Thursday, September 15, 2016
The Seventh Circuit had little patience at oral arguments yesterday for Governor Mike Pence's position defending his anti-Syrian-refugee policy in Indiana. Pence sought to appeal a lower court's preliminary injunction halting his policy, but the Seventh Circuit panel was all but outright hostile to Pence's arguments. The panel's pointed questions--and the Governor's utter lack of coherent responses--only revealed that Pence's policy (and his defense of it in this case) is just raw politics.
The arguments came just days after the White House announced that it would increase the total number of all refugees admitted next year.
The case came to the court after a lower court granted a preliminary injunction against Governor Pence's order that state agencies stop using federal Refugee Act funds to resettle Syrian refugees in Indiana "pending assurances from the federal government that proper security measures have been achieved." Under the policy, "[u]nless and until the state of Indiana receives assurances that proper security measures are in place, this policy will remain in full force and effect."
One of the groups that receives federal Refugee Act funds (through the state) to help resettle Syrians brought suit, arguing that Pence's order was preempted by the federal Refugee Act and that it violated Equal Protection and Title VI. The lower court granted a preliminary injunction, finding a likelihood of success on the merits of the discrimination claims and (without specifically holding) a likelihood of success on the preemption claim.
The Seventh Circuit panel focused on preemption and, in particular, Governor Pence's (lack of) authority to take federal resettlement funds designated for resettlement of refugees, including Syrians, but to refuse to use them to resettle Syrians. According to the panel, nothing in the Refugee Act authorizes a state governor to pick and choose among refugees in this way (although a state could decline to take Refugee Act funds altogether), and nothing delegates the power to a state governor to second-guess the State Department and the President himself on judgments about the which refugees present security concerns.
The Governor pointed to congressional testimony by the FBI that, according to the Governor, said that the government couldn't guarantee that Syrian refugees wouldn't pose a security risk.
But Judge Easterbrook pointed out that it's not the FBI's call--and it's certainly not a state governor's call. Under the Refugee Act, the State Department makes that call. And nothing gives a state governor the authority to discard the judgment of the State Department and the President himself as to the security risk of any particular group of refugees.
Tuesday, September 13, 2016
The Third Circuit ruled in Associated Builders v. City of Jersey City that the City's efforts to enforce labor standards through its tax subsidies is subject to challenge under the National Labor Relations Act, ERISA, and the dormant Commerce Clause. In particular, the court said that Jersey City acted as a regulator, not a market participant, when in awarded tax subsidies to developers on the condition that they enter into certain agreements with labor unions that bind the developers to negotiate with a union and cover employees in union negotiations, even if employees aren't a members.
The ruling only says Jersey City's practice is subject to NLRA, ERISA, and dormant Commerce Clause challenge--not that the practices violates them. That's now the question on remand.
The case arose when a developer challenged Jersey City's practice of offering tax subsidies on the condition that a developer execute a project labor agreement ("PLAs"), an agreement that requires developers to abide by a pre-hire collective bargaining agreement that covers all employees during the term of the project. As such, a PLA is an agreement between the developer and a labor union, and, because it's entered into with a labor union, it requires a developer to negotiate with the union and requires that all employees be represented by that union in negotiations--even if the developer doesn't ordinarily employ unionized labor, and even if the employees are not union members.
Jersey City argued that it fell under the "market participant" exception to the NLRA, ERISA, and the dormant Commerce Clause, and that therefore those provisions didn't apply.
But the Third Circuit disagreed. The court ruled that Jersey City wasn't a market participant, because, under the circuit test, "the City lacks a proprietary interest in Tax Abated Projects." The court ruled that Camps Newfound/Owatonna, Inc. v. Town of Harrison dictated the result. In that case, the Supreme Court held that Maine wasn't acting as a market participant when it provided "general exemption from real estate and personal property taxes for 'benevolent and charitable institutions incorporated' in the state, but provided more limited or no tax benefits to charities benefiting residents of other states. The court also distinguished Dep't of Revenue v. Davis, saying that in that case Kentucky sold the bonds, whereas Jersey City isn't selling anything.
The ruling sends this case back to the district court for a ruling on the merits.
Monday, September 12, 2016
Reversing the district court's grant of summary judgment to the Maricopa County Sheriff, the Ninth Circuit's opinion in Mendiola-Martinez v. Arpaio held that shackling a pregnant woman while she gives birth might rise to a constitutional violation:
We are presented with an important and complex issue of first impression in our circuit: whether the U.S. Constitution allows law enforcement officers to restrain a female inmate while she is pregnant, in labor, or during postpartum recovery. We hold today that in this case, the answer to that question depends on factual disputes a properly instructed jury must resolve.
Ms. Mediola-Martinez was 6 months pregnant when she was arrested for forgery and unconstitutionally detained: "Because she could not prove she was a legal resident of the United States, she was detained under the Arizona Bailable Offenses Act, Ariz. Rev. Stat. Ann. § 13- 3961(A)(5)," before the Ninth Circuit "later ruled it unconstitutional. See Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 792 (9th Cir. 2014) (en banc), cert denied, 135 S. Ct. 2046 (2015)."
Ms. Mediola-Martinez went into early labor about two months later. During the actual C-section procedure, she was not restrained. However, before the procedure when she was "in active labor" and during the postpartum recovery, she was restrained. She had plead guilty a few days before the birth and was released on a sentence of time-served a few days after.
The Ninth Circuit panel acknowledged that the weight of precedent and evidence decries the practice of shackling pregnant women in its discussion of whether the practice is a "sufficiently serious deprivation" of medical care posing a substantial risk of serious harm and thus constitutes an Eighth Amendment claim. Additionally, the panel held that she had sufficiently alleged deliberate indifference. A jury, the court held, should consider this claim.
The Ninth Circuit was not so welcoming to the Equal Protection Clause claim. Mediola-Martinez argued that the county's restraint policy discriminated on the basis of race against Mexican-Americans. But as the court noted, she needed to show that the "Restraint Policy not only had a discriminatory impact, but that it was enacted with an intent or purpose to discriminate against members of a protected class." The "offensive quotes" of Sheriff Arpaio were not sufficient to prove intent: "Even if those hearsay statements were admissible, however, they do not mention the Restraint Policy and do not otherwise lead to any inference that Sheriff Arpaio’s 2006 Restraint Policy was promulgated to discriminate against Mexican nationals." Likewise, discriminatory intent could not be inferred from the general population statistics; there needs to be a "gross" statistical disparity to raise the specter of intent.
The court was cautious but clear:
Crafting a restraint policy that balances safety concerns with the inmates’ medical needs is equally challenging. But it is not impossible. And we leave it to a jury to decide whether the risk the Maricopa County Restraint Policy posed to Mendiola-Martinez was justified, or whether the County Defendants went a step too far.
Or perhaps several steps?
image: "Birth Room" via
In its opinion in Wood v. Collier, Judge Patrick Higginbotham wrote for the panel and rejected the claims of death row inmates that Texas is obliged by the Eighth Amendment’s prohibition on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection under the law to re-test the execution drug - - -a single, five-gram dose of pentobarbital - - - to assure it does not present a high risk of unnecessary pain.
The identity and sources of drugs to accomplish "lethal injection" has been much litigated, including the Court's 2015 decision in Glossip v. Gross, rejecting an Eighth Amendment challenge to Oklahoma's three-drug lethal injection cocktail. As this Fifth Circuit opinion notes:
Texas originally used pentobarbital purchased from a pharmaceutical firm in its executions. However in 2011, Lundbeck, the Danish pharmaceutical firm that produces manufactured pentobarbital, refused to supply the drug to states that execute by lethal injection.In response, in September 2013, Texas began purchasing pentobarbital compounded by pharmacies.Texas alleges, and Appellants do not dispute, that Texas has used compounded pentobarbital to execute thirty- two prisoners since 2013 without issue.
Yet in June, Texas agreed to re-test the pentobarbital for a death sentenced inmate, mooting his civil action. The inmates here argue that this settlement essentially substantiates their Eighth Amendment claim and creates an Equal Protection Clause claim. The court disagreed:
However one kneads the protean language of equal protection jurisprudence, the inescapable reality is that these prisoners have not demonstrated that a failure to retest brings the risk of unnecessary pain forbidden by the Eighth Amendment. Attempting to bridge this shortfall in their submission with equal protection language, while creative, brings an argument that is ultimately no more than word play.
In short, the "strategic decision" of Texas to re-test the drug for one inmate is irrelevant for the others, especially "in the context of an ever-changing array of suits attacking its use of capital punishment from all angles."
Wednesday, September 7, 2016
The Sixth Circuit ruled yesterday that the courts lacked jurisdiction over an anonymous complaint about the lengths of voting lines in Ohio in the 2016 primary election. The ruling means that this strange case is dismissed, and the district court's preliminary injunction keeping polling places open an extra hour is vacated. (That extra hour turns out not to have mattered in the results, anyway.)
The case arose when the district court clerk's office received a late election-day phone call complaining that a traffic accident in the Cincinnati area was making it tough for voters to get to the polls by the 7:30 closing time. The clerk contacted a district court judge, and the judge ordered certain polling places to stay open an extra hour. (Some did, some didn't, because of communications issues.)
The Ohio Secretary of State and two counties covered in the order appealed.
But there was a problem: The case had no plaintiff. (It also had no complaint, no caption, no case.)
The Sixth Circuit ruled that the courts lacked jurisdiction over this kind of phantom suit, because there was no standing. As the court explained, in language that can now go in every Con Law and Fed Courts textbook, "There is no plaintiff with standing if there is no plaintiff."
The majority went on to say that it was impossible to rule on whether the case was moot (under the capable-of-repetition-but-evading-review exception), because "it is impossible to say that this complaining party would not be subjected to the same action again," because, well, there's no plaintiff. (The dissent took issue with this conclusion.)
The court had a pretty simple solution to the jurisdictional issues: The clerk simply could have asked "Who is it?" But, alas, that didn't happen.
Tuesday, September 6, 2016
The D.C. Circuit today dismissed a case challenging Federal Highway Administration guidance allowing digital billboards. The ruling says that Scenic America, a non-profit that "seeks to preserve and improve the visual character of America's communities and countryside," lacked standing to challenge the guidance as violating notice-and-comment rulemaking and that it lost on the merits of its claim that the guidance was promulgated "contrary to law" in violation of the APA.
The ruling means that FHWA guidance that allows digital billboards stays on the books.
Under the federal Highway Beautification Act, the FHWA enters into agreements with states that detail things like size, lighting, and spacing standards for billboards along the interstate highways. Every state has one of these federal-state agreements ("FSA"); most were written in the '60s and '70s. FHWA regs say that states have to implement standards in their FSAs and submit their laws to the FHWA's regional offices for approval.
Nearly all of the FSAs contain a prohibition against "flashing," "intermittent," and "moving" lights.
In 2007, the national FHWA office issued a memo that said that this prohibition did not apply to digital billboards--those billboards lit by LED lights that change pictures every ten seconds or so. The effect of the guidance was to permit digital billboards under the FSAs. (Many states already permitted digital billboards, but at least two (Texas and Kentucky) did not. After the guidance came down, those two states also permitted digital billboards.)
Scenic America sued the FHWA, arguing that the 2007 guidance violated the APA's notice-and-comment requirement and that it violated the HBA.
As to the notice-and-comment claim, the D.C. Circuit ruled that Scenic America lacked standing (both organizational and representational). In particular, the court said that Scenic America's requested relief (vacating the guidance) wouldn't redress its injury (having to work harder to fight digital billboards), because other factors may have driven states to permit digital billboards, and vacating the guidance wouldn't necessarily mean that states would stop permitting digital billboards. In short: "Scenic asserts injuries that stem not directly from the FHWA's issuance of the 2007 Guidance, but from third parties not directly before the court--the Division Offices and the states."
As to the substantive HBA claim, the court ruled that Scenic America had standing, but lost on the merits. The court said that Scenic America had representational standing, because it had a member who was harmed by a digital billboard, and because
[i]f we were to find for Scenic on the merits of its claim, a point we must assume for standing purposes, we could only do so by effectively repudiating the FHWA's interpretation of the FSAs. Repudiation would provide much more robust relief than vacatur [the relief requested in the notice-and-comment claim]. Not only would it prohibit the agency from relying on that interpretation in any future rulemakings, it would also require the agency to subject extant billboards to either removal or an order requiring those billboards to operate in a manner that does not violate the FSAs, for instance by keeping the image displayed by the billboard constant and unchanging. Scenic's injury, clearly caused by the Guidance, is therefore redressable.
The court went on to reject the HBA claim on the merits, however, dealing Scenic America a complete loss in the case.
Saturday, September 3, 2016
In its en banc opinion in Public Integrity Alliance v. City of Tucson, the Ninth Circuit held that Tucson's "hybrid system" for electing members of its city council does not violate the Equal Protection Clause. The staff summary succinctly describes this hybrid system:
Tucson is divided into six wards of approximately equal population, and each ward is allotted one seat on the six- member city council. Council members are elected through a hybrid system involving a ward-level partisan primary election and an at-large partisan general election. The top-vote getter from each party eligible for inclusion on the ward- level primary ballot advances to an at-large general election where she competes against the other candidates nominated from the same ward. In the general election, every Tucson voter may vote for one candidate from each ward that held a primary.
Importantly, once elected, the city council members represent the entire city. The challenge to this system rested upon a denial on the one-person one-vote principle in equal protection doctrine. The challenger Public Integrity argued that either an entirely ward-based system or an entirely at-large system would be constitutional, but the hybrid combination resulted in For the challenger, the hybrid system means that Tucson voters are denied the right to participate in the primary elections for all but one of their representatives.
The court noted that although primary elections are "indisputably" state action subject to the same constitutional constraints as general elections, this dis not mean that "primaries and general elections must be identically structured and administered." The court thus rejected the challenger's contention that Gray v. Sanders (1963) mandated that the primary and general election use the same geographical units. Instead, the court applied the balancing test of Burdick v. Takushi (1992) for less than "severe restrictions." (Recall that in Burdick, the Court upheld Hawai'i 's ban on write-in voting). The Ninth Circuit here found Tucson's restrictions minimal and found they were justified by Tucson's "important" interests including to "promote local knowledge and legitimacy, geographic diversity, and city-wide representation on the city council."
Eleven (of the 29) active judges of the Ninth Circuit participated in this en banc opinion, authored by Judge Marsha Berzon, and affirming the district judge. Judge Berzon's relatively brief and straightforward opinion provoked no dissenting or concurring opinions. It does overrule a previous Ninth Circuit case decided in 1994 on the basis that it articulated a different standard than that required by Burdick. Perhaps the clearest message from the court is that it deferred to a "careful longstanding choice" that is a "product of our democratic federalism" allowing experimentation even where "the best solution is far from clear."
American Constitution Society
Junior Scholars Public Law Workshop
(to be held at AALS Meeting January 2017)
deadline for submission: 11:59 p.m. on October 15, 2016
To further its mission of promoting the vitality of the U.S. Constitution and the fundamental values it expresses-- individual rights and liberties, genuine equality, access to justice, democracy and the rule of law—the American Constitution for Law & Policy (ACS) is pleased to announce a call for papers for a workshop on public law to be held the afternoon of January 5, 2017 at the 2017 AALS Annual Meeting in San Francisco. A committee composed of members of ACS’s Board of Academic Advisors will select 10 papers and each selected author will have the opportunity to discuss his/her paper in depth with two experienced scholars.
Papers can be in any field related to public law, including but not limited to: constitutional law, administrative law, antidiscrimination law, criminal law, environmental law, family law, federal courts, financial regulation, public international law, social welfare law, and workplace law.
More submission details at the ACS website here.
Friday, September 2, 2016
The Ninth Circuit ruled today in C.R. v. Eugene School District 4J that a student's sexually-harassing speech a few hundred feet off school property and as school was letting out was not protected by the First Amendment. The ruling upholds the school district's decision to suspend the student.
The case arose when C.J. and a group of students harassed two disabled students shortly after school let out and just a few hundred feet off school grounds. School administrators concluded that the harassment violated the school's policy on sexual harassment and suspended C.J. C.J. sued, arguing that his speech was protected by the First Amendment.
The Ninth Circuit rejected that claim. The court said that by either the "nexus" test or the "reasonably foreseeable" test used in other circuits, C.J.'s speech fell within the school's authority--and within the free-speech rules for schools. As to "nexus," the court said that the harassment "was closely tied to the school" based on location (close to the school, on a common student route home from school) and timing (just as school let out). As to "reasonably foreseeable," the court said that "[b]ecause the harassment happened in such close proximity to the school, administrators could reasonably expect the harassment's effects to spill over into the school environment."
The court went on to say that the speech was punishable under Tinker, because of its potential disruption to school activities.
The Ninth Circuit ruled this week that the up-and-down case against the Native Hawaiian self-governance movement is now moot. The ruling ends the case, and the dispute--at least against Na'i Aupuni, the group supporting and sponsoring the self-governance effort--but leaves a draft constitution out there for potential future action (and likely accompanying future litigation).
The case started when the State of Hawaii enacted legislation and authorized funds to support a Native Hawaiian constitutional-drafting process. The State awarded a grant to Na'i Aupuni to convene a constitutional convention (including running an election for Native Hawaiian delegates) and running a vote on the draft constitution.
Plaintiffs sued, arguing that the process violated equal protection and the Voting Rights Act, because the delegate election discriminated by race. The plaintiffs moved for a preliminary injunction to stop defendants "from undertaking certain voter registration activities and from calling or holding racially-exclusive elections for Native Hawaiian." The trial court and Ninth Circuit denied an injunction, but the Supreme Court enjoined the counting of the ballots "pending final disposition of the appeal by" the Court.
At the same time, a separate group of Hawaii residents moved to intervene, arguing that the definition of "Native Hawaiian" was too restrictive.
Na'i Aupuni cancelled the delegate election and instead invited all 196 Native Hawaiian candidates to participate in the convention. (The plaintiffs filed a motion for civil contempt with the Supreme Court, but the Court denied it.) They produced a draft constitution for a Native Hawaiian government. But Na'i Aupuni decided not to run a ratification vote; instead, the group returned the unused grant money to the state and dissolved as an organization.
The plaintiffs then appealed the district court's order denying their motion for a preliminary injunction.
The Ninth Circuit this week ruled that the PI case was moot. The court said that Na'i Aupuni dissolved, and that there were currently no plans for any elections. The court said that it's not a case of voluntary cessation, because "the challenged conduct cannot be reasonably expected to start up again." The court also said that it's not capable-of-repetition-but-evading-review, because "[t]here is no reasonable expectation that the plaintiffs will be subject to the same injury again, given Na'i Aupuni's disavowal of any election."
The court did acknowledge that another group might move forward with a vote at some future time. But not Na'i Aupuni, and not now.
The court also denied the motion to intervene, saying that it, too, was moot. In any event, the prospective intervenors' interests weren't at stake in the litigation.
Monday, August 29, 2016
The University of Arkansas at Little Rock Law Review
call for papers for its 2017 Symposium:
“Dark Money and Related Issues: New Factors in the Debate on Judicial Appointment versus Election,”
to be held on February 16th and 17th, 2017.
Deadline for submissions of article proposals is Oct. 7, 2016.
Elections leave open the possibility for the corrupting influence of dark money. “Dark money” controversy figured prominently in the last Arkansas judicial elections, so much so that the Arkansas Supreme Court and General Assembly have studied the issue of campaign financing, and the Arkansas Bar Association created the Task Force on Maintaining a Fair and Impartial Judiciary, which issued a report in June recommending appointment of judges and other reforms. Judicial appointment, however, is not without its critics, who contend among other arguments that appointment is undemocratic, and that appointed judges lack authority and legitimacy and are less accountable.
The broad goal of this symposium is to debate the strengths and weaknesses of judicial election systems versus judicial appointment systems, with an eye toward the best solution for Arkansas. Topics of interest include, for example, whether an appointment process would be appropriate for all appellate judges or only Supreme Court Justices; the most effective and bipartisan types of appointment processes; issues surrounding recusal from cases involving contributors; and reforms to protect the election process from the influence of “dark money.” We anticipate panels comprising a mix of academics, judges, and legislators, both Arkansans and out-of-state speakers and contributors.
More submission details at the law review website here.
Thursday, August 25, 2016
The First Circuit ruled today in Wal-Mart Puerto Rico, Inc. v. Zaragoza-Gomez that Puerto Rico's amendment to its Alternative Minimum Tax discriminates against interstate commerce in violation of the Dormant Commerce Clause.
The ruling means that Puerto Rico can't apply its amended AMT against Wal-Mart, the largest private employer in Puerto Rico. The ruling also strikes a blow at Puerto Rico's effort to deal with its fiscal crisis and to prevent multi-state corporations doing business in Puerto Rico from shifting profits off-island by purchasing goods and services from related mainland entities at artificially inflated prices.
The amended AMT provided for a graduated corporate tax on goods sold or transferred to the corporate taxpayer by a related party or home office outside of Puerto Rico (for example, Wal-Mart's offices in the mainland US selling to Wall-Mart Puerto Rico). The top rate, 6.5%, applied to corporate taxpayers with $2.75 billion or more in gross sales. Wal-Mart was the only company big enough to be subject to this rate. Moreover, "[f]or a retailer like Wal-Mart PR that engages in a high volume of transactions with low profit margins on each item sold, this feature of the AMT can result in a particularly high tax liability relative to income."
Wal-Mart sued, and the First Circuit struck the tax. The court said that the tax plainly discriminated against interstate commerce, because it taxed only interstate transactions. Moreover, the court said that the amended AMT wasn't the only way (and therefore wasn't necessary) to meet Puerto Rico's interest in stopping profit shifting:
The amended AMT is a blunt and unnecessary overinclusive approach to combating profit-shifting abuse. It essentially establishes an irrebuttable presumption that all intercorporate transfers to a Puerto Rico branch from related mainland activities are fraudulently priced to evade taxes. In fact, the Secretary all but admits that there are narrower alternatives that target profit-shifting. . . . Having identified numerous less restrictive alternatives to advance Puerto Rico's legitimate local purpose, we hold that the AMT is a facially discriminatory law that does not survive heightened scrutiny under the dormant Commerce Clause.
Sixth Circuit Holds Michigan's Sexual Offender Registration Act is Unconstitutional Ex Post Facto Law
In its opinion in Doe v. Snyder, the Sixth Circuit has concluded that the 2006 and 2011 amendments of Michigan's Sexual Offender Registration Act (SORA), as retroactively applied to plaintiffs violate the Ex Post Facto Clause, United States Constitution, Art. I §10, cl. 1.
The Ex Post Facto Clause only applies to retroactive punishment, and the opinion notes that under the United States Supreme Court's Smith v. Doe (2003), upholding Alaska's SORA, the test is "quite fixed": "an ostensibly civil and regulatory law, such as SORA, does not violate the Ex Post Facto clause unless the plaintiff can show 'by the clearest proof' that 'what has been denominated a civil remedy' is, in fact, 'a criminal penalty.'"
Judge Alice Batchelder, writing for the unanimous panel, applied the Smith v. Doe test for determining whether a statute that does not have a punitive intent nevertheless has actual punitive effects, including five factors:
- Does the law inflict what has been regarded in our history and traditions as punishment?
- Does it impose an affirmative disability or restraint?
- Does it promote the traditional aims of punishment?
- Does it have a rational connection to a non-punitive purpose?
- Is it excessive with respect to this purpose?
In considering the history factor, the court relied on an amicus brief from law professors and discussed the relationship of SORA to ancient punishments of banishment. To this end, the court reproduced a map for Grand Rapids Michigan, illustrating (in blue) where persons under SORA were now prohibited from living, working, or traveling.
The map also figured into the court's conclusions regarding the other factors, including the rational relationship. Indeed, the court found that SORA may actually increase recidivism rates and that "Tellingly, nothing the parties have pointed to in the record suggests that the residential restrictions have any beneficial effect on recidivism rates."
There were other constitutional challenges to SORA, but the court seemingly found the Ex Post Facto argument most determinative. The court's originalist theoretical perspective on the Ex Post Facto Clause is striking:
Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core counter- majoritarian principle embodied in the Ex Post Facto clause. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton). It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89; accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”).
Thus, while the court acknowledged that the Smith v. Doe test was a difficult one to meet, "difficult is not the same as impossible" and Smith v. Doe should not "be understood to write a blank check to states to do whatever they please in this arena." Most likely, Michigan will disagree and seek United States Supreme Court review to ask the Court to clarify its understanding.
Wednesday, August 24, 2016
Sixth Circuit's Mixed Ruling on First Amendment Challenges to Kentucky's Ethics Code for Judicial Elections
In its opinion in Winter v. Wolnitzek authored by Judge Jeffrey Sutton for the unanimous Sixth Circuit panel, the court considered eight provisions of the Kentucky Code of Judicial Conduct against facial and as-applied First Amendment challenges after first concluding that there was a sufficient case or controversy under Article III.
The court applies strict scrutiny to the State's efforts to regulate the campaign speech of judicial candidates under the United States Supreme Court's decision last year in Williams-Yulee v. The Florida Bar. In Williams-Yulee, the no direct solicitation of contributions prohibition survived and a few of the provisions in Winter likewise survive. The Kentucky Supreme Court, pursuant to a certification proceeding, rendered its interpretation on three of the canons.
In succinct fashion - - - the analysis of the eight provisions is less than ten manuscript pages - - - the court determined the constitutional status of the varying prohibitions as follows:
- The campaigning clause, which prohibits a candidate for judicial office from campaigning as a member of a political organization was ruled unconstitutional as vague and overbroad. Although the Kentucky Supreme Court had clarified this provision to mean that the candidate cannot portray themselves, either directly or by implication, as "the official nominee" of the party. The court held there was too much slippage here, so that the use of a definitive article ("the Republican candidate") was not necessarily an endorsement as official nominee, especially when combined with other terms ("the moderate Republican candidate.")
- The speeches clause, which prohibited judicial candidates from making speeches for or against a political party, was unconstitutional as not narrowly tailored. The court noted that this does not prohibit a tweet for or against a political party, and distinguished a prohibition of judicial candidates from making speeches on behalf of a political organization (as the Ninth Circuit upheld).
- The contributions clause, which prohibits judicial candidates from making financial contributions to a political organization or candidate was upheld. Not withstanding the court's recognition that "money is speech" under Buckley v. Valeo. The court held that this clause "narrowly serves the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics." On this, the Sixth Circuit reversed the district judge.
- The endorsements clause, which prohibits judicial candidates from publicly endorsing or opposing candidates for public office was likewise constitutional. Again, the court stressed the quid pro quo nature of endorsements.
- The "acting as a leader" clause, which prohibits a judge from acting as a leader or holding any office in a political organization was constitutional on its face as well as-applied to the request to host a political event that is a fundraiser. The fundraiser, the court reasoned, brings the judge's impartiality into question.
- The false statements clause, prohibiting judicial candidates from making false statements with knowledge or reckless disregard of the truth is perhaps the most interesting result. The court distinguishes another Sixth Circuit case - - - Susan B. Anthony List v. Driehaus - - - which was not only not limited to material statements (as it was by the Kentucky Supreme Court's certification opinion), but also makes the Williams-Yulee distinction between political and judicial candidates. However, the court found that as-applied to a judicial candidate's statement to be "re-elected" when in fact she occupied the judicial position because of appointment rather than election, the provision was unconstitutional. The ban there "outstrips" the government interest and did not provide sufficient "breathing space."
- The commits clause, prohibiting judicial candidates from making pledges or promises, was remanded. This was not a provision that was certified to the Kentucky state supreme court and the Sixth Circuit panel implied that it should be. The problem is determining whether an "issue-based" commitment is inconsistent with the impartial performance of judicial duties, with the Sixth Circuit panel stating that if "Kentucky interprets “impartiality” to mean solely “impartiality as to parties,” the clause may well advance a compelling interest and do so narrowly."
The court ends its opinion, as it began, by acknowledging the "cross-currents" of First Amendment challenges to judicial, rather than political, campaigns. The court navigated surely and perhaps overly-speedily through the multiple issues landing with mixed results. It does seem that the court will be visiting this terrain again.
Ninth Circuit Upholds Upholds California Ban on Sexual Orientation Conversion Therapy Against Religion Clauses Challenge
In a sequel to the Ninth Circuit's 2013 decision in Pickup v. Brown upholding California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit upheld the same law against a facial challenge based upon the First Amendment's Religion Clauses in its relatively brief opinion in Welch v. Brown.
The panel in Welsh - - - the same panel as in Pickup - - - held that the SB 1172 violated neither the Establishment Clause nor the Free Exercise Clause. The panel rejected the challengers' interpretation of the law as applying to members of the clergy because the law specifically exempts religious clergy "as long as they do not hold themselves out as operating pursuant" to any therapist licenses.
The panel also rejected the contention that the law has the primary effect of inhibiting religion. That some minors who seek sexual orientation conversion may have religious motivations does not rise to the level of an inhibition of religion, especially given that the law was not targeted at religious motivated conduct. The panel noted that the law's legislative findings focused on "social stigmatization" and "family rejection" rather than religiosity. The panel likewise rejected the Free Exercise Clause claim that the law was not neutral as to religion based on the same rationales and cited the Third Circuit's similar conclusion regarding New Jersey's prohibition of sexual conversion therapy in King v. Christie.
The court also reiterated its rejection of any "privacy" claim based on its previous analysis in Pickup.
So far, challenges to state prohibitions of sexual conversion therapy for minors have had little success.
August 24, 2016 in Courts and Judging, Disability, Due Process (Substantive), Establishment Clause, Family, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation | Permalink | Comments (0)
Tuesday, August 23, 2016
The Ninth Circuit ruled in American Hotel and Lodging Association v. City of Los Angeles that federal labor law did not preempt LA's ordinance requiring a minimum wage for certain hotel workers in the city.
The ruling is a win for the city and for covered hotel workers. It denies the plaintiffs' motion for a preliminary injunction, but in terms that, as a practical matter, put an end to these claims. (The court ruled that federal law did not preempt, not only that that it likely did not preempt (the usual preliminary injunction standard). So the ruling tees up a city motion to dismiss these claims on the merits. And unless the plaintiffs have other claims, this ruling tees up a city motion to dismiss the entire case.)
The case arose when LA enacted an ordinance that required large hotels in the city, and smaller hotels near LAX, to pay workers $15.37 an hour (and provide other minimum benefits), unless they were covered by a collective bargaining agreement (the "collective-bargaining exemption"), and unless this wage would drive an employer into bankruptcy (the "hardship waiver"). American Hotel and Lodging Association and the Asian American Hotel Owners Association sued, arguing that the entire wage ordinance and the collective-bargaining exemption were preempted by the National Labor Relations Act, because they interfered with labor-management relations. The plaintiffs pointed to Machinists preemption (named for Int'l Ass'n of Machinists v. Wis. Emp't Relations Comm'n) which says that the NLRA implicitly preempts state restrictions on "self-help," like a strike or lock-out--things that "regulate the mechanics of labor dispute resolution." The plaintiffs moved for a preliminary injunction on this theory.
The Ninth Circuit flatly rejected the claim. The Ninth Circuit said that "[m]inimum labor standards, such as minimum wages, are not subject to Machinists preemption":
Such minimum labor standards affect union and nonunion employees equally, neither encouraging nor discouraging the collective bargaining processes covered by the NLRA. Minimum labor standards do technically interfere with labor-management relations and may impact labor or management unequally, much in the same way that California's at-will employment may favor employers over employees. Nevertheless, these standards are not preempted, because they do not "regulate the mechanics of labor dispute resolution."
The court said that minimum standards are merely background conditions of collective bargaining, not interferences with collective bargaining.
As to the collective-bargaining exemption, the court was even more direct, merely citing Lividas v. Bradshaw and its language that says that "familiar and narrowly drawn opt-out provisions" for collective bargaining agreements are valid, because they do not impact rights to collective bargaining.
Thursday, August 18, 2016
In his opinion and order in EEOC v. R.G. & G.R. Harris Funeral Homes, United States District Judge Sean Cox of the Eastern District of Michigan, the judge held that the funeral home is "entitled to a RFRA exemption from Title VII and the body of sex-stereotyping case law that has developed under it."
The funeral home, a for-profit closely-held corporation, relied upon the United States Supreme Court's closely-divided and controversial decision in Burwell v. Hobby Lobby (2014) which allowed a religious exemption under RFRA (the Religious Freedom Restoration Act) to a federal requirement in the Affordable Care Act (ACA or Obamacare) that employers provide health insurance to employees that includes contraceptive coverage.
Rather than contraception, the issue in Harris Funeral Homes is the funeral home's sex-specific dress code and its termination of Stephens, an employee transitioning from male to female for failure to wear the mandated male-specific clothing. The primary shareholder of the funeral home, Thomas Rost, stated his beliefs that the Bible teaches "that a person's sex is an immutable God-given gift" and "that is wrong for a biological male to deny his sex by dressing as a woman." More importantly for his RFRA claim, Rost stated that he himself “would be violating God’s commands” if he were to permit one of the Funeral Home’s biologically-male-born funeral directors to wear the skirt-suit uniform for female directors while at work, because Rost “would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”
Recall that under RFRA, a threshold question is whether the person's religious belief are sincerely held. Hobby Lobby having determined that a company's major shareholder's belief is the relevant one, the EEOC conceded that the "Funeral Home's religious beliefs are sincerely held." The next question is whether the neutral law of general applicability - - - here, Title VII - - - is a substantial burden on the person's religious beliefs. The district judge found that allowing an employee to wear a skirt would impose a substantial burden on the ability of Rost to conduct his business in accordance with his sincerely held religious beliefs and that the economic consequences of back pay would be "severe." The burden then shifts in RFRA to the government to satisfy strict scrutiny as well as a least restrictive means requirement. Recall that the stated purpose of Congress in passing RFRA was to "restore the compelling interest test as set forth in Sherbert v. Verner" (1964), which Congress believed the Court had departed from in Employment Division v. Smith (1990), although Congress also added the "least restrictive means" language.
And in his Harris Funeral Homes decision, Judge Cox ultimately relied on the least restrictive means requirement. However, first Judge Cox treated the traditional strict scrutiny questions. Judge Cox assumed "without deciding" that the EEOC had a compelling governmental interest, although Judge Cox expressed doubts whether this was true. Indeed, Judge Cox interpreted the passage in Hobby Lobby stating that the decision provided "no such shield" to equal employment laws (and thus refuting a claim made by the dissent) as essentially dicta:
This Court does not read that paragraph as indicating that a RFRA defense can never prevail as a defense to Title VII or that Title VII is exempt from the focused analysis set forth by the majority. If that were the case, the majority would presumably have said so. It did not.
Moreover, Judge Cox relied on Hobby Lobby to contend that a general interest in ending employment discrimination is not sufficient, it must be focused on the particular person burdened: "even if the Government can show that the law is in furtherance of a generalized or broad compelling interest, it must still demonstrate the compelling interest is satisfied through application of the law to the Funeral Home under the facts of this case." (italics in original). Although Judge Cox wrote that he "fails to see how the EEOC has met its requisite 'to the person'-focused showing," he nevertheless stated he would assume it was met.
As to the least restrictive means, Judge Cox's solution is a gender-neutral dress code:
Yet the EEOC has not challenged the Funeral Home’s sex-specific dress code, that requires female employees to wear a skirt-suit and requires male employees to wear a suit with pants and a neck tie, in this action. If the EEOC were truly interested in eliminating gender stereotypes as to clothing in the workplace, it presumably would have attempted to do so.
Rather than challenge the sex-specific dress code, the EEOC takes the position that Stephens has the right, under Title VII, to “dress as a woman” or wear “female clothing” while working at the Funeral Home. That is, the EEOC wants Stephens to be permitted to dress in a stereotypical feminine manner (wearing a skirt-suit), in order to express Stephens’s gender identity.
If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here? Both women and men wear professional-looking pants and pants-suits in the workplace in this country, and do so across virtually all professions.
Of course, the courts have not ruled favorably on challenges to sex-specific dress and grooming codes in the employment context.
Interestingly, Judge Cox also rejected the EEOC's gender discrimination claim based on the funeral home company's clothing allowance policy: there is a monetary clothing allowance to male employees but not female employees. Judge Cox found that this issue was not properly brought by the EEOC.
The EEOC is sure to appeal. If individual employers can claim exemptions to Title VII under RFRA, it could have widespread consequences.
Although it is also possible that a new Congress could amend RFRA.
District Judge Rejects WaPo's Motion to Unseal Records in Spin-Off of D.C. Campaign Finance Investigation
Chief Judge Beryl A. Howell (D.D.C.) today rejected the Washington Post's motion to unseal certain records in a criminal investigation that amounted to a spin-off of the U.S. Attorney's Office investigation into campaign finance violations during the 2010 D.C. mayoral election.
The case revolves around Jeffrey E. Thompson, a fundraiser for former D.C. Mayor Vincent Gray. Thompson and others were prosecuted as part of the U.S. Attorney's Office's investigation into campaign finance shenanigans in the 2010 mayoral election. (Thompson was just sentenced to three months in prison, $10,000 in fines, and 36 months of probation.) Some of the warrants in that case were sealed, and the Post moved successful to unseal them.
While pressing the campaign finance case, the U.S. Attorney's Office uncovered other, potentially criminal information about Thompson. In particular, the Post claimed that the Office uncovered information about Thompson's sexual relationships and his efforts to conceal them. The U.S. Attorney's Office declined to prosecute Thompson, but the Office told the court that the information could have been used to undermine Thompson's credibility as a witness in the campaign finance case. (Indeed, the government ultimately did not sponsor Thompson as a witness.)
WaPo moved to unseal the warrants in the second investigation, arguing that these were really a part of its initial request for warrants in the campaign finance investigation (because the information in the second investigation was directly linked to the campaign finance investigation by way of Thompson's credibility as a witness).
But despite having granted WaPo's motion for warrants in the campaign finance investigation, the court denied WaPo's motion for the second set of warrants. The court explained that while the First Amendment provides a qualified right of access to judicial records, the interests weighed differently here. As to the individual privacy interests:
First, the mere association with alleged criminal activity as the subject or target of a criminal investigation carries a stigma that implicates an individual's reputational interest. Second, the substance of the allegations of criminal conduct may reveal details about otherwise private activities that significantly implicate an individual's privacy interests, particularly when those allegations touch on intimate or otherwise salacious details of private affairs. Finally, where, as here, a criminal investigation does not result in an indictment or other prosecution, a due process interest arises from an individual being accused of a crime without being provided a forum in which to refute the government's accusations.
As to the law enforcement interests:
While Thompson's identity and assistance to the [U.S. Attorney's Office] has now been publicly acknowledged, the government's interest in preserving its ability to work with witnesses to obtain information regarding suspected crimes is directly implicated by the Post's request for additional disclosure in this case.
The court also rejected the Post's argument for open judicial records under the common law.
The ruling means that WaPo won't get any sealed information from the second investigation into Thompson, unless and until it successfully appeals.
The Feminist Legal Theory Collaborative Research Network of Law & Society is a great group and Law & Society is always terrific. Here's the call:
Call for Papers – Friday September 16th Deadline
The Feminist Legal Theory Collaborative Research Network
Seeks submissions for the
Law and Society Association Annual Meeting
Mexico City, Mexico, at the Sheraton Maria Isabel, June 20 – 23, 2017
Dear friends and colleagues,
We invite you to participate in the panels sponsored by the Feminist Legal Theory Collaborative Research Network at the Law and Society Annual Meeting in 2017. The Feminist Legal Theory CRN seeks to bring together law and society scholars across a range of fields who are interested in feminist legal theory. Information about the Law and Society meeting is available at http://www.lawandsociety.org.
This year’s meeting is unique in that it brings us to the Global South, and invites us to explore the theme Walls, Borders, and Bridges: Law and Society in an Inter-Connected World. We are especially interested in proposals that explore the application of feminist legal theory to this theme, broadly construed. This might include papers that explore feminist legal theory in comparative or transnational contexts, as well as in relation to the impacts of globalism and other intersections within particular locations, relationships, institutions, and identities. We are also interested in papers that will permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN, and welcome multidisciplinary proposals.
Our goal is to stimulate focused discussion of papers on which scholars are currently working. Thus, while you may submit papers that are closer to publication, we are particularly eager to receive proposals for works-in-progress that are at an earlier stage and will benefit from the discussion that the panels will provide.
The Planning Committee will assign individual papers to panels based on subject. Panels will use the LSA format, which requires four papers. We will also assign a chair, and one or two commentators/discussants for each panel, to provide feedback on the papers and promote discussion. For panels with two commentators/discussants, one may be asked to also chair.
As a condition of participating as a panelist, you must also agree to serve as a chair and/or commentator/discussant for another panel or participant. We will of course take into account expertise and topic preferences to the degree possible.
The duties of chairs are to organize the panel logistically; including registering it online with the LSA, and moderating the panel. Chairs will develop a 100-250 word description for the session and submit the session proposal to LSA before their anticipated deadline of October 19. This will ensure that each panelist can submit their proposal, using the panel number assigned.
The duties of commentator/discussants are to read the papers assigned to them and to prepare a short commentary about the papers that discusses them individually and (to the extent relevant) collectively, identifying ways that they relate to one another.
If you would like to present a paper as part of a CRN panel, please email:
- An 1000 word abstract or summary,
- Your name and a title, and
- A list of your areas of interest and expertise within feminist legal theory
to the CRN Planning Committee at firstname.lastname@example.org. (Please do not send submissions to individual committee members.)
Note that LSA is imposing a requirement that your summary be at least 1,000 words long. Although a shorter summary will suffice for our purposes, you will be required to upload a 1,000 word summary in advance of LSA’s anticipated deadline of October 19. If you are already planning a LSA session with at least four panelists (and papers) that you would like to see included in the Feminist Legal Theory CRN, please let the Committee know.
In addition to these panels, we may try to use some of the other formats that the LSA provides: the “author meets readers” format, salon, or roundtable discussion. If you have an idea that you think would work well in one of these formats, please let us know. Please note that for roundtables, organizers are now required to provide a 500-word summary of the topic and the contributions they expect the proposed participants to make. Please also note that LSA rules limit you to participating only once as a paper panelist or roundtable participant.
Please submit all proposals by Friday, September 16 to the email provided above. This will permit us to organize panels and submit them prior to the LSA’s anticipated deadline of October 19. In the past, we have accommodated as many panelists as possible, but have been unable to accept all proposals. If we are unable to accept your proposal for the CRN, we will notify you by early October so that you can submit an independent proposal to LSA.
We hope you’ll join us in Mexico City to share and discuss the scholarship in which we are all engaged and connect with others doing work on feminist legal theory.
2017 LSA Feminist Legal Theory CRN Planning Committee
Aziza Ahmed & Elizabeth MacDowell (co-chairs)
Wednesday, August 17, 2016
The Seventh Circuit ruled this week that language in a state statute criminalizing the possession of cocaine near a "youth program center" was unconstitutionally vague. The ruling sends this case of hyper-aggressive prosecution back for resentencing (though the criminal law has been repealed).
The case arose when police arrested Walker Whatley at his father's home on an unrelated charge. The officer discovered a bag with just over three grams of cocaine in Whatley's pocket. Ordinarily, this would have constituted a Class C felony under state law, with a sentence of two to eight years. But because Whatley's dad lived 795 feet from the Robinson Community Church, Whatley was charged with a Class A felony of possessing more than three grams of cocaine within 1,000 feet of a "youth program center"--a charge that brought 20 to 50 years. Whatley was convicted and got 35 years--more than four times the maximum sentence for a Class C felony.
Whatley appealed through the state courts, and then brought a federal habeas claim. The district court rejected that claim, however, ruling that Whatley defaulted.
The Seventh Circuit reversed. The court ruled that the statute was unconstitutionally vague, because it defined "youth program center" as a facility with "regular" youth programs, and because "regular" didn't put a person of ordinary intelligence on notice of what was illegal. (The church hosted youth programs, but only a few times a week, and only for a few hours at a time.)
The court rejected the state court's reasoning that fair notice wasn't required, because the statute created strict liability; the court said that reasoning was "inconsistent with Supreme Court precedent that requires fair notice for all criminal statutes." "The lack of an intent element in the statute does not cure the vagueness problem; it makes it worse by making unknowing defendants absolutely liable for violating an indeterminate standard," that is, the definition of "youth program center."
The very harsh sentencing also played a factor:
In sum, a triad of factors convince us that the state courts were not simply wrong but unreasonable in applying federal law on vagueness in Whatley's case: (1) the use of the word "regular" in the definition of "youth program center" provides no objective standard, and thereby fails to place persons of ordinary intelligence on notice of the conduct proscribed and allows for arbitrary enforcement; (2) defendants are strictly liable for violating the terms of this nebulous sentencing enhancement, exacerbating the effect of the subjectivity; and (3) the consequences of violating this indeterminate strict liability provision are extreme: an increase in the sentencing range from 2-to-8 years to 20-to-50 years' imprisonment.