Friday, February 16, 2018
The Sixth Circuit ruled today that plaintiffs lacked standing to sue a law firm for sending a letter without a disclosure that it was a "communication . . . from a debt collector" in violation of the federal Fair Debt Collection Practices Act.
The ruling is the latest application of the Supreme Court's 2016 ruling in Spokeo that a plaintiff has to show an actual harm for Article III standing purposes, even if Congress purports to create a harm through legislation. (In other words, a Congress-created harm alone isn't enough: a plaintiff still has to show actual harm under the standing rules in order to satisfy Article III.)
The case, Hagy v. Demers, arose when Demers, an attorney for a mortgage lender, wrote to the Hagys' attorney saying that his client wouldn't seek to collect on any deficiency balance on the Hagys' mortgage loan. But Demers didn't include a statement that this was a "communication . . . from a debt collector," as required by the FDCPA. So after the mortgage lender nevertheless hassled the Hagys for payment, the Hagys sued Demers, arguing that the FDCPA created an individual right to a notice that a communication is from a debt collector, and that Demers's failure to include the notice harmed them.
The Sixth Circuit rejected that argument. The court held that under Spokeo the Hagys had to show actual harm to establish Article III standing even if Congress purported to create a harm under the FDCPA, and that they couldn't show that Demers's letter harmed them in any concrete way. (In fact, the court said it helped them.)
The court analogized this separation-of-powers problem to a familiar federalism problem to illustrate the limits on Congress:
Congress may not use its enforcement power under the Fourteenth Amendment to redefine the "free exercise" of religion however it wishes and in the process intrude on the States' existing powers in the area. So too with the horizontal separation of powers at the national level. Congress may not enact a law that eliminates Article III safeguards that permit federal courts only to use the "judicial Power" to hear "Cases" and "Controversies."
We know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury. Although Congress may "elevate" harms that "exist" in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.
The court acknowledged the challenges in drawing a line "between what Congress may, and may not, do in creating an 'injury in fact.'" ("Put five smart lawyers in a room, and it won't take long to appreciate the difficult of the task at hand.") But the court said this case was easy: The Hagys didn't even try to show that they suffered some harm outside of the "procedural harm" that Congress created in requiring the disclosure under the FDCPA.
The ruling means that the Hagys' case is dismissed.
Thursday, February 15, 2018
In its opinion in Citizens United v. Schneiderman, the Second Circuit rejected a challenge to the New York Attorney General's regulations requiring non‐profit organizations that solicit donations in NY to disclose their donors on a yearly basis.
The plaintiffs - - - Citizens United Foundation, a 501(c)(3)organization and Citizens United, a 501(c)(4) organization - - -have not been complying with the Attorney General's regulations requiring donor disclosure. Both organizations must submit to the IRS Form 990 with each year’s tax returns, which includes a Schedule B including the organization’s donors, the donors’ addresses, and the amounts of their donations. The Attorney General’s regulations have long required that a charitable organization’s annual disclosures include a copy of the IRS Form 990 and all of its schedules. 13 N.Y.C.R.R. § 91.5(C)(3)(1)(a). But the Citizens United organizations have only ever "submitted the first page of their Schedules B—omitting the parts identifying donors," which apparently went without objection until 2013.
The Citizens United organizations claimed that the New York disclosure requirements violated the First Amendment as chilling donors' speech, both facially and as applied. They also argued that the New York regulations were a prior restraint under the First Amendment. Additionally, they argued that the regulations violated due process and were preempted by the Internal Revenue Code.
The opinion by Judge Rosemary Pooler held that all of these challenges lacked merit. On the chilled speech claim, Judge Pooler's opinion for the unanimous panel found that the plaintiffs' reliance on National Association for the Advancement of Colored People v. State of Alabama ex rel. Patterson (1958) was misplaced. The court applied exacting scrutiny, not the strict scrutiny that the Citizens United organizations advocated, and found the government interests of preventing fraud and self‐dealing in charities were important and the regulations made it easier to accomplish these goals. In the as-applied challenge, the Citizens United charities argued essentially that the current New York Attorney General was hostile to them, but the court stated:
In this case, all we have to go on is a bare assertion that the Attorney General has a vendetta against Appellants. Appellants have not even pled that the Attorney General will turn that alleged bile into untoward interference with the material support for Appellants’ expression. That is a far cry from the clear and present danger that white supremacist vigilantes and their abettors in the Alabama state government presented to members of the NAACP in the 1950s.
While Judge Pooler's opinion noted that it might be a closer case if the donor lists were to be made public, she noted that the IRC mandates that they remain confidential, and the NY regulations incorporate this requirement. The argument that NY might not follow this, or that there have been leaks, was not sufficient.
The court also found that the prior restraint challenge was without merit:
Facially content‐neutral laws that require permits or licenses of individuals or entities engaged in certain forms of expression only constitute prior restraints when they (1) disallow that expression unless it has previous permission from a government official and (2) vest that official with enough discretion that it could be abused.
Here, neither of those circumstances were met.
What Appellants complain of is not a proto‐censorship regime but the inevitability of prosecutorial discretion with finite enforcement resources. Prevention of their solicitation can only arise if they fail to comply with content‐neutral, unambiguous, and narrowly drawn standards for disclosure—they need only submit a document they already prepare and submit to the IRS—and then only after warning and opportunity to cure. It is, in other words, a remedial measure, not ex ante censorship. Moreover, without any indication of bias in application, we cannot view the Attorney General’s discretion to determine which groups receive deficiency notices or face penalties for failing to file Schedule B as anything but a necessary manifestation of the need to prioritize certain enforcement efforts over others.
While the district judge had found the due process challenge was not ripe, the Second Circuit reversed that conclusion, and decided on that the claim had not merit. Affirming the district judge, the Second Circuit found there was no preemption.
Thus, the Citizens United charitable organizations will need to disclose the same information to New York and they do to the IRS or else face penalties. But it may be that they use some of their donations to petition the United States Supreme Court for review.
In its 285 page opinions in IRAP v. Trump, the Fourth Circuit en banc majority has found that the so-called Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017, is essentially intended as a Muslim Ban and thus there is a likelihood of success on the merits of the First Amendment Establishment Clause challenge meriting a preliminary injunction.
The majority is composed of nine judges, with four judges (including a Senior Judge) dissenting. Some judges in the majority also wrote concurring opinions that would also grant relief on the statutory claims.
Recall that in October, Maryland District Judge Theodore Chuang has issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion, shortly after Hawai'i District Judge Derrick Watson had issued a nationwide injunction based largely on statutory grounds, which the Ninth Circuit affirmed.
Recall also that SCOTUS granted certiorari to the Ninth Circuit's opinion, adding the Establishment Clause issue to the questions to be considered. Most likely this case will be added to the SCOTUS docket.
The majority opinion by Chief Judge Gregory, after setting out the litigation history and preliminary injunction standard, delves into the Establishment Clause issue. Chief Judge Gregory begins by finding both that there is standing and that the case is ripe.
On the merits, Chief Judge Gregory's opinion first considers whether the proffered reason for the government act is "facially legitimate and bona fide" under Kleindienst v. Mandel (1972). The court assumes without deciding that the reason is facially legitimate, but holds that it is not bona fide:
here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.
The President’s own words—publicly stating a constitutionally impermissible reason for the Proclamation—distinguish this case from those in which courts have found that the Government had satisfied Mandel’s “bona fide” prong.
Chief Judge Gregory then found that the Travel Ban 3.0 failed the Lemon v. Kurtzman (1971) test which requires the government to show that its challenged action has a primary secular legislative purpose, and then, even if it does that its principal or primary effect neither advances nor inhibits religion and which does not foster ‘an excessive government entanglement with religion. Chief Judge Gregory's majority opinion concludes that Travel Ban 3.0 did not have a primary secular purpose but, like its previous incarnations, was motivated by anti-Muslim bias. Chief Judge Gregory noted the government's argument to disregard the President's pre-election statements was a difficult one to make, but stated it did not need to rely on any campaign statements "because the President’s inauguration did not herald a new day."
Among the incidents Chief Judge Gregory recounts is this one from November 28, 2017 (after the Travel Ban 3.0 September 24, 2017 Proclamation):
President Trump retweeted three disturbing anti-Muslim videos entitled: “Muslim Destroys a Statue of Virgin Mary!” “Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on crutches!” The three videos were originally tweeted by an extremist political party whose mission is to oppose “all alien and destructive politic or religious doctrines, including . . . Islam.” When asked about the three videos, President Trump’s deputy press secretary Raj Shah responded by saying that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “the President has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” The Government does not—and, indeed, cannot—dispute that the President made these statements.
chose not to make the review publicly available and so provided a reasonable observer no basis to rely on the review. Perhaps in recognition of this, at oral argument before us the Government expressly disavowed any claim that the review could save the Proclamation. Instead, the Government conceded that the Proclamation rises and falls on its own four corners.
For the majority, then,
The contradiction between what the Proclamation says—that it merely reflects the results of a religion-neutral review—and what it does “raises serious doubts” about the Proclamation’s proffered purpose, and undermines the Government’s argument that its multi-agency review cured any earlier impermissible religious purpose.
Chief Judge Gregory's majority opinion summed up its reasoning:
Finally, on the scope of the injunction, the majority opinion arguably broadened it:
Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”
To the extent that the district court held that IRAP, HIAS, and similar organizations categorically lack a qualifying bona fide relationship with their clients, we conclude that this would be an abuse of discretion. We see no need to read more into the Supreme Court’s grant of a stay than what it held: that refugees with formal assurances do not categorically enjoy a bona fide relationship with a U.S. entity. Instead, IRAP, HIAS, and other organizations that work with refugees or take on clients are subject to the same requirements as all other entities under the Supreme Court’s bona fide relationship standard: a relationship that is “formal, documented, and formed in the ordinary course, rather than for the purpose” of evading the travel restrictions imposed by the Proclamation.
Nevertheless, the Fourth Circuit stayed its decision, in light of the Supreme Court’s order staying the district judge's injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought."
Wednesday, February 14, 2018
The Seventh Circuit ruled this week that the First Amendment's ministerial exception barred a Hebrew teacher's Americans with Disabilities Act claim against her employer, a Jewish school. The ruling is the first time the Seventh Circuit applied the ministerial exception.
The case, Grussgott v. Milwaukee Jewish Day School, arose when Grussgott, a Hebrew teacher at the school, suffered memory and cognitive issues as a result of medical treatment for her brain tumor. During a call from a parent, Grussgott couldn't remember an event, and the parent taunted her about her memory loss. Grussgott's husband, who happens to be a rabbi, sent an e-mail from Grussgott's work account criticizing the parent for being disrespectful. The school fired her, and she sued under the ADA, arguing that she was fired because of her cognitive issues resulting from the brain tumor.
The Seventh Circuit ruled that the ministerial exception applied and dismissed the case. Applying the "fact-intensive analysis" of Hosanna-Tabor, the court held that while Grussgott's title and the "substance reflected in that title" both tilted against applying the ministerial exception, Grussgott's use of the title and the religious functions she performed both tilted in favor. The court explained:
But Hebrew teachers at Milwaukee Jewish Day School were expected to follow the unified Tal Am curriculum, meaning that the school expected its Hebrew teachers to integrate religious teachings into their lessons. Grussgott's resume also touts significant religious teaching experience, which the former principal said was a crucial factor in the school hiring her in 2013. Thus, the substance of Grussgott's title as conveyed to her and as perceived by others entails the teaching of the Jewish religion to students, which supports the application of the ministerial exception here.
Grussgott undisputedly taught her students about Jewish holidays, prayer, and the weekly Torah readings; moreover, she practiced the religion alongside her students by praying with them and performing certain rituals, for example.
The court was careful to say that its analysis is holistic and fact-intensive, and not a rigid and mathematical application of the four "factors" from Hasanna-Tabor. On the other hand, the court also rejected "a purely functional approach to determining whether an employee's role is ministerial."
We read the Supreme Court's decision to impose, in essence, a totality-of-the-circumstances test. And it is fair to say that, under the totality of the circumstances in this particular case, the importance of Grussgott's role as a "teacher of  faith" to the next generation outweighed other considerations.
Tuesday, February 13, 2018
In a 55 page opinion in the consolidated cases of Vidal v. Nielsen and New York v. Trump, United States District Judge Nicholas Garaufis granted a preliminary injunction against the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood.
Recall that New York, joined by 15 other states and D.C. filed a complaint last September alleging the DACA rescission violated the constitution as well as being unlawful under the Administrative Procedure Act (APA). Judge Garaufis's Order is based on a violation of the APA finding the rescission arbitrary and capricious based in part on the Attorney General Jefferson Sessions's memo finding the DACA program unconstitutional.
After an extended analysis of Sessions's Letter, Judge Garaufis writes
To the extent the decision to end the DAGA program was based on the Attorney General's determination that the program is unconstitutional, that determination was legally erroneous, and the decision was therefore arbitrary and capricious. The court does not address whether the DACA program might be unconstitutional on grounds other than those identified by the Attorney General, as any such grounds are not fairly before the court.
Judge Garaufis also made clear the limited scope of the preliminary injunction:
This order does not hold that the rescission of DACA was unlawful. That question is for summary judgment, not motions for a preliminary injunction. Cf. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953) (“[A] preliminaiy injunction . . . is, by its very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not ﬁxed or ﬁnal or conclusive, characterized by its for-the-time-beingness.”).
This order does not hold that Defendants may not rescind the DACA program. Even if the court ultimately ﬁnds that Defendants’ stated rationale for ending the DACA program was legally deﬁcient, the ordinary remedy is for the court to remand the decision to DHS for reconsideration. On remand, DHS “might later, in the exercise of its lawful discretion, reach the same result for a different reason.
This order does not require Defendants to grant any particular DACA applications or renewal requests. Restoring the DACA program to the status quo as of September 4, 2017, does not mean that every DACA recipient who requests renewal of his or her deferred action and work authorization will receive it. The DACA program identiﬁed “criteria [that] should be satisﬁed before an individual is considered for an exercise of prosecutorial discretion.” (2012 DACA Memo at 1.) It did not require immigration ofﬁcials to defer action against any individuals who met these criteria; to the contrary, the 2012 DACA Memo stated that DHS would exercise prosecutorial discretion “on an individual basis” and would not “provide any assurance that relief will be granted in all cases.” Preserving the status quo means only that Defendants must continue considering DACA applications and renewal requests, not that they must grant all such applications and requests. This order does not prevent Defendants’ from revoking individual DACA recipients’ deferred action or work authorization. Under the 2012 DACA Memo, DHS may terminate a DACA recipient’s deferred action “at any time, with or without a Notice of Intent to Terminate, at [its] discretion.” Maintaining the status quo does nothing to alter that.
Monday, February 12, 2018
In its opinion in Perez v. City of Roseville, a panel of the Ninth Circuit reversed a district judge's granting of summary judgment to the government on a constitutional challenge by Janelle Perez to her termination from the City of Roseville after an internal affairs investigation into her "romantic relationship" with a fellow officer. The investigation noted that both officers "are married and have young children."
Authored by Judge Reinhardt, the opinion noted that its conclusion was required by Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), in which the Ninth Circuit held that the city violated Thorne's constitutional rights when it relied on her private, non-job-related sexual conduct as a clerk-typist in refusing to hire her as an officer, without “any showing that [her] private, off-duty personal activities ... [had] an impact upon [her] on-the-job performance,” or contravened “specific policies with narrow implementing regulations.” Likewise, Roseville failed to "introduce sufficient evidence that Perez’s affair had any meaningful impact upon her job performance."
Interestingly, the Ninth Circuit identifies a circuit split on the issue: We recognize that, since Thorne, at least two other circuits have adopted rules that appear to be in some tension with our case. See Coker v. Whittington, 858 F.3d 304, 306 (5th Cir. 2017) (concluding Constitution not violated where two sheriff’s deputies were fired for moving in with each other’s wives before finalizing divorce from their current wives because the Sheriff’s policies were supported by a rational basis); Seegmiller v. LaVerkin City, 528 F.3d 762, 770 (10th Cir. 2008) (upholding termination of officer on basis of extramarital affair under rational basis test because there is no “fundamental liberty interest ‘to engage in a private act of consensual sex’”). > However, the Ninth Circuit rejects the "approach taken by the Fifth and Tenth Circuits" for two reasons. First, there is the "binding precedent" of Thorne:
Because the State’s actions in this case “intrude on the core of a person’s constitutionally protected privacy and associational interests,” we must analyze them under “heightened scrutiny.” Thorne, 726 F.2d at 470. Moreover, even if we were to agree that the Department’s action here need only satisfy rational basis review, Thorne explains that it cannot survive any level of scrutiny without either a showing of a negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation. Id. at 471. Under our precedent, the Department must do more than cite a broad, standardless rule against “conduct unbecoming an officer.”
Second, the "Fifth and Tenth Circuits fail to appreciate the impact of Lawrence v. Texas, 539 U.S. 558 (2003), on the jurisprudence of the constitutional right to sexual autonomy."
"Lawrence did much more than merely conclude that Texas’ anti-sodomy law failed the rational basis test. Instead, it recognized that intimate sexual conduct represents an aspect of the substantive liberty protected by the Due Process Clause. As such, the constitutional infirmity in Texas’ law stemmed from neither its mere irrationality nor its burdening of a fundamental right to engage in homosexual conduct (or even private consensual sexual conduct, Rather, Texas’ law ran afoul of the Constitution’s protection of substantive liberty by imposing a special stigma of moral disapproval on intimate same-sex relationships in particular. As the Court explained, the liberty protected by the Due Process Clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are of the same sex or not, married or unmarried. . . . Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has “traditionally viewed a particular practice,” such as extramarital sex, “as immoral.” Thus, without a showing of adverse job impact or violation of a narrow, constitutionally valid departmental rule, the Constitution forbids the Department from expressing its moral disapproval of Perez’s extramarital affair by terminating her employment on that basis.
Thus, the Ninth Circuit holds that Thorne, decided 20 years before Lawrence was correct and the Fifth and Tenth Circuit opinions, both decided after Lawrence, do not give Lawrence proper effect.
Concurring, Judge Tashima stresses that Perez was a probationary police officer and thus the government need not have provided reasons. However, when the government did provide reasons "those reasons all arose in such short order after the internal affairs review that a reasonable inference may be drawn that they may have been pretextual." Additionally, the majority opinion held that the government had no right to qualified immunity because the rights were clearly established, again relying on Thorne, decided in 1983.
The majority panel opinion rejected a procedural due process claim and a gender discrimination claim.The court thus reversed the summary judgment in favor of the government and remanded the case for further proceedings given the factual disputes regarding the actual reasons Perez was termination.
Wednesday, February 7, 2018
The D.C. and Ninth Circuits this week ruled in two very different cases that plaintiffs lacked claims against federal officers or agents for violations of their constitutional rights. The two rulings both rely on a well established Bivens rule, that a plaintiff lacks a Bivens remedy if alternative statutory remedies are available. As such, the rulings don't restrict Bivens because of the Supreme Court's restrictive reading of Bivens last Term in Abbasi. Still, they underscore the limited reach of Bivens.
In the D.C. case, Liff v. Office of Inspector General, a former government contractor sued the Labor Department OIG and the Office of Personnel Management for violating his due process rights after those offices published reports that allegedly caused harm to him and his business. The court held that as a government contractor he had other statutory remedies, including the Tucker Act, the Contract Disputes Act, and the agency procurement protest process under the Federal Acquisition Regulation. As to his privacy claim, the court said the Privacy Act provided relief. The court was untroubled that these remedies wouldn't make him whole: "The question is whether alternative remedies exist, not whether they cover the full breadth of harm that a would-be Bivens plaintiff alleges."
In the Ninth Circuit case, Vega v. U.S., a federal inmate sued halfway-house operators for violating his First Amendment right to access to the courts and procedural due process after they filed a disciplinary report, without evidence, that resulted in his return to federal prison. (He eventually was returned to the halfway house.) The court held that he lacked a Bivens remedy, because the Administrative Remedy Program, the Unit Discipline Committee, or state-law claims could have provided relief.
Thursday, February 1, 2018
In his opinion in Hand v. Scott, United States District Judge for the Northern District of Florida Mark Walker declared Florida's re-enfranchisement scheme for persons convicted of felonies to be restored their right to vote unconstitutional under both the First Amendment and the Fourteenth Amendment's Equal Protection Clause.
The court's decision was on cross motions for summary judgment and Judge Walker opens his opinion by describing the Florida scheme:
Florida strips the right to vote from every man and woman who commits a felony. To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members. These citizens are subject to the consequences of bills, actions, programs, and policies that their elected leaders enact and enforce. But these citizens cannot ever legally vote unless Florida’s Governor approves restoration of this fundamental right.
Florida’s Executive Clemency Board has, by rule, unfettered discretion in restoring voting rights. “We can do whatever we want,” the Governor said at one clemency hearing. One need not search long to find alarming illustrations of this scheme in action. In 2010, a white man, Steven Warner, cast an illegal ballot. Three years later, he sought the restoration of his voting rights. He went before the state’s Executive Clemency Board, where Governor Scott asked him about his illegal voting.
“Actually, I voted for you,” he said. The Governor laughed. “I probably shouldn’t respond to that.” A few seconds passed. The Governor then granted the former felon his voting rights.
While the state can deny persons convicted of a felony the right to vote under the Fourteenth Amendment as construed by the Court in Richardson v. Ramirez (1974), the issue before Judge Walker was whether the vote restoration process was constitutional. Seemingly, the state argued it had absolute discretion to restore voting rights. Judge Walker held that such discretion violated the First Amendment rights to free association and expression, and the Fourteenth Amendment's Equal Protection Clause.
On the First Amendment claim, Judge Walker first articulated the right of free political association and then the right to vote as including a First Amendment right, interestingly relying in part on Citizens United. Judge Walker writes that the unfettered discretion in vote restoration cannot survive exacting scrutiny. Even if the government interest in limiting the franchise to responsible persons is valid, "Florida does not use the least-restrictive means to pursue its interests in preventing possibly irresponsible citizens from choosing their leaders."
Florida’s vote-restoration scheme is crushingly restrictive. The scheme crumbles under strict scrutiny because it risks—if not covertly authorizes the practice of—arbitrary and discriminatory vote-restoration. When a scheme allows government officials to “do whatever [they] want,” viewpoint discrimination can slip through the cracks of a seemingly impartial process. [citing record] Such discrimination can lead to a denial of “the fruits of their association, to wit: [former felons’] political impact”—or widespread, insidious bias to benefit the Governor’s political party. Touchston, 234 F.3d at 1154 (Tjoflat, J., dissenting). State officials’ potential political, racial, or religious biases cannot poison the well of vote-restoration.
Judge Walker discussed several instances of possible discrimination and disparities, but ultimately concluded that it was the possibility of discrimination from unfettered discretion that was crucial. Additionally, the Governor as ultimate arbiter was fatal:
[t]he Governor has de facto veto authority over anyone’s restoration. All the component parts of the vote- restoration process that Defendants wave like shiny objects to distract from potential viewpoint discrimination—the investigations, case analyses, and hearings—mean nothing if the Governor alone has final authority to restore Plaintiffs’ rights.
Further, Judge Walker rejected the State's argument that the vote restoration scheme was akin to unreviewable executive clemency:
Executive clemency by its mere existence cannot serve as a legitimate, let alone compelling, state interest. No serious person would argue that an act of executive clemency that, for example, is motivated by race cannot run afoul of the Constitution simply because it is an act of executive clemency. This Court recognizes the novelty of a challenge to an executive clemency scheme. But “it is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And so, if a court finds unconstitutionality in an executive clemency scheme, its role is to strike the acts permitting the constitutional violation—not to declare its hands tied.
On the Equal Protection Clause claim, Judge Walker essentially applied rational basis scrutiny and found that the "violation in this case—the substantial risk of arbitrary and discriminatory vote-restoration based on an applicant’s identity and perceived voting preferences from partisan government officials— is worse than a coin flip." Judge Walker stated that while the state may have a legitimate interest in limiting the franchise to responsible voters, the means chosen failed because it was at best, "arbitrary and disparate," interestingly quoting Bush v. Gore, on which the plaintiffs relied. Judge Walker added that at worst, the scheme would be discriminatory.
Judge Walker ordered additional briefings regarding remedies. Even if the state does not appeal, the question of remedies will be a difficult one.
Meanwhile, a ballot measure to restore voting rights to persons convicted of felonies has just been approved for the November ballot.
Wednesday, January 31, 2018
A sharply fractured and divided en banc D.C. Circuit today rejected a challenge to the independent single director at the Consumer Protection Financial Bureau. The ruling deals a blow to opponents of the CFPB's power structure. But this ruling almost certainly doesn't end the matter; instead, it likely only tees the case up for the Supreme Court, giving this Court a chance to put its gloss on independence within the Executive Branch.
We previously posted on the case here. (This case is not directly related to the litigation over who is the true acting head of the Bureau.)
Opponents of the CFPB power structure argued that Congress violated the Take Care Clause in creating the CFPB with an independent single director. They said that while the Supreme Court has approved independent agencies in the Executive Branch, these have all been boards, not single directors. And creating an independent single director put too much power in the hands of the CFPB director--and took too much power away from the President.
The court today rejected those claims. The multiple opinions run 250 pages, but the majority's approach came down to this:
The Supreme Court eighty years ago sustained the constitutionality of the independent Federal Trade Commission, a consumer-protection financial regulator with powers analogous to those of the CFPB. Humphrey's Executor v. United States. In doing so, the Court approved the very means of independence Congress used here: protection of agency leadership from at-will removal by the President. The Court has since reaffirmed and built on that precedent, and Congress has embraced and relief on it in designing independent agencies. We follow that precedent here to hold that the parallel provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act shielding the Director of the CFPB from removal without cause is consistent with Article II.
Congress's decision to provide the CFPB Director a degree of insulation reflects it permissible judgment that civil regulation of consumer financial protection should be kept one step removed from political winds and presidential will. We have no warrant here to invalidate such a time-tested course. No relevant consideration gives us reason to doubt the constitutionality of the independent CFPB's single-member structure. Congress made constitutionally permissible institutional design choices for the CFPB with which courts should hesitate to interfere. "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." Youngstown Sheet & Tube Co. v. Sawyer.
Tuesday, January 30, 2018
In his opinion in Koontz v. Watson, United States District Judge Daniel Crabtree enjoined Kansas officials from enforcing Kan. Stat. Ann. § 75- 3740 f and any other Kansas statute, law, policy, or practice that requires independent contractors to declare that they are not participating in a boycott of Israel. The Kansas statute is meant to counteract the so-called BDS (Boycott, Divestment, and Sanctions) movement which seeks to increase economic pressure on Israel as a means to accomplish specific goals.
After finding that the constitutional challenge was ripe, as well as not moot (since the state contended it would grant a waiver to the plaintiffs), Judge Crabtree found that plaintiffs were likely to prevail on their claim that the statute violated the First Amendment and a preliminary injunction was warranted. Judge Crabtree declared that under the First Amendment, states cannot retaliate or impose conditions on an independent contractor “ʻon a basis that infringes his constitutionally protected freedom of speech,'" and that the same guidelines developed under Pickering v. Board of Education of Township High School District 205, Will County, Illinois (1969) should apply.
On the first Pickering factor, Judge Crabtree found that Ms. Koontz's conduct of participating in a boycott was protected speech under NAACP v. Claiborne Hardware Co. (1982):
The conduct prohibited by the Kansas Law is protected for the same reason as the boycotters’ conduct in Claiborne was protected. Ms. Koontz, other members of the Mennonite Church, and others have “banded together” to express, collectively, their dissatisfaction with Israel and to influence governmental action. Namely, its organizers have banded together to express collectively their dissatisfaction with the injustice and violence they perceive, as experienced both by Palestinians and Israeli citizens. She and others participating in this boycott of Israel seek to amplify their voices to influence change, as did the boycotters in Claiborne.
In evaluating the government interest under Pickering, Judge Crabtree determined that the legislative history revealed that the goal was to "undermine the message of those participating in a boycott of Israel": "This is either viewpoint discrimination against the opinion that Israel mistreats Palestinians or subject matter discrimination on the topic of Israel." An additional possibility was the legislative goal to "minimize discomfort" of Israeli businesses. Judge Crabtree found these goals were not legitimate.
On the narrowly tailored prong, Judge Crabtree found that the means chosen would be both overinclusive and underinclusive to any legitimate goals such as those involving trade relations with Israel. Moreover,
The authority the Kansas Law grants the Secretary of Administration to waive the certification requirement also undermines any rationale offered by defendant. As the Supreme Court noted in City of Ladue v. Gilleo(1994), “Exemptions from an otherwise legitimate regulation of a medium of speech . . . may diminish the credibility of the government’s rationale for restricting speech in the first place.”
Judge Crabtree also distinguished Rumsfeld v. Forum for Academic & Institutional Rights, (FAIR) Inc. (2006), on which the State relied, stating that the Kansas statute aims to regulate conduct that is "inherently expressive":
It is easy enough to associate plaintiff’s conduct with the message that the boycotters believe Israel should improve its treatment of Palestinians. And boycotts—like parades—have an expressive quality. Forcing plaintiff to disown her boycott is akin to forcing plaintiff to accommodate Kansas’s message of support for Israel. Because the Kansas Law regulates inherently expressive conduct and forces plaintiff to accommodate Kansas’s message, it is unlike the law at issue in Rumsfeld. The court thus finds defendant’s reliance on Rumsfeld misplaced.
After finding a likely First Amendment violation, Judge Crabtree further found the factors of granting a preliminary injunction were met.
Monday, January 29, 2018
In a brief and impassioned Opinion and Order in Ragbir v. Sessions, United States District Judge Katherine Forrest of the Southern District of New York ordered the immediate release of immigrant rights activist Ravidatha ("Ravi") Ragbir, whose case has attracted much attention.
Judge Forrest noted with "grave concern" that Ragbir may have been targeted for his speech on immigration matters. She described Ragbir as a Legal Permanent Resident since 1994, living in Brooklyn, with his wife and daughter, both of whom are American citizens, and the Executive Director of the New Sanctuary Coalition of New York City, on the Steering Committee of the New York State Interfaith Network for Immigration Reform, and has having served as the Chair of the Board of Families for Freedom.
The underlying immigration dispute involves what the judge called a "mysterious 'travel document,'" but the Judge found that this document should not decide the case:
The Court in fact agrees with the Government that the statutory scheme - - - when one picks the path through the thicket in the corn maze - - - allows them to do what was done here. But there are times when statutory schemes may be implemented in ways that tread on rights that are larger, more fundamental. Rights that define who we are as a country, what we demand of ourselves, and what we have guaranteed to each other: our constitutional rights. That has occurred here.
In sum, the Court finds that when this country allowed petitioner to become a part of our community fabric, allowed him to build a life with and among us and to enjoy the liberties and freedom that come with that, it committed itself to allowance of an orderly departure when the time came, and it committed itself to avoidance of unnecessary cruelty when the time came. By denying petitioner these rights, the Government has acted wrongly.
Judge Forrest grounded her finding in the Due Process Clause of the Fifth Amendment:
But if due process means anything at all, it means that we must look at the totality of circumstances and determine whether we have dealt fairly when we are depriving a person of the most essential aspects of life, liberty, and family. Here, any examination of those circumstances makes clear that petitioner’s liberty interest, his interest in due process, required that we not pluck him out of his life without a moment’s notice, remove him from his family and community without a moment’s notice. The process that was due here is not process that will allow him to stay indefinitely - - - those processes have been had. The process that is due here is the allowance that he know and understand that the time has come, that he must organize his affairs, and that he do so by a date certain. That is what is due. That is the process required after a life lived among us.
Judge Forrest continued:
Here, instead, the process we have employed has also been unnecessarily cruel. And those who are not subjected to such measures must be shocked by it, and find it unusual.” That is, that a man we have allowed to live among us for years, to build a family and participate in the life of the community, was detained, handcuffed, forcibly placed on an airplane, and today finds himself in a prison cell. All of this without any showing, or belief by ICE that there is any need to show, that he would not have left on his own if simply told to do so; there has been no showing or even intimation that he would have fled or hidden to avoid leaving as directed. And certainly there has been no showing that he has not conducted himself lawfully for years. Taking such a man, and there are many such men and women like him, and subjecting him to what is rightfully understood as no different or better than penal detention, is certainly cruel. We as a country need and must not act so. The Constitution commands better.
Constitutional principles of due process and the avoidance of unnecessary cruelty here allow and provide for an orderly departure. Petitioner is entitled to the freedom to say goodbye.
In its opinion in C.J.L.G. v. Sessions, a panel of the Ninth Circuit held that neither the Due Process Clause of the Fifth Amendment nor the Immigration & Nationality Act includes a right to court-appointed counsel for minors.
C.J., a thirteen year old, fled Honduras with his mother after being threatened at gunpoint to join a gang, and arrived in the United States without documentation. Neither spoke English. In the removal proceedings, his mother was informed she could obtain an attorney, but she stated that she could not afford one. She filled out forms to request relief. Eventually an immigration judge held a brief hearing and issued a written denial of the application for asylum. withholding of removal, and relief under the Convention Against Torture, finding the minor had not demonstrated a well-founded fear of persecution or membership in a protected group, and that there was fear of torture or acquiescence of the government.
In a very brief concurring opinion, Judge John Owens notes that C.J., who was with his mother, was not an unaccompanied minor: "The opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors. That is a different question that could lead to a different answer."
Nevertheless, in the opinion by Judge Consuelo M. Callahan for what is essentially a unanimous panel, C.J.'s mother is not an advantage for C.J. Indeed, as the court's opinion states,
In C.J.’s case, the onus was almost entirely on the IJ [immigration judge] to develop the record. C.J.’s mother was ill-equipped to understand the proceedings or to comprehend C.J.’s burden in establishing eligibility for relief, and the government asked no questions. Thus, it was up to the IJ to discover any facts that might support C.J.’s asylum claim.
Judge Callahan notes that "alien minors" have the same Due Process rights as any other persons, and that there is a right to counsel under the federal statute and regulations, it is a different question whether C.J. is "entitled to court- appointed counsel at government expense—a privilege that Congress has not conferred." Additionally, to prevail C.J. must demonstrate that the denial of an attorney "prejudiced the outcome of his removal proceeding."
The court distinguished previous Ninth Circuit precedent regarding counsel who was inadequate, concluding that this did not include a right to court-appointed counsel. The court also refused to extend In re Gault (1967), holding that minors are entitled to court appointed counsel in some juvenile proceedings:
Nothing in Gaultor its progeny compels the outcome that minors in civil immigration proceedings who do not face the threat of incarceration are categorically entitled to court-appointed counsel. Indeed, “the [Supreme] Court has [never] determined that due process principles of fundamental fairness categorically require counsel in any context outside criminal proceedings.” Turner[ v. Rogers], 564 U.S. at 454 (Thomas, J., dissenting). We therefore hold that it is not established law that alien minors are categorically entitled to government- funded, court-appointed counsel.
The court then engaged in a Matthews v. Eldridge balancing test for procedural due process, to “determine what process is due by balancing (1) the private interest at stake, (2) ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional safeguards,’ and (3) the government’s interest, including the burdens of any additional process.” The court found some appeal with the government's argument that there was only a slight private interest because C.J. had only been in the United States a few days, but concluded that C.J. did meet the first factor because the gang "attempted to recruit him under duress—at gunpoint no less—before he fled provides reason to believe that C.J. would encounter similar threats and perhaps worse upon his return."
As to the second Matthews factor, the court acknowledged that an attorney usually makes a difference in removal proceedings for minors, but considered whether here the Immigration Judge provided a "full and fair hearing" but considering the elements of the claim and the evidence. Although the court stated that "To be sure, C.J.’s removal proceeding was not a paragon of procedural decorum" and the "IJ should have more clearly explained the standard for asylum relief," the court nevertheless concluded that "C.J. falls well short of accomplishing this Herculean task [of satisfying this factor] because he fails to show that the process Congress prescribed is categorically inadequate to vindicate an alien minor’s right to due process. The second Mathews factor favors the government."
Monday, January 22, 2018
The Tenth Circuit ruled last week that a former sheriff and undersheriff enjoyed qualified immunity against claims that they retaliated against employees for exercising free speech. The ruling means that the case is dismissed.
The case underscores the power of qualified immunity and the challenges that plaintiffs sometimes face in overcoming it, especially when circuit law hasn't addressed the plaintiffs' precise claims.
The case arose when former Sheriff Terry Maketa and Undersheriff Paula Presley took employment actions against employees for their speech in order to influence an upcoming election for sheriff. In particular, Maketa and Presley transferred plaintiff Lieutenant Peck to the midnight shift after Peck refused to deliver to the media a false story concocted by Maketa regarding a missing Internal Affairs document. They opened a criminal investigation against plaintiff Sergeant Stone and Stone's two children (who were also employees of the Sheriff's Office) after Stone expressed political support for the candidate opposed by Maketa and Presley. And they put a group of commanders on administrative leave; confiscated their phones, tablets, weapons, badges, and vehicles; and had them escorted out of the building after they lodged EEO complaints against Maketa and Presley.
The court didn't rule on the merits of the plaintiffs' free speech claims. Instead, it ruled that the defendants didn't violate any of the plaintiffs' clearly established rights under the Garcetti/Pickering test for public employee speech.
As to Peck, the court said that in communicating a message to the media against Maketa's orders, she wasn't clearly speaking as a private citizen (rather than a public employee), as required for a public employee's free speech claim. The court noted that "[i]n some circuits, Lt. Peck's disobedience might affect whether she was speaking as part of her official duties." But because the Tenth Circuit hadn't ruled on this yet, it wasn't clearly established.
As to Stone, the court said that the investigations didn't clearly constitute adverse employment actions as required for a public employee's retaliation claim. Again, the court noted that other circuits have ruled differently--that "[o]ther circuits disagree with one another on the issue" whether a retaliatory criminal investigation "entails a constitutional violation." But because the Tenth Circuit "has not settled the question," the right wasn't clearly established.
Finally, as to the commissioners, the court said that the defendants' actions weren't clearly adverse employment actions.
Thursday, January 18, 2018
The Seventh Circuit ruled that former Illinoisans who now live in Puerto Rico, Guam, and the Virgin Islands lacked standing to challenge the federal Uniformed and Overseas Citizens Absentee Voting Act and lost on the merits in their claims against Illinois after the state rejected their requests for absentee-voter ballots.
The ruling means that former Illinoisans who reside in these territories won't receive an absentee-voter ballot from the state, unless Illinois changes its law.
The plaintiffs, former residents of Illinois but now residents of the territories, sued when Illinois denied them absentee-voter ballots for federal elections in Illinois. They claimed that the UOCAVA and Illinois law defined their territories as part of the United States and thus prohibited them from getting absentee ballots as overseas voters. They claimed that this violated equal protection and their right to travel.
The Seventh Circuit ruled that the plaintiffs didn't even have standing to challenge the UOCAVA. That's because while the UOCAVA defines "the United States" to include these territories, it doesn't prohibit Illinois from providing absentee ballots to the plaintiffs. Illinois law does that. As a result, the court said that the plaintiffs couldn't challenge the federal law, although they could still challenge state law.
As to state law, the court said that Illinois's classification didn't violate equal protection and its denial of absentee ballots didn't violate the right to travel. The court said that the plaintiffs have no fundamental right to vote in federal elections--"absent a constitutional amendment, only residents of the 50 States have the right to vote in federal elections"--and no claim to heightened scrutiny. The court held that Illinois's distinction between Puerto Rico, Guam, and the Virgin Islands (on the one hand) and the Northern Marianas and American Samoa (on the other, where former Illinoisans can get an absentee ballot) passed rational basis review, because at the time that Illinois enacted the distinction, "these two territories were . . . more similar to foreign nations than were the incorporated territories where the plaintiffs reside." (The court said it was OK to look at the state's justification at the time of the distinction, in 1979, instead of now, because "even if . . . the Northern Marianas and American Samoa became more integrated into the United States, it would not help the plaintiffs [who are] injured specifically because Illinois defines their resident territories as within the United States.")
The court summarily rejected the plaintiffs' right-to-travel argument as "borderline frivolous."
The Seventh Circuit ruled that a Wisconsin claimant who was convicted of rape, sexual assault, and kidnapping in 1983 in Illinois had standing to challenge his designation under a 2011 Illinois law as a "sexual predator," but that the restrictions that went with his new designation didn't violate the Ex Post Facto Clause.
The case arose when Illinois amended its Sex Offender Registration Act to define "sexual predator" as a person who had been convicted of any felony offense after July 1, 2011, and had been required to register as a sex offender under a conviction that required registration for more than ten years. Under the amendment, sexual predators had increased reporting requirements and certain new restrictions. Anthony Johnson fell into the new classification, because he was convicted of rape in 1983 (and was required to register for ten years) and of felony theft in 2013. Johnson was therefore subject to the reporting requirements and restrictions.
When Johnson moved to Wisconsin, he discovered that he had to meet certain heightened registration requirements there, too--but only because he was designated a "sexual predator" in Illinois. In other words, Wisconsin piggy-backed on Illinois's sexual predator requirements for someone like Johnson. Without his designation as a sexual predator in Illinois, Johnson wouldn't have to meet these requirements in Wisconsin.
Johnson sued Illinois officials, arguing that the 2011 amendments violated the Ex Post Facto Clause. The defendants moved to dismiss for lack of standing.
The Seventh Circuit ruled that Johnson had standing, but that the new requirements didn't violate the Ex Post Facto Clause.
As to standing, the court said that Johnson only had reporting requirements in Wisconsin because of his designation under Illinois law (and that he therefore demonstrated causation), and that if he won his case against Illinois officials, he'd no longer have to meet Wisconsin's requirements (and that he therefore demonstrated redressability).
As to the Ex Post Facto Clause, the court said that the new requirements under Illinois law were a function of his 2013 felony theft conviction, not his 1983 rape conviction: "Had Mr. Johnson not committed a felony after the Act went into effect, he wouldn't be classified as a sexual predator today. But he committed that later felony, and that conviction produced the sexual predator classification of which he complains."
Or, as Justice Jackson wrote in a similar enhanced-penalty case, nearly 70 years ago, Gryger v. Burke (and quoted by the Seventh Circuit):
The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one.
Wednesday, January 17, 2018
In its opinion in Erotic Service Provider Legal Education and Research Project v. Gascon, the Ninth Circuit affirmed the district judge's dismissal of a constitutional challenge to California Penal Code § 647(b) which criminalizes the commercial exchange of sexual activity.
Judge Jane Restani, writing for the unanimous panel, rejected that claim that the United States Supreme Court's landmark decision in Lawrence v. Texas (2003) conferred a fundamental right to sexual intimacy under the Fourteenth Amendment's Due Process Clause. Restani's opinion declares that "whatever the nature of the right protected in Lawrence, one thing Lawrence does make explicit is that the Lawrence case “does not involve ... prostitution,” quoting from what some have called Lawrence's "caveat paragraph."
Given that there was no fundamental right at stake, the Ninth Circuit then applied rational basis and found there were several legitimate purposes found by the district court including links between commercial sex and trafficking in women and children; creating a "climate conducive to violence against women;" a "substantial link between prostitution and illegal drug use," and a link between commercial sex and "the transmission of AIDS and other sexually transmitted diseases." Judge Restani's opinion then summarily rejected the argument that the criminalization of commercial sex actually exacerbated the very problems it sought to remedy, stating that such assertions do not undermine the “rational speculation” sufficient to sustain the statute. The opinion relied on FCC v. Beach Communications (1993) for its highly deferential rational basis standard, despite the constitutional doctrine in Beach Communications being equal protection (albeit under the Fifth Amendment) rather than due process.
[image, "Female convicts at work in Brixton Women's Prison," UK 1862 via]
The Ninth Circuit was no more receptive to the other constitutional challenges. On the First Amendment free association claim, the court found that this was more properly analyzed as due process, and thus the rejection of the due process claim was dispositive. On the "right to earn a living" claim under due process, the court again relied on Lawrence's exclusion of commercial sex. Finally, on the First Amendment free speech claim, the court considered the solicitation of commercial sex as speech and analyzed it under the landmark test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y (1980). The court noted that the first prong regarding the exclusion for "unlawful activity" was determinative, but nevertheless continued, and briefly applied the other parts of the Central Hudson and found the statute did not violate the First Amendment.
In this 20 page opinion, the Ninth Circuit both manages to take the constitutional challenges to the criminalization of commercial sex seriously and to repudiate them.
Saturday, January 13, 2018
In a very brief opinion in Niang v. Caroll, a unanimous panel of the Eighth Circuit affirmed a district judge's grant of summary judgment to Missouri against a challenge to the state's licensing requirements for "African-style hair braiders." In short, the Missouri statutes require a license for barbers and cosmetologists that is granted only to those who complete a "costly and time-intensive training course - - - 1,000-hours for barbering and 1,500-hours for hairdressing" and passage of exam. Moreover, Missouri conceded that "only about 10 percent of the required training courses is relevant to African-style braiders, and that almost all the exams do not test on braiding."
The Eighth Circuit applied the most deferential of rational basis standards. In rejecting the challengers' argument that the license requirement was not rationally related to any legitimate government interest, the court not only found that the state interests of protecting consumers and ensuring public health and safety were legitimate, but also recognized two other interests supplied by the district judge: stimulating more education on African-style braiding and incentivizing braiders to offer more comprehensive hair care. As to the means chosen, the Eighth Circuit found that it was sufficiently reasonable: "the fit between the licensing requirement and the State’s interest is imperfect, but not unconstitutionally so."
The Eighth Circuit also rejected the Equal Protection argument focused on the classification between braiders and barbers/cosmetologist, finding that the statutory definitions of "hair dressing" included braiding.
Lurking beneath the litigation, of course, is the racial classification, but this remains unaddressed. Indeed, it would be a difficult argument on which to prevail absent other facts.
For Constitutional Law professors looking for a good example of "anything goes" rational basis as exemplified by Railway Express Agency v. New York (1949) (which the Eighth Circuit does not cite), as well as Dandridge v. Williams (1970) and Heller v. Doe (1997), both of which the court does cite, this brief opinion is noteworthy.
For persons who want to practice the profession of braiding without being subject to onerous and irrelevant licensing requirements, the remedy may have to be in the legislature.
[image by Chidi "Lex Ash" Ashimole via]
Thursday, January 11, 2018
In his opinion in Greater Birmingham Ministries v. Merrill, United States District Judge L. Scott Cooler granted summary judgment to the state in a challenge to Alabama's Photo Identification statute, Ala. Code § 17-9-30, passed in 2011 and first operative in 2014. Plaintiffs argued that the photo identification law violated the Fourteenth Amendment's Equal Protection Clause and the Fifteenth Amendment's guarantee that the "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Because the Alabama voter photo identification statute did not make an explicit racial classification, the plaintiffs had the burden of demonstrating that the statute had both racial intent and racial effect as the United Sates Supreme Court made clear in Arlington Heights v. Metro. Hous. Dev. Corp. (1977) and Washington v. Davis (1976). Judge Cooler recited the Arlington Heights factors for intent - - - usually the more difficult prong to prove - - - but then determined that "such an undertaking is not necessary in this case," because plaintiffs did not show effect. Judge Cooler concluded that in this case, "the Photo ID Law does not in fact discriminate on the basis of race." (emphasis in original).
Essentially, Judge Cooler rejected the relevance of expert testimony regarding the racial impact:
Also according to Dr. Siskin, 1.37% of white registered voters, 2.44% of Black registered voters, and 2.29% of Hispanic registered voters may not currently have an acceptable photo ID. Frankly, the discrepancy in photo ID possession rates among white, Black, and Hispanic registered voters in Alabama is miniscule. In other words, it appears that very few registrants of any racial group may presently be affected by the Photo ID Law. Nonetheless, the numbers show that Black and Latino registered voters are almost twice as likely as white voters to lack an acceptable photo ID for voting. Although Secretary Merrill’s expert’s numbers differ somewhat (Dr. Hood estimated that .87% of white, 1.44% of Black, and 1.26% of Hispanic registered voters lack photo ID), Secretary Merrill does not dispute that registered voters of color in Alabama are statistically more likely than white voters to lack the required photo ID.
Interestingly, Judge Cooler continued with an allusion to the high voter turnout in the hotly contested Alabama Senate race:
It is worth noting that any conclusions reached from this evidence must be qualified by the fact that the studies were completed in July 2016, and the actual possession rates are certainly in flux as voters who want them obtain photo IDs. Indeed, since the analyses were done, there has been a Presidential election and a special election to choose Alabama’s U.S. Senator. Many people who may not have had ID more than a year ago could have gotten one since, particularly if they wanted to participate in those elections.
But in the end, Dr. Siskin’s estimate does not matter. This is because a person who does not have a photo ID today is not prevented from voting if he or she can easily get one, and it is so easy to get a photo ID in Alabama, no one is prevented from voting.
Judge Cooler then discussed the requirements for obtaining photo identification and concluded:
In sum, the “impact” of the law should not be measured by how many people lack a given ID at a given point in time, but by whether someone without an ID can easily get one. In Alabama, the law has no discriminatory impact because it does not prevent anyone from voting, not when free IDs are issued in every county, or at home, under conditions that any registered voter can meet.
Returning to the issue of intent, Judge Cooler found that "there is no evidence that the Alabama Legislature believed that a photo ID law would disadvantage minority voters, particularly after providing means for people without an ID to receive one free of charge." Not surprisingly, Judge Cooler also denied the plaintiffs' claim under the Voting Rights Act.
Given the contentious state of efforts to prevent "voter fraud" that may be linked to efforts to suppress the vote by non-white voters, this is sure to be appealed.
UPDATE: Notice of Appeal and Statement from LDF-NAACP here
Judge Timothy J. Kelly (D.D.C.) yesterday denied Leandra English's motion for a preliminary injunction against President Trump in the dispute over the acting directorship of the Consumer Financial Protection Bureau.
Recall that outgoing director Richard Cordray appointed English as deputy in late November. Under Dodd-Frank, this meant that English would become acting director upon Cordray's resignation. But at the same time, President Trump appointed OMB Director John Michael Mulvaney as acting director pursuant to his authority under the Federal Vacancies Reform Act. As a result, both English and Mulvaney claimed title to acting director. English sued to get the courts to recognize her as the actual acting director.
Judge Kelly ruled that English was unlikely to succeed on the merits of her claim. According to the court, that's because Dodd-Frank and the FVRA can be read in harmony--in favor of the President's authority to appoint an acting director over Dodd-Frank's provision automatically assigning the post to the deputy:
The best reading of the two statutes is that Dodd-Frank requires that the Deputy Director "shall" serve as acting Director, but that under the FVRA the President "may" override that default rule. This reading is compelled by several considerations: the text of the FVRA, including its exclusivity provision, the text of Dodd-Frank, including its express-statement requirement and Deputy Director provision, and traditional principles of statutory construction.
The court said that constitutional avoidance principles confirmed this result. In particular,
English's interpretation of Dodd-Frank potentially impairs the President's ability to fulfill his obligations under the Take Care Clause. Under English's theory, because Cordray installed her as Deputy Director, she must remain acting Director--no matter whom the President would prefer in that role--until a new permanent Director is appointed. . . .
Under English's interpretation, however, Cordray could have named anyone the CFPB's Deputy Director, and the President would be virtually powerless to replace that person upon ascension to acting Director--no matter how unqualified that person might be. That alone threatens to undermine the President's ability to fulfill his Take Care Clause obligations. And this problem is compounded by another unique feature of the directorship of the CFPB: it is vested with unilateral, unchecked control over the CFPB's substantial regulatory and enforcement power.
The court said that nothing in Dodd-Frank prevented the President from appointing the acting OMB chief to simultaneously serve as CFPB Director.
The ruling is only on English's motion for a preliminary injunction--and doesn't finally settle the directorship dispute--but it foretells the ultimate result in this court.
Wednesday, January 10, 2018
Judge William Alsup (N.D. Cal.) yesterday issued a preliminary injunction requiring the Trump Administration "to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017."
The order requires the government to continue to administer DACA, including allowing DACA enrollees to renew their enrollments, despite the Administration's announcement last year that it would halt the program. The order also potentially complicates negotiations over a congressional fix.
The court ruled that the plaintiffs were likely to succeed on the merits of their challenge to President Trump's repeal of the DACA program. In short, the court ruled that DACA was legal when adopted; that the government's stated reason for repealing it (that DHS lacked authority to implement it) was wrong as a matter of law; and that the government's post-hoc rationalization for repeal (the "litigation risk" it faced in defending DACA) didn't count, and, in any event, was arbitrary and capricious.
This order holds that, in light of our own court of appeals' reasoning . . . and in light of the analysis of the Office of Legal Counsel of the United States Department of Justice, and the reasoning set forth above, our court of appeals will likely hold that DACA was and remains a lawful exercise of authority by DHS. Plaintiffs are therefore likely to succeed on the merits of their claim that the rescission was based on a flawed legal premise and must be set aside as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Along the way, the court distinguished the DAPA program, ruled illegal by the Fifth Circuit and affirmed by an equally divided Supreme Court, and said that the reasons why DAPA exceeded DHS authority don't apply to DACA:
While at least some of the majority's reasons for holding DAPA illegal would apply to DACA, fairness requires saying that DACA and DAPA were different, as the panel opinion stated. An important criticism against DAPA would not apply against DACA, namely the fact that Congress had already established a pathway to lawful presence for alien parents of citizens (so that DAPA simply constituted a more lenient substitute route). DACA, by contrast, has no such analogue in the INA. And, there is a difference between 4.3 million [covered by DAPA] and 689,800 [covered by DACA]. Finally, the criticism that DACA has been mechanically administered without the exercise of discretion in individual cases, if true, could be fixed by simply insisting on exercise of discretion. In sum, the DAPA litigation was not a death knell for DACA.
The ruling will surely be appealed.