Thursday, May 3, 2018

Ninth Circuit Judges Wrangle Over Right Standard for Political Contribution Limits

The Ninth Circuit this week denied rehearing en banc of a panel ruling upholding Montana's contribution limits against a First Amendment challenge. Through a forceful dissent and response-to-the-dissent, judges on the court wrangled over the right standard for contribution limits in the wake of Citizens United and McCutcheon v. FEC.

The long-running, up-and-down case, now Lair v. Motl, tests Montana's low contribution limits, designed to address the state's unique history with political corruption. A three-judge panel of the Ninth Circuit upheld the limits, and the full court voted to deny en banc review.

In dissent, Judge Ikuta, joined by Judges Callahan, Bea, M. Smith, and N.R. Smith, argued that the panel applied too lenient a standard. In particular, Judge Ikuta wrote that under McCutcheon and Citizens United, "the only state interest that justifies contribution limits is the prevention of acts that 'would be covered by bribery laws if a quid pro quo arrangement were proved.'"

In light of the Supreme Court's clarification, a state can justify imposing regulations limiting individuals' political speech (via limiting political contributions) only by producing evidence that it has a real problem in combating actual or apparent quid pro quo corruption. . . . [T]he government must provide evidence that 'the harms it recites are real and that its restriction will in fact alleviate them to a material degree.'" To meet this test here, a state must show that it has a realistic need to prevent acts that 'would be covered by bribery laws" by (for instance) presenting evidence that large monetary contributions were made "to control the exercise of an officeholder's official duties" or "point[ing] to record evidence or legislative findings suggesting any special corruption problem." One thing is certain: the state cannot carry its burden with evidence showing only that large contributions increase donors' influence or access.

Judges Fisher and Murguia responded, arguing that the dissent's test "has never been adopted by the Supreme Court or this court." "The evidentiary standard established by the Supreme Court requires that a state need only demonstrate a risk of quid pro quo corruption or its appearance that is neither conjectural nor illusory."

May 3, 2018 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Says California Medical Waste Management Act Violates Dormant Commerce Clause (but Officials get Qualified Immunity)

The Ninth Circuit ruled in Daniels Sharpsmart, Inc. v. Smith that California's Medical Waste Management Act likely violates the Dormant Commerce Clause, but that officials who imposed a fine under the Act enjoy qualified immunity against a money-damages suit.

The case arose when Daniels, a sharps-container developer, shipped its medical waste out of California for disposal. Daniels originally shipped to another state and incinerated the waste, but later switched to states that permitted waste disposal using other methods.

This didn't sit well with California regulators, who sought to enforce the state Act's requirements that all medical waste be treated by incineration and that "[m]edical waste transported out of state shall be consigned to a permitted medical waste treatment facility in the receiving state." Regulators told Daniels that his waste had to be incinerated, even if the law of another state permitted an alternative method, and that Daniels would be penalized it if didn't incinerate all of its biohazardous waste that originated in California. Daniels continued to ship waste out of California and dispose of it in other ways, and the California regulators imposed a hefty penalty. Daniels sued.

The Ninth Circuit ruled that the Act likely violated the Dormant Commerce Clause. The court applied the "direct regulation emanation" of the Dormant Commerce Clause, which forbids a state from regulating transactions that take place across state lines or entirely outside of the state's borders. Referencing circuit precedent, the court wrote:

Rather, California has attempted to regulate waste treatment everywhere in the country, just as it tried to regulate art sales and Nevada tried to regulate rules violations procedures everywhere in the country. Of course, that could also have the effect of requiring Daniels to run afoul of other states' regulation of medical waste disposal within their jurisdictions, if California law directed something different from their requirements.

Therefore, Daniels will likely succeed on its claim that the Department officials' application of the [Act] constitutes a "per se violation of the Commerce Clause." Were it otherwise, California could purport to regulate the use or disposal of any item--product or refuse--everywhere in the country if it had its origin in California.

But the court went on to hold that state officials enjoyed qualified immunity against Daniels's suit for monetary damages. That's because "a reasonable official, who is not knowledgeable about the arcane considerations lurking within the dormant Commerce Clause doctrine, could reasonably, if erroneously, believe that the Department could control what was done with California waste in another state."

The court reversed the lower court on this point, noting that the lower court wrongly applied law "at a high level of generality" when it concluded that "[t]he extraterritoriality doctrine has been clearly established for decades."

May 3, 2018 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Sunday, April 29, 2018

District Court Tosses Manafort's Civil Case Challenging Mueller's Authority

Judge Amy Berman Jackson (D.D.C.) on Friday dismissed Paul Manafort's civil case challenging the appointment of Robert Mueller as special counsel, and therefore Meuller's authority to prosecute him. The ruling will almost certainly withstand any appeal and thus ends Manafort's civil challenge to Mueller's authority. It has no effect on Manafort's criminal case, or his ability to challenge Mueller's authority in that case.

Manafort original pleading challenged his indictment and future actions by Mueller, arguing that Mueller's appointment was invalid and that his indictment exceeded Mueller's authority. But Manafort subsequently refined his claim and sought only prospective relief: an order declaring Mueller's appointment order invalid (but only as to paragraph (b)(ii), authorizing the Special Counsel to investigate "any matters that arose or may arise directly from the investigation") and "enjoining the Special Counsel's future ultra vires exercise of authority under that Order." Manafort backed away from his earlier and much broader claims, because circuit law would certainly foreclose those. But by seeking only prospective relief, Manafort did himself in.

Judge Jackson ruled that "Manfort's situation falls squarely within the scope of" Deaver v. Seymour, the 1987 case in which the D.C. Circuit extended Younger abstention and held that the subject of a criminal investigation cannot bring a civil action to attack an impending federal prosecution (except when the criminal case chilled First Amendment rights, not applicable here). In short:

[A] civil case is not the appropriate vehicle for taking issue with what a prosecutor has done in the past or where he might be headed in the future. It is a sound and well-established principle that a court should not exercise its equitable powers to interfere with or enjoin an ongoing criminal investigation when the defendant will have the opportunity to challenge any defects in the prosecution in the trial court or on direct appeal. Therefore, the Court finds that this civil complaint must be dismissed.

Moreover, Judge Jackson ruled that Manafort lacked standing, because he couldn't plead imminent harm, and because his claim wasn't ripe. (Remember that he refined his case to ask for only prospective relief.)

April 29, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, April 26, 2018

SCOTUS Upholds Inter Partes Review Against Article III Challenge

The Supreme Court this week upheld a congressionally authorized practice called "inter partes review" that allows for reconsideration and cancellation by the Patent and Trademark Office of an already-issued patent. The Court said that inter partes review didn't violate Article III (by assigning a role of the judiciary to the PTO) or the Seventh Amendment.

The case tested inter partes review against Article III, on the argument that inter partes review represents an impermissible delegation of a core judicial function to an executive agency.

The Court, drawing on precedent, said that patents fell within the "public-rights doctrine," which permits executive or legislative bodies to determine matters "arising between the government and others." And moreover, inter partes review "involves the same basic matter as the grant of a patent" in the first place, and is therefore only a kind of "second look at an earlier . . . grant" by the PTO.

Justice Breyer wrote a concurrence, joined by Justices Ginsburg and Sotomayor, saying that "the Court's opinion should not be read to say that matters involving private rights may never be adjudicated other than by Article III courts."

Justice Gorsuch, joined by Chief Justice Roberts, dissented, arguing that the practice cut into the unique Article III role and independence of the courts and impermissibly assigned the role to the PTO. (Chief Justice Roberts and Justice Gorsuch (joined by Justice Kennedy) also dissented in Patchak, the case earlier this Term holding that a congressional act instructing courts to dismiss a certain class of cases didn't violate Article III, even when the act was targeted at a particular pending case, for similar reasons. These dissents are well worth a read.)

April 26, 2018 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, April 25, 2018

Another Federal Judge Enjoins President's DACA Recission

In a 60 page Memorandum Opinion in NAACP v. Trump, United States District Judge for the District of Columbia, Judge John Bates "vacated" the Department of Homeland Security's decision to rescind the DACA program, but stayed its order of vacatur for 90 days "to afford DHS an opportunity to better explain its view that DACA is unlawful."

Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing.

Judge Bates' decision rests on an application of the Administrative Procedure Act (APA), finding that the decision by DHS to rescind DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood., was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful.  Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program."

Judge Bates held that the "litigation risk" argument, which would would render the decision to rescind presumptively  unreviewable, was not independent of the reality that the "rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted." This legal determination is what raises the constitutional issue: DHS determined that DACA lacked constitutional authority. Although, as Judge Bates noted, "it seems that no court has yet passed judgment on DACA’s constitutionality."

Thus, Judge Bates gave DHS more time to makes it arguments that DACA lacked constitutional (and statutory) authority to support its rescission decision, and also deferred ruling on the plaintiffs' constitutional challenges to the rescission as violating due process and equal protection.

 

April 25, 2018 in Courts and Judging, Current Affairs, Equal Protection, Executive Authority, Fifth Amendment, Opinion Analysis, Race, Standing | Permalink | Comments (0)

Monday, April 23, 2018

Ninth Circuit Says Monkey Has Article III Standing

The Ninth Circuit ruled today that a monkey had Article III standing to sue for copyright infringement. But the court also ruled that the monkey lacked statutory standing under the Copyright Act, so dismissed the claim.

The case, Naruto v. Slater, arose when wildlife photographer David Slater left his camera unattended in a reserve on the island of Sulawesi, Indonesia, to allow crested macaque monkeys to photograph themselves. Naruto, one of the monkeys, did just that, and Slater published his picture in a book of "monkey selfies." Naruto, through his next of friend PETA, sued for copyright infringement.

The Ninth Circuit ruled that Naruto had Article III standing. The court said that circuit precedent tied its hands--the Ninth Circuit previously ruled in Cetacean Community v. Bush that the world's whales, porpoises, and dolphins could have Article III standing to sue, although they lacked statutory standing under the relevant environmental statutes--and went on to urge the Ninth Circuit to reverse that precedent.

But the court further held that Naruto lacked statutory standing under the Copyright Act, because that Act doesn't permit a monkey to sue. It dismissed Naruto's case on this ground.

The court ruled that PETA didn't have next-of-friend standing, because it didn't assert a relationship with Naruto, and because "an animal cannot be represented, under our laws, by a 'next friend.'"

April 23, 2018 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Sunday, April 22, 2018

Puerto Rico District Judge Rules on Gender-Marker Birth Certificates

In a relatively brief opinion in Arroyo-Gonzalez v. Rossello-Nevares, United States District Judge for the District of Puerto Rico Judge Carmen Consuelo Cerezo ruled that the present practices of the Commonwealth of Puerto Rico regarding change in birth certificates was unconstitutional.

Here is the essence of Judge Cerezo's opinion:

By permitting plaintiffs to change the name on their birth certificate, while prohibiting the change to their gender markers, the Commonwealth forces them to disclose their transgender status in violation of their constitutional right to informational privacy. Such forced disclosure of a transgender person’s most private information is not justified by any legitimate government interest. It does not further public safety, such that it would amount to a valid exercise of police power. To the contrary, it exposes transgender individuals to a substantial risk of stigma, discrimination, intimidation, violence, and danger. Forcing disclosure of transgender identity chills speech and restrains engagement in the democratic process in order for transgenders to protect themselves from the real possibility of harm and humiliation. The Commonwealth’s inconsistent policies not only harm the plaintiffs before the Court; it also hurts society as a whole by depriving all from the voices of the transgender community.

The judge thus set out the process to enable a new birth certificate to be issued in Puerto Rico.

 

April 22, 2018 in Due Process (Substantive), Gender, Opinion Analysis, Privacy | Permalink | Comments (0)

Thursday, April 19, 2018

Sixth Circuit Strikes Ohio Statute Defunding Planned Parenthood

In its opinion in Planned Parenthood of Greater Ohio v. Himes, a unanimous Sixth Circuit panel, affirming the district judge, found Ohio 's Revised Code § 3701.034 unconstitutional under the unconstitutional conditions doctrine. The Ohio statute prohibited all funds it receives through six non-abortion-related federal health programs, such as the Violence Against Women Act, from being used to fund any entity that performs or promotes nontherapeutic abortions, or becomes or continues to be an affiliate of any entity that performs or promotes nontherapeutic abortions. The statute was aimed at Planned Parenthood and similar organizations.

The state relied upon cases such as Maher v. Roe and Rust v. Sullivan, but the court's opinion, authored by Judge Helene White, stated:

Plaintiffs do not claim an entitlement to government funds. They acknowledge the government’s right to define the parameters of its own programs, and have complied with all program requirements. What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.

Instead, Judge White wrote, the correct precedent was Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI) (2013). Recall that in the "prostitution-pledge" case, the United States Supreme Court held unconstitutional under the First Amendment a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. For the Sixth Circuit, AOSI "reiterated that the government may not require the surrender of constitutional rights as a condition of participating in an unrelated government program." In short,

the government cannot directly prohibit Plaintiffs from providing and advocating for abortion on their own time and dime, [ and thus ] it may not do so by excluding them from government programs for which they otherwise qualify and which have nothing to do with the government’s choice to disfavor abortion.

The Sixth Circuit found that the Ohio statute violated unconstitutional conditions based on constitutional infringements of both the Due Process Clause and the First Amendment. On the due process issue, the court found that the due process right to an abortion was at issue. The court rejected the "importation" of the undue burden standard into this analysis, but also reasoned that even under the undue burden analysis, especially in the United States Supreme Court's most recent abortion ruling in Whole Woman's Health v. Hellerstedt (2016), the statute violated due process.

On the First Amendment claim, relating to the Ohio statute's denial of funds to any organization that promotes abortions, again the Sixth Circuit quoted Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI): the government does not "have the authority to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.’ "

While there is some potential for a circuit split given the Seventh Circuit's opinion in Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013), the Sixth Circuit extensively analyzes the Seventh Circuit's opinion and concludes that because it was decided before Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI), it is no longer persuasive.

 

April 19, 2018 in Abortion, Due Process (Substantive), First Amendment, Fundamental Rights, Medical Decisions, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Tuesday, April 17, 2018

SCOTUS Finds INA Deportation Provision for "Crime of Violence" Unconstitutionally Vague

In its opinion in Sessions v. Dimaya, the United States Supreme Court held that a portion of the definition of "crime of violence" in 18 U.S.C. §1, as applied in the deportation scheme of the Immigration and Nationality Act,  see 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C), is unconstitutionally vague.

The Court's somewhat fractured opinion concluded that the residual clause, §16(b), which defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" is unconstitutionally vague.

Justice Kagan's opinion was joined in its entirety by Justices Ginsburg, Breyer, and Sotomayor. Justice Gorsuch joined only Parts I, III, IV–B, and V, thus making these sections the opinion of the Court.

The Court's opinion relied on Johnson v. United States (2015), authored by Justice Scalia, in which the Court found a similar residual clause in the Armed Career Criminal Act (ACCA), defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B) unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause.

The Court in Dimaya ruled that

§16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague" {in Johnson}.  It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently- large degree of risk. The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

The United States and the dissenting opinions attempted to distinguish the INA provision from the ACCA provision in several ways. Kagan, writing for the Court in Part IV that "each turns out to be the proverbial distinction without a difference." 

34033716420_bd72e5fd56_zGiven Gorsuch's joining with the perceived more liberal-leaning Justices on the Court, his concurring opinion is sure to attract attention.  Gorsuch's substantial opinion (18 textual pages to Kagan's 25 page opinion for the Court and plurality), leans heavily on the foundations of due process, beginning

Vague laws invite arbitrary power. Before the Revolu­tion, the crime of treason in English law was so capa­ciously construed that the mere expression of disfavored opinions could invite transportation or death.

More importantly, Gorsuch disavows any notion that the context of immigration deportation merits any special consideration and that the Court's holding is narrow, stressing that the problem with the statute is the procedural one of failing to provide notice (and standards for judges) rather than the substantive choice by Congress.

Taken together with Johnson, the holding in Dimaya means that statutes must be much more precise when defining a "crime of violence" or risk being held unconstitutionally vague.

[image: caricature of Justice Neil Gorsuch by Donkey Hotey via]

April 17, 2018 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Fifth Amendment, Interpretation, Opinion Analysis, Procedural Due Process, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Saturday, April 14, 2018

District Judge Holds Transgender Military Ban Subject to Strict Scrutiny

In her opinion and Order in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington has reaffirmed her previous preliminary injunction (December 2017) on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims in their challenge to the President's ban on transgender troops in the military, and further decided that the military ban is subject to strict scrutiny. (Recall that previous to Judge Pechman's preliminary injunction, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions and United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures).

The government's motion for summary judgment and to dissolve the preliminary injunction relied in large part on the President's new policy promulgated in March 2018. As Judge Pechman phrased it, the 2018 Presidential Memorandum

purports to "revoke" the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals,” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”

Nypl.digitalcollections.a20151f8-d3cf-5c25-e040-e00a18066189.001.wRejecting the government defendants' argument that the controversy was now moot, Judge Pechman concluded that the 2018 Memorandum and Implementation Plan "do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place." The judge acknowledged that there were a few differences, but was not persuaded by the government defendants' argument that the 2018 policy did not now mandate a “categorical” prohibition on service by openly transgender people.

Similarly, Judge Pechman found that the individual plaintiffs, the organizational plaintiffs, and the plaintiff State of Washington continued to have standing.

Most crucial in Judge Pechman's order is her decision that transgender people constitute a suspect class and thus the ban will be subject to strict scrutiny. (Recall that in the previous preliminary injunction, Judge Pechman ruled that transgender people were at a minimum a quasi-suspect class). In this opinion, she considers four factors:

  • whether the class has been “[a]s a historical matter . . . subjected to discrimination,”
  • whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,
  • whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,"
  • whether the class is “a minority or politically powerless.”

After a succinct analysis, she concludes that suspect class status is warranted and because the "Ban specifically targets one of the most vulnerable groups in our society," it  "must satisfy strict scrutiny if it is to survive."

However, Judge Pechman did not decide on the level of deference the government defendants should be accorded. Instead, she concluded that

On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.

However, she did agree with the government defendants that President Trump was not subject to injunctive relief, but did remain as a defendant for the purpose of declaratory relief.

Thus, Judge Pechman directed the parties to "proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment."

[image, Revolutionary War era soldier, NYPL, via]

 

April 14, 2018 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Gender, Mootness, Opinion Analysis, Sexuality, Standing | Permalink | Comments (0)

Wednesday, April 11, 2018

District Court Says No Standing to Sue President for Ethics Disclosure

Judge Colleen Kollar-Kotelly (D.D.C.) ruled yesterday that an attorney appearing pro se lacked standing to sue President Trump for alleged deficiencies in his financial disclosure report that he was required to file as a candidate. The ruling ends this challenge.

The case, Lovitky v. Trump, arose when attorney Jeffrey Lovitky obtained a copy of then-candidate Trump's financial disclosure report from the Office of Government Ethics and discovered what he believed to be deficiencies in the reporting. Lovitky sued, arguing that the report included President Trump's personal debts and business debts, and that this "commingl[ing]" of personal and non-personal liabilities "mak[es] it impossible to identify which of the liabilities listed on the financial disclosure report were the liabilities of the President, in violation of [federal law]." Lovitky sought mandamus relief that would "direct[] the President to amend his financial disclosure report . . . for the purpose of specifically identifying any debts he owed during the [relevant] reporting period." Lovitky also sought declaratory relief.

The court ruled that Lovitky lacked standing to sue, because his requested relief wouldn't redress his claimed injuries. (The court didn't address whether he had a sufficient injury for standing purposes, because he lacked redressability.) As to mandamus, the court surveyed circuit law allowing mandamus against the president as to a ministerial duty, but, quoting the D.C. Circuit, noted that "[i]t is not entirely clear . . . whether, and to what extent, these decisions remain good law after [the Supreme Court's plurality opinion in Franklin v. Massachusetts]." Ultimately, the court said that because of this ambiguity it "would hesitate to issue mandamus even if Defendant's duty to specifically disclose personal liabilities were ministerial, but because the Court has found that it is a discretionary duty, the Court cannot do so."

As to declaratory relief, the court noted that it, too, wasn't obviously available against the president post Franklin. Regardless, the court said that because mandamus wasn't available, and because the Declaratory Judgment Act doesn't create an independent basis for jurisdiction, declaratory relief had no jurisdictional hook, and the court therefore lacked jurisdiction.

April 11, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, April 9, 2018

District Court Upholds Massachusetts's Assault Weapons Ban

Judge William G. Young (D. Mass.) last week rejected a Second Amendment challenge to Massachusetts's assault weapon ban. Judge Young held that covered rifles fell outside the Second Amendment and thus enjoyed no constitutional protection.

The case, Workman v. Healey, tested the state's ban on assault weapons and large-capacity magazines. The state ban was styled on the federal assault weapons ban, but, unlike Congress, the Massachusetts Legislature made the ban permanent. Plaintiffs sued in early 2017, arguing that the ban violated the Second Amendment.

The court disagreed. Judge Young wrote that the banned weapons fell outside the core of the Second Amendment and enjoyed no constitutional protection. He declined to apply any level of scrutiny and simply upheld the ban. The court explained:

Consequently, "Heller . . . presents us with a dispositive and relatively easy inquiry: Are the banned assault weapons and large-capacity magazines 'like' 'M-16 rifles,' i.e., 'weapons that are most useful in military service,' and thus outside the ambit of the Second Amendment?" The undisputed facts in this record convincingly demonstrate that the AR-15 and [large-capacity magazines] banned by the Act are "weapons that are most useful in military service." As a matter of law, these weapons and [large-capacity magazines] thus fall outside the scope of the Second Amendment and may be banned.

The court rejected the plaintiffs' argument that the AR-15 is a popular firearm, and therefore enjoys Second Amendment protection:

Yet the AR-15's present day popularity is not constitutionally material. This is because the words of our Constitution are not mutable. They mean the same today as they did 227 years ago when the Second Amendment was adopted. The test is not the AR-15's present day popularity but whether it is a weapon "most useful in military service."

Judge Young went on to quote Justice Scalia from Scalia Speaks.

The court also rejected the plaintiffs' claims that the ban is vague (because it doesn't define what "copies or duplicates" of assault weapons means) and that enforcement violated the Ex Post Facto Clause (because the state attorney general issued a notice that could punish existing ownership of banned weapons).

April 9, 2018 in Cases and Case Materials, Interpretation, News, Opinion Analysis, Second Amendment | Permalink | Comments (1)

Thursday, March 29, 2018

District Court Says No Standing to Sue U.S. Government for Actions of Israelis

Judge Randolph D. Moss (D.D.C.) ruled in Siegel v. U.S. Dep't of Treasury that plaintiffs lacked standing to sue the U.S. government for anti-Palestinian actions of Israelis. The court rejected the plaintiffs' theory that U.S. aid to Israel caused their harm, and that judicial relief would redress it. The ruling means that the case is dismissed.

The plaintiffs in the case were U.S. taxpayers and two individuals who claimed that Israeli settlers took their property with the support of the Israeli military. They alleged that U.S. aid to Israel contributed to Israeli actions that were detrimental to Palestinians. The government moved to dismiss, arguing that the plaintiffs lacked standing; the district court agreed.

As to the taxpayers, the court said their "harm" was too diffuse to support standing. As to the two displaced individuals, the court said that they alleged a sufficient harm, but that they didn't sufficiently allege that U.S. aid to Israel caused their harm, or that judicial relief would redress it. The court said the two individual plaintiffs' "chain of reasoning is too remote and too speculative for several reasons." In short,

Plaintiffs ultimately ask the court to "pile conjecture on conjecture" and to reduce the complex decisions surrounding Israeli activity in the territory at issue to a single determinative variable. As this Court has previously explained, "[s]uch 'unadorned speculation as to the existence of a relationship between the challenged government action and the third-party conduct will not suffice to invoke the federal judicial power.'"

March 29, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Second Circuit Says NY Can Use Surplus Highway Toll Revenue for Canals

The Second Circuit ruled that New York's practice of using surplus revenue from highway tolls to fund its canal system did not violate the Dormant Commerce Clause. The ruling means that New York can continue this practice.

The court ruled that Congress specifically approved the practice in the Intermodal Surface Transportation Efficiency Act of 1991. That Act authorizes state authorities to collect highway tolls without repaying the federal government (for federal financial aid to construct and improve highways in the first place) so long as it first used those funds for specified purposes under the Act. If so, then a state could use all excess toll revenues "for any purpose for which Federal funds may be obligated by a State under [Title 23]." This includes "historic preservation, rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals)." A separate provision--a "Special Rule"--paralleled this rule and added specific conditions for the New York State Thruway.

The court said that the ISTEA "permitted the Thruway Authority to allocate excess toll revenues (1) to any transportation facilities under the Thruway Authority's jurisdiction or (2) for any project eligible to receive federal assistance under Title 23." According to the court, this "plain language of the ISTEA manifestly contains . . . 'unmistakably clear' evidence of an intent to authorize the Thruway Authority to use excess highway toll revenues for canal purposes."

Because Congress validly authorized this under its Commerce Clause authority, it can't violate the Dormant Commerce Clause.

March 29, 2018 in Cases and Case Materials, Commerce Clause, Congressional Authority, Dormant Commerce Clause, Federalism, News, Opinion Analysis | Permalink | Comments (1)

Wednesday, March 28, 2018

District Court Says Maryland, D.C. Have Standing in Emoluments Case Against Trump

Judge Peter J. Messitte (D. Md.) ruled today that Maryland and D.C. have standing to sue President Trump for violations of the Domestic and Foreign Emoluments Clauses. At the same time, Judge Messitte said that the plaintiffs lacked standing to sue with regard to Trump properties other than the Trump International Hotel in D.C.

The ruling says nothing about the merits and only means that the case can move forward, beyond this preliminary stage. Recall that a district judge ruled the other way in CREW's Emoluments Clause case against President Trump.

The case involves Maryland's and D.C.'s challenge to payments that President Trump receives as owner of his world-wide properties. The plaintiffs argue that these payments violate the Domestic and Foreign Emoluments Clauses. The President moved to dismiss the case based on lack of standing. Today the district court denied that motion.

The court ruled that the plaintiffs sufficiently alleged injuries-in-fact to their quasi-sovereign, proprietary, and parens patriae interests. As to their quasi-sovereign interest, the court said that other states' use of the Trump International Hotel on official business "rather clearly suggests that Maryland and the District of Columbia may very well feel themselves obliged, i.e., coerced, to patronize the Hotel in order to help them obtain federal favors." As to proprietary interests, the court said that "the President's ownership interest in the Hotel has had an almost certainly will continue to have an unlawful effect on competition, allowing an inference of impending (if not already occurring) injury to Plaintiffs' proprietary interests" in their own properties. Finally, as to the plaintiffs' parens patriae interest, the court said that "[i]t can hardly be gainsaid that a large number of Maryland and District of Columbia residents are being affected and will continue to be affected when foreign and state governments choose to stay, host events, or dine at the Hotel rather than at comparable Maryland or District of Columbia establishments, in whole or in substantial part simply because of the President's association with it."

The court also held that the plaintiffs sufficiently pleaded causation and redressability, and that the plaintiffs fell within the "zone of interests" of the Emoluments Clauses and that the case was not a nonjusticiable political question.

The court, citing a string of Supreme Court precedent, said that the plaintiffs' request for injunctive and declaratory relief against the President didn't violate the separation of powers.

But the court limited the case to a challenge based on the President's interest in the Trump International Hotel in D.C. (and not based on other Trump properties around the country or around the world). The court did not foreclose challenges based on those other properties in other cases, but said only that Maryland and D.C. had failed sufficiently to plead standing against Trump-owned properties outside D.C.

March 28, 2018 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Monday, March 26, 2018

Sixth Circuit Upholds State Single-Subject Ballot-Initiative Rule Against First Amendment Challenge

The Sixth Circuit ruled last week that Ohio's single-subject rule for ballot initiatives doesn't violate the First Amendment. The ruling upholds a state Ballot Board order requiring the plaintiffs to split their initiative--which includes one question on term limits for state supreme court justices and another to apply all laws "that apply to the people" of the state "equally to the members and employees of the General Assembly"--into two.

The case, Committee to Impose Term Limits v. Ohio Ballot Board, arose when the state Ballot Board rejected the plaintiffs' request to include a ballot question with two parts--one to impose term limits on Ohio supreme court justices, and the other to apply laws equally to members of the General Assembly. The Board ruled that state single-subject rule for ballot initiatives required the plaintiffs to split the questions. The plaintiffs sued, arguing that the Board's ruling violated the First Amendment.

The Sixth Circuit disagreed. The court rejected the plaintiffs' argument that the single-subject rule was a content-based restriction on speech and instead applied the Anderson-Burdick balancing test for "minimally burdensome and nondiscriminatory regulations." Under the balancing test, the court said that the single-subject rule amounted to only a minimal burden on the plaintiffs, but that it was justified by multiple state interests (avoiding confusion at the ballot box, promoting informed decision-making, preventing logrolling).

The ruling aligns with every other circuit that addressed the question post-Buckley v. Valeo.

March 26, 2018 in Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Speech, State Constitutional Law | Permalink | Comments (0)

District Court: No First Amendment Right Against Release of FEC Investigation

 

Judge Amy Berman Jackson (D.D.C.) ruled on Friday that donors to a PAC don't have a First Amendment right against public disclosure of their identities as part of the FEC investigation file into their political contributions.

The ruling means that the FEC investigation file, including the contributors' identities, will be released, unless and until the ruling is appealed.

The case, John Doe 1 & John Doe 2 v. FEC, arose when the FEC launched an investigation into a series of transactions that landed Now or Never PAC with a $1.7 million contribution. The FEC's OGC learned that John Doe 2 sent about $1.7 million to Government Integrity; that Government Integrity wired about that amount to American Conservative Union; and that American Conservative Union, in turn, sent that amount on to Now or Never PAC.

The FEC's OGC recommended that the Commission find reason to believe that John Does 1 and 2 violated FECA's prohibition on "mak[ing] a contribution in the name of another person or knowingly permit[ting] his name to be used to effect such a contribution." The FEC rejected the recommendation, however, and sent the case to conciliation. Based on the results of conciliation, the FEC found that there was reason to believe that the plaintiffs, the PACs, and the treasurer of Now or Never violated FECA's prohibitions on making or receiving contributions in another person's name. 

The FEC also advised that it would put the documents related to the case on the public record.

The John Does sued, arguing that this violated their First Amendment rights, among other things.

Judge Jackson disagreed. She noted initially that "plaintiffs do not make any claim that anyone's associational rights are being infringed, and disclosing the identities of plaintiffs here would not involve the disclosure of anyone's internal operations or political strategies." She also noted that the FEC recently revised its disclosure policy and tailored it "to minimize the burdens on constitutional rights while providing for sufficient disclosure to advancing legitimate concerns of deterring future violations and promoting Commission accountability." 

She then wrote that "the constitutional issue has already been decided in the agency's favor." Quoting Citizens United

The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

Judge Jackson went on to hold that the FEC's disclosure policy is reasonable (under the APA) and consistent with FOIA.

March 26, 2018 in Campaign Finance, Cases and Case Materials, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, March 21, 2018

District Court Rejects Suit Against Trump for Violations of the Presidential Records Act

Judge Christopher Cooper (D.D.C.) today dismissed a suit against President Trump for violations of the Presidential Records Act. Judge Cooper ruled that the plaintiffs, Citizens for Responsibility and Ethics in Washington and the National Security Archive, didn't have a valid statutory or mandamus claim, and that they failed to state a Take Care Clause claim (if they even had one). The ruling ends the case, unless and until CREW appeals.

The case involves the White House practice of using instant-delete apps to delete text messages that might otherwise be subject to recording-keeping requirements. The White House has not denied the practice. CREW alleged that it violates the PRA, and that the President's use of executive orders (instead of administrative action) to side-step PRA requirements violates the Take Care Clause. But Judge Cooper ruled that CREW didn't have a cause of action, and that it didn't state a Take Care claim.

As to the statutory causes of action, the court declined to say whether under circuit law the PRA denies judicial review, and instead ruled that even if it didn't, CREW failed to state a valid mandamus claim. The court said that the PRA didn't create a "clear and compelling duty" on the part of the President to issue record classification guidelines, and so CREW couldn't get mandamus:

While the Presidential Records Act may obligate the President to take steps to preserve records, it nowhere dictates which steps to take. And while CREW may question the effectiveness of any guidance the President has issued regarding the preservation of his records, the Act nowhere clearly and definitively directs him to issue particular guidelines. Because CREW has not identified a ministerial duty, it has failed to state a valid mandamus claim.

As to the Take Care claim, the court said even if CREW could get declaratory relief against the President directly under the Take Care Clause, CREW's claim wouldn't fall within it:

Even assuming some universe of viable Take Care Clause claims exists, CREW's claim here does not fall within it. CREW does not challenge any of the President's executive orders themselves, nor does it argue that they exceed the President's authority to issue. Nor does CREW offer any reason why an administration could not, in good faith, elect to act through executive order rather than administrative action, even if that decision has incidental effects on the preservation of government records and the public's access to them. And the Court is aware of no authority preventing the President from electing to "faithfully execute" the laws by executive order rather than administrative process (assuming, of course, that the particular executive order at issue does not exceed the President's authority). Put another way, CREW does not dispute that the President has the discretion to make policy by executive order. The Supreme Court has advised that "[h]ow the President chooses to exercise the discretion Congress has granted him is not a matter for [the courts'] review." The Court will not ignore that counsel here.

March 21, 2018 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, March 20, 2018

New York Judge: Trump Not Immune From Defamation Suit by Summer Zervos

In her opinion in Zervos v. Trump, New York County Supreme Court Justice Jennifer Schecter ruled that the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.

Recall that Summer Zervos filed the law suit a few days before Trump was inaugurated. Recall also that one of the major issues was whether or not a sitting president was amenable to suit in state court: In other words, did the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court extend to state court?

Justice Schecter's first paragraph answers the question without hesitation, beginning with a citation to Clinton v. Jones and stating that the case left open the question of whether "concerns of federalism and comity compel a different conclusion for suits brought in state court," but adding "they do not." Her analysis is relatively succinct, beginning with a simple statement: "No one is above the law" and concluding that "In the end, there is absolutely no authority for dismissing or staying a civil action related purely to unofficial conduct because defendant is the President of the United States."

Justice Schecter also denied the motion to dismiss for failure to state a claim and thus discussed the defamation claim which obliquely raises First Amendment issues. (The first 8 pages of the 19 page opinion detail the allegations of the complaint.) The motion to dismiss had essentially argued that Mr. Trump's statements were mere hyperbole. Justice Schecter disagreed:

Defendant--the only person other than plaintiff who knows what happened between the two of them--repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told "phony stories" and issued statements that were "totally false" and "fiction," he insisted that the events "never happened" and that the allegations were "100% false [and] made up.”

A reader or listener, cognizant that defendant knows exactly what transpired, could reasonably believe what defendant's statements convey: that plaintiff is contemptible because she "fabricated" events for personal gain. . . . . Defendant used "specific, easily understood language to communicate" that plaintiff lied to further her interests . . .  His statements can be proven true or false, as they pertain to whether plaintiff made up allegations to pursue her own agenda.  Most importantly, in their context, defendant's repeated statements--which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by defendant- -cannot be characterized simply as opinion, heated rhetoric, or hyperbole. That defendant's statements about plaintiff's veracity were made while he was campaigning to become President of the United States, does not make them any less actionable. . . .  

 Thus, it seems that the lawsuit against the President, now joined by a declaratory judgment suit by Stormy Daniels which we discussed here and since removed to federal, will proceed apace. Assuming, of course, that the President's lawyers do not attempt an interlocutory appeal.

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image: Hans Makart, Allegory of the Law and Truth of Representation, circa 1881 via

 

March 20, 2018 in Courts and Judging, Executive Privilege, Federalism, First Amendment, Gender, Opinion Analysis, Sexuality | Permalink | Comments (0)

Monday, March 19, 2018

D.C. District Says No Standing for Groups to Challenge FDA Inaction on Hair Product

Judge Trevor McFadden (D.D.C.) ruled that two organizations lacked standing to challenge the FDA's failure to act on their petition to regulate hair-straightening products that contain formaldehyde. The ruling dismisses the plaintiffs' challenge.

The case arose when the plaintiff-organizations petitioned the FDA to regulate formaldehyde-containing hair-straighteners. The FDA looked into it, but ultimately declined to issue new regs. So the organizations sued. The FDA argued that they lacked standing, and the court agreed.

The court ruled that the plaintiff-organizations lacked organizational standing, because the only harms they alleged were increased educational expenses (to educate the public about the products) and lobbying expenses. As to the educational expenses, the court said they don't count for standing purposes, because public education is what the organizations do, anyway. As to lobbying expenses, the court said that "injuries to an organization's government lobbying and issue advocacy programs cannot be used to manufacture standing, because that would allow lobbyists on either side of virtually any issue to take the Government to court."

The court also ruled that the plaintiffs lacked associational standing. That's because they sought only injunctive relief, but only alleged that their members suffered prior harm (so that their remedy wouldn't redress the harm). The court noted that the organizations couldn't really allege likely future harm on behalf of their members, anyway, because they don't know that the harm will happen.

While the court dismissed the case for lack of standing, it also provided a pretty good roadmap under circuit law for pleading a case like this, where an agency fails to take action, based on an organization's increased workload as a result of the inaction, or an organization's inability to obtain information based on agency inaction.

March 19, 2018 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)