Constitutional Law Prof Blog

Court Says Plaintiff Can Bring State Suit for Illegal Sale of His Car

The Supreme Court ruled today in Dan's City Used Cars, Inc. v. Pelkey that federal law does not preempt a plaintiff's state law claim against a towing company for the illegal sale of his car.  The ruling affirms the New Hampshire Supreme Court's ruling in favor of the plaintiff and settles a split among state high courts on the question.  Otherwise, the ruling doesn't break any new ground, and it's not a particular surprise.

The case arose when Dan's City towed Pelkey's car from his landlord's parking lot and later traded it away without compensating Pelkey.  (Pelkey was suffering with a serious medical condition for which he was later hospitalized, and thus left his car in the parking lot during a snow--a towing offense under the landlord's rules.)  Pelkey sued for wrongful sale (but not wrongful towing) under state law.  The lower state court said that the Federal Aviation Administration Authorization Act, FAAAA, preempted Pelkey's suit and dismissed the case.  (The FAAAA applies to motor carriers.)  The New Hampshire Supreme Court reversed, and this appeal followed.

The FAAAA preemption clause says,

[A] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.

In an opinion by Justice Ginsburg, the unanimous Supreme Court held that Pelkey's suit wasn't "with respect to the transportation of property," because it was based on the allegedly wrongful sale of his car after it was transported--that is, post-towing.  The Court said that this result is consistent with congressional purposes is enacting the FAAAA preemption clause.

SDS

Divided Sixth Circuit Panel Upholds Michigan's Public Act 53 Regulating Public School Union Dues Collection

A Sixth Circuit panel today upheld the constitutionality of Michigan's Public Act 53 in its opinion in Bailey v. Callaghan. 

Michigan’s Public Act 53, enacted in 2012, governs public school employee union dues.  It provides:

A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.

As the panel explained, "Thus, under the Act, unions must collect their own membership dues from public-school employees, rather than have the schools collect those dues for them via payroll deductions." 

The panel reversed the district court's grant of a preliminary injunction, holding that the challengers' First Amendment and Equal Protection claims were "without merit."

On the First Amendment claim, the panel held that the case was squarely controlled by the Supreme Court's 2009 decision in Ysursa v. Pocatello Educational Ass'n, and the distinctions urged by the challengers were inapposite.  Its summary exiled the dispute from First Amendment terrain:

So Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind. Instead, the Act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern.

The Equal Protection argument was dispatched with even less fanfare:

The question here is whether there is any conceivable legitimate interest in support of this classification. We hold that there is: the Legislature could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers. The plaintiffs’ equal-protection claim therefore fails.

Dissenting, Judge Jane Branstetter Stranch begins by noting that the "majority spills little ink" - - - the opinion is 5 pages - - - and then proceeds with a more robust analysis of the First Amendment challenge.  She takes seriously the viewpoint discrimination argument given the Michigan legislature's specific statement that the purpose of Act 53 was to put a "check on union power."  This type of viewpoint discrimination means that Ysursa does not control, and in fact "Ysursa expressly acknowledges the long-standing prohibition on viewpoint discrimination in the provision of government subsidies," although the Court held that because that law applied to all employers, there was no viewpoint discrimination. Instead, she relies on Citizens United to contend:

To the extent Act 53’s purpose is to cripple the school unions’ ability to raise funds for political speech because Michigan’s legislature finds that speech undesirable, it is plainly impermissible. Political speech, of course, is a core First Amendment activity that “must prevail against laws that would suppress it, whether by design or inadvertence.” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010). And “restrictions distinguishing among different speakers, allowing speech by some but not others,” run afoul of the First Amendment precisely because they are “all too often simply a means to control content.” Id. at 898–99.

This doctrinal prohibition applies not only to laws that directly burden speech, but also to those that diminish the amount of speech by making it more difficult or expensive to speak. See, e.g., Citizens United, 130 S. Ct. at 897.

It does seem that Judge Stranch's dissent has the better argument, and definitely the more developed one. 

RR
[image: Central School Iron River Michigan, circa 1909, via]

D.C. Circuit Strikes NLRB Notice-of-Rights Rule

A three-judge panel of the D.C. Circuit struck the enforcement mechanisms for the NLRB rule requiring employers to post a notice of employee rights.  The ruling yesterday in National Association of Manufacturers v. NLRB means that the NLRB rule is invalid.

The case strikes a blow at the NLRB effort to educate employees on their workplace rights, in an era where union membership is way down (7.3% of the private workforce) and where more and more workers enter the workplace without knowledge of their rights.

The case arose after the NLRB promulgated a rule that required employers to post a notice of employee rights in the workplace.  Violation of the rule came with an unfair labor practice under Section 8(a)(1) of the NLRA.  (It also came with a suspension of the running of the six-month period for filing any unfair labor practice charge, and it constituted evidence of unlawful motive in a case in which motive is an issue.)

The rule says,

[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . . .

29 C.F.R. Sec. 104.202(a).  (Here's the single-page version of the notice poster.)  But the plaintiffs argued that this violated the NLRA and free speech.  The court agreed, concluding that the rule violated Section 8(a), which says:

The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

The court said that "[a]lthough Section 8(a) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both."  

The court rejected the NLRB's argument that the required post is the Board's speech, not the employer's speech.  Comparing Section 8(a) to First Amendment law, the court said that it didn't matter: dissemination of messages gets the same free speech treatment as creation of messages.

The court also rejected the NLRB's argument based on UAW-Labor Employment & Training Corp. v. Chao, (D.C. Cir. 2003), which upheld President Bush's executive order requiring government contractors to post notice at their workplaces informing employees of their rights not to be forced to join a union or to pay union dues for nonrepresentational activities.  (The plaintiffs in that case argued only that President Bush's EO was preempted by the NLRA; they lodged no First Amendment claim.)  The difference, according to the court: there was no prospect in UAW of a contractor's being charged with an unfair labor practice for failing to post the required notice.  

(Two members of the panel, Judges Henderson and Brown, would have gone farther and ruled that the NLRB lacked authority to pomulgate the posting rule.)

The court addressed the preliminary issue whether the NLRB had a quorum when it promulgated the rule, in light of its recent ruling in Noel Canning v. NLRB that President Obama's recess appointments were invalid.  But the court held that the NLRB had a quorum when the rule was filed with the Office of the Federal Register (the relevant time), even if it didn't have a quorum when the rule was published.

SDS

Louisiana Supreme Court Strikes State School Voucher Program

The Louisiana Supreme Court today ruled that the state's school voucher program violates the state constitution.  In particular, the court ruled that the voucher program tapped the constitutionally protected per pupil state fund for public education and that the legislature passed the funding mechanism in violation of state constitutional procedural requirements.

The ruling deals a fatal blow to this funding mechanism for the state's voucher program.  But the state could probably create a voucher program and fund it through a different budget mechanism (e.g., a regular line item, instead of the state's specifically reserved per pupil fund for public education).  The ruling thus puts the ball back in the governor's and legislature's court--to create a new mechanism for the voucher program, and to come up with the money to fund it.  (Here's Governor Jindal's statement in reaction to the ruling.)  Even if this happens, the ruling underscores the constitutional protection for separately allocated per pupil fund for public education in the state.

The ruling, Louisiana Federation of Teachers v. State of Lousiana, arose out of state constitutional challenges to the state's recently encacted voucher program.  That program diverted state funds separately allocated for public education (under the "minimum foundation program," or MFP) to private schools "on behalf of each student awarded a scholarship" under the voucher program.  The program came in two parts: Act 2 created the voucher program; and Senate Concurrent Resolution No. 99 approved the MFP line-item but diverted MFP funds to support Act 2 vouchers.

The court ruled that the provisions violated Louisiana Constitution Article VIII, Sec. 13(B), which requires the legislature to "fully fund the current cost to the state" of "a minimum foundation program of education in all public elementary and secondary schools," and the "funds appropriated shall be equitably allocated to parish and city school systems."  According to the court, Section 13(B) requires that MFP funds be used to support public education only, even if some of the students used to calculate the MFP base elected to go to private school.  In short, when Section 13(B) says that MFP funds "shall" be allocated to public schools, it means they shall be allocated only to public schools--and can't be diverted to private schools.

The court also ruled that SCR 99 violated Article III, Sec. 2(A)(3)(a), which says (in relevant part):

No new matter intended to have the effect of law shall be introduced or received by either house after six o'clock in the evening of the twenty-third calendar day.

After some analysis of "the effect of law," the court concluded that SCR 99 violated this provision, because it was introduced in both houses after the twenty-third calendar day of the regular session.  (The court ruled that it also violated a related provision, requiring a 2/3 vote after a certain date.  Ultimately the court noted that in the House it didn't even get a "majority of the members elected," as required by Article III, Sec. 15(G).)  

At the same time, the court ruled that the voucher package didn't violate the constitution's "one-object" rule, requiring each piece of legislation to deal with just one object.  The court said the legislation was indeed quite lengthy, but still it all went to the same general object--promoting school choice.

SDS

New York's Highest Court on the Constitutionality of Force-Feeding Hunger Striking Prisoners

The hunger strike amongst prisoners at Guantanamo Bay has led to force-feeding, a situation prompting the Office of the High Commissioner for Human Rights at the UN to issue a statement reiterating the disapproval of Guantanamo and remind the United States that:

in cases involving people on hunger strikes, the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy, among other principles, must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.

New York's highest court, in its opinion in Bezio v. Dorsey regarding a state prisoner on a hunger strike reached an opposite conclusion.  The court's majority stated:

The issue before us is whether Dorsey's rights were violated by a judicial order permitting the State to feed him by nasogastric tube after his health devolved to the point that his condition became life-threatening. We answer that question in the negative.

Yet the question of Dorsey's "rights" that were properly before the court occupied the bulk of the majority and dissenting opinions.  The state Department of Corrections and Correctional Services (DOCCS) had originally sought the judicial order relating to Dorsey, a "serial hunger striker," which Dorsey resisted with pragmatic rather than constitutional arguments.  But the state relied heavily on previous New York law - - - including a case involving Mark Chapman, the man convicted of murdering John Lennon - - - to support the constitutionality of forced-feeding. 

Chief Judge Lippman, dissenting (and joined by Judge Rivera) argued that there were too many factual distinctions, including any finding that the prisoner or the institution was actually in danger.

As noted, DOCCS's own consulting psychiatrist stated flatly in his assessment that Mr. Dorsey was not suicidal. He was undoubtedly manipulative [as the doctor had stated], but all civil disobedience is manipulative. Manipulativeness, obviously, is not a sufficient predicate for forced feeding by the State.

While concluding that the issues are not properly before the court, and that the case is moot under state constitutional doctrine, the dissenting judges nevertheless concluded

The right to refuse treatment, we have held, is a kind of liberty interest within the protective ambit of the Due Process Clause of the State Constitution. While the right may be overcome in compelling circumstances justifying the state's resort to its police power and the state may thus intervene to prevent suicide, the individual's basic prerogative to make decisions affecting his or her own personal health and right to be left alone, i.e. to personal privacy, ordinarily will trump even the best intended state intervention.  

For the majority of the court, however, the balance articulated in Turner v. Safley (1987) was easily resolved in favor of the legitimate penological interests of the prison, including the risk of a "significant destabilizing impact on the institution" by an inmate hunger strike, to allow force feeding an inmate.

RR
[image via]

States Can Restrict FOIA Laws to Own Citizens, Court Says

A unanimous Supreme Court ruled today in McBurney v. Young that a state can restrict its own freedom of information law to its own citizens without violating the Privileges and Immunities Clause or the dormant Commerce Clause.  We covered oral arguments here.

The ruling puts an exclamation point behind the idea that there's no fundamental right to public records.  If there were any doubt going into the case, this ruling settled the matter: Our Constitution doesn't require freedom of information.  If you want it, take it up with your legislature.

The case arose out of two out-of-state claimants' efforts to get Virginia state records through the state FOIA.  One of those claimants, McBurney, sought records related to the state's 9-month delay in enforcing a child support order that he had against his ex-spouse, a Virginia resident.  The other, Hurlbert, sought state real estate tax records on half of his clients.  The state didn't provide the requested records pursuant to its FOIA, however, because its FOIA extends only to state citizens.  (It did provide most of the records through other means.)  Both McBurney and Hurlbert sued, arguing that the FOIA violated the Article 4 Privileges and Immunities Clause and the dormant Commerce Clause.  

The Court disagreed.  In an opinion by Justice Alito, the Court said that the FOIA doesn't interfere with a fundamental right in violation of the Privileges and Immunities Clause.  It said that the FOIA doesn't violate the opportunity to pursue a common calling, because the law wasn't designed to provide a competitive advatage for Virginia citizens.  It doesn't violate the right to own or transfer property in Virginia, because Virginia makes the necessary records available through the clerks of its circuit courts (even if not through its FOIA).  The FOIA doesn't violate the right to gain equal access to Virginia courts, because its citizens-only application leaves open "reasoanble and adequate" access to the courts (because state procedure allows discovery and subpoenas, which would provide noncitizens with any relevant and nonprivileged information, and state law allows equal access to judicial records).  And it doesn't violate a claimed right to gain access to public information on equal terms, because, well, there is no such right.

The Court also rejected Hurlbert's dormant Commerce Clause claim, ruling that Virginia's FOIA neither regulates nor burdens interstate commerce.  "[R]ather, it merely provides a service to local citizens that would not otherwise be available at all."  Op. at 13.

Justice Thomas joined the opinion but wrote separately to remind us of his view that "[t]he negative Commerce Clause has no basis in the text of the Constitution."  

SDS

Utility Group Lacks Standing to Intervene to Stop EPA Clean Water Rulemaking

A three-judge panel of the D.C. Circuit ruled this week in Defenders of Wildlife v. Perciasepe that a utility industry group lacked Article III standing to intervene in a case brought by Defenders against EPA in which the parties entered into a consent decree establishing a schedule for EPA to initiate notice-and-comment rulemaking on certain effluent limitations and effluent limitations guidelines.  

The ruling means that the EPA will move forward with notice-and-comment rulemaking pursuant to the consent decree, and that the utility group's challenge is dismissed.

The case arose when Defenders and the Sierra Club reached an agreement with the EPA to establish a schedule for notice-and-comment rulemaking to review and possibly rewrite Steam Electric effluent limitations and effluent limitations guidelines under the Clean Water Act.  Defenders filed suit and simultaneously filed a consent decree.  Eight days later, the Utility Water Act Group, or UWAG, an association of energy companies, moved to intervene (in opposition to the consent decree).  The district court denied the motion, and UWAG appealed.

The D.C. Circuit ruled that UWAG lacked standing, a requirement for intervention.  The court first held that UWAG didn't assert a procedural injury.  In particular, UWAG didn't have any claim that it should be "subject to such rulemaking only to the extent the statute commands it or authorizes EPA, in its informed discretion, to undertake it," because UWAG didn't identify a statutory procedure that the consent decree required EPA to violate.  Moreover, UWAG didn't have a procedural injury flowing from the consent decree's short notice-and-comment schedule: UWAG couldn't cite any authority that the 13-month schedule was too short.

The court next said that the consent decree didn't require EPA to promulgate new rules.  Instead, the decree simply required EPA to conduct a rulemaking and then decide whether to issue a new rule.  The court held that this wasn't enough to meet the imminent harm requirement for standing.

Assuming no successful appeal, the next step is for EPA to start its notice-and-comment procedure pursuant to the consent decree.

SDS

Bradley Manning's "Secret" Trial

In its sharply divided opinion in Center for Constitutional Rights v. United States, the United States Court of Appeals for the Armed Forces rejected a claim that of public access to the trial and documents regarding the Bradley Manning court martial.

We've previously discussed the contentious Bradley Manning prosecution here, here, here, here, and here.

In this case, the appellants - - Center for Constitutional Rights, Glenn Greenwald, “Salon.com,” Jeremy Scahill, “The Nation,” Amy Goodman, “Democracy Now!,” Chase Madar, Kevin Gosztola, Julian Assange, and Wikileaks - - - sought press access.  The three-judge majority noted that the court "invited counsel for the accused to file a brief on the issues but they declined to do so."  It concluded that the court did not have the "jurisdiction" to grant the relief requested.

 

Bradley Manning reading his plea statement in court, sketched by Clark Stoeckley via

 

The two dissenting opinions - - - each judge authoring an opinion that the other joined - - - reject the majority's disinclination to assert its own power.

A dissenting opinion, by Chief Judge Baker joined by Senior Judge Cox, begins by centering the First Amendment concerns:

The general public has a qualified constitutional right of access to criminal trials. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980) (plurality opinion). Public access to a criminal trial includes appropriate access to filings. Nixon v. Warner Commc’ns , Inc. , 435 U.S. 589 , 597 (1978) . “Congress intended that, to the extent ‘practicable,’ trial by court - martial should resemble a criminal trial in a federal district court.” United States v. Valigura , 54 M.J. 187, 191 (C.A.A.F . 2000). The right to a public trial is embedded in Rule for Court’s - Martial (R.C.M.) 806, which provides that “ [e]xcept as otherwise provided in this rule, courts - martial shall be open to the public.”

Judge Baker's opinion stops short of concluding that there should be press access to the proceedings and documents, but does conclude that the court should determine the specific contours of the First Amendment right.   

Judge Cox's dissenting opinion, joined by Baker, emphasized the court's role to assist the military trial judge, noting that the military judges " are in a better position to do that than is a federal district judge to solve the issues presented."

Thus, it seems as if it will continue to be difficult to determine what is happening in the court martial of Bradley Manning.

RR

Party's Non-Settlement Moots "Similarly Situated" Labor Case

A sharply divided Supreme Court (5-4, along conventional ideological lines) ruled on Tuesday that when a lone plaintiff sues under the Fair Labor Standard Act on behalf of herself and all others "similarly situated," but then declines to answer a defendant's settlement offer in the case, the case--the entire thing--becomes moot.  

The ruling in Genesis Healthcare v. Symczyk deals a significant blow to the FLSA's provision that allows an employee to sue on behalf of all others "similarly situated."  That's because the ruling allows a defendant to moot an entire case by offering complete settlement to a lone lead plaintiff--whether the plaintiff accepts it, rejects it, or ignores it.  But if the dissent is right, this is a one-off that should never happen again.

Symczyk sued Genesis Healthcare under the FLSA for backpay after Genesis docked its employees' pay for a half-hour lunch each day, even when employees worked through lunch.  She sued on behalf of herself and all others "similarly situated."  (The FLSA specifically provides for this class-action-like mechanism.)  Genesis offered to settle for the full amount of monetary damages, but put a deadline on its offer of 10 days.  Symczyk didn't respond, and the trial court dismissed her case.  The Third Circuit reversed, but only as to the collective action.  The Third Circuit said that the settlement offer mooted Symczyk's individual claim, but that it didn't moot her collective claim on behalf of others "similarly situated."

The Supreme Court ruled the entire case moot.  The majority, by Justice Thomas, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and Alito, assumed, but did not decide, that the Third Circuit was right about Symczyk's individual claim, but it reversed on her collective claim.  The Court said that once it assumed that Symczyk's individual claim was moot, the ruling on the collective-action allegations turned on a "straightforward application of well-settled mootness principles."  Basically: "the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied."  The Court distinguished the "relation back" cases under Rule 23 class-action doctrine, saying that here "[t]here is simply no certification decision to which resondent's claim could have related back."  It also distinguished the "inherently transitory" cases under class-action doctrine, saying that unlike those cases, which were for injunctive relief challenging ongoing conduct, this case was about monetary damages for past conduct.  And it said that its ruling wouldn't undermine the purpose of the FLSA's collective-action provision, because the purpose of that provision is different than the purpose of class actions (on which Symczyk relied): the FLSA works differently than class certification--FLSA "conditional certification" simply isn't class certification--and that difference matters.

Justice Kagan wrote an animated dissent for herself and Justices Ginsburg, Breyer, and Sotomayor.  She took aim at the majority's assumption that the settlement mooted Symczyk's claim and wrote that if the lower courts could get that right (that is, that Symczyk's claim wouldn't go moot just because she ignored a settlement offer) this case should never happen again.  Here's just one among many gems in her dissent:

So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory.  And a note to all other courts of appeals: Don't try this at home.

If the lower courts, which are currently split on the question, can work this out as Justice Kagan did, this case will, indeed, never happen again.  But in the meantime, the Court's ruling deals a significant blow to FLSA plaintiffs who bring collective action claims in those circuits where a settlement offer moots an individual claim.  Even more generally, it's yet another blow to access to justice.

SDS

Argument Review: Does a Port's Enforcement Have the Force and Effect of Law?

The Supreme Court heard oral arguments yesterday in American Trucking Association v. City of Los Angeles, the case asking whether federal law preempts the Port of Los Angeles's "concession agreement" that it requires of all drayage truck operators.  Our argument preview is here.

Two points got the Court's attention.  First, the justices tested whether the Port was acting in a proprietary way in enforcing the concession agreement, thus triggering the market participant exception.  This question turns on whether the Port's enforcement of the agreement had "the force and effect of law"--language from the preemption clauses in the Federal Aviation Administration Authorization Act that means that enforcement by a state as state is preempted, but enforcement by a state as market actor is not.  Here, the Port's concession agreements are contracts with drayage truck operators (making the Port look like a market actors), but they are ultimately backed by criminal penalties, even if not for breach of the contract, and the whole operation relates to regulation of public land (making the Port look like the state).  Take a look at this exchange with the attorney for the Port:

JUSTICE KENNEDY: You are saying that you can do by contract what you cannot do by regulation.  And I don't understand that argument when there are criminal penalties that attach to the breach of the contract.

MR. ROSENTHAL: But, Justice Kennedy, let me say again, there are no criminal penalties that attach to the breach of the contract.  It is purely a contract.  The remedies are purely civil.  Even our other side in their argument has conceded there are no criminal penalties to the breach of the concession agreement.

JUSTICE SCALIA: I'm not sure that's crucial.  You think a state can say nobody's going to come on our highways until it signs a contract?  Okay?  These highways belong to us, they are State land, and anybody who wants to ride on the highways, you have to enter a contract with the State.  And that's going to get around this Federal statute?

Others, too, asked about the criminal penalties and the scope of the Port's regulatory authority--all to the end of determining whether the Port looks more like the state, or more like a market actor, when it enforces its concession agreement.

Next, the Court pressed on the scope of Castle, the case overturning Illinois's punishment of a carrier's repeated violations of the state's freight-weight restriction by completely suspending the carrier's right to use Illinois state highways for certain periods.  Here, the arguments turned on whether the Port's enforcement mechanism was a punishment for prior violations (as in Castle), or whether it simply operated to ensure that only currently compliant trucks had access to the Port.  There's also an issue about the continued vitality of Castle, given that the federal regulatory scheme that governed at the time has since been superceded.

The Port seemed to have the tougher time at arguments, but that's no (necessary) bellweather.  There were plenty of open questions to suggest that there are no easy answers here.  As a practical matter, if the Court rules against the Port, it would undo years of litigation and negotiation between the Port and the surrounding community related to environmental and health concerns and send those paties back to the drawing table.  That, in turn, could impact both community health and the environment, and the Port's plans for even more expansion.

SDS

School May Ban Rubber Fetus Dolls

A three-judge panel of the Tenth Circuit ruled yesterday in Taylor v. Roswell Independent School District that a school can ban students' distribution of rubber fetus dolls without violating free speech, free exercise, or equal protection.

The case arose when members of a student group, Relentless, distributed rubber fetus dolls to fellow students at two schools, without required administration permission.  The dolls were said to have the weight and size of a 12-week-old fetus.  Relentless members apparently distributed them to educate fellow students and to protest abortion.  But that message only backfired:

Both schools experienced doll-related disruptions that day.  Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops.  Others threw dolls and doll parts at the "popcorn" ceilings so they became stuck.  Dolls were used to plug toilets.

Op. at 7-8.  And on and on.

The administration stepped in and stopped the distribution, even though it allowed students to distribute other non-school-related items (like Valentine's Day items), and even though it previously permitted Relentless to distribute other things like McDonald's sandwiches to teachers.  (Maybe not surprisingly, those things didn't cause the same kinds of disruptions.)

So Relentless members sued, arguing that the administration violated free speech, the Free Exercise Clause, and equal protection.

The Tenth Circuit rejected each of these claims.  As to free speech, it said that the case did not involve content-based discrimination, and that nobody contested the administration's ability to confiscate dolls that were used to harm school property or for lewd or obscene expressions of their own.  Instead, the case involved private, non-school-related speech, and "[a]pplying Tinker, we hold that the District did not violate Plaintiffs' free speech rights because it reasonably forecasted that distribution of the rubber dolls would lead to a substantial disruption."  Op. at 16.  The court also held that the pre-approval policy looked like a licensing scheme, but with plenty of procedural safeguards (inluding two appeals) and substantive constraints on official discretion--and in the special environment of a school, where the First Amendment doesn't give students the same free speech rights that they may have, say, in the public square.  Finally, the court held that the pre-approval policy wasn't unconstitutionally vague, because a student of ordinary intelligence would know when he or she needs to get a license, and how.  The court said that the plaintiffs failed to show any arbitrary enforcement.

As to the Free Exercise Clause, the court held that there was no evidence of discriminatory purpose on the part of the administrators--that the ban on fetal doll distribution was neutral--that therefore rational basis review applied, and that the administrators had a rational reason for banning the doll distribution--that is, stopping the "doll-related disruptions."  As to equal protection, the court said that the plaintiffs couldn't show that they were treated differently than anyone else seeking to distribute items at school and so couldn't show a violation of equal protection.

SDS

No Right to Possess Gun for Drug Trafficking

A three-judge panel of the Second Circuit ruled this week in United States v. Bryant that the Second Amendment does not protect a right to possess a gun for drug trafficking.  With the ruling, the Second Circuit joins the Seventh and Ninth Circuits in rejecting Second Amendment challenges to 18 U.S.C. Sec. 924(c), providing criminal sanctions for using or carrying a firearm during and in relation to a drug trafficking crime.

The Second Circuit seized on language in D.C. v. Heller that says that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," and that "the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home."  (Emphasis added, both times.)  The court ruled that possession of a gun for a drug trafficking crime is (obviously) not possession for a lawful purpose, and therefore federal law can punish such possession without running afoul of the Second Amendment.  The court explained:

Here, Bryant may have purchased and possessed the Remington shotgun for the "core lawful purpose" of self-defense but his right to continue in that possession is not absolute.  The jury determined there was sufficient evidence to convict Bryant of drug trafficking and also to convict him of possessing a firearm in connection with that drug trafficking. . . .  Thus, once Bryant engaged in "an illegal home business," he was no longer a law-abiding citizen using the firearm for a lawful purpose, and his conviction for possession of a firearm under these circumstances does not burden his Second Amendment right to bear arms.

(Citations omitted.)

SDS

Indiana Can't Have its Own Immigration Policy, Either

The United States District Court for the Southern District of Indiana last week ruled in Buquer v. City of Indianapolis that two provisions of Indiana's immigration law, SEA 590, were preempted by federal law.  The ruling on one of the provisions, Section 20, followed the Supreme Court's ruling last summer in Arizona v. United States.  (H/t Indianalawblog.com)

The ruling permanently enjoins Sections 18 and 20 of SEA 590.

Section 20 says that an Indiana officer "may arrest a person when the officer has . . . a removal order issued for the person by an immigration court; a detainer or notice of action for the person issued by the United States Department of Homeland Security; or probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. Sec. 1101(a)(43)).  The court ruled that Section 20 was preempted for the same reason that a similar provision in SB 1070 was preempted in Arizona v. United States:

Similarly, in the case before us there is no indication that state or local law enforcement officers would be required to consult federal immigration officers before effecting an arrest . . . . [W]here the federal government has exercised it discretion to release an individual who has had a removal order issued, the subsequent arrest of that person by Indiana law enforcement officers would directly conflict with the federal decision, obviously and seriously interfering with the federal government's authority in the field of immigration enforcement.

Op. at 19-20.  The court said that "it is even more apparent with [the section's] authorization of the arrest of individuals who have been issued a notice of action."  That's because such notices are inherently non-criminal.  The court also ruled that Section 20 violates the Fourth Amendment, because it allows a warrantless arrest for a non-criminal action.

Section 18 outlaws the use of a consular identification document, or CID--an identification issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state.  The court said that Section 18 "directly interferes wtih the rights bestowed on foreign nations by treaty by virtually nullifying the issuance of one of the tools used by foreign nations to exercise those rights."  Op. at 29.  "It is also clear that such a sweeping prohibition has the potential to directly interfere with executive discretion in the field of foreign affairs."  Id.

The same court earlier rejected three state senators' effort to intervene in the case.  The senators argued that because they voted for SEA 590, they had a sufficient interest in the case.  But the court held that they did not satisfy standing requirements under Coleman v. Miller, because the law actually passed.  "We find that the three legislators here have not alleged a vote nullifcation injury sufficient to bestow standing in this case."  Op. at 7.

SDS

 

Federal Judge Rejects Challenge to WTC Cross in September 11 Memorial and Museum

In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.

Judge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints.  The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed.  Batts dispatched this argument with a rehearsal of the causal connections:

But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.

She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.

The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.

In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971).  The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion.  Judge Batts found it important that

there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.

She disagreed that the size of the cross was determinative.  First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall.  Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."

As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review.  The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history.  The museum has the choice whether or not to include atheistic symbols.

Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful.   It looks as if the September 11 Museum will include the seventeen foot cross.

RR
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How to Tax an Internet Retailer Even Without Physical Presence, New York Style

The New York Court of Appeals today upheld a state statutory presumption that internet retailer "associates" operating within the state provide a sufficient nexus for the state to collect sales tax on the retailer's state sales.  The ruling approves New York's end-run around the dormant Commerce Clause rule that a state can impose a sales tax on an out-of-state retailer only if the retailer has a physical presence--including economic activities by the retailer's employees, but not mere advertising.

With the rapid growth of internet sales across state lines, and with the last Supreme Court ruling on anything like this coming as far back as 1992 (on mail-order sales, of all things), this case may be a good candidate for high court review.

But on the other hand, the precise ruling in the case is rather limited.  That's because the plaintiffs in the case pressed only their facial challenge at the Court of Appeals, not an as applied challenge.  The problem here is that the statutory presumption can be rebutted, and an out-of-state retailer that can rebut it will also be exempt from it.  This gives the presumption some wiggle room in certain cases and may be enough to protect out-of-state retailers against state sales taxes when they don't have sufficient business activity to constitute presence.  The Court's ruling only says that the statutory presumption is not unconstitutional on its face.  That's a far cry from saying that it's constitutional in every application.

The case, Overstock.com v. New York State Department of Taxation and Finance, tests New York's statutory presumption that an out-of-state internet retailer's in-state "associate" is soliciting business for the retailer:

a person making sales of tangible personal property or services taxable under this article ("seller") shall be presumed to be soliciting business through an independent contractor or other representative if the seller enters into an agreement with a resident of this state under which the resident, for a commission or other consideration, directly or indirectly refers potential customers, whether by a link on an internet website or otherwise, to the seller . . . .

New York Tax Law Sec. 1101(b)(8)(vi).  The provision exactly describes Amazon's and Overstock.com's "associates"--local web-sites that include links to Amazon.com or Overstock.com and that receive a commission on each purchase through that link.  

But neither Amazon nor Overstock.com has a physical presence in New York.  And according to the Supreme Court in Quill Corp. v. North Dakota (1992), an out-of-state retailer like Amazon or Overstock.com has to have a physical presence in order for New York to impose a tax.  (Quill Corp. involved an out-of-state mail order retailer.  If you don't know what that is (!), click here.) Physical presence includes engaging in economic activities (like selling goods), but not advertising alone.

Enter the statutory presumption.  The presumption says that Amazon's and Overstock.com's "associates"--those New York-based web-sites that contain a link to Amazon or Overstock.com, and receive a commission on each sale--establish a sufficient nexus between the out-of-state retailers and the state so that New York can impose its tax.

And the New York Court of Appeals OK'd it.  The Court said that the retailers' associates were engaged in sufficient economic activity on behalf of the out-of-state retailers--business solicitation, and not mere advertising--to allow the state to tax.  

Judge Smith dissented.  He thought that the associates' links looked more like mere advertising, not business solicitation, and therefore weren't enough to establish a nexus between the retailers and the state.

The Court also rejected the retailers' due process claims, because the presumption is rational.  The Court explained:

It is plainly rational to presume that, given the direct correlation between referrals and compensation, it is likely that residents will seek to increase their referrals by soliciting customers.  More specifically, it is not unreasonable to presume that affiliated website owners residing in New York State will reach out to their New York friends, relatives, and other local individuals in order to accomplish this purpose.

SDS

 

Hollingsworth v. Perry, California's Prop 8 Case Oral Arguments in the United States Supreme Court

The first of the two closely-watched same sex marriage cases to be argued before the United States this morning prompted much tweeting and predictions, as well as the promised early release of the audio by the Supreme Court itself.

Audio here:

 

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As the oral arguments today made clear, at issue before the Court today in Hollingsworth v. Perry is the constitutionality of California's Proposition 8, held unconstitutional by a divided panel of the Ninth Circuit in Perry v. Brown.

 

 The Standing Issue:

The first question during oral argument was from Chief Justice Roberts and directed the attention of Hollingsworth's counsel, Charles Cooper, to the "jurisdictional" issue - - - the question of whether Hollingsworth has standing.  Recall that the original challenge to Proposition 8 named Governor Schwarzenegger, and later substituted Governor Brown, as defendants, but both governors and the State of California refused to defend the constitutionality of the voter initiative.  Recall also that the California Supreme Court had answered a certified query about the interests of proponents of a Proposition under California law, but today's the questions from the bench stressed Article III of the United States Constitution.

Roberts' query was repeated to Theodore Olsen, arguing for the challengers to Proposition 8, and to Solicitor General Verrilli, who noted that the United States, as amicus, did not have a "formal position" on standing, but essentially echoed Justice Ginsburg's first question to Cooper, regarding whether the proponents of Proposition 8 had any "propriety interest" in the law distinct from other California citizens once the law had been passed.

On the Merits:

A central query on the merits is the level of scrutiny under equal protection doctrine that should be applied.  Justice Kennedy asked Cooper whether it could be treated as a gender classification and stated "It's a difficult question that I've been trying to wrestle with it."  Yet Cooper's argument in many ways deflects the level of scrutiny inquiry and Justice Kagan expressed it thusly:

Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?

Mr. Cooper agreed, and continued his argument, although Justice Scalia later tried to assist him:

JUSTICE SCALIA: Mr. Cooper, let me -- let  me give you one -- one concrete thing. I don't know why  you don't mention some concrete things. If you redefine  marriage to include same-sex couples, you must -- you  must permit adoption by same-sex couples, and there's -­  there's considerable disagreement among -- among  sociologists as to what the consequences of raising a  child in a -- in a single-sex family, whether that is  harmful to the child or not. Some States do not -- do  not permit adoption by same-sex couples for that reason.  

JUSTICE GINSBURG: California -- no,  California does.  

JUSTICE SCALIA: I don't think we know the  answer to that. Do you know the answer to that, whether  it -- whether it harms or helps the child?

But given that Justice Kennedy is widely viewed as the "swing vote," his comments deserve special attention.  During Cooper's argument, Kennedy focused on the children of same-sex couples in California:

JUSTICE KENNEDY: I -- I think there's -­ there's substantial -- that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think? 

But at other times, Kennedy expressed other concerns.  During Theordore Olsen's argument, Kennedy stated

JUSTICE KENNEDY: The problem -- the problem  with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that  metaphor, there's a wonderful destination, it is a cliff. Whatever that was.

And soon thereafter, in perhaps what could be a possible avoidance of all the issues,

JUSTICE KENNEDY: But you're -- you're doing  so in a -- in a case where the opinion is very narrow.  Basically that once the State goes halfway, it has to go  all the way or 70 percent of the way, and you're doing  so in a case where there's a substantial question on -­ on standing. I just wonder if -- if the case was  properly granted. 

MR. OLSON: Oh, the case was certainly  properly granted, Your Honor. I mean, there was a full  trial of all of these issues. There was a 12-day trial,  the judge insisted on evidence on all of these  questions. This -- this is a -­ 

JUSTICE KENNEDY: But that's not the issue  the Ninth Circuit decided.   

Could the Supreme Court merely declare that its grant of certiorari was "improvidently granted."  It certainly wouldn't be the first time (or second) in very recent history.  But in such a high profile case, it might further erode respect for the Court.

RR

 

State Can't Automatically Collect Portion of Malpractice Settlement of Medicaid Recipient

The Supreme Court ruled today that a state can't automatically take a set portion of a Medicaid recipient's medical malpractice damage award in order to recoup medical expenses that it already paid.  The ruling still allows states to recoup medical expenses from Medicaid recipients' malpractice damage awards, but they can't do it by setting an arbitrary fixed portion of a damage award; instead, they have to do it case-by-case, with more precision.

The ruling is a victory for Medicaid recipients who recieve malpractice awards.  It means that states can't try to take more than their fair share of an award in an effort to achieve administrative efficiency (in determining the amount of actual medical expenses paid).

The case, Wos v. EMA, arose after the parents of minor EMA sued doctors and others for medical expenses, other expenses, and pain and suffering resulting from serious and permanent injuries that EMA suffered at birth.  The parties settled for $2.8 million, but did not designate a portion of the settlement as reimbursement for medical expenses.  

Because EMA received a portion of her medical care through North Carolina's Medicaid program, the state sought to recoup medical expenses it paid through Medicaid.  North Carolina's statute says that up to one-third of any damages recovered by a beneficiary for a tortious injury be paid to the state to reimburse it for payments it made for medical treatment on account of the injury.  The North Carolina Supreme Court ruled that the one-third portion was "a reasonable method for determining the State's medical reimbursements."  This interpretation could allow the state to collect less than its past medical expenditures, if those expenditures exceeded one-third of the total recovery.  But it also could allow the state to collect more than its past medical expenses, if, as here, those expenditures were less than one-third of the recovery.

The federal Medicaid Act allows, indeed requires, a state to recoup medical expenses from a Medicaid recipient's damage award.  But the Act's anti-lien provision preempts a state's effort to take any portion of an award not "designated as payment for medical care."  

The problem of determining reimbursable expenses is most acute when, as here, a settlement doesn't designate the portion attributable to medical expenses.  In that case, as in this case, the state uses the one-third portion as a default--and recoups (at least potentially) more than its actual medical expenses.  (Here the state court that approved the settlement set aside one-third of the settlement in escrow for payment to the state "until such time as the actual amount of the lien owed by [EMA] to [the state] is conclusively judicially determined."  EMA's parents then sued in federal court.  While the suit was pending, the North Carolina Supreme Court ruled that the one-third portion was "a reasonable method for determining the State's medical reimbursements.")

The Court ruled that the federal anti-lien provision preempted North Carolina's statute.  Justice Kennedy wrote the opinion, joined by Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan.  He said that North Carolina's one-third figure conflicted with the anti-lien provision, because it allowed the state to recoup more than its actual medical expenses, even when those expenses were designated as part of the award:  

North Carolina's statute, however, operates to allow the State to take one-third of the total recovery, even if a proper stipulation or judgment attributes a smaller percentage to medical expenses.

Op. at 9-10.

Justice Kennedy said that North Carolina gave no limiting principle, and by its reckoning it could have set a much higher portion as its default--thus recouping much more than actual medical expenses paid. 

Justice Breyer concurred, emphasizing that the Centers for Medicare & Medicaid reached the same conclusion as the Court--and that the Court owed some deference to the Centers' judgment.  Justice Breyer also said that the Centers could change their position, and that the Court's "decision does not freeze the Court's present interpretation of the statute permanently into law."

Chief Justice Roberts dissented, joined by Justices Scalia and Thomas.  Chief Justice Roberts said that the federal Medicaid Act doesn't specify how states must determine actual medical expenses, even though it requires them to recoup those expenses.  In particular, he said that the Act doesn't specify a case-by-case, after-the-fact determination, as the majority does here; instead, it's flexible enough to allow states to adopt different approaches (like North Carolina's).  Chief Justice Roberts would leave it up to the Centers and the states to experiment with different ways of determining actual medical expenses.

SDS

Ninth Circuit Reverses Death Sentence Because of Unconstitutional Actions of Police Officer and Prosecution

The Ninth Circuit has granted a writ of habeas corpus to Debra Jean Milke, a woman on Arizona's death row for the 1990 death of her four year old child, in its opinion today in Milke v. Ryan.

The opinion is noteworthy not only for the grant of the writ in a death penalty case, but for its portrayal of police and prosecutorial practices and for the work it took to uncover the problems.  At the heart of the case is what the panel describes as essentially a "swearing contest" between the then 25 year old Debra Jean Milke (pictured right) and Phoenix Police Detective Armando Saldate, Jr.  The Detective testified that Milke was given MIranda warnings and confessed to the murder of her son.  Ms. Milke contended that she requested a lawyer, never confessed, and was innocent.  There was no signed Miranda waiver, no tape of the interrogation or confession, and no evidence other than the Detective's oral statements linking Ms. Milke to the crime.  Milke has maintained her innocence. At trial, Milke's attorneys requested the personnel files of Detective Saldate, but the state judge quashed the subpoena.  The prosecution never disclosed the evidence despite Brady v. Maryland, 373 U. S. 83 (1963) which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment.

Detective Saldate's file would have included not only numerous disciplinary actions against him for untruthfulness, but also the major cases he had worked on, including those that had appellate opinions reversing convictions based upon Saldate's violations of constitutional rights or dishonesty.  The appendix to the panel opinion lays out eight cases and one internal affairs investigation with specific findings regarding Saldate's "lying under oath" or Fourth or Fifth Amendment violations.

Also of note is the manner in which Saldate's transgressions were ultimately discovered:

Milke was able to discover the court documents detailing Saldate’s misconduct only after a team of approximately ten researchers in post-conviction proceedings spent nearly 7000 hours sifting through court records. Milke’s post-conviction attorney sent this team to the clerk of court’s offices to search for Saldate’s name in every criminal case file from 1982 to 1990. The team worked eight hours a day for three and a half months, turning up 100 cases involving Saldate. Another researcher then spent a month reading motions and transcripts from those cases to find examples of Saldate’s misconduct.

Although Judge Kozinski wrote the panel opinion, he also wrote a concurring opinion that expressed his more personal views:

No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department and Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.

Indeed, given Saldate’s long history of trampling the rights of suspects, one wonders how Saldate came to interrogate a suspect in a high-profile murder case by himself, without a tape recorder or a witness. And how could an interrogation be concluded, and a confession extracted, without a signed Miranda waiver? In a quarter century on the Ninth Circuit, I can’t remember another case where the confession and Miranda waiver were proven by nothing but the say-so of a single officer. Is this par for the Phoenix Police Department or was Saldate called in on his day off because his supervisors knew he could be counted on to bend the rules, even lie convincingly, if that’s what it took to nail down a conviction in a high-profile case?

It’s not just fairness to the defendant that calls for an objectively verifiable process for securing confessions and other evidence in criminal cases. We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent. Letting police get away with manufacturing confessions or planting evidence not only risks convicting the innocent but helps the guilty avoid detection and strike again.

From the rendition of the facts in both the panel and concurring opinions, Ms. Milke was the victim of a grave injustice.  But recall the Supreme Court's 5-4 opinion in Connick v. Thompson regarding the standard by which Brady violations should be evaluated:  the "state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training.""

 RR

*updated correction

Divided Fourth Circuit Panel Declares Virginia's Sodomy Law Unconstitutional: A Decade After Lawrence v. Texas

William Scott MacDonald was arrested more than a year after Lawrence v. Texas (2003), for solicitation to violate Virginia's (anti-)sodomy law, Va. Stat §18.2-361(A): "If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]"  He was eventually sentenced to ten years, with nine years suspended, and thereafter compelled to register as a sex offender.  His life, as Adam Liptak reported in 2011, has not been easy.

The underlying problem is the often-called "caveat language" in Justice Kennedy's opinion in Lawrence v. Texas:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

In MacDonald's situation, the solicitation - - - all parties agree no sex actually occurred - - - was found to be of a 17 year old woman.  (Interestingly, the 47 year old MacDonald had originally contacted law enforcement alleging that the young woman had sexually assaulted him; he was also convicted of the misdemeanor of making a false report.)  The prosecution thus successfully argued that Lawrence v. Texas was inapposite since the Virginia statute - - - as applied - - - was constitutional.  This argument succeeded even though the the age limit in the solicitation statute was 15, not 18.  

The Commonwealth of Virginia was similarly successful in its arguments in state courts on direct appeal and postconviction relief.  MacDonald thereafter sought federal habeas relief, with the district judge rejecting the constitutional arguments.

The Fourth Circuit's opinion yesterday in MacDonald v. Moose belatedly provides relief for MacDonald.  The panel majority wrote that "we are constrained" to  find an entitlement to habeas corpus relief on the ground that the Virginia anti-sodomy provision "facially violates the Due Process Clause of the Fourteenth Amendment."   The Fourth Circuit's opinion seems at times quite deferential to Virginia, but at two points the opinion sharpens its rhetoric.

First, the panel points to an inconsistency in Virginia's treatment of MacDonald:

The Commonwealth’s efforts to diminish the pertinence of Lawrence in connection with MacDonald’s challenge to the anti-sodomy provision — an enactment in no way dissimilar to the Texas and Georgia statutes deemed unconstitutional by the Supreme Court — runs counter to Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005). In that case, the Supreme Court of Virginia evaluated the constitutionality of a state statute having nothing to do with sodomy, but instead outlawing ordinary sexual intercourse between unmarried persons. The state supreme court nonetheless acknowledged that Lawrence was sufficiently applicable to require the statute’s invalidation.

Second, in a footnote the panel majority expressed its disagreement with the dissent in terms that questioned Virginia's prosecutorial choices:

The dissent’s finely honed distinction that, unlike Lawrence and Bow- ers, this "case" involves minors, is made possible solely by the Commonwealth’s decision to institute prosecution of a man who loathsomely solicited an underage female to commit an act that is not, at the moment, a crime in Virginia. The Commonwealth may as well have charged Mac- Donald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot. The legal arm of the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal, in usurpation of the powers properly reserved to the elected representatives of the people.

Yet despite this outcome, and the amicus brief the case attracted, it is difficult not to believe some apology is yet owed to MacDonald.

RR
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NYC Soda Regulation Enjoined by State Judge

The constitutional issues in the challenge to NYC Health Code §81.53 - - - the New York City Department of Health regulation prohibiting sugary drinks in restaurants, movie theaters and arenas to exceed 16 ounces - - - largely involve the power of a city agency to promulgate such a rule.  Today, a state trial judge, Milton Tingling, issued an decision in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene enjoining §81.53 for violating the state separation of powers doctrine.  

After a lengthy discussion of New York City Charters - - - beginning with the first charter in 1686 - - - Judge Tingling wrote:

To accept the respondents' interpretation of the authoriy granted to the Board [of Health] by the New York City Charter would leave its authority to define, create, mandate and enforce limited only by its own imagination. . . . The Portion Cap Rule, if upheld, would create an administrative Levianthan and violate the separation of powers doctrine.  The Rule would not only violate the separation of powers doctrine, it would eviscerate it.  Such an evisceration has the potential to be more troubling that sugar sweetened beverages.

The judge's conclusion that the regulation was therefor "arbitrary and capricious" followed from the lack of agency power.

The ruling is sure to be appealed from the supreme court - - - which in New York is the lowest and trial court - - - to an appellate court.

RR
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UPDATE: NYC filed an appeal the day after the decision; COMMENTARY on the opinion here.