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.
Monday, September 1, 2014
The latest installment in the continuing saga of HB 2, Texas' restrictive abortion law, occurred late Friday with Judge Lee Yeakel enjoining the admitting privileges requirement and the ambultory-surgical-center requirement in his 21 page opinion in Whole Woman's Health Center v. Lakey.
Recall that a panel of the Fifth Circuit in March upheld the admitting privileges provision of controversial Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis, after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional.
This new opinion considers the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement.
In considering the testimony and evidence in the bench trial, Judge Yeakel found that the "experts’ testimony substantially contradicted each other and, predictably, reached opposing conclusions," noting that this is "the nature of expert testimony." But the judge did use some of that testimony, as well as carefully considering the parties' stipulations.
The court concludes that the act’s ambulatory-surgical—center requirement, combined with the already in-effect admitting-privileges requirement, creates a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women. The obstacles erected for these women are more significant than the “incidental effect of making it more difficult or more expensive to procure an abortion.” [citing Casey]. The court concludes that the overall lack of practical access to abortion services resulting from clinic closures throughout Texas as a result of House Bill 2 is compelling evidence of a substantial obstacle erected by the act.
The judge also concluded "that the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them." And, perhaps most interestingly, the judge explicitly considered the legislative intent of HB2:
An abortion regulation is also violative of a woman’s right to an abortion if it was adopted with the purpose of erecting a substantial obstacle to a woman’s ability to choose a previability abortion. [citing Gonzales v Carhart]. Because the act’s two requirements have the effect of creating an undue burden, an additional ﬁnding that the act was passed with the purpose of erecting a substantial obstacle is not required in order to declare the act unconstitutional. However, the court concludes, after examining the act and the context in which it operates, that the ambulatory-surgical- center requirement was intended to close existing licensed abortion clinics. The requirement’s implementing rules speciﬁcally deny grandfathering or the granting of waivers to previously licensed abortion providers. This is in contrast to the “frequent” granting of some sort of variance from the standards which occur in the licensing of nearly three-quarters of all licensed ambulatory surgical centers in Texas. Such disparate and arbitrary treatment, at a minimum, suggests that it was the intent of the State to reduce the number of providers licensed to perform abortions, thus creating a substantial obstacle for a woman seeking to access an abortion. This is particularly apparent in light of the dearth of credible evidence supporting the proposition that abortions performed in ambulatory surgical centers have better patient health outcomes compared to clinics licensed under the previous regime.
Thus, the judge enjoined the enforcement of HB2.
The Attorney General of Texas is sure to appeal.
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
In a brief Memorandum and Judgment in Brown v Herbert federal district judge Clark Waddoups has finalized his conclusion - - - and made appealable - - - his previous decision that Utah's anti-bigamy statute is partially unconstitutional.
Recall that the Utah provision at issue criminalized bigamy as defined as including when a married person "purports to marry another person or cohabits with another person."
The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book. The show includes "commitment ceremonies" between Cody brown and subsequent wives. They are represented by ConLawProf Jonathan Turley who blogs about this judgment, including the possibilities of appeal, here.
It does seem that given the breadth of the statutory proscription on "bigamy" that includes cohabitation, an appeal might be ill-advised. A strict enforcement of the statute would mean that anyone whose divorce was not final and who cohabited with another person might be guilty of bigamy.
Tuesday, August 26, 2014
In its split opinion in Sierra Club v. Jewell, a panel of the DC Circuit Court of Appeals has held that a coalition of groups have standing to challenge the revocation of listing on the National register of Historic Places for Blair Mountain Battlefield in West Virginia.
As the first paragraph of the opinion by Judge Srinivasan reminds us:
The Battle of Blair Mountain is the largest armed labor conflict in our nation’s history. In late August 1921, after years of tension between coal miners and coal companies, more than 5,000 West Virginia coal miners began a march to Logan and Mingo Counties, West Virginia. They aimed to unionize and liberate fellow miners living under martial law. When they reached Blair Mountain, a 1,600-acre area in Logan County, they encountered roughly 3,000 armed men. Those men, mostly hired by coal companies, manned a ten-mile defensive line across Spruce Fork Ridge, including Blair Mountain. They dug trenches, mounted machine guns, and dropped homemade bombs. The miners responded with gunfire of their own. The Battle endured for several days, causing numerous casualties. President Harding sent federal troops to quell the fighting, and the coal miners surrendered.
In this case, the battle again features coal companies, but on the other side are environmental and historic preservation groups. The registration of the Battlefield on the National Register, which would arguably prevent surface mining, was hard-fought. One criteria is that a majority of property owners not object, but after the Battlefield was listed, "a number of objections" from a "law firm representing several coal companies" were determined not to have been counted, and the Battlefield was delisted. It is this delisting that is being challenged.
The district judge found that the challengers did not satisfy any of the classic elements of standing. On appeal, the majority of the panel found that the challengers satisfied all three.
Probably most controversial is the initial requirement of "injury in fact" that is both "concrete and particularized" and "imminent." The panel rejected the coal companies amicus argument that the challengers cannot suffer an injury in fact because they possess no "legal right to enter the Battlefield area." It is this absence of "legal right" that Senior Judge Sentelle, dissenting, rests his disagreement. For the majority, however, the challengers could enjoy and observe the land from surrounding areas, including public roads: "there is no reason that the cognizability of aesthetic and associated interests in a particular site could turn on owning a legal right to enter or view the property." Thus, their injury was sufficiently concrete and particularized. As to the imminence of injury, while the district judge had stressed the non-use of the existing mining permits for the past decade, the appellate panel noted that in a letter objecting to the registration of the Battlefield, the coal companies stated that they had an "expectation of developing" the coal in the site.
More complicated are the questions of causation and redressibility, "two sides of the causation coin," because they involve the interplay of the federal registration requirements and West Virginia law, and specific issues regarding the initial approval of mining permits as opposed to permit renewals. The panel stated that the challengers must only show that their argument is "non-frivolous" and not convince the court that their interpretation on the merits is correct, in order to satisfy the standing causation and redressibility requirements.
Thus, the battle of Blair Mountain will be proceeding to yet another round.
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.
Tuesday, August 19, 2014
Can a city prohibit police officers from making monetary contributions to political campaigns, including contributions to their union's political action committee? The Third Circuit, in its opinion in Lodge No. 3, Fraternal Order of Police v. City of Philadelphia concludes that such a rule violates the First Amendment.
The history behind the prohibition is a fascinating one, which the court's opinion by Judge Thomas Hardiman discusses as great length because one "cannot understand" the prohibition without "reference to Philadelphia's efforts to combat patronage" given its unsavory history. As the court explains:
The nefarious relationship between Philadelphia’s Republican machine and its police force culminated in September 1917 with the scandal of the “Bloody Fifth” Ward, where officers beat an opposition candidate, terrorized his supporters, and killed a detective who attempted to intervene. The incident led to the arrest of the mayor and the conviction of six police officers, as well as public outcry for the insulation of the civic bureaucracy from politics. Amidst these calls for reform, in 1919 the Pennsylvania Assembly granted Philadelphia a new Charter, which enacted a series of reforms aimed at reducing corruption within government and the police department.
The present rule, adopted in 1951, prohibits political contributions by police officers as a method of combating corruption and promoting public confidence. The court analyzed the prohibition under United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995), requiring the government "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." The Third Circuit agreed with the district court, although not with much enthusiasm, that the recited harms were real. However, the Third Circuit disagreed with the district judge that the second prong was satisfied, holding that the regulation did not alleviate the harms in a sufficiently direct and material manner.
In part, the direct and material failure was based on the exclusive application to police officers:
The City also fails to persuade us why the contribution ban should apply only to the police, and not to the approximately 20,000 other individuals in its employ. The record shows that the Republican machine historically extracted political assessments from all civic employees: the practice was so pervasive that, in the early 20th century, the machine collected contributions from 94 percent of the city’s workforce. If the Charter ban’s purpose was to end such compulsory wage contributions, it is unclear why the City would enforce the ban only against the police. Moreover, the City has made no attempt to show that the Democratic Party’s recent dominance in Philadelphia politics was achieved through corruption.
As the court notes, the regulation also applied to firefighters, but the Philadelphia firefighters’ union "in a case remarkably similar to this one, successfully challenged the ban as an unconstitutional infringement on its members’ First Amendment rights" in 2003 and the city did not appeal. Moreover, the court notes that the city is "simultaneously condoning political activities by the police that have similar, if not more pernicious, implications" than the contribution bar.
The Third Circuit also relies on recent United States Supreme Court cases on campaign finance such as McCutcheon v. FEC and Citizens United v. FEC, gaining support for its conclusion that the regulation violates the First Amendment.
The opinion notes that the city has other ways to achieve its goals: "for example, the prohibition of automatic paycheck deductions, or greater enforcement of existing anti-solicitation measures." Even as it says it is "loath to disturb" a rule that has been in effect for decades given Philadelphia's history of corruption, the court makes clear that the rule has outlived its usefulness - - - and its constitutionality.
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.
Reversing the district judge's decision rendered more than 18 months ago which we discussed here, the Second Circuit's opinion in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene holds that the NYC regulation targeted at a certain circumcision practice is essentially one that as targeted at a certain religion and thus merits strict scrutiny under the First Amendment's Free Exercise Clause.
The NYC regulation, §181.21, amended the NYC Health Code, by requiring specific consent and a warning for "oral suction" circumcision. The Second Circuit's unanimous panel, in an opinion authored by Judge Debra Ann Livingston, disagreed with the district judge and found that the regulation was not a neutral and generally applicable law. [*]
The opening of the court's opinion is telling:
In Judaism, the “bris milah,” or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and“derives explicitly from a commandment . . . in the Hebrew Bible.” 11 Encyclopedia of Religion, “Rites of Passage: Jewish Rites,” at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b’peh (“metzitzah b’peh” or “MBP”).
Relying on Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court reaches the conclusion that the
Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals: the Regulation pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.
Indeed, the court held that the question of whether the NYC Regulation singles out a specific religious practice is "simpler to address" than was true in Lukumi "in light of the Department’s own admission that metzitzah b’peh 'prompted' § 181.21 and that metzitzah b’peh is 'the only presently known conduct' covered by the Regulation."
The court notes that "the conclusion that the Regulation is subject to strict scrutiny does not mean that § 181.21 is constitutionally deficient, for strict scrutiny is not invariably fatal in the context of free exercise claims."
The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.
The court remanded, but denied the request for a stay of the enforcement of the regulation. The district judge's original 93 page order and opinion was largely devoted to the empirical evidence regarding the health effects of the practice; it looks as if she will be hearing the evidence on those very issues, but applying a heightened standard.
[*] updated: The Second Circuit did not reach the compelled speech argument; h/t Josh Blackman.
Tuesday, August 12, 2014
Third Circuit: Attorney Advertising Rule Regarding Excerpts from Judicial Opinions Violates First Amendment
The New Jersey Supreme Court's Guideline 3 governing attorney advertising provides:
An attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.
The Third Circuit's opinion in Dwyer v. Cappell found this guideline violated the First Amendment's protection of commercial speech in a rather straightforward application of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). The court chose to analyze the regulation as one of mandated disclosure - - - the entire opinion must be provided - - - rather than one of prohibition, although the Guideline
bears characteristics of both categories. Yet we need not decide whether it is a restriction on speech or a disclosure requirement. This is because the Guideline is not reasonably related to preventing consumer deception and is unduly burdensome. Hence it is unconstitutional under even the less-stringent Zauderer standard of scrutiny.
The case arose because New Jersey attorney Andrew Dwyer, specializing in employee representation, ran afoul of Guideline 3 - - - which may have been specifically targeted at him - - - by using on his website language from judicial opinions in attorney fee award matters that duly assessed his competency. At bottom is the general concept of professional responsibility prohibiting judicial endorsement of attorneys, but in the context of fee award decisions, such assessment is explicitly required. One judge objected to the use of his comments in an opinion and Guideline 3 eventually resulted.
The Third Circuit implicitly rejected the notion that such excerpts were inherently misleading and noted that even if the excerpts were "potentially misleading to some persons," there is no explanation of how "Dwyer’s providing a complete judicial opinion somehow dispels this assumed threat of deception." Moreover, the Third Circuit found under Zauderer that the disclosure requirement was burdensome: accurately quoted material is not acceptable absent the full-length judicial opinion and even "a hyperlink to unquoted portions of the opinion fails the Guideline."
The Third Circuit's conclusion is well-founded in established First Amendment doctrine that robustly protects advertising, even by attorneys.
Thursday, August 7, 2014
Eleventh Circuit: No Preliminary Injunction for Ordinance Aimed at Curbing Loud Sounds Outside Abortion Clinics
In its opinion in Pine v. City of West Palm Beach, a unanimous Eleventh Circuit panel affirmed the district judge's refusal to enjoin the enforcement of § 34-38 of the Code of the City of West Palm Beach which bans amplified sound within 100 feet of the property line of any health care facility.
The court held that the Sound Ordinance survived the First Amendment challenge as a valid time, place, or manner restriction on speech that is content-neutral, is narrowly tailored to advance the City’s substantial interest in protecting patients, and leaves open ample alternative avenues of communication, and further that it was not unconstitutional as applied to the abortion protesters.
The court relied upon Ward v. Rock Against Racism, which upheld a sound amplification regulation. It distinguished the Court's recent declaration of unconstitutionality of an abortion clinic buffer zone in McCullen v. Coakley:
This case raises issues sharply different from those addressed recently by the Supreme Court in McCullen. There, the Supreme Court struck down a Massachusetts law that prohibited activists from standing within thirty-five feet of the driveway or entrance of a reproductive health care facility. For a number of reasons, the Court held that the restriction was not narrowly tailored to the government’s interest in preventing obstructions and congestion outside of abortion clinics. The Court explained that the Massachusetts law “unnecessarily swe[pt] in innocent individuals and their speech” by “categorically exclud[ing] non-exempt individuals from the buffer zones.” Notably, Massachusetts had failed to pursue a variety of available, less-restrictive solutions for congestion problems. Finally, the law barred access to public sidewalks and ways, “areas historically open for speech and debate.” Massachusetts had taken “the extreme step of closing a substantial portion of a traditional public forum to all speakers.”
These considerations cut the other way in this case. Instead of casting a wide net that captures innocent speech, the Sound Ordinance targets only actions near health care facilities that produce types of noise that can endanger patients. In addition, here there are no less restrictive means: because the heart of the problem is loud, raucous, or disturbing noise, a restriction on that sound is narrowly tailored. Unlike in McCullen, the record here contains no evidence of feasible alternatives that protect patient health from such sound. Finally, the Sound Ordinance in no way prevents Petitioners from accessing public ways and sidewalks near the Center. They simply cannot create loud, raucous, or unreasonably disturbing noise while there.
[citations omitted]. The court had made clear that "the City’s noise control regulations indicate that the Sound Ordinance restriction on amplified sound applies only to 'loud and raucous noise, or any noise which unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety' of others within a health care facility quiet zone." The court stated it the Sound Ordinance was not intended to have the "absurd" result that would prohibit "any electronic equipment that uses or produces amplified sound, from paging systems to administrators’ telephones to patient monitoring devices."
Thus construed, the court found that the Ordinance was not being enforced based on viewpoint when it was not enforced against "drive-through loudspeakers within the quiet zone by quick-service restaurants Wendy’s and Pollo Tropical." Instead, the protestors use of bullhorns was directly within the "loud and raucous noise" prohibition.
The court ended by emphasizing that the opinion was limited to the "extraordinary" remedy of a preliminary injunction and they plaintiffs were free to pursue a permanent injunction. But given that the court found that the plaintiffs did not demonstrate they had a likelihood of success on the First Amendment merits, the prospects for prevailing on those same First Amendment arguments are slight.
In a closely watched case with First Amendment implications, the New Jersey Supreme Court in State v. Skinner held in an unanimous opinion that violent rap lyrics, written by a defendant before the events that led to his indictment, may not be admitted at his criminal trial as evidence of motive and intent.
The court's opinion takes the opportunity to explicitly outline the First Amendment issue:
The New Jersey Chapter of the American Civil Liberties Union (ACLU) appears in this case as amicus curiae on behalf of defendant. The ACLU asserts that defendant’s rap lyrics are a form of artistic expression and thus are entitled to heightened protection under the First Amendment of the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. The ACLU emphasizes that defendant’s lyrics are not akin to a diary and therefore contain limited probative value. Moreover, because rap lyrics are often a vehicle for social and political commentary, the ALCU argues that admitting defendant’s lyrics would run the risk of chilling otherwise valuable speech. Accordingly, the ACLU urges the establishment of a strict guideline against the admissibility of expressive works in a criminal trial, in light of the First Amendment protections ordinarily afforded to such works. It urges that their admissibility should be limited to situations clearly indicating that the author engaged in the crimes about which he or she has written. In the ACLU’s view, to hold otherwise would unduly discourage, or even punish, lawful expression.
[Update: The ACLU brief is available here].
However, the remainder of the opinion does not explicitly engage with the First Amendment or free speech doctrine. Nevertheless, the court's ruling is infused with free speech perspectives. After articulating its holding under the NJ rules of evidence that "violent, profane, and disturbing rap lyrics that defendant wrote constituted highly prejudicial evidence against him that bore little or no probative value on any motive or intent behind the attempted murder offense with which he was charged," the court notes that the "use of the inflammatory contents of a person’s form of artistic self-expression as proof of the writer’s character, motive, or intent must be approached with caution."
The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.
Again, while the rationale is firmly embedded in the evidentiary rules, the First Amendment perspectives are evident.
[image: Bob Marley via]
Wednesday, August 6, 2014
The D.C. Circuit ruled yesterday in Stop This Insanity, Inc., Employee Leadership Fund v. FEC that the federal restrictions on corporate PACs do not violate the First Amendment. But in the wake of Citizens United, which held that corporations didn't have to establish separate PACs to engage in political speech in the first place, the ruling probably won't much matter.
The case arose when Stop This Insanity, Inc., or "STII," a corporation, sought to establish a separate PAC to solicit and spend funds on political speech. But when STII realized that its PAC would be subject to federal regulations--in particular, restrictions on whom and when the PAC could solicit--it filed suit, arguing that the restrictions violated the First Amendment. On the other hand, STII did not complain (obviously) about the benefit its PAC received under federal regulations, that it did not have to disclose its fundraising expenses. The court summed up its claim:
Simply put, Stop This Insanity would like to use its segregated fund [its PAC] to solicit the entire public while concealing its expenses for such solicitation.
STII argued that Citizens United compelled this result. In particular, STII said that Citizens United prohibits restrictions based on distinctions between different organizational entities, and the regulations single out corporate PACs for restrictions on solicitation. STII claimed that the restrictions were therefore subject to the highest scrutiny, and failed.
The court disagreed. It said that the solicitation restrictions did not prevent a PAC from speaking (the way a corporation was prevented from speaking before Citizens United); instead, they simply regulated the speech in the nature of a disclosure. Moreover, the court noted that after Citizens United corporate PACs are functionally obsolete: they remain on the books, but they serve no particular purpose, because corporations can now spend on their own. Given that reality, restrictions on corporate PACs (which a corporation, like STII, voluntarily established) don't unduly restrict a corporation's speech, because the corporation itself can speak (with restrictions that "are less burdensome" than those on a corporate PAC). As the court said,
Despite the availability of a more robust option--at least, when it comes to independent expenditures--[STII] has decided to do things the hard way. And now, trapped in a snare it has fashioned for itself, STII decries its inability to use the [PAC] in the way it sees fit--without the limits Congress attached to the operation of these funds.
The ruling means that federal solicitation restrictions on corporate PACs stay on the books, at least unless and until the case is appealed.
But in practical terms the ruling probably won't mean much. That's because a corporation that wants to solicit and spend money for political speech today probably would opt for the more "robust option"--simply solicit and spend the money itself, the "less burdensome" way to do it--and not "do things the hard way" by establishing a corporate PAC. In other words, while corporate PACs and the restrictions on them stay on the books, it seems doubtful that any corporation today would use them for its political speech.
Monday, August 4, 2014
United States District Judge Myron Thompson, in a lengthy opinion in Planned Parenthood Southeast v. Strange, concluded that the staff-privileges requirement of Alabama’s Women’s Health and Safety Act of 2013, 1975 Ala. Code § 26-23E-4(c), is unconstitutional as applied to the plaintiffs.
In considering whether the hospital admitting privileges requirement, especially given that hospitals were not deeming physicians eligible to apply, Judge Thompson found it constituted an undue burden. He did note and rely on last week's Fifth Circuit decision in Jackson Women's Health Organization v. Currier in which the appellate court concluded that the admitting privileges requirement that would operate to close the only abortion clinic in Mississippi was an undue burden, in part because a state could not shift its responsibilities to other states.
The Alabama situation, however, was different as Judge Thompson noted:
This court does not need to resolve the legal issue of whether to consider out-of state clinics because, even if this court were to consider those clinics, it would reach the same conclusion. The out-of-state clinic nearest to any of the three cities at issue in this case is in Pensacola, Florida, approximately 50 miles away from Mobile. The Columbus, Georgia clinic is approximately 80 miles away from Montgomery. A woman in Mobile traveling to Pensacola or in Montgomery traveling to Columbus would still face the same threshold difficulties related to losing an abortion clinic in her home city; she would still have to overcome the challenges of the first 50 miles. Furthermore, the record does not support the conclusion that the Pensacola and Columbus clinics could actually accommodate an influx of patients from Alabama, and, in fact, the evidence from the Huntsville and Tuscaloosa clinics, discussed below, shows that it is not always easy for a clinic to increase capacity and suggests that the out-of-state clinics may not be able to treat large numbers of new women from Alabama.
The court also observed that if it looked outside the state's borders, it should not only look south and east but west as well. West of Alabama is Mississippi, and the court duly cites Jackson Women's Health Organization.
As the judge clarifies, he "reaches no conclusions on these matters, but hastens to point out that an out-of- state analysis is both much more complicated than the State suggests and potentially harmful, on balance, to the State’s case."
Moreover, the judge refused to deem the Fifth Circuit's decision in Abbott (on Texas's HB 2) as setting a per se rule that 150 miles of travel was not an undue burden. Instead, he found that the consideration of undue burden should be very specific and focused on the undue burden that the Alabama regulation would have on urban women rather than rural women.The court carefully considered the state's two proffered interests, the relationship of those interests, and then considered the undue burden, and anchored the conclusions in the testimony that is extensively discussed.
Friday, August 1, 2014
Affirming the opinion of United States District Judge Deborah Batts, the Second Circuit's opinion in American Atheists v. Port of Authority of NY and NJ held that there is no Establishment Clause violation when the National Museum at the former World Trade Center towers destroyed on September 11, often colloquially known as the "Ground Zero" Museum or the September 11 Museum, chose to display a large Latin cross.
Importantly, the cross is placed in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” as part of the September 11 historical narrative. On appeal, the American Atheists seemingly narrowed the original challenge and argued that the defendants "impermissibly promote Christianity in violation of the Establishment Clause and deny atheists equal protection of the laws by displaying The Cross at Ground Zero in the Museum unaccompanied by some item acknowledging that atheists were among the victims and rescuers on September 11."
The unanimous panel's 42 page opinion applies Lemon v. Kurtzman to the Establishment Clause issue and much more briefly considers the equal protection argument.
Here's the court's summary of its conclusion:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b. an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and
c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.
It would be doubtful if this case goes any further; the cross at the museum looks as if it is there to stay.
Tuesday, July 29, 2014
Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390
A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as Mississippi HB 1390.
The statute required physicians performing abortions to have admitting privileges to a nearby hospital. As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.
Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge. In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.” The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late." Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.
The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi. The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves. Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden. But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right.
Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state. Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:
[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.
Id. at 350. Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights."
In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."
But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.
July 29, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
The D.C. Circuit today rejected an Origination Clause challenge to the so-called individual mandate under the Affordable Care Act. The court also rejected a Commerce Clause challenge to the individual mandate. The ruling means that this long-shot case is dismissed.
The plaintiff in the case, Matt Sissel, argued that the individual mandate violated the Origination Clause. That Clause requires revenue-raising bills to originate in the House; it says,
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Sissel argued that the ACA's individual mandate really originated in the Senate, not the House, and therefore violated the Clause.
The court summarily rejected that argument. The court said that the Supreme Court has given a narrow reading to the Origination Clause, applying it only to bills that "levy taxes in the strict sense of the word." But the court said that the taxing feature (or the revenue-raising feature) of the individual mandate was merely a by-product of the mandate, not the principal goal of the mandate--and therefore not a tax in the strict sence. Instead, the court said, the mandate was designed to help achieve universal health care coverage, not principally to raise revenue:
The purposive approach embodied in Supreme Court precedent necessarily leads to the conclusion that [the individual mandate] is not a "Bill for raising Revenue" under the Origination Clause. . . . And after the Supreme Court's decision in NFIB, it is beyond dispute that the paramount aim of the Affordable Care Act is "to increase the number of Americans covered by health insurance and decrease the cost of health care," not to raise revenue by means of the shared responsibility payment.
The court also rejected Sissel's Commerce Clause argument, ruling that the this argument was foreclosed by the Supreme Court's decision in NFIB, which upheld the individual mandate as a valid measure under Congress's taxing power. The court rejected Sissel's argument that his election not to purchase insurance was a violation of federal law (and therefore the federal requirement violated the Commerce Clause). Instead, the court said that under NFIB Sissel had a choice: buy insurance, or pay a tax. That's a valid exercise of the taxing power (even if it has a regulatory effect), and Sissel's argument under the Commerce Clause misses the mark.
The ruling is just the latest in a line of cases challenging different aspects of the Affordable Care Act. It's an important victory for the ACA, even if not a particularly surprising one.