Wednesday, March 9, 2016

United States District Judge: Same-Sex Ruling (and 14th Amendment) Do Not Apply in Puerto Rico

In a 10 page opinion, Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

Recall that in October 2104, Judge Juan Perez-Gimenez had largely relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question" to find that there was no constitutional right to same-sex marriage.  In the appeal to the First Circuit, the Solicitor General of Puerto Rico decided that it would not defend the same-sex marriage ban.   And then the United States Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples. 

The First Circuit thus remanded Conde-Vidal v. Garcia-Padilla to Judge Juan Perez-Gimenez "for further consideration in light of Obergefell v. Hodges" and specifically stated "We agree with the parties' joint position that the ban is unconstitutional." The parties submitted a  Joint Motion for Entry of Judgment with a proposed order.

In rejecting the parties' joint motion, Judge Juan Perez-Gimenez contended that because Puerto Rico was a "stranger to the proceedings" in Obergefell which involved same-sex marriage bans in the Sixth Circuit (Michigan, Kentucky, Ohio, and Tennessee), it was not bound by the decision.  This reasoning is similar to some of the arguments most recently raised by some Justices on the Supreme Court of Alabama. 

Additionally - - - and perhaps with more legal grounding - - - he concluded that Obergefell does not apply to Puerto Rico because it is not a "state":

the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico.

The judge based this "juridical reality" on his conclusion that the doctrine of selective incorporation only applies to states and not Puerto Rico, or perhaps more correctly, that the Fourteenth Amendment itself is not applicable to Puerto Rico "insofar as it is not a federated state." 

Additionally, Judge Perez-Gimenez asks "does the Constitution follow the flag?" and concludes that under The Insular Cases (1901), territorial incorporation of specific rights is questionable:

Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine v. Bush. 

Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: further judicial expression by the U.S. Supreme Court; or the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [prohibiting same-sex marriage].

In staking out a position regarding Puerto Rico's status, Judge Perez-Gimenez's opinion reverberates with the two cases regarding Puerto Rico presently before the United States Supreme Court even as it looks back to his earlier opinion hostile to the right of same-sex marriage. 800px-Map_of_USA_PR

[updated: March 11, 2016:  Further discussion of these issues available here].

March 9, 2016 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Monday, March 7, 2016

United States Supreme Court Reverses Alabama Supreme Court's Denial of Full Faith and Credit to Lesbian "Second-Parent" Adoption

In a brief and straightforward per curiam opinion today in V.L. v. E.L.,  the United States Supreme Court granted certiorari and reversed the Alabama Supreme Court's denial of full faith and credit to a Georgia adoption involving a lesbian couple. 

As we discussed last September when the Alabama Supreme Court's opinion was rendered, it relied in large part on the dissenting opinion of a Georgia Supreme Court in a different case to support its conclusion that the Georgia courts did not have proper "jurisdiction" over the adoption. 

The United States Supreme Court stated that the Alabama Supreme Court's "analysis is not consistent with this Court's controlling precedent." It continued:

Indeed, the Alabama Supreme Court’s reasoning would give jurisdictional status to every requirement of the Georgia statutes, since Georgia law indicates those requirements are all mandatory and must be strictly construed. That result would comport neither with Georgia law nor with common sense.

As Justice Holmes observed more than a century ago, “it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits.” Fauntleroyv. Lum, 210 U. S. 230, 234–235 (1908). In such cases, especially where the Full Faith and Credit Clause is concerned, a court must be “slow to read ambiguous words, as meaning to leave the judgment open to dispute, or as intended to do more than fix the rule by which the court should decide.” Id., at 235. That time-honored rule controls here. The Georgia judgment appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary. It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.

That the parties to the case are lesbians - - - "two women who were in a relationship" - - - is made apparent by the United States Supreme Court.  This fact most likely figured largely in the Alabama Supreme Court's original majority ruling given the well-known hostility of its controversial chief justice to sexual minority rights.  However, given Friday's odd dismissal of the same-sex marriage litigation by the Alabama Supreme Court and today's United States Supreme Court definitive and unanimous reversal, it seems as if the opinions of Alabama Supreme Court Justice Greg Shaw (pictured below),  who dissented in E.L. as well as the earlier same-sex marriage opinions, has been vindicated.

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Alabama Supreme Court Justice Greg Shaw

 

March 7, 2016 in Courts and Judging, Family, Full Faith and Credit Clause, Interpretation, Opinion Analysis, Recent Cases, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Friday, March 4, 2016

Alabama Supreme Court on Same-Sex Marriage

The Supreme Court of Alabama has issued its opinions- - - totaling 170 pages typescript - - - in Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County dismissing all pending petitions and motions that seek relief from having to issue marriage licenses.  And yet, the lengthy concurring opinions in the case contradict rather than support this dismissal.

Recall that in January, controversial Chief Justice of the Alabama Supreme Court Roy Moore issued an Administrative Order forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect." Earlier, after an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Justice Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue.  In a March 2015 opinion  in  this same case - - - Ex parte State of Alabama ex rel. Alabama Policy Institute - - - known as API,  the court, without Justice Moore and over a dissent by Justice Shaw held  that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Recall that the United States Supreme Court declined to stay the federal judge's judgment.  A few months later, the United States Supreme Court decided Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.

In today's opinions, Chief Justice Moore is center-stage and plays a confusing part.

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First, he provides a "statement of nonrecusal."  He discusses his own participation in various aspects of this continuing litigation and concludes he is not reviewing his own Administrative Order but instead "the effect of Obergefell."  

Second, in his own "specially concurring" opinion, his ultimately conclusion is that Obergefell is incorrectly decided and that the Alabama Supreme Court is under no duty to obey it.  He writes quite personally:

I took my first oath to support the Constitution of the United States in 1965 at the United States Military Academy on the banks of the Hudson River at West Point, New York. On this very site General George Washington defended the northwest territory against British invasion during the Revolutionary War. I repeated that oath many times during my military service in Western Europe, Vietnam, and locations in the continental United States. Following my military service and upon graduation from the University of Alabama School of Law, I again took an oath to "uphold and support" the United States Constitution. As a private practitioner, deputy district attorney, circuit judge, and Chief Justice of the Alabama Supreme Court on two separate occasions, I took that oath and have administered it to other Judges, Justices, Governors, and State and local officials. In both civilian and military life the oath of loyalty to the Constitution is of paramount importance. **** The oath I took as a cadet at the United States Military Academy at West

Point stated, in part, "that I will at all times obey the legal orders of my superior officers, and the Uniform Code of Military Justice." 57 Bugle Notes, at 5 (1965) (emphasis added). Later, as a company commander in Vietnam, I knew the importance of following orders. The success or failure of a mission and the lives of others depended on strict adherence to the chain of command. The principle of obedience to superior orders is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.

He then discusses "Lt. William Calley, a unit commander at My Lai in Vietnam who was convicted of killing 22 innocent civilians," to support his "military analogy" that one should not simply "follow orders" when the orders are immoral.

Third,  Chief Justice Moore's opinion is the major, if not majority opinion. 

The opinion garnering the most Justices - - - three - - - is by Justice Stuart and is quite short, but speaks volumes.  It reads in full:

Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter of routine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and of any Justice who joins the writing. Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust.

Justice Greg Shaw also concurs specially, but his is the opinion that supports the conclusion. Justice Shaw had dissented from the March 2015 Order.   He now concludes that given Obergefell, the March 2015 Order "no longer has a field of operation or any legal effect."  

It is the accepted legal doctrine and the historic legal practice in the United States to follow the decisions of the Supreme Court as authoritative on the meaning of federal law and the federal Constitution. Arguments have been put forth suggesting that this doctrine and this practice are incorrect. Those arguments generally have not been accepted by the courts in this country. For example, in Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court of the United States rejected the argument by certain state officials that they were not bound by that Court's decisions.

The idea that decisions of the Supreme Court of the United States are to be followed is not something new or strange. Thus, the members of this Court who would follow the Obergefell decision would not, as either Chief Justice Moore or Justice Parker suggests, be "bow[ing their] knee[s] to the self-established judicial despots of America," "blindly follow[ing] the unsubstantiated opinion of 'five lawyers,'" "'shrink[ing] from the discharge'" of duty, "betray[ing]" their oaths, "blatantly disregard[ing] the Constitution," standing "idly by to watch our liberties destroyed and our Constitution violated," participating in the "conversion of our republican form of government into an aristocracy of nine lawyers," or be adhering to a perceived "evil."  They would, quite frankly, be doing what the vast majority of past and present judges and lawyers in this country have always assumed the Constitution requires, notwithstanding the unconvincing arguments found in the requests before us and in the specially concurring opinion of Chief Justice Moore. I charitably say the arguments are "unconvincing" because virtually no one has ever agreed with their rationales.

 [footnote omitted].

Justice Shaw certainly seems to have the better view and the citation of Cooper v. Aaron is exactly on point.  But given the result, it does not seem as if the National Guard will be marching into Montgomery any time soon.

Could this part of the saga be concluded?

AL_state_capitol_postcard_1

 

March 4, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Wednesday, March 2, 2016

Tenth Circuit Strikes Disclosure Requirements as to Small Scale Issue Organization

The Tenth Circuit ruled today in Coalition for Secular Government v. Williams that burdensome state disclosure requirements as applied to a small-scale issue-advocacy nonprofit violate the First Amendment. The ruling means that Colorado's disclosure requirements cannot apply against the Coalition for Secular Government's small-scale advocacy against a statewide "personhood" ballot initiative in the 2014 general election.

The Coalition for Secular Government is a small outfit (one person) that devotes itself to printing and distributing material against a proposed "personhood" amendment in Colorado each time it comes up for a vote--the last in 2014. Because the Coalition collects donations to support its operations, the state constitution and implementing laws and regulations require the Coalition to register as an "issue committee" and to disclose information about contributors. These turn out to be quite a hassle, especially for a small group, so the Coalition sued, arguing that they violate the First Amendment.

The Tenth Circuit agreed. The court applied "exacting scrutiny" and concluded that "the minimal informational interest [in disclosure] cannot justify the associated substantial burdens [of compliance]." The court noted that the small-scale nature of the Coalition had an impact on both sides of the balance. As to the informational interest, "the strength of the public's interest in issue-committee disclosure depends, in part, on how much money the issue committee has raised or spent," and the informational interest in the Coalition's spending (about $3,500) was nothing like the informational interest in a group that spent, say, $10 million. As to the burden, the court noted that a small-scale organization like the Coalition faces greater challenges in compliance than a large-scale outfit.

At the same time, the court declined to say whether the state constitutional threshold for issue-committee reporting (a mere $200) constituted a facial violation of the First Amendment. As a result, that threshold is still on the books.

 

March 2, 2016 in Association, Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Federal Judge Finds No Constitutional Violation in Denying Permit to "Wandering Dago" Food Truck

In her extensive opinion in Wandering Dago, Inc.  v. Desito, United States District Judge for the Northern District of New York Judge Mae D'Agostino granted summary judgment for the government against the First Amendment and Equal Protection claims of "Wandering Dago" resulting from the denial of a permit to operate a food truck at the Empire State Plaza in Albany (pictured below), a facility owned by the state of New York and operated by the state Office of General Services (OGS) under Commissioner RoAnn Desito.

 In the summers of 2013 and 2014, OGS administered "The Empire State Plaza Summer Outdoor Lunch Program," permitting vendors to operate food trucks for limited hours on the plaza, intended to provide "lunch options to the approximately 11,000 State employees who work at Empire State Plaza, as well as for visitors to the Capitol, State Museum, performing arts center" - - - known as The Egg - - - and various monuments and memorials in New York's capital city.  As the list of applicants was being processed, the name "Wandering Dago" attracted attention of OGS employees, one who "recognized the term 'dago' as 'a highly offensive term for Italians,'" and after conducting a "computer search" to determine whether this was true, his conclusion was not only "confirmed" but it was "revealed" that the term has been "used to refer to people of Spanish and Portuguese descent, as well as Italians."  OGS denied the application "on the grounds that its name contains an offensive ethnic slur and does not fit with OGS' policy of providing family-friendly policy."  Wandering Dago's application the next year was similarly rejected.

800px-The_Egg_at_Empire_State_Plaza

The First Amendment claims were primary; the Equal Protection Clause claims having been previously dismissed and warranting little more analysis when re-plead.  On the First Amendment, Judge D'Agostino identified the problem common to so much free speech litigation: this case does not fit neatly into any particular First Amendment "framework."  Thus, Judge D'Agostino engaged in several strands of analysis, most prominently being "forum" analysis, but also government speech, employee (contractor) speech, and commercial speech.

As to forum doctrine, Judge D'Agostino rehearses the well-know different types of forum, ultimately deciding that the forum is a "nonpublic forum."  Key to this conclusion, as is so often true, is the definition of the forum.  For Judge D'Agostino, the forum is not Empire State Plaza, but the lunch program - - - "which happens to take place within the grounds that comprise the Empire State Plaza."  That OGS required permits and controlled the "forum" contributes to this view.

Yet even under a nonpublic forum, the government must be "reasonable" and content/viewpoint neutral.  As to the reasonableness, Judge D'Agostino discounted the fact that the policy was not written or even previously articulated.  Somewhat confusingly, the judge decided that the owners of Dago did not intend to express anything particular by the name, and therefore there could be no viewpoint/content discrimination and similarly found that there was no problem with unbridled discretion.  The judge rejected the applicability of  In Re Simon Shiao Tam, in which the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, is unconstitutional because it violates the First Amendment because  it did not involve a forum, but an application of strict scrutiny.  Judge D'Agostino also distinguished cases in which the proprietor was denied the entire opportunity to sell the goods rather than simply not allowed to participate in a particular program.

The particular program aspect supports the judge's conclusion that "government speech" was at issue, relying on Walker v. Texas Sons of Confederate Veterans in which the Court found that Texas's program of specialty license plates was government speech.

While Judge D'Agostino's opinion is well-structured and comprehensive, the analysis regarding content/viewpoint discrimination, no matter the forum type, will most likely be fertile ground for appeal.  On government speech, the case may provide the Second Circuit with an opportunity to clarify the limits of Walker.

March 2, 2016 in Equal Protection, First Amendment, Interpretation, Opinion Analysis, Speech | Permalink | Comments (1)

Tuesday, March 1, 2016

D.C. Circuit Sends Disclosure Requirement Challenge to 3-Judge Court

The D.C. Circuit ruled today in Independence Institute v. FEC that a nonprofit organization's First Amendment challenge to federal electioneering disclosure requirements must go to a three-judge court (and not be dismissed). The ruling keeps alive the nonprofit's challenge to disclosure requirements for its "electioneering communication" under the Bipartisan Campaign Finance Reform Act--even if its constitutional arguments seem, well, weak.

Independence Institute, a 501(c)(3), sought to run a radio ad in favor of a federal statute that would reform federal sentencing, and to encourage citizens to express their support for the law to Colorado's Senator Mark Udall. But Udall was running for re-election at the time, so the radio spot would qualify as an electioneering communication under BCRA. That would trigger disclosure requirements, forcing Independence Institute to disclose its donors to the FEC.

Independence Institute complained, arguing that forced disclosure violated the First Amendment, and sought review by a three-judge court. The district judge denied the request, concluding that the plaintiff's claims were foreclosed by McConnell v. FEC and Citizens United, both of which upheld disclosure requirements against a facial challenge and against one particular as-applied challenge.

A divided panel of the D.C. Circuit reversed. The court said that Independence Institute's arguments passed the low standard the Court recently set in Shapiro v. McManus--denying a three-judge court only when a claim is "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit." In particular, Independence Institute argued that its as-applied claim against the disclosure requirement was different than the as-applied claim that the Court rejected in Citizens United, because Citizens United was a 501(c)(4) organization (not a (c)(3), like Independence), and that Citizens United therefore had a lesser interest in privacy, and that the government had a greater interest in publicly identifying Citizens United's donors. (Independence also argued that the First Amendment bars compelled disclosure unless the electioneering communication is unambiguously campaign-related (not an issue ad, as here). The court didn't address this.)

That seems pretty weak, but not "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit," according to the court.

Judge Wilkins dissented, arguing that the issue's been settled by the Court.

The ruling sends the case to a three-judge court for further proceedings. While this isn't a ruling on the merits--and seems like a poor test case to challenge disclosure requirements--the ruling nevertheless keeps the case alive.

March 1, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, February 29, 2016

Federal Magistrate Finds All Writs Act Not Sufficient to Compel Apple to "Unlock" IPhone in Brooklyn Case

Bearing remarkable similarity to the ongoing controversy in California often styled as FBI v. Apple, a federal magistrate in the Eastern District of New York today sided with Apple, finding that the All Writs Act does not grant judicial authority to compel Apple to assist the government in "unlocking" an iPhone by bypassing the passcode security on a iPhone. 

In his 50 page Memorandum and Order in  In Re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued By This Court, Magistrate James Orenstein concluded that while the All Writs Act as applied here would be in "aid of jurisdiction" and "necessary and proper," it would not be "agreeable to the usages and principles of law," because Congress has not given such specific authority to the government.  Similar to Apple's argument in the California case, Magistrate Orenstein notes the constitutional argument:

The government's interpretation of the breadth of authority the AWA confers on courts of limited jurisdiction thus raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine.

There is no mention of the First, Fifth, or Fourth Amendments.

500px-Apple_Computer_Logo_rainbow.svgMagistrate Orenstein engaged in an application of the United States v. New York Telephone Co. (1977) factors, finding that even if the court had power, it should not exercise it.   The magistrate found that New York Telephone was easily distinguished.  On the unreasonable burden factor, the magistrate stated:

The government essentially argues that having reaped the benefits of being an American company, it cannot claim to be burdened by being seen to assist the government. See Govt. II at 19 (noting the "significant legal, infrastructural, and political benefits" Apple derives from being an American company, as well as its "recourse to the American courts" and to the protection of "American law enforcement ... when it believes that it has been the victim of a crime"); id at 19-20 ("This Court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company ... would 'tarnish' that person's or company's reputation."). Such argument reflects poorly on a government that exists in part to safeguard the freedom of its citizens – acting as individuals or through the organizations they create – to make autonomous choices about how best to balance societal and private interests in going about their lives and their businesses. The same argument could be used to condemn with equal force any citizen's chosen form of dissent.

At the end of his opinion, Judge Orenstein reflected on the divisive issues at stake and concluded that these were ones for Congress.

But Congress will certainly not be acting in time to resolve the pending controversies.  Unlike the California case, this warrant and iphone resulted from a drug prosecution and had proceeded in a somewhat haphazard manner.  Pursuant to the Magistrate's request about other pending cases,

Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016.  In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices; in each such case in which Apple has actually received a court order, Apple has objected. None of those cases has yet been finally resolved, and Apple reports that it has not to date provided the requested assistance in any of them. 

So it seems that the California "terrorism" case is not unique.  Judge Orenstein's opinion is well-reasoned and well-structured and could easily be echoed by the federal courts in California - - - and elsewhere. 

February 29, 2016 in Congressional Authority, Courts and Judging, Criminal Procedure, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, February 25, 2016

District Judge Dismisses Complaint Seeking Judge Cebull's Emails

Recall the controversy in 2012 regarding the racist and sexist emails of Judge Richard Cebull of the District of Montana reportedly regarding President Obama?  Judge Cebull resigned about a year later, as the matter was being investigated by judicial committees. The Ninth Circuit Committee on Judicial Conduct and Disability entered its Decision in January 2014 incorporated the findings of judicial misconduct of other committees, but found that remedial action was "inoperative" given Cebull's retirement. 

In Adams v. Committee on Judicial Conduct and Disability, two Montana journalists sought more information than the Committee included in that decision, including additional emails, and brought suit against the Committee and other defendants.  In an 25 page Order today, Judge Yvonne Gonzalez Rogers dismissed the complaint without leave to amend.  Judge Rogers's decision included several grounds.

La_justice_(Le_Père_peinard)
circa 1894 via

First, Judge Rogers concluded that the Committee on Judicial Conduct and Disability was protected by federal sovereign immunity and that the Committee had not waived that immunity.

Second, Judge Rogers considered the Defendants' claim that the plaintiff journalists lacked standing.  Citing First Amendment cases such as Branzburg v. Hayes (1972), Judge Rogers found that the plaintiffs did suffer "injury in fact" as journalists.  However, Judge Rogers concluded that the plaintiff journalists failed to satisfy another element of standing, the causation inquiry, stating that "Plaintiffs have not alleged that their injury is fairly traceable to any conduct of the Committee, at least not with clarity."  She thus dismissed the complaint for lack of standing.

Third, Judge Rogers entertained the Committee's arguments that it was protected by judicial immunity.  Judge Rogers found that the Committee had both judicial immunity and quasi-judicial immunity, and granted the motion to dismiss on both these grounds.

Fourth, the Committee sought judicial deliberative privilege regarding Judge Cebull's emails.  However, Judge Rogers found that the particular emails sought were not "in pertinent part, communications relating to official judicial business."

Fifth and finally, was the First Amendment claim.  The Defendants claimed that the emails were "investigative materials" shielded from First Amendment disclosure by the confidentiality provision of the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C section 360.  Judge Rogers framed the issue thusly:

(i) assuming Defendants are correct that the emails are “investigative materials” covered by 360(a), is that confidentiality restriction consistent with the First Amendment?; and alternatively,

(ii) assuming the emails are not “investigative materials” covered by 360(a), does the First Amendment provide any right or claim to compel their disclosure by Defendants?

The Court turns to the Press-Enterprise II framework to determine if, under either formulation, Plaintiffs’ access claim is one that meets the historical experience and logic criteria, such that a qualified First Amendment right of access exists.

Using the experience and policy framework of Press Enterprise II (1986) Judge Rogers concluded that under either formulation of the issue, the press did not sustain a claim for access to the emails. Instead, the "more general rule set forth by the Supreme Court in Houchins [v. KQED (1978) ] — that the First Amendment right of the public or the press does not grant unlimited access to all government information or information within the government’s control—prevails.

Thus, it seems we will never be have an opportunity to read  the other (presumably offensive) emails that Judge Cebull sent through his official judicial accounts when he was a sitting judge.  Given the multiple grounds on which Judge Rogers relied, and the well-reasoned First Amendment discussion,  any appeal would have much to overcome in order to be successful.

 

February 25, 2016 in Courts and Judging, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Wednesday, February 24, 2016

Sixth Circuit Finds Ohio's False Campaign Speech Law Violates First Amendment

In a relatively brief opinion in Susan B. Anthony List v. Driehaus, a panel of the Sixth Circuit found that Ohio's false campaign statute, Ohio Rev. Code § 3517.21(B)(9),  violates the First Amendment.

Recall that the Sixth Circuit had previously decided that the constitutional challenge was not ripe for review, but that the United States Supreme Court unanimously reversed in June 2014.  On remand, District Judge Timothy Black concluded that the statute violated the First Amendment.

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Hannah Trapnel, a Quaker and a pretended prophet. Line engraving after R. Gaywood, 1823, via

The Sixth Circuit panel reasoned that any Sixth Circuit precedent supporting the view that falsehoods were categorically excluded from the First Amendment had been abrogated by United States v. Alvarez,  (the "stolen valor" case).  Instead, the panel found that the Ohio law both targeted core speech and was a content-based regulation, and thus strict scrutiny was applicable.  The Sixth Circuit reasoned that

Ohio’s interests in preserving the integrity of its elections, protecting “voters from confusion and undue influence,” and “ensuring that an individual’s right to vote is not undermined by fraud in the election process” are compelling.

However, the means chosen were not narrowly tailored:

in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.

Additionally, the Sixth Circuit noted:

Ohio’s political false-statements laws have similar features to another Ohio election law that the Supreme Court found unconstitutional. In McIntyre [v. Ohio Elections Committee (1995)] , the Supreme Court struck down Ohio’s election law prohibiting anonymous leafleting because its prohibitions included non-material statements that were “not even arguably false or misleading,” made by candidates, campaign supporters, and “individuals acting independently and using only their own modest resources,” whether made “on the eve of an election, when the opportunity for reply is limited,” or months in advance. Ohio’s political false-statements laws have all of the same flaws. Such glaring oversteps are not narrowly tailored to preserve fair elections.

The use of McIntyre is an interesting one because the "right to be anonymous" recognized in McIntyre seemed to rest in part on the government interest in ensuring truthfulness and cited the Ohio campaign falsehoods law in support.

Given that the court did recognize as compelling the government's interests in addressing lies in campaigns, is there any possibility that a government could craft a narrowly tailored regulation?  It seems doubtful.

February 24, 2016 in Campaign Finance, First Amendment, Interpretation, Opinion Analysis, Ripeness | Permalink | Comments (0)

Tuesday, February 23, 2016

Federal District Judge Finds Recording Police Conduct Not Protected by First Amendment

In a Memorandum Opinion in Fields v. City of Philadelphia, recently appointed United States District Judge for the Eastern District of Pennsylvania, Mark Kearney held that the First Amendment does not protect video-recording of the police absent a "stated purpose of being critical of the government." 

For Judge Kearney, video-recording is conduct and there is no "expressive" element unless there is an explicit intent of being critical of police conduct. Mere "observation," Judge Kearney wrote, is not expressive.  It is not within the First Amendment unless the observers are "members of the press."

Judge Kearney rather unconvincingly distinguished the First Circuit's 2011 opinion in Glik v. Cunniffee, by stating [in a footnote], "In Glik, the plaintiff expressed concern police were using excessive force arresting a young man in a public park and began recording the arrest on his cell phone and the police then arrested plaintiff."  Even if valid, this distinction is problematical.  It may be pertinent with regard to one plaintiff, Richard Fields, who took a picture of 20 or so police officers outside a home hosting a party.  However, with regard to the other plaintiff, Amanda Geraci, who the judge notes is a "self-described 'legal observer'" with training, the distinction seems to be one without a difference: she was at a protest and "moved closer" to videotape an officer arresting one of the protesters when a police officer restrained her and prevented her from doing so.

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image via

Judge Kearney thus granted the motion for summary judgment on the First Amendment claims.  The judge did, however, deny summary judgment on the Fourth Amendment claims for unreasonable search and false arrest (for Fields) and excessive force (for Geraci).  Yet however these claims are resolved, the First Amendment ruling is one that is exceedingly suitable for Third Circuit review.

 

February 23, 2016 in Courts and Judging, Criminal Procedure, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Federal Judge Finds "Parents for Megan's Law" a State Actor in Fourth Amendment Challenge

In her opinion in Jones v. County of Suffolk (NY) and Parents For Megan's Law, Judge Joanna Seybert found that the group was a state actor for constitutional purposes and that the complaint stated a valid Fourth Amendment claim. 

The facts as alleged in the complaint illustrate the continuing constitutional issues with civil monitoring of persons convicted of sex offenses.  Jones, convicted in 1992, is a low-risk sex offender subject to numerous requirements under the New York Sex Offender Registry Act (SORA).  New York's Suffolk County (on Long Island), passed an additional act, the Community Protection Act, which Judge Seybert described as including "aggressive sex offender monitoring and verification."  The county act authorized the county law enforcement agency to enter into a contract with the organization Parents for Megan's Law (PFML), a “victim’s advocacy organization that campaigns for increased punitive regulation of people registered for past sex offenses” and “has called for legislative changes that, among other things, would require people convicted of SORA offenses to live far away from population centers.”  The contract requires PML to "use ex-law enforcement personnel" to "engage in proactive monitoring of registered sex offenders."  And "proactive" would be one way to describe the actions of the PFML personnel who came to Jones' home several times, waited for him at the doorstep, asked for his driver's license and kept it for several minutes,  questioned him about his employment, and warned that they would make further unannounced visits to his home and work. 

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Illustration from Hound of the Baskervilles via

In its motion to dismiss, PFML argued that it was a private entity not subject to constitutional constraints.  Judge Seybert, relying on Second Circuit precedent, held that there was a "close nexus" and a "delegation of a public function," and thus PML was a state actor.  This was not an ordinary contract, but one in which the police department directed the monitoring operations of the PFML.  Important to her analysis, there was a letter from the county police department informing designated  sex offenders that they would be required to provide identification to PML personnel, thus "creating the appearance of joint action" between the state and the organization.

The letter was also important to Judge Seybert's Fourth Amendment analysis.  The judge distinguished the allegations here from Florida v. Jardines (2013), on which both parties relied, regarding the constitutionality of a so-called "knock and talk" by law enforcement:

Defendants assert that because PFML agents’ interactions with Jones can be classified as a “knock and talk,” no Fourth Amendment violation occurred. However, the allegations in the Complaint raise questions about whether a reasonable person in Jones’ position would feel free to terminate his interactions with PFML. The questioning here did not take place in an open field, or a Greyhound bus, but rather within Jones curtilage--an area afforded heightened Fourth Amendment protection. Moreover, in advance of the visits, Jones received a letter from the SCPD instructing him that he would be visited by PFML for the purpose of verifying his address and employment information. Although the letter stated that Jones would be “asked to provide them with personal identification” and “requested to provide employment information,” the letter begins by stating that “registered sex offenders are required to provide this information under [SORA].” Citizens do not often receive letters from the police announcing home visits by third-party groups. At the very least, the letter is ambiguous as to whether compliance was mandatory. Finally, the description of PFML agents’ conduct gives the distinct impression that compliance was not optional. The fact that the agents waited for fifteen minutes on Jones’ porch while he was in the shower, “followed [him] closely” as he walked to retrieve his driver’s license, and told Jones that “they may make subsequent, unannounced appearances at his job,” gives the encounter the appearance of a seizure of Jones’ person, rather than a consensual “knock and talk.”

Judge Seybert did dismiss the complaint's due process claim, which Jones argued were based on a right to familial association that had been injured by the PFML "visits" to his home.  Judge Seybert reasoned that there was no "invasion of a liberty interest" that was "separate and apart" from the Fourth Amendment claim and thus an independent substantive due process claim could not proceed.

While there are other issues before the court - - - including whether a state (or county) can delegate its sex offender monitoring to a private group are also before the court as a matter of state law - - - the constitutional constraints governing the monitoring of designated sex offenders seems to be squarely presented.

February 23, 2016 in Criminal Procedure, Due Process (Substantive), Family, Fourth Amendment, Opinion Analysis, Sexuality, State Action Doctrine | Permalink | Comments (0)

Monday, February 22, 2016

District Court Says Drone Strike Case Raises a Political Question

Judge Ellen Segal Huvelle (D.D.C.) dismissed a complaint by the estates of two persons killed in a drone strike in Yemen. Judge Huvelle ruled that the complaint, which sought a declaration that the strike violated the Torture Victim Protection Act and customary international law, raised a non-justiciable political question.

The case, Bin Ali Jaber v. U.S., grew out of a drone strike that killed five individuals in Yemen. The estates of two of the victims sued, seeking a declaration that the U.S. violated the TVPA and international law. The government moved to dismiss the case as a non-justiciable political question.

Judge Huvelle granted the motion. She wrote that the court lacked judicially manageable standards for judging the legality of a drone strike, and that the decision to order the strike was a "policy determination of a kind clearly for nonjudicial discretion."

Judge Huvelle distinguished Comm. of U.S. Citizens Living in Nicaragua v. Reagan and Al-Aulaqi v. Panetta--cases in which the courts held that tort claims arising from foreign policy decisions were justiciable--because the plaintiffs in those cases raised constitutional claims. "Because the judiciary is the ultimate interpreter of the Constitution, constitutional claims can require a court to decide what would otherwise be a political question, but no such claims have been made here."

Judge Huvelle recognized that her ruling was in tension with Judge Weinstein's decision in In re Agent Orange Product Liability Litigation--with claims "not materially distinguishable from plaintiffs'." But she said, "[O]f course, this Court is bound by the decisions of the D.C. circuit, not the Eastern District of New York."

February 22, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Wednesday, February 17, 2016

Second Circuit: Is "Hispanic" a "Race"?

In a case involving both 42 USC §1981 and Title VII, a panel of the Second Circuit in its opinion in Village of Freeport v. Barrella addressed the question of whether "Hispanic" was included in definitions of race.  In a word, the answer was yes.  In a few words, Judge Jose Cabranes' opinion for the panel answered:

Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that “race” should be defined the same way for purposes of Title VII.

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Don Quixote by Pablo Picasso, 1955, via

The plaintiff, Barrella, argued that the Village official had not appointed him chief of police because Barrella was a white Italian‐American, and that the Village had instead appointed a less‐qualified Hispanic. A jury found in favor of Barrella.  At trial and on appeal, the Village contended that there was no "race" discrimination or classification, because "Hispanic" is not a race.  Judge Cabranes' opinion discussed the "societal confusion" regarding "Hispanic," and included an interesting Appendix on the various labels the United States Census has used, starting in 1930.  The court, however, clearly stated:

The existence of a Hispanic “race” has long been settled with respect to §1981. Although that statute never uses the word “race,” the Supreme Court has construed it as forbidding “racial” discrimination in public or private employment.  The Court has further defined “racial discrimination,” for purposes of §1981, as including discrimination based on “ancestry or ethnic characteristics.”

But the clarity with regard to §1981 does not exist with regard to Title VII, which is further complicated by an "analytic" problem.  The Second Circuit recognized that although its precedent had "avoided the question so far,"

 the proper categorization of Hispanicity has important analytical implications. Section 1981 prohibits discrimination on the basis of race but not on the basis of national origin.  Accordingly, if we were to treat Hispanicity as a national origin, but not as a race, for purposes of Title VII, plaintiffs in cases involving pro‐ or anti‐Hispanic discrimination might in some circumstances need to present two different factual arguments in order to invoke the distinct remedies of that statute along with those of § 1981.

 In deciding the issue of "Hispanicity," the Second Circuit disapproved of the district judge's decision to treat the question as one of fact: "The meaning of the word “race” in Title VII is, like any other question of statutory interpretation, a question of law for the court."  The error was harmless, however.  On the question of law, the Second Circuit clearly held that "race" encompasses "ethnicity" for purposes of Title VII, just as in §1981.

On the ultimate disposition, an evidentiary issue caused the Second Circuit to vacate the judgment and remand the case for a new trial.  Yet the case makes an important contribution in the continuing dialogue on the meanings of race - - - both statutory and otherwise. 

February 17, 2016 in Affirmative Action, Courts and Judging, Opinion Analysis, Race | Permalink | Comments (0)

Thursday, February 11, 2016

Three-Judge Court Orders North Carolina to Redraw Districts

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Steven D. Schwinn,  John Marshall Law School

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, February 9, 2016

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

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

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

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

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

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

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

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Image by Jacek Halicki circa 1982 via

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

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

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

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

Saturday, February 6, 2016

Fourth Circuit Applies Strict Scrutiny to Maryland Assault Weapon Ban

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Steven D. Schwinn, John Marshall Law School

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

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

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

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

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

 

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

Wednesday, February 3, 2016

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

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Steven D. Schwinn, John Marshall Law School

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

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

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

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

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

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

Tuesday, February 2, 2016

No Standing to Challenge Inoperative Sewer Lines

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Steven D. Schwinn, John Marshall Law School

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

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

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

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

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

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

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

Friday, January 29, 2016

Plaintiffs' Standing Means that EPA will Issue Financial Assurance Regs

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Steven D. Schwinn, John Marshall Law School

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

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

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

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

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

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

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

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

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

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

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

 

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

Thursday, January 28, 2016

Park Service Inauguration Regs Don't Violate Free Speech

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Steven D. Schwinn,  John Marshall Law School

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

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

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

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

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