Friday, September 19, 2014
The Eleventh Circuit ruled this week in Taylor v. City of Gadsden that a city's increase in the mandatory contribution paid by public employees to the city's pension fund did not violate the Contract Clause of the U.S. or Alabama Constitutions.
The case arose when the City of Gadsden increased the mandatory contribution rate to the city pension fund by city firefighters from 6 percent of their salary to 8.5 percent of their salary in order to cover some of the city's pension shortfall. The city took the action pursuant to a state law that allowed, but did not require, cities to increase the mandatory contributions of public employees to their pension funds. Firefighters sued, claiming that the increase violated the Contract Clause of the U.S. Constitution and the parallel provision in the Alabama Constitution (interpreted in lock-step with the federal constitutional provision).
The Eleventh Circuit ruled that the Contract Clause didn't even apply to the city, because the city's act was not "an exercise of legislative power"; instead, it was merely a "particular item of business coming within [its] official cognizance . . . relating to the administrative business of the municipality," a "creature of state statute," but not exercising the legislative power of the state. Because Gadsden wasn't "passing any 'law,'" it "was, at bottom, 'doing nothing different than what a private party does,'" and was not subject to the Contract Clause.
The court said that even if Gadsden was subject to the Contract Clause, there was no violation here. That's because there was no contract, and relevant statutory provisions did not create an obligation not to raise the contribution rate. (Any statutory obligation went to the benefits under the pension plan, not the contributions to it.) Finally, the court said that "at most . . . the City has breached a contract, not impaired one." And "[b]ecause no state action has denied plaintiffs the possibility of a damages remedy, 'it would be absurd to turn [the] breach of contract . . . into a violation of the federal Constitution.'"
Norm Ornstein reviews Second Circuit Chief Judge Robert Katzmann's new book, Judging Statutes, over at The Atlantic. Along the way, Ornstein says why courts should use legislative intent in interpreting ambiguous statutory language--like the Affordable Care Act's language that led to Halbig v. Burwell.
According to Ornstein, Judge Katzmann is "the clearest heir to both Corwin and Hand" because of his "judicial temperament, keen mind, and respect for the law and politics." In his new book, Judge Katzmann sets out a case for using legislative intent in statutory interpretation. He draws on some of his own cases to illustrate "the ways in which dutiful judges can come to opposite conclusions." Still, as Ornstein writes, "in most controversial cases, there are clear ways to look at legislative history, the words of a bill's architects or managers, and the overall body of the law to divine the plain purpose."
As to Halbig, recall that a three-judge panel of the D.C. Circuit ruled that the IRS exceeded its authority under the Affordable Care Act in extending tax credits to individuals who purchased health insurance on a federally operated exchange. According to the court, that was because the ACA provides for tax credits for purchasers on state exchanges, but not federally operated exchanges. The Fourth Circuit issued a ruling the same day upholding the credits.
The D.C. Circuit used a narrow textualist approach; the Fourth Circuit used a broader textual approach and legislative intent. The D.C. Circuit case is now going en banc.
Wednesday, September 17, 2014
A three-judge panel of the Seventh Circuit last week threw a wrench into the November election in Wisconsin by staying an earlier district court ruling and injunction against the state's voter ID law, thus allowing the law to take effect immediately. The problem: some people have already cast absentee ballots without providing ID. More: some 11,800 voters requested absentee ballots before the panel's ruling, and thus under the assumption that they wouldn't have to provide ID. According to the Milwaukee Journal Sentinel, the director of the state Government Accountability Board is directing clerks to contact voters who requested an absentee ballot and tell them they need to provide an ID. He said that absentee ballots from voters who do not provide IDs won't be counted.
And this says nothing about the inevitable confusion at the polls.
There's another problem, the original one that sparked the litigation in the first place. That is, some 300,000 registered voters in Wisconsin, mostly poor and disproportionately racial minorities, lack a qualifying ID for voting, according to U.S. District Court Judge Lynn Adelman, who ruled in an exhaustive opinion last April that the law was unconstitutional and enjoined its enforcement.
The Seventh Circuit panel order undoes Judge Adelman's injunction. The panel wrote that
[a]fter [Judge Adelman's] decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. This reduces the likelihood of irreparable injury . . . . The panel has concluded that the state's probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court.
While the panel's brief, one-page order is not a final ruling on the merits (that will come "in due course"), it presages the likely final merits ruling.
But the most recent move by the plaintiffs may preempt that. The plaintiffs asked the full en banc Seventh Circuit to review the panel's decision. The full bench would have to act quickly, because the absentee election is already underway.
The Seventh Circuit is the same court that upheld Indiana's voter ID law, later also upheld by the Supreme Court in Crawford v. Marion County. (That law, according to the panel last week, is "materially identical" to Wisconsin's law). But Judge Posner (who was on the panel in the Indiana case, but not on the panel in the Wisconsin case) wrote last year that Indiana's voter ID law is "now widely regarded as a means of voter suppression rather than fraud prevention," suggesting that his opinion on voter ID changed. We may find out, if the full Seventh Circuit takes up the case.
This year's MacArthur Fellowships included some well known advocates for social justices whose work involves constitutional law.
Mary Bonauto (pictured below) is one of the 21 people selected as a 2014 MacArthur Fellow for her work as a "civil rights lawyer."
Here's the beginning of the announcement:
Mary L. Bonauto is a civil rights lawyer whose powerful arguments and long-term legal strategies have led to historic strides in the effort to achieve marriage equality for same-sex couples across the United States. The Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) since 1990, much of her early work focused on adoption and parenting, censorship, hate crimes, and discrimination in jobs and public accommodations.
More description as well as a video on the MacArthur site here.
LawProf Sarah Deer (pictured below) is another of the 21 recepients.
Here's the beginning of the announcement:
Sarah Deer is a legal scholar and advocate leveraging her deep understanding of tribal and federal law to develop policies and legislation that empower tribal nations to protect Native American women from the pervasive and intractable problem of sexual and domestic violence.
More description as well as a video on the MacArthur site here.
Tuesday, September 16, 2014
Senior Judge David Sam (C.D. Utah) ruled last week that the Religious Freedom Restoration Act prevented the court from compelling a FLDS Church member from answering questions related to a Labor Department investigation into child labor violations.
The ruling does not necessarily end the Labor Department investigation, though. Indeed, as Judge Sam wrote, DOL may be able to get the information from other sources.
The case arose when DOL sought an order compelling a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, or FLDS, to answer questions in the course of an investigation over the use of child labor in harvest activities at a pecan ranch in Hurricane, Utah. The FLDS member, Vernon Steed, invoked the First Amendment (free exercise), objecting to DOL's questions about the internal affairs of the FLDS Church. Judge Sam wrote that the claim sounded more like a Religious Freedom Restoration Act claim, and applied the higher level of scrutiny under the RFRA.
Judge Sam wrote first that a court order would substantially burden Steed's religious beliefs, because Steed said that he made a vow "not to discuss matters related to the internal affairs or organization of the [FLDS]," and that giving testimony would violate that vow. DOL challenged the sincerity of this belief, but Judge Sam, citing Hobby Lobby, didn't question it.
Judge Sam then wrote that DOL failed to satisfy the RFRA standard (again citing Hobby Lobby) because it had other ways to get the information it sought. For example, DOL could get information from the corporation or individuals who contracted to manage the ranch.
The ruling may not shut down the investigation, because DOL may, indeed, be able to get the information it needs from these other sources. But even if it can, the ruling underscores the heightened, strict scrutiny standard under the RFRA (over the lower, rational basis standard in Smith) , and illustrates its reach.
Friday, September 12, 2014
Senate Republicans unanimously blocked the campaign finance constitutional amendment proposed by Democrats. The measure, S.J. Res. 19, failed 54 to 42, short of the 60 votes necessary to close debate and move to a vote on the merits.
The proposed amendment would have overturned Citizens United and allowed Congress and state legislatures to regulate campaign contributions and spending. It read:
Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
Republicans argued that the measure infringed on free speech. Senator Ted Cruz captured the point when he said that SNL producer "Lorne Michaels could be put in jail under this amendment for making fun of any politician." That seems pretty unlikely, but still possible under the language. Politifact gave it a "half-true," based on interviews with several ConLawProfs.
Tuesday, September 9, 2014
According to The Hill, President Obama told congressional leaders today that he doesn't need congressional approval for his campaign against ISIS, details to be announced tomorrow night.
While he told the congressional leaders he would welcome congressional action that demonstrated a unified front, the president told the bicameral, bipartisan group "he has the authority he needs to take action against [ISIS] in accordance with the mission he will lay out in his address," according to the White House.
Participants in the meeting--the House Speaker and Minority Leader, and the Senate Majority and Minority Leaders--didn't say anything about the need for congressional approval afterward.
The Senate Health, Education, Labor and Pensions Committee held a hearing today on President Obama's nomination of Sharon Block to the NLRB. Block was one of the recess-appointees to the NLRB that the Supreme Court struck this summer in Noel Canning. Her nomination this time is going through the regular Appointments Clause process.
If confirmed, Brown would replace Nancy Schiffer and become the third Democrat on the five-member Board.
Republicans oppose Brown because of her political ideology and the direction of the Board with President Obama's appointments. They also see her appointment as an end-run around Noel Canning (given that Noel Canning struck her recess appointment).
Still, the full Senate will likely confirm her. That's because of the filibuster rules change that allows most presidential nominees to move forward to an up-or-down majority vote in the Senate.
Of course, if nominees like Brown hadn't faced a Republican filibuster in the first place, President Obama wouldn't have recess-appointed them; instead, they would have been confirmed through the ordinary appointment process--exactly what's happening to Brown now. In that way, after all the drama and attention to President Obama's recess appointments in Noel Canning, we're right back where we might have started: majority (not super-majority) confirmation of presidential nominees through the ordinary appointment process.
Thursday, September 4, 2014
The full D.C. Circuit today agreed to rehear Halbig v. Burwell, in which a three-judge panel of the court previously struck the IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income requirements. Today's order also vacates that earlier ruling. It means that the full, en banc D.C. Circuit will get a bite at the apple, and that the earlier panel ruling is wiped from the books. The court will hear arguments on December 17.
Recall that the earlier panel ruling striking the tax credit was in direct conflict with a Fourth Circuit ruling the same day upholding the tax credit. Today's order also removes that circuit split.
We last posted on the case, with background explanation, here. In short, the case involves an IRS rule that extends tax credits to purchasers of health insurance on a federally operated exchange. Opponents of the rule argue that the plain text of the ACA limits credits to purchasers on a state-operated exchange. The government argues that the broader text of the ACA and its purposes show that the credit applies to purchasers on both state and federal exchanges.
A ruling striking the credits for purchasers on a federal exchange would deal a major blow to the Affordable Care Act and its goal of universal coverage, and could put lower-income purchasers in a pinch. That's because purchasers in states that declined to establish their own exchanges (and thus triggered the federal government to establish a federal exchange) wouldn't qualify for a credit, and may not be able to afford insurance without it, yet would still be required to purchase it. An amendment to the ACA could easily solve the problem (again, if a court struck the credits for purchasers on federal exchanges), but congressional opponents of the ACA, and thus Congress, would never go for it--at least unless and until these cases are resolved in favor of the government (when the point would be moot, anyway).
Wednesday, September 3, 2014
The Second Circuit heard oral arguments yesterday in a challenge to the NSA program involving mass collection of telephone call details under Section 215 of the Patriot Act. The full argument was broadcast on C-Span and is available here. (The embed code wasn't cooperating.)
The case, ACLU v. Clapper, is one of three cases challenging the program now pending in the circuit courts; the other two are Smith v. Obama (in the Ninth Circuit) and Klayman v. Obama (in the D.C. Circuit). The Electronic Frontier Foundation has a backgrounder here, with links to case materials; the ACLU has a backgrounder on Section 215 here; the ACLU's page on ACLU v. Clapper is here.
Challengers in the cases argue that Section 215 violates the First and Fourth Amendments, but face justiciability questions before the courts will get to the merits. That's because Section 215 prohibits a telecommunication company subject to a 215 order from telling its customers about it, so without more a customer wouldn't know. Still, the district courts in Smith and Klayman ruled that the plaintiffs had standing based on the sheer breadth of the program.
September 3, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)
Tuesday, September 2, 2014
A sharply divided three-judge panel of the Seventh Circuit today upheld Indiana's "right to work" law against federal preemption and other constitutional challenges. The ruling means that Indiana's law stays on the books--a serious blow to unions in the state. But the division invites en banc review and even Supreme Court review of this bitterly contested issue.
The case, Sweeney v. Pence, tested the constitutionality of Indiana's "right to work" law, enacted in February 2012. That law prohibits any person from requiring an individual to join a union as a condition of employment. As relevant here, it also prohibits any person from requiring an individual to "[p]ay dues, fees, assessments, or other charges of any kind or amount to a labor organization" as a condition of employment. In short, it prohibits mandatory "fair share" fees--those fees that non-union-members have to pay for the collective bargaining activities of a union (but not the union's political activities), in order to avoid free-riding.
The law deals a blow to unions, because it allows non-members to escape even representational fees (or "fair share" fees, those fees designed to cover only a union's collective bargaining and employee representational costs, but not political expenditures), even as federal law requires unions to provide "fair representation" to all employees, union or not. This encourages "free riders," non-member employees who take advantage of union activities but decline to pay for them.
The plaintiffs, members and officers of the International Union of Operating Engineers, Local 150, AFL-CIO, argued that the National Labor Relations Act preempted Indiana's law and that the law violated various constitutional individual-rights protections. The preemption argument turned on two provisions of the NLRA, Sections 8(a)(3) and 14(b). Section 8(a)(3) provides,
It shall be an unfair labor practice for an employer . . . by discrimination in regard to hire or tenure or employment or any term or condition of employment to encourage or discourage membership in any labor organization.
Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein . . . .
Section 14(b) says,
Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.
The Union argued that under this language a state may ban an agency-shop agreement (a requirement that all employees pay full union dues, whether or not they are members), but not a lesser union-security arrangement (like a fair share requirement).
The majority disagreed. The court said that Indiana had broad rights to restrict union-security agreements, including fair share. It first pointed to Supreme Court cases (Retail Clerks I and II) that held that Section 14(b) allowed a state to ban an agency-shop agreement. It then read the term "membership" in Section 14(b) quite narrowly, to include non-members who were required to pay fair share fees. (That's right: the court said that non-members were part of the "membership" under Section 14(b).) The court said that the final clause of Section 14(b) therefore leaves room for states to ban complete union-security agreements (like agency shops) and also lesser union-security agreements (like fair share). It said that some states had these laws on the books when Congress passed Section 14(b), and that some states have them on the books today. "The longevity of many of these statutes, coupled with the lack of disapproval expressed by the Supreme Court, suggests to us that Indiana's right-to-work law falls squarely within the realm of acceptable law."
The majority also rejected the plaintiffs' individual-rights arguments, under the Takings Clause, the Contracts Clause, the Ex Post Facto Clause, the Equal Protection Clause, and the Free Speech Clause.
Judge Wood dissented. She argued that under the majority's approach, Indiana's law amounted to an unconstitutional taking (because, along with the duty of fair representation, it required the union to do work for non-members without pay). She said the better approach (under constitutional avoidance principles)--and the one more consistent with the language of the NLRA and Retail Clerks I and II)--said that the NLRA preempted Indiana's law.
The sharp disagreement on the panel, the uncertain state of the law, and the contentiousness of the underlying issue all suggest that this case is ripe for en banc review and, ultimately, Supreme Court review. If so, this case could be the next in a recent line of anti-union rulings chipping away at fair share.
Friday, August 29, 2014
The Ninth Circuit ruled this week in Lacano Investments v. Balash that state sovereign immunity barred a suit against a state official for his determination that streambeds claimed by the plaintiffs were owned by the State of Alaska. The court said that the relief plaintiffs requested--declaratory relief and an injunction prohibiting the defendants from claiming title to the lands beneath the waterways--was the funcational equivalent of quiet title, a claim that under Idaho v. Coeur d'Alene Tribe of Idaho does not fall within Ex parte Young.
The case arose when an Alaskan official determined pursuant to the federal Submerged Lands Act of 1953 that certain streambeds over which the plaintiffs claimed ownership were in fact owned by the State of Alaska. The plaintiffs said that they owned the streambeds pursuant to a federal land patent granted the year before Alaska became part of the Union. When the official then determined that the streambeds belonged to the state, the plaintiffs sued, seeking declaratory and injunctive relief.
Under Ex parte Young, the plaintiffs could sue a state official for injunctive relief and dodge state sovereign immunity under the Eleventh Amendment. But the Supreme Court limited Ex parte Young in Coeur d'Alene, holding that the Eleventh Amendment barred a suit that was "the functional equivalent of a quiet title action." That's because that kind of claim "implicate[d] special sovereignty interests"--the historical and legal importance of submerged lands to state sovereignty. The Coeur d'Alene Court explained that "if the Tribe were to prevail, Idaho's sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its Treasury."
The plaintiffs argued that Coeur d'Alene was distinguishable, because the plaintiffs in that case sought to divest the state of its title (and not, as here, the other way around), and because a ruling for the plaintiffs in Coeur d'Alene would have deprived the state of all regulatory power over the property (and not so here). The court didn't bite, however. The court also rejected the plaintiffs' argument that Coeur d'Alene is no longer good law. Instead, the court applied Coeur d'Alene, ruled that the plaintiffs' claim was quiet-title-like, and held that the claim was therefore barred by state sovereignty under the Eleventh Amendment.
The ruling means that the plaintiffs' case is dismissed.
Thursday, August 28, 2014
The Tenth Circuit yesterday upheld an NLRB order by a Board panel that included Craig Becker, one of President Obama's recess appointments to the Board. The court suggested that the parties might have challenged the NLRB order under the Supreme Court's ruling this summer in Noel Canning (which held that President Obama lacked authority under the Recess Appointment Clause to appoint certain members to the Board). But because the parties didn't raise the argument--and instead actively steered the court away from the point--the court didn't rule on the Board's quorum, and instead upheld the order on the merits.
The order at issue came from an NLRB panel that included Craig Becker, a recess appointee during a two-plus week recess of the Senate. The Supreme Court wrote in Noel Canning that a Senate recess less than ten days is "presumptively too short" to allow the President to make an appointment pursuant to the Recess Appointment Clause. Under that language, Becker's appointment isn't presumptively invalid. But the Tenth Circuit also suggested that it wasn't necessarily valid:
To be sure, the Supreme Court stopped short of validating every appointment made during a recess ten days or longer. One might even read the majority opinion as leaving the door open for future challenges to some such appointments: from the proposition that shorter than ten days is usually too short it doesn't follow that ten days or longer is always enough.
Still, the court didn't touch the issue, because the parties didn't argue it. ("We don't often raise arguments to help litigants who decline to help themselves, especially when the litigants have consciously waived the arguments by steering us away from them and toward the merits instead.") Instead, the court upheld the order on the merits.
Sunday, August 24, 2014
The Ninth Circuit ruled last week in International Society for Krishna Consciousness of California, Inc. (ISKCON) v. City of Los Angeles that the ban on continuous or repetitive solicitation at Los Angeles International Airport--including a ban on solicitation in parking lots and sidewalks--did not violate the First Amendment.
This final ruling ends this long-running case, which worked its way back and forth between the trial court, appeals court, and state courts for nearly two decades.
The provision at issue, Section 23.27(c) of the Los Angeles Administrative Code, bans solicitation in the LAX terminal, sidewalks, and parking lots. ISKCON wished to solicit in these areas and argued that the ban violated free speech.
The Ninth Circuit applied familiar forum analysis and ruled that the terminal, surrounding sidewalks, and parking lots were non-public forums and that the government's reasons for the ban--reducing congestion and fraud at LAX--were legitimate. The court said that changes to security and the resulting reduction in space available for passengers since 9/11 made the government's interests stronger than the interests in Int'l Soc'y for Krishna Consciousness, Inc. v. Lee (Lee I) (upholding the Port Authority's ban on solicitation in New York City's airport terminals). ISKCON goes a step farther than Lee I, however, in that it specifically upholds the ban on sidewalks and parking lots, too. As to sidewalks, the court said,
In all events, [the government's] interest in reducing congestion only heightened along LAX's narrow, oft-crowded sidewalks, which span but twelve feet in certain areas. Furthermore, [the government's] interest in protecting against fraud and duress is just as strong on the sidewalks as it is inside the terminals.
The ruling aligns the Ninth Circuit with the Eleventh, which upheld a similar ban in ISKCON Miami, Inc. v. Metropolitan Dade County.
The Ninth Circuit ruled last week in Williams v. State of California that a state law requiring residential community care service providers to accompany developmentally disabled clients to religious services did not violate the First Amendment. The very brief per curiam ruling simply incorporated the district court's order granting the state's motion to dismiss.
The plaintiffs in the case, residential community care facilities and employees, sued the state after the state cited the plaintiffs for violating their obligations to a client--in particular, for failing to accompany a client to Jehovah's Witness services in violation of the state's Lanterman Developmental Disabilities Services Act. Several of the service providers' employees objected to accompanying the client to services, because, they argued, to do so would violate their own religious freedom.
The district court's opinion, adopted in whole by the Ninth Circuit, took the plaintiffs to task for sloppy pleading and argument, and went on to reject their Free Exercise and Establishment Clause claims. As to the Free Exercise claim, the district court held that the Lanterman Act was a law of general applicability, and had a rational basis--"to allow developmentally disabled persons to approximate the lives of nondisabled persons." As to the Establishment Clause claim, the court said that the Act had a secular purpose (same as above), a primary effect that neither advances nor inhibits religion (because it applies to all manner of community activities, religious or not, and to all religions equally), and no excessive government entanglement with religion.
The plaintiffs' claims were weak, even non-starters, from the get-go, but they didn't help themselves with sloppy pleading, undeveloped arguments, and an apparent complete lack of response to certain court requests. All this made it easy for the Ninth Circuit simply to adopt the district court's ruling as its own and to affirm the dismissal of the case.
Wednesday, August 20, 2014
Judge Christopher R. Cooper (D.D.C.) earlier this week in Rufer v. FEC granted a plaintiff's motion to send its First Amendment challenge to the restriction on contributions to political parties to the en banc D.C. Circuit for consideration. But in the same ruling, Judge Cooper denied a motion to temporarily enjoin the law.
The seemingly mixed ruling means that the court sees the challenge as both including "substantial, non-frivolous constitutional claims that are not clearly foreclosed by Supreme Court precedent" (thus meeting the statutory standard for appointment of an en banc circuit court under FECA) and "in tension with forty years of Supreme Court jurisprudence upholding contribution limits to political parties" (thus failing the likely-to-succeed-on-the-merits standard for a preliminary injunction).
In plain language, the ruling seems to reflect the court's view that while current Supreme Court doctrine supports contribution limits to political parties, that's likely to change.
He's probably right.
But Judge Cooper's decision is not a ruling on the merits. It only sends the constitutional question to the en banc D.C. Circuit ("after developing an appropriate factual record"), thus fast-tracking it to the Supreme Court, and presages the likely end result with this Supreme Court: the federal limit on contributions to political parties will almost surely go down.
The case was brought by the national and state Republicans and Libertarians challenging the federal restriction on base contributions to political parties. The plaintiffs argued that they could segregate contributions for independent expenditures in separate accounts, and therefore avoid quid pro quo corruption or its appearance--the two government interests that the Court has said justify contribution limits to candidates and political parties. Judge Cooper said it better:
This case sits at the confluence of two currents of First Amendment jurisprudence concerning federal campaign finance: the constitutional permissibility of limiting contributions to federal candidates and political parties, and the constitutional impermissibility of limiting contributions to independent entities whose campaign expenditures are not coordinated with candidates or parties. Plaintiffs rest their challenge on the latter current; the FEC resists it on the former.
Judge Cooper ruled that the plaintiffs' free speech challenge to the contribution limits raised significant enough questions to justify sending the issue to the en banc D.C. Circuit, a procedure available under FECA designed to get important issues quickly before a full circuit court and ultimately the Supreme Court. But at the same time, Judge Cooper denied a plaintiff's motion for a preliminary injunction, ruling that well settled (for now) Supreme Court precedent meant that the plaintiffs couldn't show that they were likely to succeed on the merits.
Taken together, the two sides of this ruling mean that the court understands the current state of the law, but can also read the tea leaves--which say that the law's likely to change.
Judge Cooper's decision isn't a ruling on the merits. Still, it fast-tracks the case to the en banc D.C. Circuit and then, inevitably, to the Supreme Court. It also presages the likely result in this Supreme Court: contribution limits to political parties will almost surely go down.
Judge James E. Boasberg (D.D.C.) ruled earlier this week in Sikhs for Justice v. Singh that while Manmohan Singh enjoyed head-of-state immunity from suit in U.S. federal court for acts committed while he was Prime Minister of India, that immunity did not extend to acts he took earlier, when he was Finance Minister. They ruling means that the plaintiff's case against Singh for acts he took while Finance Minister can move forward, but that Singh is immune from suit for acts he took while Prime Minister.
Plaintiffs Sikhs for Justice alleged that Singh tortured and killed Indian Sikhs during his time as Prime Minister and before, when he was Finance Minister. The group filed suit in the D.C. District while Singh was Prime Minister, but Singh then left office (or, rather, got voted out). The government filed a Suggestion of Immunity, arguing that Singh enjoyed head-of-state immunity for acts he committed as Prime Minister. But it didn't state a position on immunity for acts before Singh became Prime Minister, when he was Finance Minister.
Judge Boasberg ruled that Singh wasn't immune for those acts. In a case of apparent first impression, Judge Boasberg said that "[w]hile Singh's alleged acts as Finance Minister are not 'private' per se, they did not occur in the course of his official duties as head of state; accordingly they are not encompassed within the purview of head-of-state immunity."
Judge Boasberg, however, adopted the government's position and granted immunity for acts taken while Singh was Prime Minister. Judge Boasberg also ruled that Singh enjoyed risidual immunity for those acts after he left office.
The upshot is that the plaintiff's case can proceed against Singh for acts he took as Finance Minister, but not for acts he took as Prime Minister, even after he left office.
The University of the District of Columbia Law Review just issued its symposium edition on the right to counsel in civil cases, or Civil Gideon. The full list of articles and links to the full texts are here. John Pollock, staff attorney at the Public Justice Center in Baltimore and coordinator of the National Coalition for the Civil Right to Counsel, wrote the introduction, with a background on the Civil Gideon movement and updates on progress; a direct link to Pollock's article is here.
Monday, August 18, 2014
The Second Circuit ruled today in U.S. v. Erie County, New York that a lower court's order sealing compliance reports on the treatment of prisoners in Erie County violated the First Amendment. The ruling means that intervenor New York Civil Liberties Union will have access to the compliance reports.
This First Amendment dispute arose out of an earlier case brought by the United States against Erie County, New York, over the County's treatment of its prisoners. In particular, the government alleged that Erie County failed to protect inmates from harm, failed to provide them adequate mental health care or medical care, and failed to engage in adequate suicide prevention.
The district court approved a settlement in that earlier case that included the appointment of compliance consultants. Pursuant to the settlement, the consultants would file written reports with the court every six months on the County's progress, or not, in remedying the issues that led to the suit and settlement. The court dismissed the suit but retained jurisdiction until the terms of the settlement were fulfilled. The settlement agreement allowed either party to move to reopen the case at any time ("should issues requring [the] Court's intervention arise"), and either party could move for relief, or the court could issue relief itself. The County moved, and the court ordered, that the reports be sealed.
The NYCLU moved to intervene and unseal the compliance reports. The district court granted the motion to intervene, but denied the motion to unseal the reports, ruling that they were akin to settlement negotiation documents and therefore not subject to the First Amendment right of access to judicial documents. The NYCLU appealed.
The Second Circuit reversed and ruled that the reports were covered by the First Amendment right of access. The court held that both experience and logic suggest that the reports ought to be available to the public, and that the County's only reason for maintaining the seal--that they are part of a settlement agreement--didn't have any relevance here, because, after all, the case already settled.
Here's the court:
Erie County wishes to keep the reports which measure its progress, or regress, under seal and, therefore, out of public view. Yet every aspect of this litigation is public. The United States Department of Justice is a public agency, which brought a claim before a public court . . . arguing that a public government, Erie County, failed to meet constitutional requirements in operating two public institutions, the Erie County correctional facilities. And, critically, although a settlement is now in place, the public court retains jurisdiction over the dispute, and indeed may be moved, or move itself, to reinstate civil proceedings. In a case where every aspect and angle is public, Erie County seeks, nonetheless, to keep the compliance reports under the darkness of a seal. But the First Amendment does not countenance Erie County's position. Neither experience nor logic supports sealing the documents, and the District Court erred in concluding otherwise.
Wednesday, August 13, 2014
Judge Thomas D. Schroeder (M.D. N. Carolina) rejected the plaintiffs' motions for a preliminary injunction against portions of the North Carolina Voter Information Verification Act. But at the same time, Judge Schroeder rejected the state's motion to dismiss the case. The ruling means that the case will go forward, but the law will stay in place in the meantime. That'll give the plaintiffs a second bite at the apple, later, at trial; but the voting changes in the law will affect the upcoming fall elections.
Recall that North Carolina, a previously partially covered jurisdiction under Section 5 of the Voting Rights Act, moved swiftly to tighten its voting laws, and to impose new restrictions on voting in the state, right after the Supreme Court struck Section 5 in Shelby County. Plaintiffs immediately filed suit, challenging some of these restrictions under Section 2 of the VRA, and the Fourteenth, Fifteenth, and Twenty-Sixth Amendments. The United States filed its own case making similar arguments and asking the court for appointment of federal observers to monitor future elections in North Carolina under Section 3 of the VRA. The court consolidated the cases.
The plaintiffs, taken together, challenged these provisions: Reduction of early voting from 17 to 10 days; elimination of same-day registration during the early voting period; a prohibition on the counting of provisional ballots cast outside of a voter's correct voting precinct on Election Day; expansion of allowable poll observers and voter challenges; elimination of discretion of county boards of election to keep polls open an additional our on Election Day in "extraordinary circumstances"; and elimination of pre-registration of 16- and 17-year olds.
In a lengthy and detailed ruling, Judge Schroeder concluded that the plaintiffs stated a claim (and thus denied the defendant's motion to dismiss), but didn't demonstrate a strong enough likelihood of success (on their challenge to the same-day registration and out-of-precinct provisional voting claims) or irreparable harm (on the other claims) to qualify for a preliminary injunction:
The only election slated before trial is the November 2014 general election. As to [the Act's] reduction of early-voting days from 17 to ten, the parties acknowledge, and history demonstrates, that turnout for the fall election will likely be significantly lower than that in presidential years. The evidence presented, in light of the law's requirements for counties to provide the same number of aggregate voting hours as in the comparable previous election under prior law, fails to demonstrate that it is likely the State will have inadequate polling resources available to accommodate all voters for this election. The court expresses no view as to the effect of the reduction in early voting on other elections. As to the voter ID provisions, Plaintiffs only challenged the "soft rollout," which the court does not find will likely cause irreparable harm, and not the photo ID requirement, as to which the court also expresses no view.
Judge Schroeder also rejected the governments request for appointed observers.
Still, Judge Schroeder recognized the strength of the plaintiffs' claims in light of North Carolina's history, at one point writing, "Simply put, in light of the historical struggle for African-Americans' voting rights, North Carolinians have reason to be wary of changes to voting laws."