Thursday, February 11, 2016

Three-Judge Court Orders North Carolina to Redraw Districts

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Steven D. Schwinn,  John Marshall Law School

A three-judge federal district court last week ruled in Harris v. McCrory that two of North Carolina's congressional districts violated equal protection, because the state impermissibly used race as a predominant factor in drawing them.

The state claimed that it used race in one of the districts to comply with the Voting Rights Act. But the court rejected that claim, saying that even if compliance with the VRA is a compelling government interest, the state failed to demonstrate that it used race in a narrowly tailored way.

The court ordered the state to redraw the districts quickly, within two weeks, although the state has already asked the Supreme Court for a stay pending appeal.

North Carolina is notorious for its shenanigans with elections and voting. Recall that the state moved quickly to tighten voting requirements after the Supreme Court in Shelby County released it and other covered jurisdictions from the preclearance requirement in Section 5 of the VRA.

The case raises an important question, yet unanswered by the Supreme Court (but assumed for the purpose of further analysis in its cases), whether compliance with the Voting Rights Act (avoiding Section 2 liability, and avoiding the Section 5 non-retrogression rule in previously covered jurisdictions) can be a compelling government interest that could justify race-based redistricting. If so, the problem, addressed last Term in Alabama State Legislature, is that a state might then use race to pack black voters into districts in a way that dilutes their influence in other districts. The Supreme Court in Alabama gave four principles for courts to use in evaluating these kinds of claims (and remanded that case for further proceedings), but it didn't categorically answer the question whether and when states might use race to comply with the VRA (even if only putatively).

The case challenges North Carolina Congressional Districts 1 and 12. These were not majority-minority districts (majority-Black Voting Age Population, or "BVAP," districts) going into the 2010 census, but "African-American preferred candidates easily and repeatedly won reelection under those plans."

After the 2010 census, legislators engaged Dr. Thomas Hofeller, who served as redistricting coordinator for the Republican National Committee for the 1990, 2000, and 2010 redistricting cycles, to design and draw the 2011 Congressional Redistricting Plan. On instructions from legislators (which, they said, were based on VRA concerns), the 2011 plan increased the percentage of the BVAP in districts 1 and 2 so that they became majority-minority districts. DOJ precleared the plan, in the days before Shelby County, when preclearance was still a thing.

A prior state supreme court ruling held that race was the predominant factor in drawing CD 1, but that the state had a compelling government interest in using race to draw CD 1 to comply with the VRA. It also held that race was not a factor in drawing CD 12. The state high court thus found no violation of the Equal Protection Clause.

Plaintiffs in this federal case argued that the state used compliance with Section 5 as a pretext for packing black voters into CDs 1 and 12 in order to reduce those voters' influence in other districts.

The court ruled that "plaintiffs have presented dispositive direct and circumstantial evidence that the legislature assigned race a priority over all other districting factors in both CD 1 and CD 12." The court went on to say that even if compliance with the VRA is a compelling government interest for CD 1 (a point the court assumed, without deciding), the legislature's use of race in drawing the districts was not narrowly tailored to meet that interest: "Evidence of narrow tailoring in this case is practically nonexistent." (The state didn't give a compelling government interest or argue narrow-tailoring for CD 12.)

The next word on the case will come from the Supreme Court, which should rule soon whether to the stay the three-judge court's ruling pending North Carolina's appeal.

February 11, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, February 9, 2016

Federal District Judge Enters Preliminary Injunction Against Center for Medical Progress, Anti-Abortion Group

The Center for Medical Progress (CMP)  - - - including its founder David Daleiden, others (and their aliases) associated with the nonprofit, as well as "fake" companies - - - has been in the news a great deal of late. 

Daleiden and employee Merritt have recently been indicted in connection with an “investigation” of Planned Parenthood and the publication of a “heavily edited” video charging Planned Parenthood with unauthorized selling of fetal tissue. The video has prompted some lawmakers to urge defunding of Planned Parenthood and, interestingly, the grand jury indictment of Daleiden and Merritt in Texas sprung from an inquiry into whether Planned Parenthood had violated any criminal laws.  Planned Parenthood has recently sued CMP under RICO and for various tort-like claims. 

Judge William Orrick of the Northern District of California has issued a preliminary injunction that some might view as a prior restraint against CMP and its associates in an Order in National Abortion Federation v. Center for Medical Progress.  In July, Judge Orrick issued a TRO.  The discovery orders and motions were quite contentious, with CMP seeking relief from the Ninth Circuit, which was denied, and Justice Kennedy (in his role as Justice for the Ninth Circuit) refusing to intervene. The preliminary injunction prohibits:

(1) publishing or otherwise disclosing to any third party any video, audio, photographic, or other recordings taken, or any confidential information learned, at any NAF annual meetings;

(2) publishing or otherwise disclosing to any third party the dates or locations of any future NAF meetings; and

(3) publishing or otherwise disclosing to any third party the names or addresses of any NAF members learned at any NAF annual meetings.

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Image by Jacek Halicki circa 1982 via

This injunction relates primarily to the enforcement of a “confidentiality agreement” required by attendees of the NAF national conference, which Center for Medical Progress admitted violating, engaging in over 250 hours at each of two conferences (2014 and 2015), including of personal conversations, intended - - - as CMP founder Daleiden admits, to “trap people into saying something really messed up” and to say the words “fully intact baby.” Judge Orrick found that enforcement of the confidentiality agreement does not violate the First Amendment, citing Cohen v. Cowles Media (1991). Judge Orrick also found that this was not a “typical ‘newsgathering’ case” in which "prior restraints" would be disfavored, but instead had exceptional circumstances:

The context of how defendants came into possession of the NAF materials cannot be ignored and directly supports preliminarily preventing the disclosure of these materials. Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project – achieved in large part from the infiltration – thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not – as Daleiden repeatedly asserts – use widely accepted investigatory journalism techniques. Defendants provide no evidence to support that assertion and no cases on point.

One of the cases that Judge Orrick's footnote distinguishes is Judge Winmill's decision in Animal Defense League v. Otter, finding Oregon's ag-gag law unconstitutional as a violation of the First Amendment, which is presently on appeal to the Ninth Circuit.  Undoubtedly, Center for Medical Progress will eventually follow the path to the Ninth Circuit.  Taken together, these cases raise controversial issues about the First Amendment's protection for what some might name "investigative journalism" and what others view as "illegal actions."

February 9, 2016 in Abortion, Current Affairs, First Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (0)

Saturday, February 6, 2016

Fourth Circuit Applies Strict Scrutiny to Maryland Assault Weapon Ban

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Steven D. Schwinn, John Marshall Law School

A sharply divided panel of the Fourth Circuit ruled this week that Maryland's assault-weapon ban is subject to the most stringent constitutional test, strict scrutiny. The ruling all but ensures that the ban will fall when the Second Amendment challenge, Kolbe v. Hogan, goes back to the district court on remand.

The ruling is a dramatic split from similar rulings in other circuits. The D.C. Circuit and the Second Circuit both applied intermediate scrutiny to similar bans; the Seventh Circuit applied its own test (distinct from a traditional tier of review), and the Supreme Court declined to review that ruling just this past December.

Given this trend, the Fourth Circuit's ruling is a little more than surprising. But the majority said that Maryland's flat ban on assault weapons and large-capacity magazines cut to the core of the Second Amendment (self-defense within the home) and left no room for possession of these kinds of weapons. That was enough to justify strict scrutiny, said the majority.

The dissent, in contrast, noted that Heller itself left room for this kind of regulation, and that sister circuits have applied a lower level of scrutiny.

The ruling is not final: the panel sent the case back to the district court for application of the strict scrutiny standard. Still, this all but guarantees that the courts will strike the ban, handing a significant victory to gun-rights advocates, dealing a blow to advocates of gun regulations, and throwing a wrench into the jurisprudence on assault-weapon bans in the circuits.

 

February 6, 2016 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Wednesday, February 3, 2016

Judge, Clerk Immune From Damages for Ordering Jail Time to Pay Off Court Fines

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Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled today that a state-court judge and clerk were immune from a suit for monetary damages for jailing plaintiffs for failure to pay their fines and court costs for low-level misdemeanors.

The case, Ward v. City of Norwalk, arose when Norwalk Municipal Court Judge John Ridge issued bench warrants for the plaintiffs' arrests for failing to pay their fines and court costs. (Ohio law authorizes this and sets a $50 per day rate.) Judge Ridge directed Clerk Pamela Boss to issue the warrants; Boss complied; and the plaintiffs were arrested and served time.

The plaintiffs sued for monetary damages, injunctive relief, and declaratory relief on a couple theories under 1983. (They also sued under state law claims, not at issue on appeal.) The court dismissed all but one--the plaintiffs' request for declaratory relief, and that probably will go away on remand.

The court held that the Eleventh Amendment barred the plaintiffs' suit for monetary damages against Judge Ridge and Clerk Boss, because they're employees of the Municipal Court, a state agency. (The court rejected the plaintiffs' argument that municipal corporations within the Municipal Court's jurisdiction are responsible for monetary damages, and so the court is identical to a municipality and not an arm of the state.) The court held that Judge Ridge and Clerk Boss enjoyed judicial immunity against claims against them in their official capacity.

As to injunctive and declaratory relief: the court pointed to the plain language of 1983, which requires the plaintiffs to show that a judicial officer violated a declaratory decree, or that declaratory relief was unavailable, before getting an injunction. The court thus dismissed the plaintiffs' request for an injunction. But it recognized that the plaintiffs' claim for declaratory relief could go on under Ex Parte Young, so it remanded to the district court to determine whether abstention, Rooker-Feldman, or the mootness doctrine barred the case from proceeding.

February 3, 2016 in Cases and Case Materials, Courts and Judging, Eleventh Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, February 2, 2016

No Standing to Challenge Inoperative Sewer Lines

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Steven D. Schwinn, John Marshall Law School

A divided panel of the Sixth Circuit ruled today that a county lacks standing to challenge the construction by another municipality of a sewer line, because the new line didn't compete with the old one, as prohibited by federal law.

The case involves an obscure federal statute, 7 U.S.C. Sec. 1926(b), that says that any sewer provider that owes money to the U.S. Department of Agriculture is protected from competition with other sewer providers. Trumbull County, as it turns out, owes money to the Department for its sewer lines, and so is protected from competition under the statute. And when the Village of Lordstown constructed sewer lines that could serve GM's Lordstown plant and a neighboring trailer park, in competition with the County's sewer lines, the County sued.

But there was one problem: Lordstown's lines aren't (yet) operative.

The lower court ruled against the County on the merits, concluding that Lordstown's lines didn't compete, because they weren't operative.

The Sixth Circuit went in a different direction, and said that the County lacked standing--because it couldn't allege an injury (competition) under the statute.

Judge Rogers said the whole thing stinks. He dissented, writing that "[i]f a neighbor increases the risk to your property, e.g., by removing a floodwall, you have standing to challenge the removal, even if the flood is not impending and indeed may never occur." So too here: "The plaintiff by winning would obtain insurance against a costly albeit uncertain hit to its tax base, the very possibility of which would at some level immediately reduce confidence in the long-term financial health of the county."

February 2, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Friday, January 29, 2016

Plaintiffs' Standing Means that EPA will Issue Financial Assurance Regs

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Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today in In Re: Idaho Conservation League that environmental organizations had standing to challenge EPA's failure to issue financial assurance regulations under CERCLA, and that the court could therefore grant the parties' joint motion for an order establishing an agreed upon schedule for rulemaking.

The upshot is that the court now approved the parties' agreement that the EPA will commence rulemaking to issue financial assurance regulations for the hardrock mining industry, and that the agency will consider whether other industries should be involved with financial assurance rulemaking.

The standing part of the ruling hinges on financial incentives: The plaintiffs had standing not because new regs would certainly redress their injuries, but because they created a financial incentive to.

The case involves a CERLCA requirement that EPA issue "financial assurance" regulations--so that entities potentially responsible for the release of hazardous substances can put aside funding, or demonstrate that funding is available, for cleanup. But despite the statutory requirement, EPA never got around to issuing the regs.

Enter the plaintiff environmental organizations. They sued, seeking a court order to force EPA to commence rulemaking. After oral argument, the parties agreed on a schedule for rulemaking for the hardrock mining industry, and a timetable for EPA to determine whether to engage in financial assurance rulemaking for any of three other industries under consideration.

But the court had to satisfy itself that it had jurisdiction before it would sign off. In particular, the court said it had to determine if at least one of the plaintiffs had standing.

The court said at least one did. The court said that at least one of the plaintiff organizations had at least one member who suffered harm, because the member was affected by hazardous releases from hardrocking mining. The court went on to say that EPA's financial assurances regs would redress that harm, because the regs would create a financial incentive to decrease pollution. Here's the court:

With respect to mitigating ongoing hazardous releases, the lack of financial assurance requirements causes mine operators to release more hazardous substances than they might if such financial assurance requirements were in place. . . . . In view of [mine operators' common practice of dodging cleanup costs by declaring bankruptcy and sheltering assets], financial assurances would strengthen hardrock mining operators' incentives to minimize ongoing hazardous releases. By making it more difficult for mine operators to avoid paying for the cleanup of their hazardous releases, basic economic self-interest means the operator will take cost-effective steps to minimize hazardous releases in order to minimize their environmental liabilities.

According to the court, it "has long relied on such economic and other incentives to find standing," and "[t]his incentives-based theory of standing is further supported by congressional and agency assessments." This is so, said the court, even though hardrock mining is already subject to some financial assurance requirements. That's because the new regs will fill the gaps in protection.

The court said that the regs would also expedite cleanup efforts, thus reducing the time that plaintiffs are exposed to hazards.

The ruling gives the force of a federal court order to the parties' agreement that EPA will commence rulemaking on financial assurances for hardrock mining, and will consider adding other industries.

 

January 29, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, January 28, 2016

Park Service Inauguration Regs Don't Violate Free Speech

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Steven D. Schwinn,  John Marshall Law School

Judge Paul Friedman (D.D.C.) ruled today in ANSWER v. Jewell that the National Park Service regs setting aside a portion of the Presidential inauguration route for the inauguration committee and banning sign supports do not violate free speech.

The case challenged NPS regulations that set aside 18% of the sidewalk and park space along the inauguration parade route for the Presidential Inauguration Committee, a private, non-profit that represents the interests of the President-Elect, and requires other groups that wish to protest or speak to get a permit. Judge Friedman upheld the regulation against a First Amendment challenge, ruling that the PIC was government speech (under the factors in Walker v. Texas and Pleasant Grove City v. Summum), that the set-aside for PIC therefore did not constitute viewpoint-based discrimination against other groups that wished to speak against PIC's message, and that the set-aside and permit requirement were content neutral and otherwise satisfied the test for speech in a public forum.

Judge Friedman also ruled that the ban on sign-supports was content-neutral and satisfied the public forum test. (The government's interests were safety--sign-supports could be used as a weapon--and marshaling parade viewers through security checkpoints quickly and efficiently.) Judge Friedman noted that this ruling conflicted with the Ninth Circuit in Edwards v. Coeur d'Alene, however: the Ninth Circuit said in that case that a ban on sign-supports failed to leave open ample alternative channels of communication, because "there is no other effective and economical way for an individual to communicate his or her message to a broad audience during a parade or public assembly than to attach a handle to his sign to hoist it in their air."

The plaintiff in the case, the anti-war and anti-racism group ANSWER, may have inadvertently contributed to the result: Judge Friedman wrote at several points in the opinion that ANSWER had touted its previous protests, under similar restrictions, as successful--apparently demonstrating that ANSWER can get its message out effectively (that it has ample alternative channels for communication) even with the NPS regs.

January 28, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, January 22, 2016

Kansas Appellate Court Affirms Finding That Kansas's "Dismemberment Abortion Act" is Unconstitutional under State Constitution

The Kansas Court of Appeals, the intermediate appellate court, has found that the Kansas Constitution includes a due process right applicable to abortion and that the Kansas Unborn Child Protection from Dismemberment Abortion Act (SB95) violates that right in its opinion by Judge Steve Leben in Hodes & Nauser v. Schmidt.

Before the discussion of the constitutionality of the Act, there were some preliminary - - - and unusual - - - issues, including some noteworthy matters of procedure. Unusually, the Court of Appeals heard the case en banc rather in a panel of three.  And presumably also unusual, the judges were "equally divided, seven voting to affirm the district court and seven voting to reverse."  Thus, the trial court's ruling granting a preliminary injunction against the Act was affirmed. 

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Judges of the Kansas Court of Appeals via


Additionally, there were some state constitutional law issues.  Importantly, the plaintiffs' argument that the Act is unconstitutional rests solely on the state constitution.  As the Leben opinion stated, this was a case of first impression and a  "plaintiff has the procedural right to choose the legal theories he or she will pursue; we cannot force the plaintiffs here to choose another legal avenue.")  But the Kansas State Constitution does not include a due process clause - - - or even the words "due process" - - - unlike the United States Constitution's Fifth and Fourteenth Amendments, in which the right to an abortion has been anchored.  Instead, plaintiffs argued, and the court found, that §1 and §2 of the Kansas Constitution Bill of Rights include a due process right despite their explicit language:

§ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

§ 2. Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.

Judge Leben's finding was based in large part on previous decisions of the Kansas Supreme Court.  Where the dissent differed was not on the matter of due process as a general matter but on the specific inclusion of "abortion."  Indeed, as Judge Leben's opinion admitted "What the Kansas Supreme Court has not yet done is apply substantive-due-process principles in a case involving personal or fundamental rights, like the right to contraception, the right to marry, or the right to abortion."  But as Judge Leben's opinion noted, "the Kansas Supreme Court has explicitly recognized a substantive-due- process right under the Kansas Constitution and has applied a substantive-due-process legal standard equivalent to the one applicable under the Fourteenth Amendment at the time of these Kansas decisions."  This past practice was an embrace of the present, and Judge Leben's opinion interestingly quotes the Court's recent opinion by Justice Kennedy Obergefell  as well as opinions from the Kansas Supreme Court.  Judge Leben nicely sums up the position:

The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state's constitution in 1859.

Having decided that the Kansas constitutional text merits a co-extensive interpretation with the federal constitution, Judge Leben's opinion for the Kansas Court of Appeal does not rest on "adequate and independent state grounds" under Michigan v. LongJudge Gordon Atcheson's extensive and scholarly concurring opinion makes the case that §1 of the Kansas Bill of Rights provides "entirely separate constitutional protection without direct federal counterpart" for abortion and that such protection is greater under the Kansas state constitution than under the Fourteenth Amendment.

Under the co-extensive interpretation, Judge Leben's opinion thus confronted the constitutionality of the Kansas Act under the substantive due process "undue burden" standard.  This entailed an application of the disparate Carhart cases: Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007).  In Stenberg, the Court concluded Nebraska's so-called "partial-birth abortion" statute was unconstitutional; in Gonzales, the Court concluded that the federal so-called "partial-birth abortion" statute was constitutional.

The Judge Leben opinion distinguished Gonzales:

But the circumstances here are quite unlike Gonzales. There, the Court considered a ban on an uncommon procedure and noted that the most common and generally safest abortion method remained available. Here, the State has done the opposite, banning the most common, safest procedure and leaving only uncommon and often unstudied options available.

Interestingly, Judge Atcheson's concurring opinion responded to the Justice Kennedy's language in Gonzales and the language of the Kansas Act:

The State's remaining argument rests on the unaesthetic description of a D &E abortion contained in Senate Bill 95 and in Gonzales v. Carhart (2007). But aesthetics really cannot justify legislative limitations on safe medical procedures. The lack of justification is even more pronounced when the procedure is integral to a woman's constitutional right to self-determination and reproductive freedom. The government cannot impose upon an essential right because some exercise of the right may be unaesthetic or even repulsive to some people. That's all the more true when those people needn't see or participate in the protected activity.

The dissenting opinion concludes that there is "nothing in the text or history of §§1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion."

This matter is surely going to the Kansas Supreme Court, as Judge Leben's opinion for the Kansas Court of Appeals acknowledged.  Rendered on the 43rd anniversary of the United States Supreme Court's decision in Roe v. Wade and as the Court prepares to consider its first abortion case in 8 years, Whole Woman's Health v. Cole, the Kansas Court of Appeals evenly split decision exemplifies how divided opinion on this issue can be.

January 22, 2016 in Abortion, Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Gender, International, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)

Thursday, January 21, 2016

No Damages for Enforcing State Residency Requirement for Petition Circulators

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Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled this week in Citizens in Charge v. Husted that Ohio Secretary of State Jon Husted enjoyed qualified immunity against a damages claim that arose out of his enforcement of Ohio's law that prohibits out-of-staters from circulating petitions within the state to propose new legislation and constitutional amendments.

The court granted immunity because it said that Ohio's law didn't clearly violate the Constitution. In support, it pointed to a circuit split on the question whether a state law that requires in-state residency to circulate a petition violates the First Amendment.

In so ruling, the court came close to saying that an official's enforcement of a state statute is per se reasonable, if no court has (yet) ruled the law unconstitutional--a result that puts a heavy thumb on the scale in favor of qualified immunity (and against plaintiffs who seek to recover damages for constitutional torts). The outer boundary is only when a law is "grossly and flagrantly unconstitutional." (The court gave as one example separate-but-equal racial discrimination.) The court explained:

So far as the parties' research has revealed and so far as our own research has uncovered, the Supreme Court has never denied qualified immunity to a public official who enforced a properly enacted statute that no court had invalidated. This indeed would seem to be the paradigmatic way of showing objectively reasonable conduct by a public official.

. . .

Any other approach would place risky pressures on public officials to second-guess legislative decisions. When faced with a statute of questionable validity, executive actors would find themselves forced to choose between applying the law (and subjecting themselves to monetary liability) or declining to do so (and subjecting themselves to a mandamus lawsuit). When personal liability is added to the mix, one could well imagine the balance tipping toward non-enforcement in close cases, all the while sacrificing the legislature's considered judgments about a statute's unconstitutionality. That is not a recipe for good government or for encouraging public officials to act independently.

January 21, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis | Permalink | Comments (1)

Wednesday, January 20, 2016

Court Rebuffs Pick-Off Tactic in Class Action Suits

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Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today that a plaintiff's case does not become moot when the plaintiff rejects an offer of settlement for complete relief. The ruling means that a case can go on, even after a plaintiff rejects an offer of complete relief.

The ruling is a huge victory for plaintiffs, especially plaintiffs who might lead a class-action. It's also a sharp rebuke of the defense-side tactic to moot out a case or class action by offering full relief to the lead plaintiff--a tactic known as pick-off. By ruling for the plaintiff, and by rejecting the pick-off tactic, today's ruling is also a victory for access to justice, and stands in contrast to the spate of other Court rulings limiting access and favoring corporate defendants.

The case arose when Jose Gomez received an unwanted Navy recruitment text on his cell phone from Navy contractor Campbell-Ewald. Gomez sued Campbell-Ewald under the Telephone Consumer Protection Act. Before Gomez could move for class certification, however, the defendant offered complete relief; Gomez rejected the offer; and the defendant moved to dismiss the case as moot.

The Court ruled that the case was not moot. Justice Ginsburg, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan, wrote that under basic contract principles, Campbell-Ewald's offer, once rejected by Gomez, had no continuing effect. With no settlement offer on the table, the parties retained the adversity necessary for an Article III case or controversy--so the rejected offer didn't render the case moot.

Justice Thomas concurred separately to argue that the result should "rest instead on the common-law history of tenders," not contract principles.

Chief Justice Roberts, joined by Justices Scalia and Alito, dissented. The Chief wrote that the rejected settlement offer meant that there was no longer any real dispute in the case:

If there is no actual case or controversy, the lawsuit is moot, and the power of the federal courts to declare the law has come to an end. Here, the District Court found that Campbell agreed to fully satisfy Gomez's claims. That makes the case moot, and Gomez is not entitled to a ruling on the merits of a moot case.

January 20, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0)

Eighth Amendment Does Not Require Mitigating Circumstances Instruction or Separate Sentencing

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Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Kansas v. Carr that the Eighth Amendment does not require capital-sentencing courts to instruct juries that mitigating circumstances need not be proved beyond a reasonable doubt or that capital defendants who committed a joint crime be sentenced separately.

The ruling reversed a Kansas Supreme Court decision in favor of the criminal defendants.

The 8-1 ruling (Justice Sotomayor in dissent) reflects both the relatively simple questions in the case and the brutality of the crimes (described by Justice Scalia, for the Court, as "acts of almost inconceivable cruelty and depravity")--which made it easy for the Court to conclude that the sentencing proceeding wasn't unfair. (As to the joint sentencing, Justice Scalia wrote that "[i]t is beyond reason to think that" any prejudices that arose in the joint sentencing led to the death sentences: "None of that mattered. What these defendants did--acts of almost inconceivable cruelty and depravity--was described in excruciating detail by [a victim], who relived with the jury, for two days, the Wichita Massacre. The joint sentencing proceedings did not render the sentencing proceedings fundamentally unfair.").

As to the instructions on mitigating evidence, the Court said that the defendants' preferred instruction (that mitigating circumstances need not be proved beyond a reasonable doubt) was not only unnecessary under the Eighth Amendment, but would only lead to greater juror confusion in considering mitigation.

As to joint sentencing, the Court said that the Eighth Amendment doesn't require separate sentencing hearings for defendants in the same crime; and in any event, the errors or prejudices that the defendants alleged here couldn't possibly have actually prejudiced them, given the brutality of the crimes.

Justice Sotomayor filed the lone dissent. She argued that the Court shouldn't have taken the case in the first place, and that the Court's ruling could interfere with states' experimentation "with how best to guarantee defendants a fair trial."

January 20, 2016 in Cases and Case Materials, Criminal Procedure, News, Opinion Analysis | Permalink | Comments (0)

A Split Decision On Executive Privilege in Fast-and-Furious Investigation

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Steven D. Schwinn, John Marshall Law School

Judge Amy Berman Jackson (D.D.C.) yesterday ordered the Attorney General to turn over certain post-February 4, 2011, documents generated in the executive branch over how to respond to congressional inquiries into the Fast and Furious program.

But don't chalk this up as a win for Congress. Judge Jackson ruled that the documents had to be turned over because the government had already revealed much of the content, in the publicly-available DOJ Inspector General report on the program, and not because they weren't otherwise protected by executive privilege.

If anything, this ruling is a win for the administration. That's because Judge Jackson ruled that documents related to how the government would respond to congressional and press inquiries were covered by deliberative process privilege--even if they failed the balance (but only because the government had already released their content).

In the end, though, maybe "split decision" best describes the ruling.

We posted most recently here, with links to earlier posts, rulings, and documents.

Judge Jackson's ruling is just the latest in the long-running dispute between the House Committee on Oversight and the administration. Recall that the Committee sought administration documents related to the Fast and Furious program, including post-February 4, 2011, documents discussing how the administration should respond to congressional requests for documents. (February 4, 2011, is significant, because that's the date when DOJ denied that it used the gun-walking tactic. DOJ later acknowledged the program. The Committee then expanded its investigation to include the circumstances of DOJ's initial denial, and why it took so long to tell Congress that its initial denial was wrong.)

Judge Jackson ruled that post-February 4, 2011, documents related to how the government would respond to congressional inquiries were protected under the deliberative process prong of executive privilege. (Under D.C. Circuit law, deliberative process covers communications between executive branch officials other than the President that are "crucial to fulfillment of the unique role and responsibilities of the executive branch." (Traditional executive privilege covers communications only between executive branch officials and the President.)) That's because they were both predecisional and deliberative, and fell within the kinds of communications that were covered under other circuit rulings. She also said that DOJ's list of those documents sufficiently showed that they were covered by the deliberative process privilege.

But coverage doesn't end the inquiry. The deliberative process privilege (like its parent executive privilege) is a qualified privilege, which means that the courts balance the government's interest against any counter-veiling interest in obtaining the privileged material. Here, Judge Jackson ruled that the Committee had an undisputed counter-veiling interest in oversight and investigation, and that DOJ had already released the content through the publicly-available OIG report:

What harm to the interests advanced by the privilege would flow from the transfer of the specific records sought here to the Committee when the Department has already elected to release a detailed Inspector General report that quotes liberally from the same records? The Department has already laid bare the records of its internal deliberations--and even published portions of interviews revealing its officials' thoughts and impressions about those records. While the defense has succeeded in making its case for the general legal principle that deliberative materials--including the sorts of materials at issue here--deserve protection even in the face of a Congressional subpoena, it can point to no particular harm that could flow from compliance with this subpoena, for these records, that it did not already bring about itself.

Judge Jackson also ordered DOJ to turn over eight documents over which DOJ asserted no privilege. She declined to order DOJ to turn over yet other post-February 4, 2011, documents that the parties are still wrangling over. (They can't agree on the scope of the Committee's request, and the court declined to intervene.)

January 20, 2016 in Cases and Case Materials, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, January 15, 2016

New York State Appellate Court Rejects First Amendment Claim in Same-Sex Wedding Discrimination Case

In its opinion in Gifford v. McCarthy, an appellate court in New York upheld the decision of the State Division of Human Rights that the owners of Liberty Ridge Farm, a wedding venue, were guilty of an unlawful discriminatory practice based upon sexual orientation when they refused to provide services for a same-sex wedding.  Writing for the unanimous five judge panel, Presiding Justice Karen Peters concluded that the venue was clearly a place of public accommodation within the anti-discrimination law and that discrimination based upon sexual orientation clearly occurred. 

16yr-logo-2015-revOn the constitutional issues, Justice Peters found the arguments under both the First Amendment and New York's similar provisions without merit.  Regarding the First Amendment Free Exercise of religion claim, Justice Peters concluded that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes)," citing  Employment Div., Dept. of Human Resources of Ore. v Smith (1990). She noted that the "fact that some religious organizations and educational facilities are exempt from the [state] statute's public accommodation provision does not, as petitioners claim, demonstrate that it is not neutral or generally applicable." 

Applying New York's Free Exercise provision under which the infringement is balanced against the state interests, and Justice Peters wrote:

While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination."

Thus the court rejected the free exercise claims.  Similarly, the court rejected the free speech claims of compelled speech and free association.  On compelled speech, Justice Peters' opinion for the court concluded that the provision of a wedding venue was not expressive: 

Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage. Like all other owners of public accommodations who provide services to the general public, the Giffords must comply with the statutory mandate prohibiting discrimination against customers on the basis of sexual orientation or any other protected characteristic. Under such circumstances, there is no real likelihood that the Giffords would be perceived as endorsing the values or lifestyle of the individuals renting their facilities as opposed to merely complying with anti-discrimination laws.

The court also held that Liberty Farms was not an "expressive association" but a business with the "purpose of making a profit through service contracts with customers." However, the court added that even if Liberty Ridge were to be deemed an expressive enterprise, "a customer's association with a business for the limited purposes of obtaining goods and services – as opposed to becoming part of the business itself – does not trigger" expressive association.

In upholding the application of the anti-discrimination law against First Amendment challenges, the New York appellate opinion joins other courts that have reached the same conclusion: the New Mexico courts in Elane Photography to which the United States Supreme Court denied certiorar and the Colorado courts in Masterpiece Cakeshop.  The UK Supreme Court's decision in Bull v. Hall is also consistent with this trend.  Nevertheless, the issue is far from settled and more decisions likely.

January 15, 2016 in Association, Cases and Case Materials, Current Affairs, Family, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Religion, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)

Tuesday, January 12, 2016

Court Strikes Florida's Capital Sentencing Scheme

The Supreme Court ruled today that Florida's capital sentencing scheme violates the Sixth Amendment, because it puts in the hands of the judge, not the jury, the critical findings necessary to impose the death penalty.

Florida law provides that a capital felon can only get a life sentence based on his or her conviction. But under an additional sentencing procedure, a capital felon can get death. It works like this: the judge in the additional sentencing proceeding conducts an evidentiary hearing before a jury; the jury, by majority vote, renders an "advisory sentence"; the judge then independently finds and weighs the aggravating and mitigating circumstances and enters a sentence of life or death. (The judge has to give the jury recommendation "great weight," but need not follow it.)

The Court held that this process violates the Sixth Amendment in light of Ring v. Arizona. In that case, an Arizona judge's independent factfinding exposed the defendant to a punishment greater than the jury's guilty verdict authorized. The Court struck the scheme, because under the Sixth Amendment (and Apprendi) any fact that "expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict" is an "element" that must be submitted to a jury.

Justice Sotomayor wrote for the Court, including all but Justices Breyer and Alito. Justice Breyer wrote a separate concurrence; Justice Alito wrote the lone dissent.

January 12, 2016 in Cases and Case Materials, Criminal Procedure, News, Opinion Analysis, Sixth Amendment | Permalink | Comments (1)

Wednesday, January 6, 2016

The California Legislature Can Ask What Californians Think About Citizens United

The California Supreme Court ruled earlier this week that the California legislature had authority to put on the general election ballot the nonbinding, advisory question whether Congress should propose, and the legislature ratify, a federal constitutional amendment overturning Citizens United.

The court said that the measure fell within the state legislative authority:

We conclude: (1) as a matter of state law, the Legislature has authority to conduct investigations by reasonable means to inform the exercise of its other powers; (2) among those other powers are the power to petition for national constitutional conventions, ratify federal constitutional amendments, and call on Congress and other states to exercise their own federal article V powers; (3) although neither constitutional text nor judicial precedent provide definitive answers to the question, long-standing historical practice among the states demonstrates a common understanding that legislatures may formally consult with and seek nonbinding input from their constituents on matters relevant to the federal constitutional amendment process; (4) nothing in the state Constitution prohibits the use of advisory questions to inform the Legislature's exercise of its article V-related powers; and (5) applying deferential review, Proposition 49 is reasonably related to the exercise of those powers and thus constitutional.

Still, there are no actual plans to put the measure on the 2016 ballot--at least not yet. The legislature previously directed that the measure go on the 2014 ballot; that decision was before the court. Now that 2014 is over, you might think the case was moot. But if so, you'd be wrong: the court said it should address the question, notwithstanding the lack of plans to put the measure on the ballot, because the legislature might direct that the measure go on a future ballot (apparently in the spirit of capable-of-repetition-but-evading-review).

January 6, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0)

Alabama's CJ Roy Moore Issues Administrative Order on Same-Sex Marriage

Despite the United States Supreme Court's holding last Term in Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the controversial Chief Judge of the Alabama Supreme Court Roy Moore issued an " Adminstrative Order" forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect."

Alabama5Today's administrative opinion is part of Moore's ongoing reaction to constitutional issues surrounding same-sex marriage.  After an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Judge Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue.  Recall that the United States Supreme Court declined to stay the federal judge's judgment.  Despite these direct orders, seemingly Moore's current argument in today's Administrative Order is that Obergfell does not apply to Alabama but only the states involved in the Sixth Circuit opinion to which the Court granted certiorari.

Judge Moore's "interesting" construction of constitutional law is not limited to the precedential value of United States Supreme Court opinions.  Several months ago - - - in a lesbian second-parent adoption case, E.L. - - - the Alabama Supreme held that Alabama need not accord full faith and credit to a Georgia decision because of a dissenting opinion. The United States Supreme Court stayed the decision in E.L. pending a decision on the petition for certiorari.

 

 

January 6, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0)

Tuesday, December 22, 2015

En Banc Federal Circuit Holds "Disparaging" Trademarks Ban Violates First Amendment

In its more than 100 page opinion today in In Re Simon Shiao Tam, the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, is unconstitutional because it violates the First Amendment.  

The central issue was the denial of a trademark registration to "The Slants" by the applicant Simon Shiao Tam, on behalf of the Portland, Oregon "all Asian American dance rock band" (pictured below).

The United States Court of Appeals for the Federal Circuit, established in 1982 by a the merger of the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims, was reviewing the denial of the trademark by the Patent and Trademark Office (PTO).  A panel of the Federal Circuit rejected Tam's First Amendment arguments, finding that it was bound by circuit precedent from 1981 that held that the First Amendment was not implicated by the denial of trademark registration. 

BoiseThe Circuit sua sponte ordered rehearing en banc.  The majority opinion, authored by Judge Kimberly Moore (who was formerly a law prof at George Mason School of Law), was joined by 8 other judges, including Chief Judge Sharon Prost, reasoned that much had changed since the 1981 circuit precedent - - - including the jurisprudence offering protections for commercial speech under the First Amendment - - - and that the First Amendment should apply.

Not only should the First Amendment apply, it is violated in the most egregious manner: viewpoint discrimination. Moore's opinion for the majority stresses that the "disparagement" provision "discriminates against speech because it disapproves of the message conveyed by the speech" and is therefore subject to strict scrutiny.  That the government might itself not disapprove but "claims that some part of the populace will disapprove of the message" is irrelevant.  When the PTO refuses to register a trademark under this provision,"it does so because it believes the mark conveys an expressive message—a message that is disparaging to certain groups."  Mr. Tam was undoubtedly engaging in expressive speech:

Mr. Tam explicitly selected his mark to create a dialogue on controversial political and social issues. With his band name, Mr. Tam makes a statement about racial and ethnic identity. He seeks to shift the meaning of, and thereby reclaim, an emotionally charged word. He advocates for social change and challenges perceptions of people of Asian descent. His band name pushes people. It offends. Despite this—indeed, because of it—Mr. Tam’s band name is expressive speech.

The court rejected the government's three arguments, including its argument that the First Amendment did not apply since no speech was prohibited.  The government's second argument - - - that trademark registration is government speech - - - was likewise rejected.  Here, the court distinguished last Term's decision in Walker v. Texas Sons of Confederate Veterans, the confederate flag license plate case, by distinguishing between the license plate (which the government continues to own and which the car driver must affix) and the trademark symbol (which the government does not "own" and the registrant can use or not).  As for public perception, the court used a copyright analogy: just as the public does not associate copyrighted works such as Fifty Shades of Grey with the government, "neither does the public associate individual trademarks such as THE SLANTS with the government."  

The court likewise rejected the government argument that § 2(a) merely withholds a government subsidy for Mr. Tam’s speech and is valid as a permissible definition of a government subsidy program: "Trademark registration does not implicate Congress’s power to spend or to control use of government property."  Further, the "benefits of trademark registration, while valuable, are not monetary, and are "unlike a subsidy consisting of, for example, HIV/AIDS funding," as in the Court's 2013 decision in USAID v. Alliance for an Open Society.

The majority's opinion clearly rests on its conclusion that the disparagement provision of § 2(a) is viewpoint discrimination that cannot survive strict scrutiny.  But it also provides the fall-back rationale of commercial speech.

Even if we were to treat § 2(a) as a regulation of commercial speech, it would fail to survive. In Central Hudson, the Supreme Court laid out the intermediate- scrutiny framework for determining the constitutionality of restrictions on commercial speech.  First, commercial speech “must concern lawful activity and not be misleading.”  If this is the case, we ask whether “the asserted governmental interest is substantial,” id., and whether the regulation “directly and materially advanc[es]” the government’s asserted interest and is narrowly tailored to achieve that objective.

[citations omitted].  But the court's rationale circles back.  The court finds that 2(a) fails at the second step: the government interest cannot be substantial because it is based on viewpoint discrimination.  This is certainly predictable in light of IMS v. Sorrell (2011).  The court finds that the government's asserted interest in "fostering racial tolerance" cannot support a speech regulation. "The case law does not recognize a substantial interest in discriminatorily regulating private speech to try to reduce racial intolerance."  The cases relied upon are outside the commercial speech realm.

This tension between commercial speech and non-commercial speech permeates some of the opinions by Judges who did not join the majority.  Perhaps most persuasive is the dissenting opinion by Judge Jimmie Reyna, arguing that §2(a) survived commercial speech's intermediate scrutiny:

The marketplace of ideas differs dramatically from the marketplace of goods and services. While the marketplace of ideas may tolerate or even benefit from the volatility that accompanies disparaging and insulting speech, the marketplace of goods and services is a wholly different animal. Commerce does not benefit from political volatility, nor from insults, discrimination, or bigotry. Commerce is a communal institution regulated for the mutual economic benefit of all. Commercial speech that discredits or brings reproach upon groups of Americans, particularly based on their race, has a discriminatory impact that undermines commercial activity and the stability of the marketplace in much the same manner as discriminatory conduct.

As the court notes numerous times throughout its opinions, the disparagement provision has long been contentious, including the notorious "Dykes on Bikes" trademark dispute (which I wrote about here). 

But currently - - - and looming largely - - - the ongoing litigation currently before the Fourth Circuit regarding the PTO's cancellation of the trademark of a football team with the name many believe disparages Native Americans.

Moreover, given that a circuit court has declared a portion of a federal statute unconstitutional, this issue could well be going to the United States Supreme Court.

December 22, 2015 in First Amendment, Opinion Analysis, Race, Recent Cases, Speech | Permalink | Comments (0)

Friday, December 18, 2015

President Obama May Have Ordered Periodic Review at Guantanamo, but That Doesn't Mean You Get It

Judge Royce Lamberth (D.D.C.) ruled yesterday that the district court lacked jurisdiction over a Guantanamo detainee's habeas claim seeking his periodic review, as ordered by President Obama.

The ruling in Salahi v. Obama leaves Guantanamo detainees without a way to enforce the Periodic Review Board process set by executive order by President Obama.

Recall that President created an interagency process in 2011 to periodically review whether continued detention of certain Guantanamo detainees was "necessary to protect against significant threat to the security of the United States." Under EO 13567, every detainee was to get a full hearing every three years from a PRB, plus interim review under certain circumstances.

Salahi has been detained at Guantanamo since 2002, without charges, and has yet to have a PRB hearing (or even have one scheduled). He filed a habeas claim in the D.C. District seeking, among other things, a scheduled PRB hearing.

The court rejected his claim. The court said that "probabilistic" claims--that is, claims that only might lead to release--don't fall within habeas, and that in any event the EO didn't create any substantive rights that a Guantanamo detainee might actually enforce in court.

The upshot is that while the President may order periodic review, that doesn't mean that detainees can actually get it.

December 18, 2015 in Cases and Case Materials, Executive Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, December 16, 2015

Full Second Circuit Gives Detainee Suit Against Ashcroft, Mueller a Green Light

The full Second Circuit last week denied en banc review of its June ruling in Turkmen v. Ashcroft. That ruling allowed a civil rights case against former AG Ashcroft and former FBI Director Mueller, among others, by alien detainees held at the Metropolitan Detention Center in New York to go forward. (The June ruling was not a ruling on the merits, however.) The full Second Circuit denied review by a 6-6 vote. (H/t: Joe Dicola.)

The June ruling and the full court's denial of review are victories for the plaintiffs and, more generally, for access to justice. They deal a major blow to the government in defending detainee-abuse suits that arise in domestic, non-military detention facilities. But while the rulings are significant (to say the least), they may be short-lived. That's because the government is sure to appeal to the Supreme Court, and because the Court will almost surely take it.

December 16, 2015 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0)

Tuesday, December 15, 2015

Court Upholds Another Mandatory Arbitration Clause

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

The Supreme Court yesterday upheld a mandatory arbitration clause in a consumer contract-of-adhesion, forcing the consumer-plaintiffs into arbitration (and out of the courts) to sue DIRECTTV over early termination fees. The ruling is yet another blow to consumers who seek to recover relatively small damages from corporations--the kinds of claims that are best suited for class action lawsuits (in courts). But yesterday's ruling all but bolts the door to the courts for these kinds of claims, as corporations increasingly include mandatory arbitration clauses in their standard-form consumer contracts.

At the same time, the opinion includes powerful federal supremacy language, and reminds us of the constitutional requirement that state court judges uphold federal law, explicitly mentioning federal civil rights. The ruling thus illustrates that the politics in preemption cases can be complicated, and that a federal-friendly ruling in one area (mandatory arbitration clauses) can have important implications in others (civil rights enforcement).

Of course, Congress can "reverse" the holding simply by changing the FAA, although that seems highly unlikely.

The case, DIRECTTV v. Imburgia, grew out of consumers' disputes with DIRECTTV over early termination fees. The plaintiffs' contracts with DIRECTTV (a standard-form contract of adhesion) included a mandatory arbitration clause and a class-arbitration waiver. In particular, the contracts said that "any Claim either of us asserts will be resolved only by binding arbitration," and that "[n]either you nor we shall be entitled to join or consolidate claims in arbitration." The contract also said that if the "law of your state" makes the waiver of class arbitration unenforceable, then the entire arbitration clause is unenforceable.

But at the time the parties contracted, California law said that a waiver of class arbitration in a consumer contract of adhesion was unconscionable and thus unenforceable. This rule came from the California Supreme Court's decision in Discover Bank v. Superior Court. This was the "law of your state," at least insofar as the parties understood it at the time of the contract, and would have rendered the entire arbitration clause unenforceable, allowing the plaintiffs' case to proceed in court (and not requiring arbitration).

An earlier Supreme Court case and the Federal Arbitration Act threw a wrench into that analysis. The Federal Arbitration Act says that a "written provision" in a contract providing for "settle[ment] by arbitration" of "a controversy . . . arising out of" that "contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." The Supreme Court ruled in AT&T Mobility v. Concepcion (2011) (after the parties contracted) that the FAA preempted California's Discover Bank rule, because that rule stood as an obstacle "to the accomplishment and execution of the full purposes and objectives of Congress."

So the plaintiffs' ability to sue in state court turned on whether the contract's reference to "law of your state" meant the Discover Bank rule absent preemption, or the Discover Bank ruled as preempted under Concepcion. If the former, then the contract provision would have made the entire arbitration clause unenforceable, and the plaintiffs could have pursued their claims in court. If the latter, then the contract provision would have left the arbitration clause in place, and forced the courts to dismiss the plaintiffs' claim (and go to arbitration instead).

The Court ruled that the latter interpretation was the better one. In other words, the Court said that "law of your state" meant valid California law--that is, the Discover Bank rule as preempted by the FAA under Concepcion--which did not render the class-arbitration waiver unenforceable. As a result, the arbitration clause in the contract stayed in place, and the plaintiffs' court case will be dismissed. (Justice Breyer wrote the opinion, joined by the Court's conservatives (minus Justice Thomas) and Justice Kagan. Justices Breyer wrote the dissent, and Justice Kagan joined him, in Concepcion.)

Justice Ginsburg dissented, joined by Justice Sotomayor. She wrote that "law of your state" should be interpreted to mean the Discover Bank rule, as the parties intended and expected at the time of the contract (because the Court had not then issued Concepcion). Justice Thomas dissented separately, arguing that the FAA has no application to state court proceedings.

The ruling adds yet more authority to FAA preemption of consumer mandatory arbitration clauses and thus deals a blow to consumer-plaintiffs who seek to sue corporations in court. (Arbitration often favors the corporation.) It tilts the scales (again) toward the corporation, and away from the consumer.

But at the same time, the ruling is strong on federal supremacy, including federal civil rights. Justice Breyer included powerful language reinforcing the supremacy of federal law and the constitutional requirement of state court judges to enforce federal law, explicitly mentioning federal civil rights law.

December 15, 2015 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)