Wednesday, March 11, 2015

Sixth Circuit on Susan B Anthony List v. Driehaus

In its relatively brief opinion in Susan B. Anthony List v. Driehaus, the Sixth Circuit seemingly brought an end to the extensive litigation that arose from Stephen Dreihaus's 2010 campaign during which the Susan B. Anthony list, an anti-abortion organization wanted to put up a billboard criticizing Driehaus's vote in favor of  "Obamacare," reading "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." But the billboard never went up because the advertising company that owned the billboard space refused to put up the advertisement after Driehaus's counsel threatened legal action against it. Driehaus filed a complaint with the Ohio Elections Commission against SBA List claiming that the advertisement violated two sections of Ohio's false-statement in elections statute.  SBA List then sued, seeking declaratory and injunctive relief, based on a First Amendment challenge to the statute. Recall that the United States Supreme Court unanimously reversed the Sixth Circuit's finding that federal courts had no Article III power to hear the case.

The First Amendment issues, including Dreihaus' counterclaim for defamation, were thus remanded.  The federal district judge found the Ohio election provision violated the First Amendment.  In considering the defamation claim, which the judge also foreclosed on the basis of the First Amendment, the Sixth Circuit found that although the district judge's "categorical proclamation" that “[A]s a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation" was "a misstatement of First Amendment defamation law."  However, the Sixth Circuit affirmed the district judge's grant of summary judgment on the basis that Driehaus could not satisfy the elements of the state law defamation tort. Specifically, Driehaus could not prove that the statements by SBA were false: "it is enough that the statements had some truth, were substantially true, or were subject to differing interpretations" and Driehaus could not show any basis for a finding that the statements were made with actual malice.

Thus after extended litigation it now seems that there remain few, if any, bars to "falsehoods" in campaigns.

March 11, 2015 in Campaign Finance, Cases and Case Materials, Courts and Judging, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, March 9, 2015

Court Re-Shifts Power Back to Federal Agencies

The Supreme Court ruled today in Perez v. Mortgage Bankers Association that the Department of Labor need not engage in notice-and-comment rule-making when it changes a Department interpretation of an existing rule. At the same time, the Court overturned the D.C. Circuit rule that forced agencies to do this whenever an agency wished to issue a new interpretation that deviated significantly from an old one.

The ruling thus re-shifts power back to executive agencies in determining the meaning of their own regulations. That's because Congress didn't require agencies to use notice-and-comment rule-making for interpretations, but the D.C. Circuit did, when a new interpretation deviated significantly from an old one--that is, when an agency changed its interpretation. By overturning that decision, and putting interpretive decisions back in the exclusive hands of the agencies (with loose, deferential judicial oversight), the Court re-set the balance that Congress struck. The ruling is thus a victory for agencies and their power to interpret their own regulations without notice-and-comment rule-making and with deferential judicial review. (More on that last part below.)

The case grows out of DOL's re-interpretation of its FLSA rule on minimum wage and overtime for mortgage-loan offices. The agency's rule exempts certain classes of employees, including individuals who are "employed in a bona fide executive, administrative, or professional capacity . . . or in the capacity of outside salesman . . . ." In 1999 and 2001, DOL issued interpretive letters opining that mortgage-loan officers did not qualify for this exemption. In 2006, however, DOL reversed course and opined that mortgage-loan officers did meet the exemption. But in 2010, DOL went back to its old position, withdrew the 2006 interpretation, and opined that mortgage-loan officers didn't meet the exemption.

The Administrative Procedure Act requires agencies to provide public notice and an opportunity to comment when they propose new rules and regulations under an authorizing statute. But the APA does not require this notice-and-comment rule-making when an agency simply issues an interpretation. Seeing the potential for abuse, the D.C. Circuit devised a court-created rule that said that agencies still had to use notice-and-comment rule-making, even for a mere interpretation. The D.C. Circuit rule is called the Paralyzed Veterans rule, after the case that established it.

So the question in Mortgage Bankers Association was whether DOL had to use notice-and-comment rule-making in issuing its 2010 interpretation.

The Supreme Court said no. The Court, in an opinion by Justice Sotomayor, ruled that the APA by its plain terms exempts interpretative decisions from the notice-and-comment requirement, and that the D.C. Circuit's Paralyzed Veterans rule violated those plain terms. Justice Sotomayor wrote that Congress, in enacting the APA, considered the costs and benefits of applying notice-and-comment rule-making requirements to agency interpretations, and that Congress decided that notice-and-comment procedures weren't necessary.

All nine justices agreed on the result, but Justices Scalia, Thomas, and Alito each wrote separately to take issue in different ways and to different degrees with judicial deference to agency interpretations. In other words, they're not sure that the courts should defer to agency interpretations (even if courts do validly defer to agency rules), or they reject deference altogether. Judicial deference to agency interpretations comes from Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins. In Auer (relying on Seminole Rock) the Court held that agencies may authoritatively resolve ambiguities in their own regulations.

The rule that courts defer to an agency's interpretation of its authorizing statute is well settled in Chevron v. Natural Resources Defense Council. This is called Chevron deference. But Auer extended that deference to an agency's interpretation of its own rules. This Auer deference is what caught the eyes of Justices Scalia, Thomas, and Alito.

They all indicated that they'd reconsider Auer deference if given the chance. Justices Scalia and Thomas both outlined their (separate) separation-of-powers objections to Auer deference. In short, Justice Scalia expressed concern that an agency could both write its own rule and then interpret that rule without meaningful oversight; Justice Thomas explained why Auer deference took power away from the judiciary and gave it to the executive agencies.

Both Chief Justice Roberts and Justice Kennedy signed on in full to Justice Sotomayor's opinion (as did Justices Ginsburg, Breyer, and Kagan). None of these joined Justice Scalia, Justice Thomas, or Justice Alito and the concerns with Auer deference that they expressed.

March 9, 2015 in Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Eighth Circuit Holds Missouri's "Disrupting a House of Worship" Crime Violates First Amendment

640px-0006_Igreja_de_Santo_Antônio_em_Porto_Alegre

In its opinion today in Survivors Network of Those Abused by Priests, Inc. v. Joyce,  the Eighth Circuit found that Missouri's "House of Worship Protection Act,"  Mo. Rev. Stat. § 574.035, violates the First Amendment.

The statute provides that a person commits the crime of disrupting a house of worship if he or she "[i]ntentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services."

The panel's unanimous and relatively brief opinion, reversing the district judge, found fault with the statute as a content-based regulation, focusing as it does on "profane discourse, rude or indecent behavior."  The panel rejected the state's argument that it was a mere time, place, or manner regulation subject to a lower level of scrutiny.  Instead, the Eighth Circuit quoted the Court's decision in McCullen v. Coakley last Term that a statute "would not be content neutral if it were concerned with undesirable effects that arise from 'the direct impact of speech on its audience' or '[l]isteners' reactions to speech.'"

The Eighth Circuit then easily found that the content based statute did not survive strict scrutiny: "Even if the government interest in protecting the free exercise of religion were viewed as compelling, however, the content based prohibitions the Act places on profane or rude speech are not necessary to protect that freedom."  There were content neutral alternatives to protect houses of worship from disruption, such as noise regulations and there was nothing in the record showing that any worship services have been disrupted in Missouri.

Thus, the facial challenge to the statute, brought by SNAP - - - a non profit organization which advocates for victims of sexual abuse by clergy and members who "regularly communicate their messages outside of a Catholic friary in St. Louis where a priest accused of child molestation resides" - - - was successful. 

It does seem as if Missouri could amend the statute to pass constitutional scrutiny by excising the content-based language and leaving the noise related language.

[image via]

March 9, 2015 in First Amendment, Opinion Analysis, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Senate Republicans School Iran in Constitution

Any nuclear agreement negotiated by President Obama could be short-lived, according to an open letter signed by forty-seven Senate Republicans today, and Iran should take note.

The letter, first reported by Josh Rogin at Bloomberg, tries to school Iran in the U.S. Constitution and separation of powers--and to undermine President Obama's efforts to come to nuclear deal with Iran.

The letter warns that any agreement "not approved by Congress is a mere executive agreement" that "[t]he next president could revoke . . . with the stroke of a pen and future Congresses could modify the terms of the agreement at any time."

The letter also reminds Iran that President Obama leaves office in January 2017, "while most of [the letter signers] will remain in office well beyond then--perhaps decades."

March 9, 2015 in Congressional Authority, Executive Authority, Foreign Affairs, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, March 8, 2015

Daily Read: The First Amendment and the Selma March

Over at the Los Angeles Times in an Op-Ed, ConLawProf Ronald J. Krotoszynski Jr. argues that present First Amendment doctrine would preclude the famous Selma march being commemorated on its 50th anniversary today.

640px-Selma_to_Montgomery_marches_-_historic_route_retouchedKrotoszynski contends that it would now be "impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway" and that under "contemporary legal doctrine, the Selma protests would have ended March 8, 1965."

He faults the reshaping of public forum doctrine and time, place or manner restrictions so that "protests" are now relegated to "designated speech zones."  He highlights the recent litigation regarding the First Amendment rights of protestors in Ferguson, which, although successful on behalf of the protestors, was a success that was both delayed and partial.

Krotoszynski's op-ed is an important reminder that while voting rights and equality are integral to the remembrance of Selma as President Obama elucidated in his speech,  "Selma's main lesson" might also be that "taking to the streets and other public spaces in protest is central to our democracy." 

 

March 8, 2015 in Association, Equal Protection, First Amendment, Fourteenth Amendment, History, Profiles in Con Law Teaching, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Daily Video: President Obama's Selma Speech

On the 5oth anniversary of the Selma-Montgomery March, President Obama and other dignitaries gathered in Selma to commemorate the iconic protest which is widely believed to have galvanized support for the Voting Rights Act of 1965. 

Given the Court's closely divided and controversial 2013 decision in Shelby County (Alabama) v. Holder finding parts of the Voting Rights Act unconstitutional, as well as subsequent efforts by states to enact voting restrictions, Obama not surprisingly included pertinent references in his speech:

And with effort, we can protect the foundation stone of our democracy for which so many marched across this bridge –- and that is the right to vote.  Right now, in 2015, 50 years after Selma, there are laws across this country designed to make it harder for people to vote.  As we speak, more of such laws are being proposed.  Meanwhile, the Voting Rights Act, the culmination of so much blood, so much sweat and tears, the product of so much sacrifice in the face of wanton violence, the Voting Rights Act stands weakened, its future subject to political rancor.

How can that be?  The Voting Rights Act was one of the crowning achievements of our democracy, the result of Republican and Democratic efforts. President Reagan signed its renewal when he was in office.  President George W. Bush signed its renewal when he was in office.   One hundred members of Congress have come here today to honor people who were willing to die for the right to protect it.  If we want to honor this day, let that hundred go back to Washington and gather four hundred more, and together, pledge to make it their mission to restore that law this year.  That’s how we honor those on this bridge. 

Obama left unelaborated what Congress might do in light of the Court's decision in Shelby.  A full text of Obama's speech is here, but the video is worth watching:

 

 

 

March 8, 2015 in Current Affairs, Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, News, Race, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2015

Ninth Circuit Upholds Constitutionality of Ammunition Regulation

In its opinion in Fyock v. City of Sunnyvale, the Ninth Circuit upheld the constitutionality of a voter initiative, Measure C, prohibiting possession of "a large-capacity magazine," whether  "assembled or disassembled" and as defined as "any detachable ammunition feeding device with the capacity to accept more than ten (10) rounds."   The panel affirmed the district judge's denial of a motion for preliminary injunction agreeing that the plaintiff did not demonstrate a likelihood of prevailing on the merits.

Highcapmag-1024x682
image via

Judge Michael Daly Hawkins, writing for the unanimous panel, employed a series of tests to conclude that the restriction survived the Second Amendment.  He articulated the now-common  overarching Second Amendment two-prong test, first asking  "whether the challenged law burdens conduct protected by the Second Amendment”; and second, if so, what level of scrutiny should be applied.  The Ninth Circuit agreed with the district judge that on the record before it, the large capacity magazine restriction burdened conduct within the ambit of the Second Amendment. 

As to the level of scrutiny, the panel relied on Ninth Circuit precedent stating that "to determine the appropriate level of scrutiny, the court must consider (1) how closely the law comes to the core of the Second Amendment right; and (2) how severely, if at all, the law burdens that right." Here, the court found that while the magazine restriction "likely reaches the core Second Amendment right" given that it prohibits such magazines in the home, "its resulting impact" on the core right of self defense in the home is not severe.  Thus, intermediate scrutiny was appropriate.

Finally, the court noted that in the context of Second Amendment challenges, intermediate scrutiny requires: “(1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.”  The court found that Sunnyvale's stated interests - - -to promote public safety by reducing the harm of intentional and accidental gun use; to reduce violent crime and reduce the danger of gun violence, particularly in the context of mass shootings and crimes against law enforcement - - - were undoubtedly substantial and important.  It also stated that there was a reasonable fit: Sunnyvale “submitted pages of credible evidence, from study data to expert testimony to the opinions of Sunnyvale public officials."  The court held that Sunnyvale was entitled to rely on such evidence and that the district judge was not required to find that the ordinance is the least restrictive means of achieving Sunnyvale’s interest.

The opinion is a concise and excellent example of the general state of Second Amendment analysis after District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), especially relevant given increasing efforts to ban large capacity magazines.  

March 4, 2015 in Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Obamacare Subsidies May Turn on Federalism, Constitutional Avoidance

The Supreme Court heard oral arguments today in King v. Burwell, the case testing whether IRS tax subsidies to health-insurance purchasers on a federally-facilitated exchange violate the ACA. We posted our oral argument preview here.

There were no huge surprises, and questions from the bench mostly aligned with conventional beliefs about the Justices' politics (with Chief Justice Roberts, in his near silence, declining to tilt his hand at all).

But questions from Justice Kennedy--one to watch here (along with Chief Justice Roberts)--suggested that federalism principles and constitutional avoidance may drive the case. (That assumes that Justice Kennedy controls the center in the case.) This could be an elegant way for a conservative Justice to uphold the subsidies, because it's rooted in the challengers' argument itself (and not the government's case). In other words, a conservative Justice could accept the challengers' premise, but still uphold the subsidies.

Justice Kennedy at several points raised federalism concerns about the challengers' case: If the challengers are right that Congress designed the ACA so that all states would establish their own exchange (on threat of the death spiral that would result if they defaulted to a federally-facilitated exchange, without tax subsidies), then isn't that coercion in violation of federalism principles? And if that's so, shouldn't the Court reject the challengers' reading for constitutional avoidance reasons? Here he puts the question to Michael Carvin, arguing for the ACA challengers:

Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we'll send your insurance market into a death spiral. We'll have people pay mandated taxes which will not get any credit on -- on the subsidies. The cost of insurance will be sky-high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there's a serious constitutional problem if we adopt your argument.

Later, he made a similar point with General Verrilli: "Because it does seem to me that if Petitioners' argument is correct, this is just not a rational choice for the States to make and that they're being coerced. And that you then have to invoke the standard of constitutional avoidance."

But in terms of constitutional avoidance, Justice Kennedy qualified his earlier statement to Carvin: "It may well be that you're correct as to these words, and there's nothing we can do. I understand that." Justice Kennedy also later seemed concerned with the government's Chevron argument, pointing out that a statute that costs billions of dollars in tax subsidies has to be absolutely clear.

Carvin argued that the ACA didn't create coercion for the states to establish their own exchanges. But he may have painted himself into a corner with the argument, because his argument also assumes that Congress thought all 50 states would establish an exchange, and, as Justices Ginsburg, Sotomayor, and Kagan pointed out, the portion of the ACA establishing a federally-facilitated exchange would be superfluous if all 50 states set up their own exchanges. They also pointed out that he had a different position in the last ACA challenge. Chief Justice Roberts rescued him, though, reminding everyone that he lost.

Most of the rest of the argument involved predictable statutory construction arguments, with no clear winner or loser. Maybe the only surprise was Justice Scalia's cramped reading of the four words, seemingly at odds with his approach (stated at oral argument earlier just this Term) to consider the context and entire statutory scheme when interpreting any individual provision.

Justice Ginsburg noted that standing is an issue, and that the Court can address it itself. Some of the other Justices fished a little around the question with General Verrilli. But in the end, General Verrilli didn't press the point and instead assumed that "because Mr. Carvin has not said anything about the absence of a tax penalty," that at least two plaintiffs still have standing.

March 4, 2015 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

Alabama Supreme Court Orders Probate Judges to Discontinue Issuing Same-Sex Marriage Licenses

In a per curiam opinion in excess of 130 pages, the Alabama Supreme Court has ordered certain probate judges to 'discontinue the issuance of marriage licenses to same-sex couples' in compliance with a district judge's order  and a denial of a stay by the United States Supreme Court.

[UPDATED: Reports state that the controversial Chief Justice Roy Moore  recused himself from the ruling, but neither Moore nor recusal seems to be mentioned in the opinion].  The Alabama Supreme Court's opinion per curiam opinion states that "Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur," and that "Main, J., concurs in part and concurs in the result," and that "Shaw, J., dissents."  Chief Justice Moore is the ninth of the nine justices of the Alabama Supreme Court (pictured below).   

SC2013_Photo_Small

The case is styled 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; In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al., and is an Emergency Petition for Writ of Mandamus. Justice Greg Shaw's dissent highlights the unusual procedural posture of the case: he concludes that the Alabama Supreme Court does not have original jurisdiction, that the public interest groups (Alabama Policy Institute and Alabama Citizens Action Program) cannot sue in Alabama's name and do not have standing, that the petition for writ of mandamus is procedurally deficient given that there is no lower court opinion, and that the court's opinion improperly rules on the constitutionality of the Alabama marriage laws since that issue is not before it.  Justice Shaw concludes:

I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and of great public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law.

Shaw's dissent provides a window into the Alabama Supreme Court's lengthy opinion.  Much of the opinion concerns the odd procedural posture of the case.  The opinion does specifically address the relationship between Alabama and the federal judge's decision by declaring that the "Respondents' Ministerial Duty is Not Altered by the United States Constitution":

The United States District Court for the Southern District of Alabama has declared that Alabama's laws that define marriage as being only between two members of the opposite sex -- what has been denominated traditional marriage -- violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.

Thus, because the Alabama Supreme Court disagrees, Alabama is not bound by the federal decision. The Alabama Supreme Court's "per curiam" opinion on the constitutionality of the same-sex marriage ban is scholarly, lengthy, and well-reasoned (and perhaps more persuasive than the Sixth Circuit's opinion in DeBoer v. Snyder, to which the United States Supreme Court granted certiorari, and on which the Alabama Supreme Court relies extensively).  But this discussion does little to resolve the basic federalism of whether the state is bound by the federal court's judgment.  The court's order does include this specific provision, which may engage the issue most directly:

As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.

This is certainly not the last parry in this continuing federalism struggle.

March 3, 2015 in Courts and Judging, Current Affairs, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Court Clears Path to Internet Tax Reporting Challenge

The Supreme Court ruled today in Direct Marketing Ass'n v. Brohl that out-of-state retailers can move forward with their challenge to Colorado's requirement that the retailers notify Colorado customers of their Colorado sales and use tax burden and report tax-related information to those customers and to the Colorado Department of Revenue.

The case tests a state's best efforts at collecting sales and use taxes for out-of-state and internet purchases by its residents, given the long-standing rule that a state cannot tax out-of-state and internet retailers directly.

The underlying issue goes back to 1967, when the Court ruled in National Bellas Hess, Inc. v. Department of Revenue of Illinois that states cannot require a business to collect use taxes (the equivalent of sales taxes for out-of-state purchases) if the business does not have a physical presence in the state. That rule was based on the Dormant Commerce Clause. The Court reaffirmed that rule in 1992 in Quill Corp. v. North Dakota.

But that rule has created a significant loss of revenue for states, now that so many (and dramatically increasing) sales go through the internet, to out-of-state online retailers. The rule means that states cannot collect use taxes from those retailers.

So some states, like Colorado, implemented information and reporting requirements. For example, Colorado's law requires out-of-state retailers to inform its in-state customers of their use tax burden and to report tax-related information to Colorado tax authorities.

Out-of-state retailers sued, arguing that Colorado's requirements violated the Dormant Commerce Clause. The district court ruled in their favor, but the Tenth Circuit reversed, holding that the suit was barred by the Tax Injunction Act. In a relatively short and simple opinion today, the unanimous Court reversed, holding that the Tax Injunction Act did not bar the suit (because the Act only bars suits against a tax "assessment, levy or collection," and not information and reporting requirements).

The Court's ruling opens the door to the out-of-state retailers' challenge to Colorado's information and reporting requirements. If the district court is right, even these modest efforts violate the Dormant Commerce Clause--and create an even bigger headache for states trying to collect use taxes on their citizens' out-of-state and internet purchases.

On the other hand, Justice Kennedy signaled today in concurrence that the Court may be willing to reassess its Bellas Hess and Quill Corp. rule (or at least that the Court should reassess the rule) in light of the technological changes we've seen in the last 25 years (and the proliferation of online retailers) and the fact that the Dormant Commerce Clause changed enough between the two cases to render the Quill ruling questionable. (Justice Kennedy reminds us that three Justices upheld Bellas Hess in Quill on stare decisis grounds alone, and that the majority recognized that Bellas Hess stood on weak ground.)

Bellas Hess and Quill Corp. go to state use taxes, not information and reporting requirements like Colorado's. Still, the retailers' challenge to Colorado's information and reporting requirements could put Quill on the chopping block. (At least the district court decision striking the requirements relied on Quill.)

If so, this case (in its next round) could give the Supreme Court a chance to reassess the Quill rule and give states more latitude in collecting use taxes from out-of-state and internet retailers.

March 3, 2015 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Obamacare Argument Preview

The Court will hear oral arguments tomorrow in King v. Burwell, the case testing whether the Affordable Care Act authorizes the IRS to provide subsidies to purchasers of health insurance on a federally-facilitated exchange. Here's my oral argument preview ("Significance" section is down below), from the ABA Preview of U.S. Supreme Court Cases, with permission:

FACTS

The Affordable Care Act (ACA), or “Obamacare,” is designed to increase the number of Americans covered by health insurance and to decrease its costs. In order to achieve these goals, the ACA requires most Americans to obtain “minimum essential” coverage or to pay a tax penalty to the IRS. (The ACA, of course, contains many other provisions to achieve its goals, most notably the expansion of the Medicaid program. But the minimum-coverage provision, sometimes called the “individual mandate,” is the one most relevant to this case.)

To facilitate the purchase of health insurance, the ACA establishes health care “exchanges,” where individuals can purchase competitively-priced coverage. The Act provides that “[e]ach State shall . . . establish an American Health Benefit Exchange.” 26 U.S.C. § 1311. But it also provides that if a state does not “elect” to create an exchange, the federal government “shall establish and operate such exchange within the State.” 26 U.S.C. § 1321(c)(1). When the plaintiffs filed this case, 16 states plus the District of Columbia elected to set up their own exchanges; the remaining 34 states relied on the federally-facilitated exchange. (The U.S. Department of Health and Human Services (HHS) establishes the federally-facilitated exchange. It’s at www.healthcare.gov.)

To keep health insurance affordable, the Act provides a federal tax credit to low- and moderate-income Americans to offset the cost of insurance policies. The Act provides the credit to individuals who enroll in a health plan “through an Exchange established by the State under Section 1311.” 26 U.S.C. § 36B.

Pursuant to this provision, the IRS promulgated regulations making the tax credit available to qualifying individuals who purchase health insurance on both state-run and federally-facilitated exchanges. The IRS rule says that credits shall be available to anyone “enrolled in one or more qualified health plans through an Exchange.” The rule adopts by cross-reference a definition of “Exchange” by the U.S. Department of Health and Human Services (HHS) that includes any exchange “regardless of whether the Exchange is established and operated by a State or by HHS.”

The plaintiffs,  Virginia residents who do not want to purchase health insurance, challenged the IRS rule, in particular, the provision of tax credits to purchasers on a federally-facilitated exchange. Virginia declined to establish its own health insurance exchange, so the state uses the federally-facilitated exchange. Without a federal tax credit, the plaintiffs would be exempt from the ACA’s minimum coverage requirement under the ACA’s unaffordability exemption. (This provision exempts individuals from the minimum coverage requirement if the cost of health insurance exceeds eight percent of their projected household income.) But with the federal tax credit, and the resulting reduced cost of health insurance, the plaintiffs do not qualify for the unaffordability exemption, and they must either purchase health insurance or pay the tax penalty. (As this goes to press, media reports have raised serious questions whether some of the plaintiffs are actually affected this way, and therefore whether they have standing to bring this suit. So far, neither the parties nor the Supreme Court have formally addressed these questions.)

The district court rejected the plaitniffs’ claims and upheld the tax credit. The United States Court of Appeals for the Fourth Circuit affirmed. (On the same day that the Fourth Circuit issued its ruling, the United States Court of Appeals for the D.C. Circuit held the opposite—that the ACA did not authorize the IRS to provide tax credits to purchasers on a federally-facilitated exchange. The full D.C. Circuit later vacated that ruling and agreed to hear the case en banc. The court then held the case in abeyance pending the outcome of this case.) This appeal followed.

CASE ANALYSIS

In ruling on an agency’s interpretation of a statute, the Court uses the two-step process set out in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In step one, the Court determines whether statutory language is ambiguous—that is, if it is reasonably susceptible of different interpretations. In making this judgment, courts use all the traditional tools of statutory construction, including the text and context of the provision in question. If the language is clear, “that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”

If the language is ambiguous, however, the court moves to step two. At step two, courts ask whether an “agency’s [action] is based on a permissible construction of the statute”—a highly deferential standard. Courts uphold an agency interpretation so long as it is not “arbitrary, capricious, or manifestly contrary to the statute.” This standard is called “Chevron deference.”

The parties focus principally on the first step. They both argue that the Act’s text, structure, and history give an unambiguous meaning either against tax credits (the plaintiffs) or for them (the government). The parties also argue briefly why the Court should not grant Chevron deference to the IRS (the plaintiffs) or why it should (the government).

The plaintiffs argue that the plain text of the ACA restricts tax subsidies to health insurance purchases through state-run (and not federally-facilitated) exchanges. The plaintiffs point to three provisions: Section 1311, which says that states “shall” establish exchanges; Section 18041(c), which provides that HHS “shall . . . establish and operate such Exchange within the State,” upon a state’s “failure to establish [an] Exchange”; and Section 36B(c)(2)(A) & (B), which authorizes tax subsidies for coverage that is “enrolled in through an Exchange established by the State under section 1311.” The plaintiffs say that these three provisions clearly distinguish between state-run and federally-facilitated exchanges, and just as clearly authorize tax credits only for purchasers through state-run, not federally-facilitated, exchanges.

The plaintiffs assert next that the government’s arguments are meritless and do not override the plain language of the text. The plaintiffs say that just because the ACA authorizes HHS to establish exchanges does not mean that those exchanges are “established by the State” (under Section 36B). They claim that the ACA’s instruction to HHS (under Section 18041(c)) to establish “such Exchange” if a state declines to create an exchange does not mean a state-run exchange (and thus turn a federally-facilitated exchange into a state-run exchange); instead, “such Exchange” only means “an exchange,” whichever entity operates it. The plaintiffs contend that the ACA does not authorize HHS to establish an exchange on behalf of a state (thus making a federally-facilitated exchange a state exchange); instead, it only authorizes HHS to establish a federally-facilitated exchange when a state refuses to establish a state exchange. They say that the ACA’s definition of “Exchange” as one established under Section 1331 does not help the government, but instead just creates confusion and thus clarifies that only exchanges “established by the State” trigger subsidies. And finally the plaintiffs contend that the government’s claim that exchanges are “established by the State” as a matter of law is simply belied by the plain text of the Act.

The plaintiffs argue that other provisions in the ACA support its interpretation. As an initial matter, the plaintiffs claim that Section 36B is the only provision in the ACA that defines the scope of the tax subsidy, and so Section 36B is the only provision that the Court need consult. But the plaintiffs say that other provisions, too, support their interpretation. In particular, the plaintiffs argue that other portions of the ACA expressly deem certain non-state entities (but not the federal government) to be “states,” that other portions treat state-run and federally-facilitated exchanges distinctly, and that other provisions show that Section 36B is the provision that sets the terms of the tax subsidy in all relevant respects. Taken together, the plaintiffs say that the ACA authorizes the tax subsidy only to purchasers on a state-run exchange.

The plaintiffs argue that their interpretation leads to only logical results. They say that conditioning tax subsidies on a state’s creation of an exchange is not inconsistent with Congress’s desire to extend subsidies nationwide. Indeed, they say, that might be the most effective way to achieve Congress’s goal. That’s because tax subsidies, so limited, provide a powerful incentive for states to create their own exchanges, and thus to extend subsidies nationwide. (The plaintiffs point to the ACA’s Medicaid expansion provision as an illustration of how the same ACA uses incentives to states to achieve policy objectives. The plaintiffs claim that the ACA uses tax subsidies for purchasers on a state-exchange to create a similar kind of incentive.) The plaintiffs argue that the ACA’s legislative history supports this interpretation, and they say that its interpretation harmonizes with other provisions in the ACA.

Finally, the plaintiffs argue that Chevron deference cannot save the IRS rule. They say that the text is unambiguous (as above). They also say that an act requiring tax credits must be unambiguous. And they claim that the IRS has no authority to interpret Section 36B, in any event, because Section 36B is codified in Title 42 of the U.S. Code and not the Internal Revenue Code. (For similar reasons, they claim that HHS has no authority to interpret tax laws.)

In response, the government argues first that the Act’s text shows that tax credits are available through both state-run and federally-facilitated exchanges. The government says that “an Exchange established by the State” in Section 36B is a term of art in the Act that includes both state-run and federally-facilitated exchanges. It says moreover that the phrase “such Exchange” in Section 18031(b)(1) means that a federally-facilitated exchange stands in for a state-run exchange, and that therefore tax credits are available under Section 36B to purchasers on both. The government contends that this reading is the only reading that would allow the federally-facilitated exchange to run just like a state-run exchange—and that even the plaintiffs acknowledge that the exchanges should function the same. Finally, the government says that other provisions of the Act—including the Act’s definition of “Exchange” as “an American Health Benefit Exchange established under section 18031”—support its interpretation.

The government argues that the Act’s structure and design confirm its interpretation. It says that nationwide tax credits are essential to the Act’s insurance-market reforms—and that the Act could not achieve its dual goals of increasing coverage and reducing costs without it. Indeed, given the Act’s other provisions, the government says that the plaintiffs’ position “would have disastrous consequences for the insurance markets in the affected States.” Moreover, the government contends that the availability of tax credits in every state is essential to the ACA’s model of cooperative federalism. The government says that the plaintiffs’ reading transforms the ACA’s promise of state flexibility regarding exchanges into a threat that states would suffer severe consequences (lack of affordable health insurance for low- and moderate-income residents), without clear warning from Congress.

The government argues that the history of the Act supports its interpretation, too. The government says that it was well understood when the ACA passed that some states would not establish exchanges for themselves. The government also says that the tax credits are not a condition on a federal spending program available to the states (and thus do not operate as an incentive for states to establish their own exchanges); instead, they are independent federal tax credits, available to federal taxpayers, by virtue of their purchase of health insurance on an exchange. And the government says that the legislative record confirms that Congress intended tax credits to apply in every state.

The government argues that the petitioners’ position would lead to contradictions and other absurd results, given the way other provisions in the Act work. Most notably, the government says, if the plaintiffs’ interpretation were correct, no individual would be eligible to purchase insurance on a federally-facilitated exchange, and no individual-market plans could be sold there. That’s because only a “qualified individual” can purchase individual-market policies on an exchange, and the Act defines “qualified individual” as one who “resides in the State that established the Exchange.” 42 U.S.C. § 18032(f)(1)(A)(ii). Under this definition, there are no qualified individuals in a state with a federally-facilitated exchange.

Finally, the government argues that even if the Act contained an ambiguity, the Court should grant Chevron deference to the IRS interpretation.

SIGNIFICANCE

This case is easily one of the most important cases of the Term, and even of the last several Terms. That’s because a ruling for the plaintiffs would mean that more than eight million people (and perhaps many more) could lose their health insurance, because they would lose their tax credit to purchase insurance at an affordable rate on a federally-facilitated exchange. It would mean that health insurance rates could skyrocket in states with a federally-facilitated exchange as much as 47 percent, according to a recent Rand Corporation study. And it would undermine a critical component of the Affordable Care Act, and probably (as a practical matter) lead to its ruin.

On the other hand, a ruling for the government would only keep the ACA operating as it is, forcing an unspecified (but probably very small) number of individuals to continue to purchase unwanted health insurance with the help of a federal tax credit. To be affected by a ruling for the government, an individual in a state with a federally-facilitated exchange, who did not want health insurance, would have to have just the right income so that the federal tax credit would push them out of an unaffordability exemption to the minimum coverage requirement. Opponents of the ACA who engineered this suit reportedly had difficulty finding individuals who fell into this category to act as plaintiffs. This may be an indication of just how few people are likely to be affected by a ruling for the government. It may also be further evidence that the real purpose of the case is not to protect these plaintiffs, but rather to dismantle the ACA.

Recognizing the importance of the case, amici too numerous to list here have weighed in on both sides. (The medical and insurance industries, at least so far as they participated in this case, favor the government. The U.S. Chamber of Commerce is conspicuously absent from the case.) Print periodicals, blogs, and web-sites are filled with analyses, commentaries, and opinions on the case. Not surprisingly, opinions in these media tend to divide along party lines, revealing just how political this case is.

The Court has commonly accepted tools of statutory construction to help it sort this case out. And the parties have not seriously contested those tools. (Even strict textualists like Justices Scalia and Thomas have said that in a statutory case like this courts look to the language and the broader statutory context. The only real debate is over the significance of legislative history. But the justices probably don’t need legislative history to rule (one way or the other) in the case, anyway.) But just because there is agreement on the tools, that doesn’t mean that the case will be simple, or that the justices will all agree on the result. Indeed, as we have seen, the parties have interpreted the Act very differently, even using the same, or similar, tools of statutory construction. Justices on the Court are likely to divide sharply on the outcome, too, even if they apply the same tools.

Whatever the Court says, the Court’s ruling in the case certainly won’t end debates over the ACA. If the plaintiffs prevail, supporters of the ACA will move quickly to amend the Act to authorize tax credits for purchasers on federally-facilitated exchanges, or to urge all states to create their own exchanges, or both. But there is little evidence that these tactics will work: the Republican-controlled Congress is unlikely to amend the Act, at least without using the case as a bargaining chip to exact significant concessions, which themselves would likely destroy the ACA; and states that declined to create their own exchanges would have little increased incentive to create an exchange (because they would recognize that the ruling would effectively unravel the Act). If the government prevails, opponents of the ACA will continue to rail against it, and vote against it in Congress. But unless and until they garner sufficient votes to override a certain veto by this president, or unless and until an opponent of the ACA moves into the White House, with a win here, the ACA will (continue to) be the law.

One final point: As this goes to press, there are serious questions, raised by Mother Jones and The Wall Street Journal, whether the plaintiffs suffered the kinds of harms that they alleged, and therefore whether they even have standing to bring this case. While neither the parties nor the Court have formally addressed the plaintiffs’ standing during this appeal, the government or the Court could raise it at any time. If so, and if the Court ultimately rules that the plaintiffs lacked standing, the Court would not address the merits of the case, thus leaving the tax credits comfortably in place, at least until opponents of the ACA can bring another case. That could happen quickly, if the D.C. Circuit resurrects its case. Or it could happen never, if opponents have the same standing problems in the D.C. Circuit case and if they have the same difficulties finding new plaintiffs that they had in this case.

March 3, 2015 in Cases and Case Materials, Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2015

Can a State Use an Independent Redistricting Commission?

The Supreme Court heard oral arguments today in Arizona State Legislature v. Arizona Independent Redistricting Commission, the case testing whether Arizona can use an independent commission (established by voter initiative, not by the legislature) to redraw congressional districts in light of the Election Clause's language that says that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ."

At its core, the arguments turn on just how pliable the term "the Legislature" is: Does it mean only the state legislature (as the legislature would have it); or does it also mean the lawmaking power of the state (as the commission would have it)?

The Court and attorneys predictably turned to text and history. The precedent, such as it is, wasn't much help.

Paul Clement, for the legislature, argued that the commission completely cuts the legislature out, by "permanently wresting that authority." It'd be a harder case, he conceded, if there were some role for the legislature. That prompted questions by Justices Kennedy and Kagan about voter-referendum-approved efforts like voter ID, or judge-drawn districts in the context of litigation: Don't those cut the legislature out completely? Clement argued that those initiatives actually delegate authority to the state legislature, not away from it. As to judge-drawn districts (a question from Justice Kennedy), Clement said that the Constitution requires the plan to go to the legislature. They also turned to line-drawing: If "the Legislature" means only the legislature, how can the legislature allow for so many exceptions (that is, how can the legislature allow any role for any other body, like a gubernatorial veto)? And doesn't the legislature still have a role under the commission system? Can't it initiate a referendum? Clement said no to this last point (although he conceded that the legislature could initiate a voter initiate, like anyone else). Still, there was some concern about where and how to draw lines.

The government, as amicus, argued that the legislature lacked standing. But this didn't gain any traction with the Court, and basically fizzled out.

Justices Scalia and Alito hit Seth Waxman, for the commission, with a series of questions about what "the legislature" means in other parts of the Constitution. Justice Kennedy jumped in with the history of state legislative appointments to the Senate, and the overriding Seventeenth Amendment. (It took the Seventeenth Amendment to take state legislatures out of Senate appointments. Why take state legislatures out of congressional line-drawing (without an amendment) here?) Waxman responded that the Court's interpretations favored the commission; but that response didn't seem to satisfy. (Again, the precedent didn't seem to persuade anyone much either way.) When Waxman turned to dictionaries to help him out, Justice Scalia (of all the Justices) pounced: "You've plucked that out of a couple of dictionaries!" Maybe this wasn't so surprising, though: Justice Scalia seemed to believe that he could decide the case on the text alone, and the idea that no other constitutional reference to "the legislature" means anything other than the legislature. Chief Justice Roberts added force when he wondered why Waxman's interpretation didn't make "the Legislature" superfluous. Waxman fell back on an argument that the Framers understood that the same word could mean different things in different contexts, but this point fell flat.

Clement at one point said that the legislature's position wouldn't foreclose the use of an independent commission to draw state legislative boundaries, and that in this way the people (and their commission) could influence the direction of the state legislature and thus influence the state legislature's congressional district map. He also said that it'd be a harder case if the commission didn't completely divest the legislature of all power in the map-drawing process.

If the people of Arizona are looking for a way to influence congressional district maps after this case, these may be all that's left.

March 2, 2015 in Cases and Case Materials, Elections and Voting, Federalism, News, Oral Argument Analysis | Permalink | Comments (1) | TrackBack (0)

Senate Republicans Say They Have a Health Care Plan

Senators Orrin Hatch, Lamar Alexander, and John Barrasso wrote in WaPo that Republicans now have a plan for health care, should the Supreme Court strike the IRS subsidies for health-insurance purchasers on a federally facilitated exchange in King v. Burwell. The plan apparently involves "financial assistance to help Americans keep the coverage they picked for a transitional period." It also involves giving states "the freedom and flexibility to create better, more competitive health insurance markets offering more options and different choices." But the senators are short on detail.

There's another problem. While Hatch, Alexander, and Barrasso claim that "Republicans have a plan to protect Americans harmed by" the loss of IRS subsidies (should Obamacare opponents win in King), the most they can say is that "there is a good deal of consensus on how to proceed" among congressional Republicans.

March 2, 2015 in Cases and Case Materials, Congressional Authority, Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Nebraska Federal Judge Declares Same-Sex Marriage Ban Unconstitutional

Senior United States District Judge Joseph Bataillon has enjoined Nebraska's same-sex marriage ban in its state constitution and found it violates the Fourteenth Amendment in his  Memorandum and Order today in Waters v. Ricketts.

Recall that the United States Supreme Court will be hearing the issue this Term, having granted certiorari to the Sixth Circuit's divided opinion in the consolidated cases of DeBoer v. Snyder. The Court previously denied certiorari to opinions from the Fourth, Seventh, and Tenth Circuits all finding that same-sex marriage bans were unconstitutional, and the Ninth Circuit has ruled similarly.  The Eighth Circuit, in which Nebraska is located, has not issued a definitive opinion on the constitutionality of same-sex marriage. 

NebraskaJudge Joseph Bataillon's ruling sounds in both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He finds that marriage is a "fundamental liberty" and that the same-sex marriage ban is a facial classification based on gender. He also finds that Nebraska's state interests, including opposite sex parenting  and protecting tradition, are insufficient.  Throughout his analysis, he relies heavily on the Seventh Circuit's opinion in Baskin and the Ninth Circuit's opinion in Latta. 

 Interestingly, Judge Bataillon offers a prediction of the Court's conclusion:

The court finds the plaintiffs have demonstrated they will likely prevail on the merits of their claim. The court is persuaded that the Supreme Court will ultimately endorse, for one reason or another, the results obtained in the Fourth, Seventh, Ninth and Tenth Circuit challenges to same sex marriage bans.

Judge Bataillon supports this statement with an interesting footnote [15]:

This conclusion is supported by the Supreme Court's recent denial of a stay of an Alabama district court decision invalidating a same-sex marriage ban. See Strange v. Searcy, 2015 WL 505563 (U.S. Feb. 9, 2015) (denying of application for stay of an injunction preventing Attorney General of Alabama from enforcing Alabama laws as defining marriage as a legal union of one man and one woman) (Justice Thomas noting in dissent that the failure to stay the injunction “may well be seen as a signal of the Court's intended resolution [of the constitutional question it left open in Windsor]."); see also Armstrong v. Brenner, No. 14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014) (denying stay of preliminary injunction barring enforcement of Florida’s marriage exclusion); Wilson v. Condon, 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014) (denying stay of judgment finding South Carolina’s marriage exclusion laws unconstitutional); Moser v. Marie, 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014) (denying stay of preliminary injunction preventing enforcement of Kansas’ marriage exclusion); Parnell v. Hamby, No 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014) (denying stay of district court decision declaring Alaska’s marriage exclusion unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014) (denying application for stay of Ninth Circuit’s judgment finding Idaho’s marriage exclusion laws unconstitutional)

Also, the Supreme Court itself has telegraphed its leanings. See Lawrence [v. Texas] 539 U.S. at 605 (Scalia, J., dissenting) (stating that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage); see also United States v. Windsor, 133 S. Ct. 2675, 2709 (2013) (Scalia, J., dissenting) (essentially stating that the majority opinion in Windsor makes a finding of unconstitutionality regarding state same-sex marriage bans "inevitable.")

The use of Scalia's dissenting opinions is yet another example of the Scalia's "petard" phenomenon.

Also interesting is Judge Bataillon's rejection of injury to Nebraska should there be a preliminary injunction: 

All but one of the plaintiff couples are married in a state that recognizes same-sex marriage. All of the couples have been in committed relationships for many years. Those that have resided in Nebraska have not caused damage to society at large or to the institution of marriage.

The preliminary injunction is effective March 9, at 8:00 am.  Nebraska is reportedly appealing and seeking an emergency stay.

 

March 2, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Gender, Interpretation, Opinion Analysis, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, February 28, 2015

Second Circuit Allows Police Officer's First Amendment Claim

In its opinion in Matthews v. City of New York, the Second Circuit upheld the First Amendment rights of a police officer in a unanimous panel opinion, authored by Judge Walker.

The court reversed the district judge's grant of summary judgment in favor of the City that had concluded that the police officer, Craig Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment. 

At issue is the application of the closely divided Garcetti v. Ceballos  and its "clarification" in the United States Supreme Court's 2014 decision in Lane v. Franks ,regarding the "scope of employment" exclusion for First Amendment protection. Matthews alleged that he was retaliated against for speaking about an alleged quota system mandating the number of arrests, summons, and stop‐and‐frisks that police officers must conduct.  These are the same policies that have been so controversial in NYC and have been considered by the Second Circuit.

NYPD_Special_PatrolmanThe court detailed Matthews' speech:

In February 2009, Matthews, believing that the quota system was damaging to the NYPD’s core mission, reported its existence to then‐Captain Timothy Bugge, the Precinct’s commanding officer at that time. In March and April of 2009, Matthews again reported the quota system’s existence to Captain Bugge, and, in May 2009, Matthews reported the same to an unnamed Precinct executive officer.

In January 2011, Matthews met with then‐Captain Jon Bloch, the Precinct’s new commanding officer, and two other officers in Captain Bloch’s office. Matthews told them about the quota system and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and that it “was having an adverse effect on the precinct’s relationship with the community.”

The Second Circuit panel held that "Matthews’s speech to the Precinct’s leadership in this case was not what he was “employed to do,” unlike the prosecutor’s speech in Garcetti."  Importantly, "Matthews’s speech addressed a precinct‐wide policy.  Such policy‐oriented speech was neither part of his job description nor part of the practical reality of his everyday work."

The court also considered whether the speech had a "civilian analogue," discussing its previous opinion in Jackler v. Byrne, a 2011 opinion in which the panel had also found the speech of a police officer protected by the First Amendment.  In part, the panel's conclusion rested on the fact that "Matthews reported his concerns about the arrest quota system to the same officers who regularly heard civilian complaints about Precinct policing issues."  

In holding that Matthews' speech is protected by the First Amendment, the opinion may be further indication that the grip of Garcetti on employee speech is loosening.  It is not only Lane v. Franks, in which the United States Supreme Court unanimously reversed the Eleventh Circuit's summary opinion and the Second Circuit's previous opinion in Jackler, but cases such as the Third Circuit's Flora v. Luzerne County decided last month.  This is not to say that Garcetti does not remain a formidable obstacle to any First Amendment claim by a public employee, but only that the obstacle is becoming less insurmountable. 

February 28, 2015 in Courts and Judging, Criminal Procedure, First Amendment, Opinion Analysis, Speech, Supreme Court (US), Theory | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 25, 2015

Second Circuit: Community College Not Entitled to Eleventh Amendment Sovereign Immunity

Does a community college stand in the shoes of the state for the purposes of Eleventh Amendment immunity from suit? 

In its opinion in Leitner v. Westchester Community College, a panel of the Second Circuit answered in the negative.

Hartfordhall1-655x270
Hartford Hall at WCC via

The court found that although Westchester Community College (WCC) is part of the state university system of New York (SUNY) that is entitled to Eleventh Amendment immunity, the community college is not similarly shielded.  Essentially, the question is whether the community college is more like the state or more like a local government ("community") which is not entitled to Eleventh Amendment immunity.  The court's rationale focused on the factor of the risk to the state treasury, finding it important that the state only contributes a fraction of WCC's budget, is not responsible for WCC's debts, and it is Westchester County that has the power to issue bonds and levy taxes to support WCC.  The court also considered the issue of state control. There are ten board members of WCC: the state Governor appointed four, while the county appointed five, with one board member elected by the student body. Further, the court considered the laws creating WCC, finding the statutory framework indicates its separation from SUNY.

The opinion seems straightforward even as it is acknowledges the curvatures of the landscape on which it is written. 

First, district courts have found that other SUNY community colleges are embraced by SUNY's sovereign immunity and the Second Circuit itself has found that the City University of New York is similarly entitled to sovereign immunity (even as the City of New York is not). 

Second, the court notes that other circuits examining the question whether a particular stateʹs community colleges are entitled to sovereign immunity have "unsurprisingly" reached disparate conclusions, given that the conclusions are based on state-specific inquiries into those collegesʹ fiscal and governance structures.  

Thus, having concluded that WCC is not entitled to Eleventh Amendment immunity, Carol Leitner's claim for a First Amendment violation can proceed directly against the community college, in addition to the WCC officials who are also defendants.

February 25, 2015 in Cases and Case Materials, Eleventh Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 24, 2015

Morrison on Arizona Redistricting

Prof. Alan Morrison (GWU) offers his take on Arizona State Legislature v. Arizona Independent Redistricting Commission in this ACS Issue Brief. The case, scheduled for argument on March 2, tests whether Arizona's independent redistricting commission violates the Elections Clause and 2 U.S.C. Sec. 2a(c), and whether the state legislature has standing to bring the challenge.

The state legislature claims that the Commission (created by ballot initiative) violates the Elections Clause because it takes out of the hands of "the Legislature" the "Times, Places and Manner of holding Elections for Senators and Representatives."

Morrison argues that Arizona's commission is the state's "second effort at electoral reform," after the Court struck its public financing system in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. He says that gerrymandering reformers "should be rooting hard that the Court rejects the position of the Arizona legislature."

We'll post our oral argument preview soon.

February 24, 2015 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0) | TrackBack (0)

Second Circuit Reverses Itself on Qualified Immunity in Brooklyn Bridge Protest

A panel of the Second Circuit issued its amended opinion in Garcia v. Does now holding that the New York City police officers do have qualified immunity in the First Amendment suit arising from plaintiffs' arrests for participating in a demonstration in support of the Occupy Wall Street movement.

Recall that in December, the full Second Circuit granted review of the case.  In today's opinion, the court noted that it had withdrawn the panel opinion, was granting the petition for rehearing, and now reversing the district judge and remanding the case with instructions to dismiss the complaint.

Thus, the panel now finds that qualified immunity can be - - - and is here - - - established at the pleading stage, citing  Wood v. Moss (2014), noting that  "qualified immunity protects officials not merely from liability but from litigation, that the issue should be resolved when possible on a motion to dismiss, before the commencement of discovery, to avoid subjecting public officials to time consuming and expensive discovery procedures."  This echoes Judge Livingston's dissent in the original panel opinion.

The underlying First Amendment issue was whether defendant police officers "implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law" and then arrested them without "fair warning."  Today's panel opinion now explains:

On the face of the Complaint, the officers were confronted with ambiguities of fact and law. As a matter of fact, the most that is plausibly alleged by the Complaint and the supporting materials is that the police, having already permitted some minor traffic violations along the marchers’ route, and after first attempting to block the protesters from obstructing the vehicular roadway, retreated before the demonstrators in a way that some of the demonstrators may have interpreted as affirmatively permitting their advance. Whether or not such an interpretation was reasonable on their part, it cannot be said that the police’s behavior was anything more than – at best for plaintiffs – ambiguous, or that a reasonable officer would necessarily have understood that the demonstrators would reasonably interpret the retreat as permission to use the roadway.

This "all doubts resolved in favor of the defendants" stance on a motion to dismiss for qualified immunity illustrates how very high the bar has become for protestors raising a First Amendment claim.

800px-Brooklin_Bridge-Nueva_York7093
[image of Brooklyn Bridge via]

February 24, 2015 in First Amendment, Fourteenth Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, February 23, 2015

NJ Trial Judge Overturns Christie's Pension Cuts

A New Jersey trial judge today ruled that Governor Chris Christie's cut to the state's public pension system violated the state and federal contracts clauses. Along the way, the judge also ruled that the state's contractual obligation to fund its public pension system did not violate the state constitutional Debt Limitations Clause and Appropriations Clause, and did not impermissibly infringe on the governor's line-item veto power. Oh, and she also ruled that the trial court had jurisdiction over the case, and that it didn't present a political question.

In a case that "implicate[s] the fragile balance at the heart of the legislative process . . . where political, constitutional, and judicial forces appear to collide," this ruling has a little something for everyone.

As a result of earlier litigation, the state has a statutory obligation to fund its public pension system. And the statute is written to create a contract right on the part of public employees--so that any decision not to fully fund the system immediately implicates the state and federal contract clauses. So when Governor Christie wielded his line-item veto pen to cut the state contribution out of the legislature's appropriation bill (because of unexpectedly low revenues), the plaintiffs were waiting in the wings with their contracts clause claims. And the judge agreed with them. That part of the ruling is unremarkable.

But the Governor's creative defenses--and the court's rejection of them--demand some attention. The governor argued that the statutory obligation to fund the public pension system violated the state constitutional Debt Limitations Clause (which limits state borrowing burdens) and the Appropriations Clause. Moreover, Governor Christie said that the statutory obligation intruded upon his executive power to veto legislation. The court reviewed the text, history, and cases on the relevant state constitutional provisions and concluded that they did not override the state's statutory obligation to fund its public pension system.

The ruling means that the state has to find $1.57 billion to fund the system. Governor Christie will likely appeal.

February 23, 2015 in Cases and Case Materials, Contract Clause, Executive Authority, News, Opinion Analysis, Separation of Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Fifth Circuit to Rehear Off-School Speech Case

The Fifth Circuit last week granted a school district's petition for rehearing en banc in a case involving off-campus student speech. The grant means that the full Fifth Circuit will get a crack at the issue whether and how off-school student speech critical of a school employee, but not otherwise disrupting the school, is protected under the First Amendment.

The case, Bell v. Itawamba County School Board, arose when a high school student was suspended for recording and posting on his Facebook page a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at the school. The student, Taylor Bell, wrote the song, recorded it, and posted it off campus, at facilities unrelated to the school. While students heard the song, they shouldn't have heard it at school--no cell phones, no Facebook on campus--and it didn't cause any disruption or interference with school activities. So the majority on the three-judge panel reversed the district court and ruled for Bell:

[T]he Supreme Court's "student-speech" cases, including Tinker, do not address students' speech that occurs off campus and not at a school-approved event. The Court has not decided whether, or, if so, under what circumstances, a public school may regulate students' online, off-campus speech, and it is not necessary or appropriate for us to anticipate such a decision here. Even if Tinker were applicable to the instant case, the evidence does not support the conclusion, as required by Tinker, that Bell's Internet-posted song substantially disrupted the school's work and discipline or that school officials reasonably could have forecasted that it would do so.

Given that the Court hasn't ruled on the issue, this may be one to watch.

February 23, 2015 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)