disagreed. The Ninth Circuit said that the plaintiff had to submit proof to show that an open primary system infringed on associational rights--that the claim turns on a question of fact. And because the Democrats failed to provide any proof, their facial challenge had to fail.
The Ninth Circuit today denied rehearing of its en banc decision in Peruta v. County of San Diego, upholding California's "good cause" requirement for a concealed carry permit against a Second Amendment challenge.
The ruling is a significant win for advocates of restricted and regulated concealed carry.
Recall that the full Ninth Circuit rejected the Second Amendment challenge to the "good cause" requirement earlier this summer. Plaintiffs petitioned for a rehearing, but the court denied it.
The ruling ends the case at the Ninth Circuit. The plaintiff's only option now is to petition for Supreme Court review. But without a ninth justice, the Court (if it accepted the case) would almost surely split 4-4, leaving the Ninth Circuit ruling in place--that is, leaving things exactly as they are now.
The plaintiffs petitioned for rehearing by arguing that the en banc majority mistakenly ruled that the Second Amendment doesn't protect a right to concealed carry (when the case was in fact about whether the "good cause" requirement infringed on the plaintiffs' right to carry at all outside the home); that the majority's approach conflicts with other courts; that the majority's approach "impermissibly relegates the Second Amendment to Second-class Status"; and that the "Decision Unnecessarily Intrudes on the Prerogatives of the State."
Today's two-page Order doesn't specifically address those claims; it simply rejects the plaintiffs' petition for rehearing.
The Ninth Circuit's case page is here, with all appellate court filings.
This year the American Constitution Society is doing something new at the AALS annual meeting in San Francisco: a public law workshop for junior-ish scholars (legal academics with 10 years or less in full-time teaching).
The announcement explains: "A committee composed of members of ACS’s Board of Academic Advisors will select 10 papers and each selected author will have the opportunity to discuss his/her paper in depth with two experienced scholars, from a group that includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler."
It's the afternoon of January 5th in San Francisco. Submissions are due October 15th. More information is available here.
Saturday, August 13, 2016
Check out the first of a planned six-part series on executive power under President Obama by Binyamin Appelbaum and Michael D. Shear at the NYT. The first part deals with federal regulations; here's a taste:
Once a presidential candidate with deep misgivings about executive power, Mr. Obama will leave the White House as one of the most prolific authors of major regulations in presidential history.
Blocked for most of his presidency by Congress, Mr. Obama has sought to act however he could. In the process he created the kind of government neither he nor the Republicans wanted--one that depended on bureaucratic bulldozing rather than legislative transparency. But once Mr. Obama got the taste for it, he pursued his executive power without apology, and in ways that will shape the presidency for decades to come.
Friday, August 12, 2016
The Sixth Circuit ruled this week in State of Tennessee v. FCC that the Federal Communications Commission lacked statutory authority to preempt states' laws that restricted municipalities from providing broadband Internet service outside their boundaries.
The ruling means that the FCC can't require states to permit municipalities to provide service outside their boundaries, at least in the Sixth Circuit, and at least unless and until Congress specifically authorizes the FCC to preempt in the Telecommunications Act of 1996.
Because areas outside the boundaries of these particular municipalities are unserved or under-served areas, the ruling also means that certain regions outside the municipalities' boundaries will continue to go with inadequate Internet service.
The case arose when Tennessee and North Carolina implemented restrictions on municipalities' ability to provide Internet service outside their territorial boundaries. Two municipalities in those states complained to the FCC, because they saw benefits to providing service, and thus wanted to provide service, outside their boundaries. The municipalities appealed to the FCC to preempt state laws restricting broader service.
The FCC responded by finding that broader service would serve the interests of the Telecommunications Act of 1996 (expanded broadband access, and all the benefits that this brings to communities), and by issuing an order preempting the portions of the state laws that prohibited municipalities from providing access beyond their boarders.
The states sued, arguing that the FCC lacked authority to preempt under the Act's preemption provision, Section 706. The court agreed.
The court said that the FCC's order ran headlong into the "Clear Statement Rule" and Nixon. Under the Clear Statement Rule, the FCC can't preempt a state action that allocates state decision-making; under Nixon v. Missouri Municipal League, that rule applies when a federal government preemption action "interpos[es] federal authority between a State and its municipal subdivisions," which, the Court said, "are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion." As the Sixth Circuit said,
Any attempt by the federal government to interpose itself into this state-subdivision relationship therefore must come about by a clear directive from Congress, and the FCC can only pick the decision maker here if there exists a clear statement to do so in Section 706.
According to the court, Section 706 contains no such clear statement.
So despite the Act's ambitious goals and broad delegation to the FCC to achieve those goals, the court said that the Act stops short of authorizing the FCC to preempt state laws restricting Internet access beyond a municipality's boarders.
Nothing in the ruling requires a state to adopt this kind of restriction, however, or forbids a state from specifically authorizing a municipality to expand access. But when it does--as Tennessee and North Carolina have done--the FCC cannot preempt it, at least in the Sixth Circuit, and at least unless and until Congress gives the FCC specific authorization to do so.
(The North Carolina case was in the Fourth Circuit when that court transferred it to the Sixth Circuit for consolidation with the Tennessee case.)
Thursday, August 11, 2016
The Seventh Circuit ruled today in Kristofek v. Village of Orland Hills that a police officer's allegation of official misconduct in the higher ranks was protected speech under the First Amendment.
The ruling reverses the district court on the point and on its companion ruling that the police chief enjoyed qualified immunity. But the court rejected the officer's municipal liability claim.
The case arose when a part-time police officer, Kristofek, complained to colleagues and then to the FBI that a driver that he cited and detained may have been released, and charges dropped, because of official misconduct. (The driver's mother, a former township trustee, successfully intervened with local politicians and the police on behalf of her son. Kristofek thought that this might constitute official misconduct, based on a misconduct training that he attended.) Police Chief Scully then fired Kristofek.
Kristofek sued, arguing that his termination in retaliation for protected speech violated the First Amendment, and that the township was liable under Monell. The district court granted summary judgment to the defendants.
The Seventh Circuit reversed on the First Amendment claim. The court ruled that Kristofek spoke as a private citizen on a matter of public concern when he complained to his colleagues and to the FBI, and that the Pickering balance favored his speech. The court also denied qualified immunity to Scully.
But the court rejected Kristofek's Monell claim, because Scully didn't have authority to unilaterally fire Kristofek or to set department firing policy.
The ruling sends the case back for proceedings consistent with the opinion. But it also assigns the case to a new judge.
Wednesday, August 10, 2016
The D.C. Circuit yesterday rejected a constitutional challenge to Security and Exchange Commission Administrative Law Judges, ruling that SEC ALJs are not "officers" or "inferior officers" whose appointments need to meet the requirements of the Appointments Clause.
The court also rejected a broadside attack against the way the D.C. Circuit analyzes whether any ALJ (SEC or not) is subject to the Appointments Clause.
The petitioner's challenge was novel and sweeping. A ruling in its favor could have been quite significant, potentially threatening the authority of SEC ALJs, certain ALJs in other agencies, and possibly even ALJs across the board (at least insofar as their appointments don't satisfy the Appointments Clause). But the petitioner's novel claims ran up against circuit law. The ruling is thus a decisive win, if not a totally unpredictable one, for the government.
The case turned on whether SEC ALJs are "officers" (who, under Article II, require presidential nomination and advice and consent of the Senate), "inferior officers" (who, under Article II, may be appointed by the President alone, the courts, or the head of a department, depending on what Congress says), or just employees (who are not covered by the Appointments Clause). Under circuit law, the line between "inferior officers" and employees, in turn, depends on (1) the significance of the matters resolved by the officials, (2) the discretion they exercise, and (3) the finality of their decisions.
The court said that decisions of SEC ALJs are not final under the third prong, and therefore SEC ALJs are employees, not subject to the Appointments Clause. That's because under the law the SEC itself makes the final decision, even if only by passively adopting an ALJ's decision. The court explained:
Until the Commission determines not to order review, within the time allowed by its rules, there is no final decision that can "be deemed the action of the Commission." As the Commission has emphasized, the initial decision becomes final when, and only when, the Commission issues the finality order, and not before then. Thus, the Commission must affirmatively act--by issuing the order--in every case. The Commission's final action is either in the form of a new decision after de novo review, or, by declining to grant or order review, its embrace of the ALJ's initial decision as its own. In either event, the Commission has retained full decision-making powers, and the mere passage of time is not enough to establish finality. And even when there is not full review by the Commission, it is the act of issuing the finality order that makes the initial decision the action of the Commission within the meaning of the delegation statute. . . .
Put otherwise, the Commission's ALJs neither have been delegated sovereign authority to act independently of the Commission nor, by other means established by Congress, do they have the power to bind third parties, or the government itself, for the public benefit.
The court went on to uphold the Commission's finding of liability and sanctions against the petitioner on other grounds.
Monday, August 8, 2016
Judge Rosemary Collyer (D.D.C.) on Friday dismissed a case by the Libertarian and Greens against the Commission on Presidential Debates and others challenging their exclusion from the 2012 presidential debates and seeking to participate in the 2016 debates.
The ruling is hardly a surprise, despite the plaintiffs' mighty efforts to navigate well settled precedent.
The Libertarians and Greens argued that their exclusion under the Commission's 15% rule (a candidate needs 15% support in the polls to participate) violated antitrust laws and the First Amendment. But Judge Collyer held that they lacked standing, and that they failed to state a claim.
Judge Collyer said that the plaintiffs lacked standing, because their injury (lack of electoral support) was too speculative and was not traceable to Commission action (on the First Amendment claim) and because their injury wasn't a harm to the market (on the antitrust claim).
Judge Collyer went on to say that the plaintiffs failed to state a claim, because the Commission isn't a government actor subject to the First Amendment (on the free speech claim) and because they failed to allege an injury to competition in a commercial market (on the antitrust claim).
Given the plaintiffs' attempts to navigate well settled First Amendment law, Judge Collyer's ruling sometimes reads like a law exam answer--covering everything from the public function exception to the state actor doctrine, to right-to-access laws, to forum analysis, to the Jaybird primaries.
Despite the plaintiffs' efforts, however, they still lost. The ruling means that the Libertarians and Greens won't be at the 2016 presidential debates, at least not by court order.
Thursday, July 21, 2016
The en banc Fifth Circuit yesterday ruled that Texas's voter-ID law, widely described as the most restrictive voter-ID law in the country, had a discriminatory effect in violation of Section 2 of the Voting Rights Act.
The ruling is a decisive victory for voting-rights advocates and opponents of Texas's voter-ID law. If the state appeals, it'll face an 8-member Supreme Court (assuming the Court would take the case). If the Supreme Court were to divide 4-4, the Fifth Circuit's ruling stays in place. (The Texas AG hasn't said yet what he plans to do, if anything.)
The sharply divided ruling sends the case back to the district court to fashion a remedy for the November elections.
Recall that Texas's voter-ID law was denied preclearance under the VRA, but Texas implemented the requirements as soon as the Supreme Court struck the coverage formula for preclearance in Shelby County.
This suit challenged the law under Section 2. The district court ruled that the law had a discriminatory purpose and a discriminatory effect in violation of Section 2.
The Fifth Circuit yesterday walked that ruling back, but just slightly. The court said that the district court erred in its analysis of discriminatory purpose, and sent the case back for further proceedings on that ground (because there may be sufficient evidence of discriminatory purpose, but the district court analyzed it the wrong way). But the court went on to agree with the district court that the law had a discriminatory effect.
Given the timing of the ruling (so soon before the fall elections), the Fifth Circuit instructed the district court to fashion a remedy for the law's discriminatory effect as to "those voters who do not have SB 14 ID or are unable to reasonable obtain such identification," with an eye toward one of the legislature's purposes, reducing voter fraud. That remedy could include something like voter registration cards, or an indigency exception to the ID requirement. The Fifth Circuit also instructed the lower court to "consider the necessity of educational and training efforts to ensure that both voters and workers at polling places are capable of making use of whatever remedy the district court selects."
The Fifth Circuit did not rule on the constitutional claims.
Monday, July 18, 2016
Judge Ellen Segal Huvelle (D.D.C.) ruled last week in State national Bank of Big Spring v. Lew rejected a Recess Appointments Clause challenge to Consumer Protection Financial Bureau Director Richard Cordray. At the same time, the court declined to rule on the plaintiffs' separation-of-powers challenge to the Bureau itself.
The ruling is a decisive win for Director Cordray and actions he took during his period of recess appointment (before he was confirmed by the Senate). But it leaves open the question whether the CFPB itself it unconstitutional--a question that the D.C. Circuit could answer any day now.
This is just the latest case in a spate of challenges to Cordray's appointment and the CFPB. We posted on this case when the D.C. Circuit ruled that the plaintiffs had standing.
The plaintiffs argued that Director Cordray's recess appointment in January 2012 violated the Recess Appointments Clause. And they had good reason to think they were right: the Supreme Court ruled in NLRB v. Noel Canning that the President's recess appointments to the NLRB on the same day he appointed Cordray violated the Clause.
But Judge Huvelle didn't actually rule on that argument. That's because President Obama re-nominated Cordray in 2013, and the Senate confirmed him; he then (as validly appointed head of the CFPB) issued a notice in the Federal Register ratifying all the actions he took during his recess-appointment period. Judge Huvelle said that under circuit law the ratification cured any actions during this period that would have been invalid because of his invalid recess appointment.
But at the same time, the court punted on the plaintiffs' separation-of-powers challenge to the CFPB itself. That argument--which says that the CFPB invalidly combines legislative, executive, and judicial powers in the hands of a single individual--is currently pending at the D.C. Circuit in another case, PPH Corp. v. CFPB, and the court could rule any day now.
Judge Huvelle's ruling is a clear win for the CFPB and Cordray. But the real heart of opponents' claims against the Bureau are the ones now at the D.C. Circuit--that the CFPB violates the separation of powers.
Saturday, July 16, 2016
The D.C. Circuit yesterday upheld a lower court's dismissal of David Patchak's long-running attempt to stop the Match-E-Be-Nash-She-Wish Band's casino in Wayland Township, Michigan, based on a federal law that stripped the courts of jurisdiction over the case.
The ruling ends this dispute in favor of the Band and its casino, with little or no chance of further appeals.
The case started when David Patchak sued the Interior Department for putting certain land in Wayland Township in trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians to build a casino. Patchak, a neighboring property owner, argued that Interior lacked authority under the Indian Reorganization Act and sought damages for economic, environmental, and aesthetic harms.
The case went to the Supreme Court on justiciability grounds, and the Court ruled in 2012 that Patchak had prudential standing.
After that ruling came down, Congress enacted a stand-alone law that affirmed that Interior had authority to put the land in trust and divested the courts of jurisdiction over Patchak's case. The act, in relevant part, read:
NO CLAIMS -- Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.
The district court then dismissed Patchak's case, and yesterday the D.C. Circuit affirmed.
The court first rejected Patchak's claim that the jurisdiction-stripping provision violated the separation of powers. The court looked to the familiar distinction (recently sharpened by the Court's ruling in Bank Markazi) between a congressional act that applies a new legal standard in pending civil cases (which is OK) and an act that "prescribes a rule of decision" in those cases (which is not). The court said that this act falls squarely in the former class, even though Congress set the legal standard in a separate, stand-alone statute (and not the statute at issue in the case, the IRA).
The court next rejected Patchak's various individual-rights claims. The court said that the Act did not violate Patchak's First Amendment right to access the courts, because that right isn't absolute, and it yields to Congress's power to set the jurisdiction of the lower federal courts. The court said that the Act also did not violate Patchak's due process rights (because the legislative process provided Patchak any process that he might have been due) and the Bill of Attainder Clause (because the Act wasn't punishment).
Given the Supreme Court's powerful reaffirmation of congressional authority of federal court jurisdiction in Bank Markazi, the D.C. Circuit's ruling almost certainly ends Patchak's challenge.
Thursday, July 14, 2016
Justice Ginsburg's comments about presidential candidate Donald Trump have caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview. (Amy Howe for SCOTUSBlog has a great round-up of commentary on the controversy; Howard Bashman also has a good list).
But interestingly, Justice Scalia - - - as well as Justice Kennedy - - - broached the possibility of a Donald Trump presidential candidacy more than 25 years ago, in the 1989 oral arguments in Austin v. Michigan Chamber of Commerce. The Court in Austin upheld the constitutionality of a Michigan statute that prohibited corporations, excluding media corporations, from using general treasury funds for independent expenditures in connection with state candidate elections, rejecting both First Amendment and Equal Protection claims, and recognizing a government interest in preventing corruption or the appearance of corruption in the political arena from large corporate treasuries. Both Scalia and Kennedy dissented. Twenty years later, the Court, 5-4, with Kennedy authoring the opinion and Scalia joining, overruled Austin in the controversial 2010 Citizens United v. FEC.
Near the beginning of the Austin oral arguments, Justice Scalia uses Donald Trump, alluding to the wealth that would allow him to self-finance a campaign, as a comparison to corporate financing:
General Caruso, why is there a greater risk to the political process from an independent political expenditure by a family corporation, closely held corporation, eight family members, and they want to spend the corporation's money for a particular candidate whom they think will favor their business.
That... that is prohibited by this.
But if Donald Trump wants to come in and spend as much money as he likes, that is perfectly all right.
Why wouldn't it make much more sense, if you are worried about the problem, to establish an amount of money as the criterion?
A few moments later, Kennedy follows:
Then it... it seems to me that Justice Scalia's question indicates that you have to give a specific reason why a corporation of that type presents more [of] a danger than Donald Trump, and I didn't really hear the answer to that question.
Louis J. Caruso: Well, the thing of it is--
Anthony M. Kennedy: And it has to be answered in the terms of a compelling interest that is narrowly tailored.
Did Justice Kennedy actually call Donald Trump a "danger" in 1989?
h/t Navid Khazanei
July 14, 2016 in Campaign Finance, Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, News, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)
Monday, July 11, 2016
In a just-published article, Black Lives Matter and Respectability Politics in Local News Accounts of Officer-Involved Civilian Deaths: An Early Empirical Assessment, 2016 Wisconsin Law Review 541, ConLawProf Osagie K. Obasogie (pictured below) and UC Hastings law student Zachary Newman present a compelling discussion of how news media - - - and by extension the general public - - - engage in the politics of respectability with regard to allegations of police misconduct, focusing on the conduct or character of the victim.
The authors argue that although " sustained media attention to Black Lives Matter may lead some to conclude that journalists have become more sensitive to how respectability politics can lead to inaccurate reporting and encourage more balanced descriptions of these events, our qualitative assessment of the selected data suggests that journalists’ reporting of these incidents continues to reflect a troubling respectability politics that minimizes the lives lost and overstates the legitimacy of police use of deadly force."
In looking at news reports from 2013 until July 2015, the authors conclude that
overall, as a qualitative matter, there is a notable discursive consistency across pre– and post–Black Lives Matter reporting on officer-involved killings, suggesting that the movement’s concerns over race and respectability are not reflected in journalists’ accounts. This overall finding is empirically supported by three persistent themes throughout the data: (1) a strong commitment to colorblindness in discussing the race of the parties involved, (2) the dominance of the police perspective in reporting these incidents, and (3) continued use of criminalizing language unrelated to the incident itself to characterize the victim’s respectability.
The authors insights could be extended to more recent events, including those of this past week, which will be sure to still be on the minds of law students in our classes and this article could be a great introductory reading for 1L students.
Additionally, more must-read discussions of respectability politics including the events of the last week is over at Race and the Law Prof Blog, including Atiba Ellis's, On Respectability, the Dallas Shootings, #BlackLivesMatter, and Reasoned Discourse which links to that blog's online symposium on Respectability Politics.
July 11, 2016 in Current Affairs, Equal Protection, Fourteenth Amendment, Interpretation, News, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (4)
Thursday, July 7, 2016
The Ninth Circuit ruled this week that a prosecutor is not entitled to absolute immunity for swearing out a false declaration in support of a subpoena for medical records of an unindicted third-party witness in a murder trial.
At the same time, however, the court said that the prosecutor is entitled to absolute immunity for issuing the subpoena and using the medical records at trial.
The case arose when a prosecutor sought Detrice Garmon's medical records in preparation for Garmon's son's murder trial. Garmon was set to testify as an alibi witness in her son's trial, but she was scheduled to undergo brain surgery with an uncertain outcome before the trial date. So she gave a deposition. She also authorized her medical plan to disclose to the prosecution medical records related to her brain tumor.
But the prosecutor in the case instead swore out a declaration that Garmon was the murder victim, and issued a subpoena for all of Garmon's medical records. The prosecutor then used Garmon's unredacted records to impeach her at trial, and Garmon's son was convicted.
Garmon sued, but the trial court held (among other things) that the prosecutor enjoyed absolute immunity.
The Ninth Circuit reversed. The court applied the distinction between a prosecutor's advocacy functions (triggering absolute immunity) and a prosecutor's administrative or investigative functions (triggering the lesser qualified immunity). The court said that the prosecutor's declaration was more investigative, and only gets qualified immunity, while the prosecutor's subpoena and use of the records at trial was more advocacy, triggering absolute immunity.
The ruling means that the prosecutor in the case has some protection, but not absolute protection, against Garmon's civil rights suit based on the false declaration.
The court also rejected Garmon's argument that absolute immunity is unavailable against claims of unindicted third-party witnesses. The court's ruling aligns it with the Second, Sixth, and Seventh Circuits. There's no circuit that goes the other way.
The case now goes back to the trial court, where Garmon will have a chance to amend her complaint to square with Monell on municipal liability.
Tuesday, June 28, 2016
Judge Says Timber Company is Likely, but not Substantially Likely, to Have Standing to Challenge BLM Timber Sales
Judge Richard J. Leon (D.D.C.) ruled today that a timber company has a sufficient likelihood of showing standing to withstand a motion to dismiss, but not sufficient to get a preliminary injunction, in just the latest order in this six-year litigation thicket challenging the government's timber sales in the Pacific Northwest and the habitat for the northern spotted owl.
The ruling means that the company's case against the Bureau of Land Management can continue (because it has a sufficient likelihood of showing standing to withstand the government's motion to dismiss), but that it will not now get a preliminary injunction ordering the government to sell more timber (because it doesn't have a sufficient likelihood of showing standing to satisfy the "substantial likelihood of success" test for a preliminary injunction).
The six-year old case--or, really, series of cases--involves timber companies' and individuals' challenges to BLM's failure to offer for sale a declared amount of timber from two western Oregon districts in violation of the Oregon and California Railroad and Coos Way Wagon Road Grant Lands Act of 1937. (The government declined to sell a full quota in order to protect the spotted owl.)
In earlier phases of litigation, the government successfully moved to dismiss based on lack of standing. The corporations and individual officers came back with new allegations supporting standing, which formed the basis of today's ruling.
Judge Leon said that only one timber corporation, Rough & Ready, likely satisfied standing requirements to survive the government's motion to dismiss. That's because Rough & Ready, alone among the plaintiffs, alleged with particularity that the BLM's failure to sell timber caused it to close its doors and that its requested relief (an order requiring BLM to sell more timber) would redress that harm (and allow it to re-open).
But Judge Leon went on to say that Rough & Ready didn't show a "substantial likelihood" of standing (a higher standard than a mere likelihood of standing), and thus couldn't show a "substantial likelihood on the merits" in order to get a preliminary injunction that would require the government to sell more timber. Here's Judge Leon:
While the allegations supporting Rough & Ready's standing suffice to satisfy the lower "likely" standard required at [the] motion-to-dismiss phase, they fail to rise to the level of the "substantial likelihood" required at the preliminary injunction phase. In particular, although Rough & Read plausibly claims that its injuries are likely redressable as described above, its "hope to be able to reopen the mill and resume operations" if and when the BLM offers its full ASQ of timber sales is insufficient to establish substantial likelihood of redressability. That is, while the various allegations taken as a whole establish Rough & Ready's injuries are likely redressable, they simply fail to provide the basis necessary to establish the requisite substantial likelihood.
Judge Leon seemed to leave open the possibility that Rough & Ready could later establish this substantial likelihood, however, and perhaps successfully reapply for a preliminary injunction at a later time.
In the meantime, the case can proceed on the merits, though without a preliminary injunction.
Judge Leon dismissed the other plaintiffs' claims for lack of standing--mostly because (unlike Rough & Ready's claims) they weren't specific enough.
Thursday, June 23, 2016
The Supreme Court today deadlocked 4-4 in the case challenging President Obama's deferred action plan for certain unauthorized immigrants, or DAPA. The Court's ruling in United States v. Texas affirms the Fifth Circuit's ruling in the case. (Our preview of the case is here.)
While the Court's non-decision today has no precedential value, as a practical matter it upholds a nationwide preliminary injunction against enforcement of DAPA issued by district Judge Hanen. The ruling thus effectively halts enforcement of DAPA and sends the case back to Judge Hanen for proceedings on the merits. Here's the Fifth Circuit's summary of its ruling (which, again, is upheld under today's 4-4 split):
Reviewing the district court's order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.
Note that the Fifth Circuit ruling doesn't touch the Take Care Clause issue--an issue that the Supreme Court asked the parties to brief and argue, even though the government didn't seek review on this issue. Note, too, that the Fifth Circuit upholds a district judge's preliminary injunction that applies nationwide (and not, as would ordinarily be the case, in the judge's district only).
We don't know the justices' positions on particular issues in the case--standing, APA--because the per curiam order (as is customary for a 4-4 split) simply says that "[t]he judgment is affirmed by an equally divided Court." Still, this appears to be one of those cases where Justice Scalia's absence matters: he would have likely voted with the four (likely the conservatives, although we don't know for sure) to uphold the Fifth Circuit, creating a five Justice majority opinion that would have created precedential law.
The government may petition the Court (now) for rehearing (after a ninth justice is confirmed).
Thursday, June 9, 2016
A sharply divided en banc Ninth Circuit ruled today that the Second Amendment does not protect concealed carry. The ruling, a win for the state and for local regulation of concealed carry, upholds two California local restrictions on obtaining a concealed carry permit.
The case is a significant victory for supporters of gun regulations, and a significant defeat for gun-rights advocates.
It seems unlikely that the Supreme Court will grant review quite yet, however, unless there are five justices who would vote to affirm. That's because a 4-4 split on the Court would have no effect and simply leave today's Ninth Circuit ruling in place. (The Court split 5-4 in both Heller and McDonald. In McDonald, the more recent of the two, all of the current conservatives were in the majority, and all the current progressives were in dissent (except Justice Kagan, who replaced Justice Stevens).
The case involved California's concealed carry permitting law. In general, California does not allow concealed carry. But individuals can apply for a permit if they can show "good cause." California law authorizes county sheriffs to establish and publish policies defining good cause.
The plaintiffs in the case said the good cause standards in San Diego and Yolo Counties violated the Second Amendment, because those standards prohibited them from obtaining a concealed carry permit (and thus from carrying a concealed weapon).
The en banc Ninth Circuit disagreed. Drawing on the historical approach in Heller and McDonald, the court held that the Second Amendment doesn't even protect concealed carry. The court traced the history (starting with a directive issued by Edward I in 1299 through rulings in the nineteenth century) and concluded that "[t]he right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment." And because concealed carry isn't protect, the court said, "any prohibition or restriction a state may choose to impose on concealed carry--including a requirement of 'good cause,' however defined--is necessarily allowed by the Amendment."
The court went on to say that if it had to address whether the "good cause" requirements satisfied the Second Amendment (which it didn't, because it held that concealed carry wasn't protected at all by the Second Amendment), then it would uphold those requirements under intermediate scrutiny because they "promote a substantial government interest that would be achieved less effectively absent the regulation." Judge Graber, joined by Chief Judge Thomas and Judge McKeown, made this point in concurrence.
The court did not say whether the Second Amendment protects some right to carry firearms in public (i.e., open carry); it only said that the Second Amendment didn't protect concealed carry.
Judge Callahan wrote a principal dissent, joined by Judges Silverman, Bea, and N.R. Smith. Judges Silverman and N.R. Smith also wrote their own dissents. Judge Callahan argued in part that the majority erred by defining the scope of the claimed right to narrowly--as the "right to carry a concealed firearm," as opposed to a more general "right to carry a firearm in self-defense outside the home." Judge Callahan cited Obergefell, Lawrence, and Griswold in support of the argument that "[t]he Court has defined other constitutional rights broadly as well."