Tuesday, August 15, 2017
The Ninth Circuit ruled today that Thomas Robins suffered a sufficiently concrete injury to establish Article III standing in his case against the consumer data website Spokeo, Inc. The case was on remand from the Supreme Court.
The case arose when Robins learned that Spokeo published false information about his age, marital status, wealth, educational level, and profession, and published a photo of a different person. Robins claimed that the false report affected his employment prospects. He sued under the Fair Credit Reporting Act, which authorizes consumers affected by a violation to sue, even if the consumer cannot show that the violation caused actual damages.
The Ninth Circuit previously ruled that Robins had standing, because he alleged that Spokeo violated his statutory rights under the FCRA. But the Supreme Court vacated that ruling, saying that even if Robins had statutory standing under the FCRA, he still had to show Article III standing--in particular, a concrete harm--and that the Ninth Circuit didn't engage with that question. The Court remanded the case for a determination.
The Ninth Circuit said today that Robins demonstrated a concrete harm and therefore satisfied Article III standing. The court drew on language in Spokeo that said that sometimes Congress enacts procedural rights to guard against a "risk of real harm, the violation of which may be sufficient in some circumstances to constitute injury in fact" under Article III. Congress may do this, the court explained, "[i]n some areas . . . where injuries are difficult to prove or measure." "Accordingly, while Robins may not show an injury-in-fact merely by pointing to a statutory cause of action, the Supreme Court also recognized that some statutory violations, alone, do establish concrete harm." According to the court, the test is when the congressionally conferred procedural right protects a plaintiff's concrete interests and where the procedural violation presents "a risk of real harm" to that concrete interest.
The Ninth Circuit ruled that Robins met that test. The court said that "Congress established the FCRA provisions at issue to protect consumers' concrete interests." Moreover, even though trivial (but technical) violations of the FCRA won't give rise to concrete harm under Article III (and therefore the plaintiff would need to allege more), in this case
it is clear to us that Robins's allegations relate facts that are substantially more likely to harm his concrete interests than the Supreme Court's example of an incorrect zip code. Robins specifically alleged that Spokeo falsely reported that he is married with children, that he is in his 50s, that he is employed in a professional or technical field, that he has a graduate degree, and that his wealth level is higher than it is. It does not take much imagination to understand how inaccurate reports on such a broad range of material facts about Robins's life could be deemed a real harm.
The court rejected Spokeo's argument that Robins's harm was too speculative, because Robins met the court's risk-of-real-harm standard.
The ruling means that Robins's case against Spokeo can proceed to the merits.
The Seventh Circuit ruled that state workers' compensation arbitrators did not have a free-speech claim against the governor for not re-appointing them in retaliation for their earlier lawsuit against the governor for changes to the worker-compensation system.
The case is notable, because the court applied restrictive circuit law on policymakers' First Amendment retaliation claim (and not the more general, and more speech-friendly, Pickering test for most public employees), and because the court applied this law to a claim for retaliation for a lawsuit (and not a more familiar form of public speech, like an op-ed).
The case arose when Illinois changed its workers' compensation law. Among other changes, the state changed the appointment schedule for workers' compensation arbitrators. In particular, it terminated all arbitrators' six-year appointments effective July 1, 2011, and provided for executive appointments (with advice and consent of the state senate) for staggered three-year terms for future arbitrators.
Some of the arbitrators sued, arguing that the change violated due process. While that suit was pending, the governor appointed and reappointed arbitrators, but not the plaintiffs in the due-process suit. So they sued again, this time for retaliation for exercising their First Amendment rights in bringing the original due-process suit. They claimed that the governor declined to reappointment them only because they filed that earlier suit, which, they claimed, was "important to, in a public forum, hash out concerns . . . regarding the workers' compensation reforms and to outline that the governor of the State of Illinois had violated the United States Constitution."
The district court tossed the suit, concluding, under Pickering, that the earlier due-process suit was not speech on a matter of public concern.
The Seventh Circuit affirmed, but on a slightly different ground. The Seventh Circuit applied its "policymaker corollary" to Pickering--a circuit rule that derives from Elrod v. Burns and Branti v. Finkel. In those two cases, the Supreme Court said that as a general matter government employers can't fire public employees on the basis of political affiliation. But the Court also recognized an exception for employees who occupy policymaking or confidential positions, thus ensuring that elected officials wouldn't be "undercut by tactics obstructing the implementation of policies . . . presumably sanctioned by the electorate."
The Seventh Circuit's "policymaking corollary" takes the Elrod and Branti exception a step farther, to policymakers' speech:
Instead, under the "policy-maker corollary to the Pickering analysis, the First Amendment does not prohibit the discharge of a policy-making employee when that individual has engaged in speech on a matter of public concern in a manner that is critical of superiors or their stated policies."
The court concluded that the arbitrators were "policymakers," because "the position authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement," and because "the position entails the exercise of a substantial amount of political (as distinct from professional) discretion." It further concluded that the due-process lawsuit amounted to "speech . . . in a manner that is critical of superiors or their stated policies."
The ruling ends the arbitrators' case.
Friday, August 11, 2017
In its opinion in Phelps-Roper v. Ricketts, a panel of the Eighth Circuit, affirming the district judge, rejected First Amendment facial and as-applied challenges to Nebraska's funeral picketing law, §28-1320.01 et seq.
The Nebraska statute was prompted by the activities of the "Westboro Baptist Church" (WBC) organization, of which Shirley Phelps-Roper is a leader, in picketing military funerals as their opposition to "homosexuality." Recall that in 2011, the United States Supreme Court held that the First Amendment protected Reverend Fred Phelps's hateful and harmful speech at the funeral of Marine Lance Corporal Matthew Snyder against state tort claims of intentional infliction of emotional distress and intrusion upon seclusion. Recall also that the constitutionality of ordinances and statutes seeking to regulate funeral protests has been previously challenged by the WBC and Phelps.
Here, the unanimous panel, in an opinion authored by Judge Bobby Shepherd, held that the Nebraska statute survived a facial First Amendment challenge. The Eighth Circuit en banc had previously upheld the City of Manchester, Missouri's ordinance as a constitutional time, place, and manner restriction, but the Nebraska statute differed because the place restriction extends the distance between the picketers and the funeral from 300 to 500 feet and the time restriction is “from one hour prior to through two hours following the commencement of a funeral,” instead of Manchester’s “during or within one hour before or one hour after the conducting of a funeral.” Nevertheless, the court held that the Nebraska statute, like the Manchester ordinance, "serves a significant government interest, is narrowly tailored, and leaves open ample alternative channels for communication."
The as-applied challenge centered on one Omaha protest in 2011, with Ms. Phelps-Roper claiming that the Omaha police treated her differently than others (viewpoint discrimination), that she was forced well beyond the 500 foot buffer zone, and that the police allowed others to interfere with her message. The Eighth Circuit discussed the evidence for each claim and affirmed the trial judge's findings that there was no constitutional violation. On the interference claim, the Eighth Circuit discussed the Sixth Circuit en banc decision in Bible Believers v. Wayne County (2015), but found the situation clearly distinguishable and there was no violence at the WBC funeral event. as the opinion declared,
WBC is not entitled to its own bubble-ensconced pedestal surrounded by chalk lines or yellow tape any more than those opposed to WBC messages are entitled to a heckler’s veto. Law enforcement has a duty to enforce the laws equally without regard to the viewpoints expressed.
The opinion is thorough yet succinct, with little that merits continued litigation. Perhaps we might be nearing the end of the First Amendment funeral protest saga.
The Eighth Circuit ruled this week that a dump truck driver lacked standing to bring a facial challenge to a state's roving-stop statute against the governor and state attorney general. But at the same time the court said that the plaintiff could move forward on his as-applied claim against the superintendent of the state highway patrol for declaratory and injunctive relief.
The case challenges Missouri's law that authorizes the highway patrol to stop commercial vehicles and inspect them for compliance with size- and weight-requirements, even without probable cause. Calzone, a dump-truck driver who was stopped under the act, sued the governor, state AG, and superintendent of the highway patrol in their official capacities for nominal monetary damages and injunctive and declaratory relief, arguing that the law was unconstitutional on its face and as applied.
The court ruled that Calzone didn't have standing to sue the governor or AG, because they weren't directly responsible and authorized to enforce the statute. The court said that he did have standing to sue the superintendent for declaratory and injunctive, however, because she was directly responsible for enforcement.
The court went on to rule that the statute wasn't facially unconstitutional, because it satisfied the three-part test for searches in "closely regulated industries" under New York v. Burger.
That leaves only Calzone's as-applied claim for declaratory and injunctive relief against the superintendent. (Calzone sued the superintendent in her official capacity, so couldn't recover damages under Section 1983.) The court remanded this claim to the district court for further proceedings.
The Third Circuit ruled this week that a case challenging Delaware's escheat law, prior to an investigation under the law, was ripe in one respect, even though it mostly was unripe. The ruling allows just one piece of the case to move forward--an as-applied procedural due process challenge.
The case arose when Delaware appointed a private auditing firm, Kelmar Associates, to investigate Plains All American Pipeline under the state's escheat law. Kelmar sent Plains a document request to initiate the investigation; Plains complained to the state; the state backed Kelmar; and Plains sued. Plains argued that the escheat law violated the Fourth Amendment, and the Ex Post Facto, Equal Protection, and Takings Clauses on their face, and the Due Process Clause as applied; it also argued that the law was void for vagueness and was preempted by federal law. It sought declaratory and injunctive relief.
The court applied its own "refined" test for ripeness, which looks to (1) the adversity of the parties' interests, (2) the conclusiveness of the judgment, and (3) the utility of the judgment. As to adversity, the court said that Plains couldn't demonstrate a sufficient harm, and that Plains didn't face an Abbott Labs Hobson's choice, to establish adversity. As to conclusiveness, the court said that Plains's challenges required further factual development for a ruling. And as to utility, the court said that the investigation currently requires Plains to do nothing: "Plains 'would take the same steps whether or not it was granted a declaratory judgment.'"
But, in contrast, the court ruled that Plains's as-applied procedural due process claim was ripe for review. The difference: Plains challenged the appointment of Kelmar as a violation of procedural due process. And because that harm already occurred, Plains could move forward to the merits. (Success on the merits, of course, is a different question.)
Thursday, August 10, 2017
Federal Judge Declares Louisiana's Restriction on Non-Native Born Marriage Applicants Unconstitutional
In an opinion in Vo v. Gee, Senior United States District Ivan L.R. Lemelle declared Louisiana's Act 436 violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
Act 436 amended the requirements to obtain a Louisiana marriage license so that an applicant born outside of the United States must submit a copy of the person's birth certificate under the raised seal or stamp of the vital statistics registration authority of the person's place of birth, with additional requirements if the document is not in English, and a valid and unexpired passport or an unexpired visa accompanied by a Form I-94 issued by the United States, verifying that the applicant is lawfully in the United States. Viet "Victor" Ahn Vo, naturalized as a United States citizen at the age of 8, was nevertheless denied a marriage license because he did not have a birth certificate. Vo was born in Indonesia in a refugee camp to parents who were Vietnamese nationals, relocating to Louisiana when Vo was three months of age.
On the equal protection issue, Judge Lemelle stated that the "birth certificate provisions that the Louisiana legislature enacted creates classifications that distinguish between United States citizens on the basis of their national origin," and thus merits strict scrutiny, requiring a compelling government interest which the statute serves by narrowly tailored means. Without discussing any interests put forward by the state, Judge Lemelle concluded that the "State of Louisiana fails to demonstrate in their opposition that this classification based on national origin furthers a compelling governmental interest." The judge therefore concluded there was an equal protection violation.
On the due process challenge, Judge Lemelle cited the "fundamental right to marry" under Obergefell v. Hodges as well as the Zablocki v. Redhail (1978) test of directly and substantially interfering with marriage as warranting strict scrutiny. The judge rejected Louisiana's claim that a subsequent amendment to the act that allows for a judicial waiver in some cases cures the constitutional defects or rendered the case moot. (Recall that in Zablocki itself the statute allowed a judicial waiver of the bar for past due child support payments as an impediment to marriage). Instead, Judge Lemelle noted that "the failure of the State of Louisiana to proffer any evidence of why this regulation passes constitutional muster" and held it violated due process.
The bulk of Judge Lemelle's relatively brief opinion addresses the more procedural issues of summary judgment and injunction standards, perhaps because the constitutional issues were clear as Louisiana seemingly conceded. Nevertheless, this is an important opinion regarding the issue of differential treatment for non-native born citizens.
Sunday, August 6, 2017
A divided three-judge panel of the Third Circuit last week rejected a challenge to the contraception requirement under the Affordable Care Act by a self-described non-religious, anti-abortion nonprofit and three of its employees. The case represents the next generation of challenges to the requirement--after Hobby Lobby (a for-profit corporation with a religious objection) and Zubik v. Burwell (dealing with religious non-profits).
The plaintiff, Real Alternatives, is a non-profit, self-described non-religious, anti-abortion organization that objected to the contraception requirement on Equal Protection and statutory grounds. In particular, the organization and three of its employees argued that the requirement violates equal protection, because "if a religious organization may be exempted from the Contraceptive Mandate, then non-religious entities with an identical stance on contraceptives must be exempted as well." They also challenged the requirement under the Administrative Procedures Act. The three employees also argued that the requirement violated the Church Amendment and the RFRA.
The court rejected all of these challenges. As to equal protection, the court said, quite simply, that Real Alternatives, as a non-religious group, is not "similarly situated to a religious employer, such that the Exemption must be available to the group . . . ." In other words, Real Alternatives can't shoehorn itself into an exemption created for religious employers by way of the Equal Protection Clause, because, well, it's not religious. The court went on to say that "respecting church autonomy" by creating an exemption for churches (and not secular non-profits) is a "legitimate purpose--one that not only satisfies rational basis review but also is enshrined in the constitutional fabric of this country."
The court rejected the APA claim based on the same standard (under a different name): the requirement isn't "arbitrary and capricious" under the APA, for the same reasons that it satisfies rational basis review under equal protection.
As to the Church Amendment, the court said that the plaintiffs lacked standing, because they "purchase their health insurance from a company in the health insurance market, not from HHS or an HHS-administered health insurance program that falls under the purview of the Church Amendment."
Finally, as to RFRA, the court said the requirement didn't create a substantial burden on the employees' religious exercise, because merely being covered by insurance only gives the employees a choice to access a service, not a substantial burden on their religious exercise:
It is still up to the employee to decide what to do with those options, to seek out relevant providers, to submit claims for reimbursement for the service he or she selects, and so on. The act complained of--the filling out of a form that triggers eligibility for reimbursement for services the employee chooses to use (or not)--has not changed, and it in no way amounts to the sort of "substantial" burden consistently found contrary to RFRA. And the possibility that others might avail themselves of services that the employees find objectionable is no more burdensome than filling out the form . . . .
Judge Jordan dissented, arguing that the employees "adequately pled and provided sufficient evidence to demonstrate that the Contraceptive Mandate is a substantial burden on their free exercise of religion" under RFRA. (Judge Jordan joined the other parts of the majority opinion.)
The Eighth Circuit last week rejected a plaintiff's request for a temporary injunction against a Minnesota statute restricting robocalls. The court ruled that the plaintiff wasn't likely to succeed on his First Amendment claim.
The statute bans robocalls, except "(1) messages from school districts to students, parents, or employers, (2) messages to subscribers with whom the caller has a current business or personal relationship, or (3) messages advising employees of work schedules." A later amendment also exempts "messages from a nonprofit tax-exempt charitable organization sent solely for the purpose of soliciting voluntary donations of clothing to benefit disabled United States military veterans and containing no request for monetary donations or other solicitations of any kind."
A political consultant challenged the law, arguing that, given the exceptions, it was an illegal content-based restriction on speech.
The Eighth Circuit disagreed, at least at this preliminary stage. The court first severed the military-veteran-donation exception from the rest of the statute. It then ruled that the other exceptions weren't content-based; instead, they were based on assumed implied consent of the target of the robocall:
[T]he permissions granted in the Minnesota statute do not reflect a content preference; they are based on an assumption of implied consent. The State does justify the statute in part based on an interest in protecting residential privacy against disruptive calls, but this interest is not grounded in a preference for certain content. Where a subscriber has impliedly consented to receipt of pre-recorded mesages, the caller may place a robocall about political campaigns, work schedules, or any other topic. Where there is no such implied consent, automated calls are banned entirely, regardless of their content. [The plaintiff] does not contend that the statute forbids him to communicate with any subscriber who has impliedly consented to receipt of his robocalls.
The court rejected the plaintiff's argument that Citizens United, Reed v. Town of Gilbert, or Matal v. Tam change this result. "[T]he statute does not prefer certain speech based on content, and does not disfavor certain ideas over others. The statute as a whole disfavors robocalls to strangers, but it allows them with consent. . . . The exceptions depend on the relationship between the caller and the subscriber, not on what the caller proposes to say."
The Seventh Circuit ruled last week that plaintiffs were unlikely to succeed on the merits of their challenge to Illinois's same-day voter-registration law. The ruling sends the case back to the district court for proceedings on the merits, although the ruling strongly suggests that the law is constitutional.
The case, brought by a Republican congressional candidate in the 2016 election and a county Republican party, alleged that Illinois's same-day registration law violated the Equal Protection Clause, because an opt-out provision would disadvantage voters in smaller counties, and thus comparatively boost Democratic voter turnout.
The law requires counties to provide same-day voter registration. But it includes an opt-out for smaller counties that don't have an electronic pollbook. Still, the law requires those counties to offer election-day registration at "the election authority's main office," as well as at "a polling place in each municipality where 20% or more of the county's residents reside if the election authority's main office is not located in that municipality."
The plaintiffs sought and received a preliminary injunction in the district court, but the Seventh Circuit stayed it before the 2016 election. Last week the Seventh Circuit vacated the injunction altogether.
The court said that the law didn't severely burden voters' constitutional right to vote, and so the district court improperly applied strict scrutiny. The court went on to say that the plaintiffs didn't demonstrate a likely success on the merits even under the less rigorous balancing test under Burdick v. Takushi. It concluded:
Even though [the Illinois law] does not force quite as many options on the smaller counties as it does on the 20 largest counties, it permits every county to adopt the default same-day rules, and it provides realistic same-day options even in the smaller places. This, couples with the lack of any data about which groups are disadvantaged and how, dooms the injunction.
The Ninth Circuit ruled last week that Maricopa County officials violated federal law when they sought and obtained a wiretap, but that that the subject couldn't recover damages, because the officials acted in good faith and consistent with Arizona law and long-standing practices.
The ruling adds to a complicated body of law on federal preemption under the Omnibus Crime Control and Safe Streets Act of 1968 of state law authorizing wiretaps. The Ninth Circuit aligned with the approach of the First Circuit, and asked whether state procedural protections were "in substantial compliance with the federal law."
The case arose when County Attorney Montgomery, pursuant to state law, authorized a deputy to apply for a wiretap. The deputy obtained an order, and officials intercepted eight conversations between Manuela Villa and her daughter in 2011 and 2012. Officials, pursuant to long-standing state practice, then did not immediately deliver the recordings to the state court that authorized the wiretap.
Villa sued under Title III, arguing that officials violated Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, and that Title III preempted Arizona law that authorized the wiretap. In particular, Villa argued that County Attorney Montgomery, acting pursuant to state law, improperly delegated the authority to apply for a wiretap order to his deputy, in violation of Title III, which requires the "principal prosecuting attorney" to apply for a wiretap. Villa also argued that Deputy Brockel, acting pursuant to long-standing practice, failed to timely submit the recordings to the state court that authorized the wiretap, in violation of a Title III requirement that officials submit intercepted conversations to the authorizing court "[i]mmediately upon the expiration of the period of the order, or extensions thereof."
The Ninth Circuit first ruled that Villa lacked Article III standing to seek declaratory and injunctive relief. The court said that she could demonstrate no individualized future harm that would justify prospective relief. The court rejected Villa's taxpayer-standing claim out of hand, and held that she "does not allege that she is more likely than any other member of the public to have her future conversations illegally intercepted." Because Villa lacked standing for prospective relief, the court said that she also lacks standing to pursue prospective relief on behalf of a putative class.
In contrast, the court held that Villa did have standing to pursue individual damages for past interceptions, but, as below, couldn't actually recover.
The court held next that Title III preempted Arizona law, and that Arizona officials violated Article III. As to authorizing wiretaps, the court adopted the standard set by the First Circuit: "so long as the state wiretapping statute, considered as a whole and as interpreted by state courts, is in substantial compliance with, and is therefore equal to, Title III, state wiretaps are permissible." The court said that Arizona's statute, which authorizes a principal prosecuting attorney to delegate authority to apply for a wiretap to a deputy, didn't meet the standard: "substantial compliance with Title III requires that the principal prosecuting attorney indicate, as part of the application process, that he or she is personally familiar with all of the 'facts and circumstances' justifying his or her 'belief that an order should be issued,'" but that the Arizona statute permitted the "principal prosecuting attorney to state that he or she is [only] generally aware of the criminal investigation . . . ."
As to making the recordings available to the court that approved the wiretap, the court said that "long-standing practice" at the time of Villa's wiretap, in which "county officials submitted recordings of intercepted conversations for sealing only at the conclusion of an entire criminal investigation," was "not in substantial compliance" with federal law. But the court went on to say that a practice of submitting recordings within 10 days would be in compliance with the Act.
But even though the court concluded that officials violated the Act, it also ruled that Villa couldn't recover damages, because the officials acted in good faith, consistent with Arizona law or long-standing practices. (Good faith is a defense under a Title III cause of action.)
Friday, August 4, 2017
The D.C. Circuit earlier this week allowed 17 states and the District of Columbia to intervene in the suit challenging federal subsidies to insurance companies under the Affordable Care Act.
The development keeps the appeal alive, even as President Trump considers halting the payments. Such a move before this week's ruling would have mooted the appeal. But now that the states can defend the payments, and oppose Judge Collyer's ruling, it's not entirely clear whether President Trump can stop the payments, or whether the D.C. Circuit might stop him if he tried.
Recall that House Republicans sued the Obama Administration for making payments to insurance companies under the ACA, even though the line-item for those payments was zero funded. The payments were designed under the ACA to subsidize insurance companies for providing affordable plans on the exchanges. But Congress allocated no money to the line-item designated for the subsidies. The Obama Administration nevertheless made payments, drawing money from another, related account. (Without the payments, insurance rates would skyrocket on the exchanges, or insurers would have pulled out, or both.)
House Republicans sued, and Judge Rosemary Collyer (D.D.C.) ruled in their favor. But she stayed her injunction pending appeal. President Trump then inherited the appeal from the Obama Administration, allowing him to drop the appeal, leave Judge Collyer's decision in place, and stop the payments. (If President Trump dropped the appeal, Judge Collyer's stay pending appeal would have gone away.) He could even have cited Judge Collyer's ruling as a reason for stopping payments, perhaps diffusing some of the political blow-back from such a move.
But President Trump didn't drop the appeal. Moreover, he has continued the payments, even as he repeatedly suggests that he might stop. Bipartisan lawmakers have encouraged him to continue payments. A final decision is due from the White House this week.
Now, with this most recent order from the D.C. Circuit, allowing states to join the suit, the appeal will continue (with the states now defending the payments, even as the Trump Administration doesn't), and Judge Collyer's stay will remain in place, at least until the D.C. Circuit rules on the case. While the stay itself doesn't prevent the President from halting payments, the states' intervention might: Because the D.C. Circuit said that the states demonstrated sufficient harm if the subsidies stop (a condition of intervention), it's not entirely clear that President Trump can stop them. And even if he can, it's not clear that the D.C. Circuit might not prevent him from stopping them (in order not to harm the states).
In other words, the states' intervention might tie the President's hands by forcing him to continue payments, even though the parties to the lawsuit might otherwise agree to stop the payments and let the case go moot.
The uncertainty here comes, on the one hand, from the fact that the President can probably stop the payments whenever he wants, irrespective of the states' intervention or Judge Collyers' ruling and stay. But on the other hand if the states argue that the President has to make payments under the ACA (and not just that he can't be prevented from making payments), then the D.C. Circuit could stop the President from halting payments. This week's ruling suggests, but does not specifically say, that the D.C. Circuit is leaving this latter option open.
But it gets even weirder. The D.C. Circuit might not even rule on the merits. That's because the states will surely challenge the House's standing to bring the case in the first place. If the D.C. Circuit kicks the case on standing grounds, that'll undue Judge Collyer's decision against the payments.
For now, the ball's in the President's court.
Wednesday, August 2, 2017
In an extensive opinion in Reproductive Health Services v. Marshall, United States Magistrate Judge Susan Russ Walker (ruling as district court by consent), concluded that substantial portions of a 2014 Alabama statute regulating abortion access for minors contravened well-settled precedent.
The doctrine regarding a minor's access to abortion requires that statutes requiring parental permission also provide the alternative of a "judicial bypass proceeding." As explained in Bellotti v. Baird, 443 U.S. 622 (1979) (“Bellotti II”) (plurality) and affirmed in Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462 U.S. 476 (1983), at a judicial bypass proceeding, a minor must be allowed to show the court either that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The Court has further required that the judicial bypass proceeding “must insure the minor’s anonymity” and that it occur with the expediency necessary “to allow an effective opportunity to obtain the abortion.”
At issue in Reproductive Health Services were provisions of the 2014 Alabama Act that mandated the participation of District Attorney and a Guardian Ad Litem (GAL) for the fetus, and provisions that allowed the participation of the minor's parent or guardian as a party. Additionally, the Act allowed disclosure of the minor's identity to anyone who needs to know and allowed the subpoena of witnesses.
Judge Walker easily decided that these provisions were unconstitutional under Bellotti II. Indeed, in her analysis she declared the wide disclosure was a "far cry" from established doctrine. She also observed that the 2014 Alabama Act was unique: in not one of the other of the 37 states that mandate parental notification and therefore require a judicial bypass proceeding, does a state "mandates or permits participation by a parent or guardian, the DA, a GAL for the fetus, or witnesses (other than
those called by the minor) in bypass proceedings for the purpose of providing the court
with assistance in arriving at informed and proper decisions – or, indeed, for any other
She therefore did not reach Reproductive Health Services' additional claim that these same provisions of the Alabama Act also interfered with "informational privacy," although the opinion spends many pages discussing why this additional claim was no longer justiciable given the conclusion that the Bellotti II claim was successful. The judge also found that the provisions of the 2014 Alabama Act were severable.
As Judge Walker concluded:
[T]he following provisions of the Act are unconstitutional in their entirety: Alabama Code § 26-21-4(i) (the participation of the DA as a party), § 26-21-4(j) (the participation of a GAL for the unborn child as a party), and § 26-21-4(l) (the participation of a parent, parents, or legal guardian of the minor petitioner as a party). The references to the DA, GAL, and other parties will be severed from Alabama Code §§ 26-21-4(c), (e), (f), (k), and (n). The Act’s provisions permitting disclosure of a minor petitioner’s identity to “any witness who has a need to know the minor’s identity or any other person determined by the court who needs to know” are too broad to ensure a petitioner’s anonymity and, consequently, are unconstitutional; thus, that language will be severed from § 26-21-4(c). The provisions of Alabama Code § 26-21-4(f) that permit the bypass court, if it determines that “additional evidence or testimony is necessary,” to delay the bypass proceeding sua sponte to issue “subpoenas … to bring before the court admissible evidence or testimony either in support of or against the petition,” does not reasonably safeguard the petitioner’s anonymity; it opens the door to the unrestricted notification of the minor’s relatives, teachers, friends, acquaintances, and other potential witnesses concerning her bypass proceeding.
The judge did not enter a preliminary injunction, finding that the declaratory judgment sufficient.
[image: Vermeer, Girl with a Pearl Earring, circa 1665]
Tuesday, August 1, 2017
The D.C. Circuit ruled today that a group of CareFirst customers, proceeding as a class, had standing to sue the health insurer for its carelessness in protecting customers' personal information after cyber-attackers allegedly stole that information. The ruling is a victory for the plaintiffs, but it doesn't mean that the case will proceed to the merits: the lower court still has to determine whether it has diversity jurisdiction.
The problem was that the plaintiffs alleged imminent harms from the breach, and not actual harms. (As it turns out, some plaintiffs did allege actual harms, but the court didn't rule on those claims, because its ruling on imminent harms was sufficient to support standing.) The court applied the substantial-risk-of-harm test and ruled that the plaintiffs alleged a sufficiently imminent harm. Contrasting Clapper v. Amnesty International, the court said,
Here, by contrast, an unauthorized party has already accessed personally identifying data on CareFirst's servers, and it is much less speculative--at the very least, it is plausible--to infer that this party has both the intent and the ability to use that data for ill. As the Seventh Circuit asked, in another data breach case where the court found standing, "Why else would hackers break into a . . . database and steal consumers' private information? Presumably, the purpose of the hack is, sooner or later, to make fraudulent charges or assume those consumers' identities." . . . No long sequence of uncertain contingencies involving multiple independent actors has to occur before the plaintiffs in this case will suffer any harm; a substantial risk of harm exists already, simply by virtue of the hack and the nature of the data that the plaintiffs allege was taken. That risk is much more substantial than the risk presented to the Clapper Court, and satisfies the requirement of an injury in fact.
As to traceability, the court said that this doesn't require the plaintiffs to sue only "the most immediate cause, or even a proximate cause, of the plaintiffs' injuries [in this case, the robbers]; it requires only that those injuries be 'fairly traceable' to the defendant.'" The plaintiffs satisfied this test.
As to redressability, the court said that the plaintiffs have incurred costs to mitigate any damage, and that these "self-imposed risk-mitigation costs" "can satisfy the redressability requirement, when combined with a risk of future harm that is substantial enough to qualify as an injury in fact." (But the court noted that these kinds of costs are insufficient to satisfy the injury-in-fact requirement.)
Thursday, July 27, 2017
In a well reasoned opinion in Davison v. Loudon County Board of Supervisors, United States District Judge James Cacheris of the Eastern District of Virginia found that a politician who reacted to a constituent's comment on her "official" Facebook post by deleting his comment and banning him from her Facebook page violated the First Amendment.
Phyllis Randall, Chair of the Loudon County Board of Supervisors, maintained a Facebook page, entitled "Chair Phyllis J. Randall." She generally "uses the Facebook page to share information of interest with the County she serves," and Judge Cacheris provided several examples of the types of postings - - - precisely the type of postings one would expect - - - relating to proclamations such as "Loudon Small Business Week" and photographs of herself at conferences or other events.
As a threshold matter, Judge Cacheris determined that there was state action. This state action, however, could not be attributed to the defendant County Board of Supervisors, but only as to Phyllis Randall. Although the Facebook page was not the "property" of the county and would not revert to it when Randall left office, Randall "used it as a tool of governance." The judge found that Randall used the page to communicate with her constituents and the page reflects her efforts to "swathe" it with "the trappings of her office." Further, there were other government employees who assisted with the page. Moreover, the specific act of banning the constituent Davison arose out of public rather than private circumstances. Davison had apparently complained about the corruption of Randall's colleagues on the Board (the actual post, having been deleted by Randall, was not before the judge).
Judge Cacheris referenced two of the Supreme Court's decisions last Term - - - Packingham v. North Carolina opinion, noting that Facebook had become a vital platform for speech and the exchange of ideas, and Matal v. Tam, noting that if anything is clear, "it is that speech may not be disfavored by the government simply because it offends." The judge held that it was unnecessary to decide what type of "forum" under the First Amendment the Facebook page might be, given that under no forum is viewpoint discrimination permissible. Here, the judge held, Randall clearly banned Davison because of the opinion he expressed. There was no neutral policy (such as a ban on profanity) which was being neutrally applied.
The judge observed that Davison was banned only for a short time - - - Randall retracted her ban the next morning - - - and that during this time, Davison had adequate means to communicate his message through other avenues. Nevertheless, the judge stated that
Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.
The judge issued a declaratory judgment in favor of Davison, who represented himself pro se, on the First Amendment claim, although the judge rejected a procedural due process claim that Davison had also advanced.
This case should serve as a wake-up call for politicians who use their "official" Facebook pages in ways that may violate the First Amendment. The case may also be a harbinger of decisions to come in the ongoing litigation challenging the President's practice of "blocking" people on Twitter.
[image by Matt Shirk via]
Wednesday, July 12, 2017
In a careful and well-reasoned opinion in Animal Defense Fund v. Herbert, United States District Judge for Utah, Judge Robert J. Shelby, has concluded that Utah's so-called "ag-gag" statute, Utah Code §76-6-112, is unconstitutional as violating the First Amendment.
The Utah statute criminalized "agricultural operation interference" if a person:
(a) without consent from the owner of the agricultural operation, or the owner’s agent, knowingly or intentionally records an image of, or sound from, the agricultural operation by leaving a recording device on the agricultural operation;
(b) obtains access to an agricultural operation under false pretenses;
(c) (i) applies for employment at an agricultural operation with the intent to record an image of, or sound from, the agricultural operation;
(ii) knows, at the time that the person accepts employment at the agricultural operation, that the owner of the agricultural operation prohibits the employee from recording an image of, or sound from, the agricultural operation; and
(iii) while employed at, and while present on, the agricultural operation, records an image of, or sound from, the agricultural operation; or
(d) without consent from the owner of the operation or the owner’s agent, knowingly or intentionally records an image of, or sound from, an agricultural operation while the person is committing criminal trespass, as described in Section 76-6-206, on the agricultural operation.
The analysis separated these provisions into the lying provision - - - "false pretenses" under subsection (b) - - - and the recording provisions in the other subsections. As to both types, Utah argued that the First Amendment was not applicable.
Judge Shelby's analysis of First Amendment protection for the "lying provision" included a discussion of United States v. Alvarez (2012), the "stolen valor" case, settling on a reading of Alvarez that lies that cause "legally cognizable harm" could be outside the ambit of the First Amendment. Utah argued that the false pretenses caused two types of legally cognizable harm: danger to animals (and employees) and trespass. Judge Shelby dispatched the danger argument given that there was no connection between the lie and the danger: the "Act as written criminalizes lies that would cause no harm to animals or workers." Judge Shelby's analysis of the trespass rationale is more detailed, considering whether the misrepresentation negates consent so that the liar becomes a trespasser. For Judge Shelby, the answer is "not always." Relying on Fourth and Seventh Circuit pre-Alvarez cases, Judge Shelby essentially concludes that the Utah statute is overbroad:
It is certainly possible that a lie used to gain access to an agricultural facility could cause trespass-type harm; a protestor, for example, might pose as a prospective customer, and then, after being let in the door, begin causing a scene or damaging property. But the Act also sweeps in many more trivial, harmless lies that have no discernable effect on whether a person is granted access, and, consequently, on whether a person causes any trespass-type harm. Indeed, given its broad language (“obtain[ing] access to an agricultural operation under false pretenses”), the Act on its face criminalizes, for example, an applicant’s false statement during a job interview that he is a born-again Christian, that he is married with kids, that he is a fan of the local sports team. It criminalizes putting a local address on a resume when the applicant is actually applying from out of town. In short, the Act criminalizes a broad swath of lies that result in no harm at all, much less interference with ownership or possession of the facility . . . .
Judge Shelby also rejected Utah's argument that "recording" was not protected speech under the First Amendment, citing the Seventh Circuit police recording case recognizing a First Amendment protection (note a similar Third Circuit case in the past week).
Utah also argued that the First Amendment did not apply because the acts involved private property rights, although one of the plaintiffs had been charged while she was on public property filming. More importantly, however, Judge Shelby criticized Utah's argument as confusing a landowner's ability to exclude from her property someone who wishes to speak with the "government's ability to jail the person for that speech."
The applicability of the First Amendment proved to be the thorniest issue, with Judge Shelby then easily proceeding to find these were content-based provisions deserving of strict scrutiny and then easily finding that the Utah statute did not survive. Of special interest is Utah's reliance for its government interests on protecting animals and workers from injury, despite the legislative history that "appears devoid of any reference" to such interests, instead discussing harms caused by "the vegetarian people" and others. Judge Shelby found that the Utah statute was not necessary to serve these interests and was over- and under-inclusive:
Not only is the Act seemingly not necessary to remedy the State’s alleged harms, it is an entirely overinclusive means to address them. It targets, for example, the employee who lies on her job application but otherwise performs her job admirably, and it criminalizes the most diligent well-trained undercover employees. And it is simultaneously underinclusive because it does nothing to address the exact same allegedly harmful conduct when undertaken by anyone other than an undercover investigator.
While recognizing that Utah has an interest in addressing "perceived threats" to the state agricultural industry, Judge Shelby concluded that suppressing "broad swaths of protected speech" is not a constitutionally permissible tool to accomplish this goal. Thus, this opinion joins Idaho district Judge Winmill's 2015 decision in Animal Defense League v. Otter in a defeat for the so-called ag-gag laws.
[image "elk on farm" via]
Friday, July 7, 2017
In its opinion in Fields v. City of Philadelphia, the Third Circuit concluded that "Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public." As the panel majority opinion by Judge Thomas Ambro noted, "Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public"; the Third Circuit joined "this growing consensus."
The court noted that police recording has become "ubiquitous" and that such documentation has "both exposed police misconduct and exonerated officers from errant charges." In considering whether the recording was First Amendment expressive activity, the court noted that the case was "not about people attempting to create art with police as their subjects. It is about recording police officers performing their official duties." Thus, at stake is the First Amendment protection of the "public's right to know": "Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, “the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”
Defendants offer nothing to justify their actions. Fields took a photograph across the street from where the police were breaking up a party. *** If a person’s recording interferes with police activity, that activity might not be protected. For instance, recording a police conversation with a confidential informant may interfere with an investigation and put a life at stake. But here there are no countervailing concerns.
Fields, using his iPhone, was noticed by an officer who then asked him whether he “like[d] taking pictures of grown men” and ordered him to leave. Fields refused, so the officer arrested him, confiscated his phone, and detained him. The officer searched Fields’ phone and opened several videos and other photos. The officer then released Fields and issued him a citation for “Obstructing Highway and Other Public Passages.” These charges were withdrawn when the officer did not appear at the court hearing.
Fields, along with Amanda Geraci who had been involved in a separate incident involving recording, brought 42 U.S.C. § 1983 claims for retaliation for exercising their First Amendment rights. Thus, the court confronted the question of qualified immunity. The court held that at the time of the incident - - - 2013 for Fields - - - it was not sufficiently "clearly established" so that the law "gave fair warning so that every reasonable officer knew that, absent some sort of expressive intent, recording public police activity was constitutionally protected."
Dissenting in part, Judge Nygaard concluded that the right was clearly established. In addition to the "robust consensus" before the conduct at issue, the Philadelphia Police Department's own "official policies explicitly recognized this First Amendment right well before the incidents under review here took place." For Judge Nygaard, "no reasonable officer could have denied at the time of the incidents underlying these cases that efforts to prevent people from recording their activities infringed rights guaranteed by the First Amendment."
Certainly, after Fields v. City of Philadelphia, no reasonable officer could now successfully argue that there is not a First Amendment right to record police activity.
Monday, July 3, 2017
The D.C. Circuit on Friday dismissed a challenge to the government's drone strike program by the family of unintended, innocent victims. The court ruled that the case raised a political question.
The ruling was unsurprising, given the state of the law. But one judge on the panel concurred in order to lodge a harsh criticism.
The case involves the family members of Salem and Waleed bin Ali Jaber, the unintended, innocent victims of a drone strike in Yemen. They sought a declaratory judgment that the strike violated the Torture Victims Protection Act and the Alien Tort Statute.
The D.C. Circuit upheld a lower court ruling that the case raised a nonjusticiable political question. Drawing on circuit precedent, the El-Shifa case, the court wrote:
It would be difficult to imagine precedent more directly adverse to Plaintiff's position. While Plaintiffs clearly assert claims under the TVPA and ATS, the precise grounds they raise in their Complaint call for a court to pass judgment on the wisdom of [the] Executive's decision to commence military action--mistaken or not--against a foreign target. . . .
Plaintiffs will no doubt find this result unjust, but it stems from constitutional and pragmatic constraints on the Judiciary. In matters of political and military strategy, courts lack the competence necessary to determine whether the use of force was justified.
Judge Brown, who also wrote the majority opinion, concurred with a scathing critique of the application of the political question doctrine to cases like this, especially given the lack of oversight in the other two branches:
Of course, this begs the question: if judges will not check this outsized power, then who will? . . . The President is the most equipped to police his own house. But, despite an impressive number of executive oversight bodies, there is pitifully little oversight within the Executive. Presidents are slow to appoint members to these boards; their operations are shrouded in secrecy; and it often seems the board's are more interested in protecting and excusing the actions of agencies than holding them accountable. Congress perhaps? But congressional oversight is a joke--and a bad one at that. . . .
Our democracy is broken. We must, however, hope that it is not incurably so. . . . The Court's opinion . . . is all a Judiciary bound by precedent and constitutional constraints may permissibly claim. It is up to others to take it from here.
Thursday, June 29, 2017
The D.C. Circuit ruled yesterday that Fannie Mae, a government-sponsored but privately-owned corporation, but now under conservatorship of an independent government agency, cannot be sued for a First Amendment violation. The court said that the corporation, even under conservatorship, isn't a government actor.
The case involves a Fannie Mae contractor, Caroline Herron, who alleged that Fannie Mae officials retaliated against her for raising concerns about mismanagement at the corporation. Herron brought a Bivens claim against Fannie Mae officials for a free-speech violation, among other claims. But the Bivens claim hinges, of course, on Fannie Mae officials being government actors. Herron argued that they were, because Fannie Mae is under conservatorship of an independent federal agency, the Federal Housing Finance Agency. In other words, the conservatorship converted Fannie Mae (an otherwise private actor) into a government actor.
The D.C. Circuit rejected that argument. The court looked to the three-part test in Lebron v. National R.R. Passenger Corp. for determining whether a "[g]overnment-created and -controlled corporation" is a government actor for constitutional purposes. The court held that (1) the government created Fannie Mae (2) "for the furtherance of governmental objectives." But the court held that (3) under the terms of the conservatorship the government didn't permanently control it. "Although there is no specific termination date, the purpose of the conservatorship is to restore Fannie Mae to a stable condition. 'This is an inherently temporary purpose.'" For the court, it's the purpose of the indefinite conservatorship, not its internal self-destruct clause (which didn't exist), that matters.
The ruling ends Herron's case. (The course dismissed her other claims, too.)
Tuesday, June 27, 2017
With all the activity at the Court yesterday, we might be excused for missing the Court's non-decision in Hernandez v. Mesa. But even as the Court punted, remanding to the lower court, this is a case we should pay attention to.
The case involved a border patrol agent who shot and killed a Mexican youth just on the other side of the border. (Our oral argument review is here.) The case teed up an important dispute over whether the Fourth Amendment applies outside the United States, and how the Court should decide that question. (The case also asked whether the agent enjoyed qualified immunity for a related Fifth Amendment claim.)
But then the Court added a third QP--whether the plaintiffs had a Bivens claim, an issue that the lower courts dodged--signalling that the Court thought this was a substantial, even threshold, issue. Then just last week in Abbasi the Court ruled that 9/11 detainees did not have a Bivens claim and in the course substantially narrowed the Bivens doctrine. Yesterday the Court put these two pieces together and took them to their logical conclusion: It remanded Hernandez with instructions to consider, as a threshold matter (that is, before the courts gets to the extraterritoriality question, and possibly even before the court gets to the qualified immunity question), whether the plaintiffs have a Bivens claim in light of Abbasi.
This does not bode well for the plaintiffs. That's because the Court in Abbasi all but limited the Bivens "context" to cases that look exactly like the three cases in which the Court has found a Bivens remedy. Outside of that "context," the Court won't extend Bivens if "special factors" counsel against a Bivens remedy. And the Court defined "special factors" broadly enough that it'll be hard to show that they don't.
In other words, the plaintiffs will only prevail if they can show that special factors don't counsel against extending a Bivens remedy to this case. And given the very broad approach to "special factors" in Abbasi, that could be quite hard to do.
At the same time, the Court ruled that the lower court improperly granted qualified immunity to the agent. The Court said that the agent couldn't have known that Hernandez was Mexican (not American), and the lower court therefore erred in relying on the fact that Hernandez was "an alien who had no significant voluntary connection to . . . the United States."
That may be a hollow victory for the plaintiffs, however, if the courts rule as a threshold matter that they lack a Bivens claim. If they so rule, there'll be no need to even consider qualified immunity, or, for that matter, the extraterritorial application of the Fourth Amendment.
Monday, June 26, 2017
When the Supreme Court granted certiorari and modified the lower courts' injunctions halting President Trump's travel ban today, it also directed the parties to brief this question: "Whether the challenges to Section 2(c) became moot on June 14, 2017."
The question matters, because June 14, 2017, is the date on which the 90-day ban would have expired under the order's stated effective date, March 16, 2017. In other words, the cases should have become moot on June 14, because that's when the ban, by the order's own terms, would end, anyway.
But that same day, President Trump issued an order stating that the new effective date for each enjoined provision of the travel ban would be the date on which the injunctions in those cases "are lifted or stayed with respect to that provision." The government argues that the order solves the mootness problem, because the enjoined provisions, including the 90-day ban wouldn't start until the injunctions go away.
But President Trump's order purporting to extend the effective date doesn't un-moot the case as of June 14, and it won't un-moot it when it goes to the Court in October.
As to June 14: The stated purpose for the 90-day ban was "[t]o temporarily reduce investigative burdens on relevant agencies during the [20-day review period of foreign nations' practices], to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists . . . ." But none of these reasons supports extending the effective date while injunctions remained in place. In other words, the government could move forward with all of those things while the injunctions were in place, thus securing the nation's safety against nationals from the six identified countries (the other reason for the 90-day ban), and obviating the need for 90 days after the injunctions go away.
As to October: Even if the government and Court take the position that the circuits' injunctions applied to "ensur[ing] the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals" and "ensur[ing] that adequate standards are established to prevent infiltrating by foreign terrorists"--in other words, that the injunctions halted even the government's own review of its own processes, so that President Trump's subsequent order really did un-moot the case as of June 14--the case would seem to be moot by the time the Court hears it in October. That's because President Trump's subsequent order--the one purporting to extend the effective date--says that the ban again becomes effective when the injunctions "are lifted or stayed . . . ." It seems that the Supreme Court just "lifted or stayed" them, at least insofar as the government can re-start any stalled process to review government vetting standards. (The Court itself seems to have suggested so, when it wrote that "we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of [the ban].") If so, 90 days will pass before the Court hears the case in October. In other words, it'll be moot in October.
Still, this can't be the result that the Court foresees. If it were, it wouldn't waste everybody's time and energy on briefing the mootness question as of June 14. So: Even if the case was, or becomes, technically moot, look for the Court to get to the merits.