Monday, December 31, 2012

No Standing to Challenge President's NLRB Recess Appointments

The Seventh Circuit ruled last week in Richards v. NLRB that the petitioners lacked standing to challenge President Obama's 2012 recess appointments to the NLRB.  The ruling means that this challenge to the recess appointments is dismissed.  We posted on another challenge, in the D.C. District, with links to other posts on those recess appointments, here.

The Seventh Circuit case arose out of a dispute over unions' rule that required non-union employees to file an annual objection to opt out of paying dues for the unions' non-collective-bargaining activities.  (Non-union members that are part of a union's collective bargaining unit can be charged dues for a union's collective bargaining, but they cannot be required to pay dues for non-collective-bargaining activities, like political activities.)  Non-members filed unfair labor practice charges against the unions, arguing that the annual renewal requirement violated the unions' duty of fair representation by placing an undue burden on objectors.  They sought an order striking the policies and a refund for non-members who at one time objected but failed to renew their objections.  The petitioners did not seek a refund for themselves, because they renewed their objections every year.

The NLRB granted the order striking the annual renewal requirement, but denied the refund for other non-members.

While the case was pending at the NLRB (on the petitioners' motion for reconsideration), on January 4, 2012, President Obama made three recess appointments to the Board, without which the Board would have lacked a quorum.  The NLRB later denied the petitioners' motion for reconsideration.

The petitioners argued that President Obama's appointments were invalid, and therefore that the NLRB's action on reconsideration was invalid.  They said that the Recess Appointments Clause allowed the President to make recess appointments only during intersessions of Congress (any recess between the two annual sessions of Congress, generally starting in December and ending on January 3, when the next session starts), not intrasessions of Congress (any recess during an annual session of Congress).  They also said that the Senate didn't consider itself in recess when President Obama made the appointments.  (It was in pro forma sessions.)

The Seventh Circuit dismissed the case for lack of standing and didn't reach the merits.  The court ruled that the plaintiffs already got all the relief they asked for and all they qualified for--that they suffered no injuries from NLRB decisions that could be remedied on appeal.  In particular, the court said that the NLRB already struck the annual renewal requirement, and that the petitioners didn't qualify for a refund because they renewed their objections annually and didn't pay the non-collective-bargaining assessment.

The court also ruled that the plaintiffs didn't have standing to seek postage fees they paid for their annual objection renewals, because they didn't raise this claim at the NLRB.

SDS

December 31, 2012 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Sunday, December 23, 2012

Judge Sullivan Dismisses Filibuster Challenge

Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed Common Cause v. Biden, the legal challenge to the Senate's filibuster rule.  Recall that Judge Sullivan heard oral arguments in the case earlier this month, and that standing was front and center.  it wasn't surprising then that Judge Sullivan's ruling on Friday turned on standing, and on separation of powers.

The ruling ends the case, unless and until the plaintiffs appeal.  It seems unlikely that the D.C. Circuit would rule differently.  In any event, if the Senate Democrats succeed in reforming the filibuster at the beginning of the next Congress, the case may become moot.

Judge Sullivan ruled that the plaintiffs lacked standing.  As to the House members: he wrote that he was "not persuaded that their alleged injury--vote nullifcation--falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd."  Op. at 2.  As to the other plaintiffs: they failed to "demonstrate[] that this Court can do anything to remedy the alleged harm they have suffered: the inability to take advantage of the opportunity to benefit from proposed legislation [the DREAM Act] that was never debated, let alone enacted."  Op. at 2.

On separation of powers, Judge Sullivan said that Article I reserves to each House the power to determine its own rules, and there's nothing in the Constitution constraining the Senate from allowing debate to continue absent a super-majority vote.  "[A]bsent a rule's violation of an express constraint in the Constitution or an individual's fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court."  Op. at 3.

SDS

December 23, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, December 13, 2012

Daily Read: Greenhouse on Standing in the Same-Sex Marriage Cases

The Court's grant of certiorari last week in two same sex marriage cases included the question of standing in both.

The standing issues atypically arise not from the original plaintiffs' qualifications under Article III of the Constitution, but flow from the governments' decision not to defend the constitutionality of the challenged government action: California's refusal to defend Proposition 8 in Perry v. Brown and the Obama Administration's decision not to defend DOMA in Windsor (and in previous cases beginning in February 2011)

The inimitable Linda Greenhouse shares her analysis of the standing issues, admitting she is fascinating by the "procedural game the Supreme Court is playing in the same-sex marriage cases."

Greenhouse writes in the NYT Opinionator that her original thought was that the Court could be using "the jurisdictional issue as a kind of safety valve for a deeply polarized court."

But on reflection, that theory doesn’t really make sense, because a finding of no jurisdiction under these circumstances would call into question the court’s ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.

Greenhouse then provides some her own hypothesis - - - and it is certainly worth a read.

RR

December 13, 2012 in Courts and Judging, Current Affairs, Family, Jurisdiction of Federal Courts, Sexual Orientation, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, December 10, 2012

Filibuster Challenge Goes to Court

Judge Emmet G. Sullivan (D.D.C.) heard oral arguments on Monday on the defendant's motion to dismiss in Common Cause v. Biden, the case challenging the Senate's filibuster rule.  We posted on the case back in May, when it was filed.  Roll Call summarized the arguments here.  Common Cause has a case resource page here.

Recall that Common Cause filed the case along with four Democratic House members arguing that the Senate's cloture rule, Rule XXII, which requires 60 votes to end debate on a matter, violates the constitutional background principle of majority rule.  Common Cause argued that the Senate filibustered the DREAM Act, harming certain aliens.  See our May post for more on the particular arguments and for background on the filibuster.

According to Roll Call, the arguments today focused on standing: whether the House Dems had it (based on the Senate holding up their favored legislation on filibusters), and whether Common Cause's clients had it (based on their claim that the Senate would have passed the DREAM Act but for the filibuster).  Roll Call reports that Judge Sullivan was deeply engaged and asked for further briefing because the lawsuit raised "complicated issues."  But even if the plaintiffs get past standing, they'll certainly face other hurdles before Judge Sullivan will ever rule on the merits--the political question doctrine and the Senate's authority to determine its own rules, just to name a couple.  (Anticipating these objections, Common Cause says that if a court can review an Act passed by the Senate, it can certainly review a Senate rule.)

The oral arguments come in the midst of increasing talk of filibuster reform in the 113th Congress.  We covered the issues and linked to resources when there was similar talk at the beginning of the 112th Congress.

SDS

December 10, 2012 in Cases and Case Materials, Congressional Authority, News, Oral Argument Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 4, 2012

Federal District Judge Enjoins California's Law Prohibiting Sexual Orientation Conversion Therapy

California's SB 1172, slated to become effective January 1 and 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.  Senior District Judge William Shubb, in an opinion issued late yesterday in Welch v. Brown, has issued a temporary injunction of the statute. 

494px-Flag-map_of_California.svgConsidering the claims of two therapists and one potential therapist who had undergone SOCE as an adult, Judge Shubb first held that the plaintiffs did not have third party standing to assert the claims of minors or parents.  As to the therapists, however, Judge Shubb held that their First Amendment claims were entitled to strict scrutiny which they were unlikely to survive on the merits.

In so doing, Judge Shubb rejected the argument that lesser standards under the First Amendment should apply given that the regulation was directed at a profession.  Additionally, the judge rejected the argument that the regulation was directed at conduct rather than speech, holding that because "at least some forms" of SOCE involve "talk therapy," speech was the central issue. 

Supporting the conclusion that strict scrutiny was the correct standard, Judge Shubb focused on the legislative history of SB1172: the "Legislature’s findings and declarations convey a consistent and unequivocal message that the Legislature found that SOCE is ineffective and harmful." 

Below is a video of the legislative floor statement of the bill's sponsor, Senator Ted Lieu, and the subsequent vote:

 

 

 

For Judge Shubb, because "a mental health provider’s pursuit of SOCE is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality."  Thus, Judge Shubb concluded that the statute was undoubtedly subject to strict scrutiny.

In addition to Ninth Circuit precedent, Judge Shubb relied heavily upon the Supreme Court's 2011 decision in Brown v. Entertainment Merchants Ass’n, finding unconstitutional California's violent video game sale to minors prohibition.  Quoting from Entertainment Merchants, Judge Shubb stressed that SB1172 cannot survive strict scrutiny "unless the state demonstrates an “'actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors.  While protecting minors was a compelling state interest, Judge Shubb faulted the legislative findings:

evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny.

Judge Shubb also faulted the "underinclusiveness" of the statutory scheme:

Here, SB 1172 prohibits only mental health providers from engaging in SOCE and, as defendants have pointed out, unlicensed individuals who do not qualify as “mental health providers” under the bill can engage in SOCE. If SOCE is harmful and ineffective, the harm minors will endure at the hands of unlicensed individuals performing SOCE is equal, if not greater,than the harm they would endure from mental health providers performing SOCE. In fact, the California Legislature has previously “recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology.”  [citation omitted] The limited scope of SB 1172 therefore suggests that it is likely underinclusive in its application only to mental health providers.

Given Judge Shubb's reasoning, it is likely that he will issue a permanent injunction and equally likely that the decision will be appealed to the Ninth Circuit.

RR
[image via; video via]

UPDATE here

December 4, 2012 in Family, First Amendment, Opinion Analysis, Sexual Orientation, Speech, Standing | Permalink | Comments (1) | TrackBack (0)

Sunday, November 18, 2012

Court Grants Temporary Injunction Against ACA Contraception Requirement

Judge Reggie Walton (D.D.C.) on Friday granted plaintiffs a temporary injunction in Tyndale House Publishers, Inc. v. Sebelius stopping the Secretary from enforcing HHS regs under the Affordable Care Act that require health insurance plans to provide contraception coverage against a self-insured Christian publishing house.  Judge Walton wrote that the plaintiffs were likely to succeed on their Religious Freedom Restoration Act claim and that they met other requirements for a temporary injunction.  The ruling, should it stand, paves the way for self-insured plaintiff-corporations to challenge the contraception requirement under the RFRA.

Tyndale House Publishers is a small Christian publishing house that operates under a Christian "statement of belief and policy" outlining its religious beliefs.  It doesn't offer its employees an outside health insurance plan; instead, it's self-insured and thus pays directly for its employees' health benefits.  Mark Taylor, the other named plaintiff, is Tyndale's president and CEO.

The plaintiffs balked at HHS regs, enacted under the ACA, that, with certain exemptions for religious organizations, require employers to provide contraception as part of their employee health insurance plans.  Importantly, they complained only about "drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo."  They filed suit, arguing that the regs violated the RFRA; the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment; the Fifth Amendment Due Process Clause; and the Administrative Procedures Act. 

The RFRA forbids the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the government can "demonstrate[] that application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest."  42 U.S.C. Sec. 2000bb-1(a), (b).

Judge Walton first concluded that the plaintiffs had standing.  He wrote that Tyndale had standing under EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), which held that a corporation has standing to assert the free exercise rights of its owners.  Alternatively, Tyndale had third-party standing to assert its primary owner's free exercise rights.

As to the substance, Judge Walton wrote that Tyndale showed a "substantial burden," because

the contraceptive coverage mandate similarly places the plaintiffs in the untenable position of choosing either to violate their religious beliefs by providing coverage of the contraceptives at issue or to subject their business to the continual risk of the imposition of enormous penalties for its noncompliance.

Op. at 22.  Judge Walton distinguished O'Brien v. HHS (E.D. Mo. 2012) (holding that the plaintiff did not suffer a substantial burden, because it provided employee health insurance through a group plan), because here the self-insured plaintiff, Tyndale, would pay directly for its employees' contraception (and not indirectly, through a group plan).  Judge Walton explained:

The court dismissed the plaintiffs' RFRA claim [in O'Brien], holding that the plaintiffs had failed to show that the contraceptive coverage mandate substantially burdened their religious exercise.  Describing the burden at issue as the "funds, which plaintiffs will contribute to a group health plan, [that] might, after a series of independent decisions by health care providers and patients covered by [the company's] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion," the court reasoned that the burden on the plaintiffs' religious exercise was simply too attenuated to qualify as "substantial." . . . 

Here, the plaintiffs provide direct coverage to Tyndale employees through a self-insured plan in which "Tyndale acts as its own insurer."  This difference in the manner in which coverage is provided is significant because while the company in O'Brien contributes to a health insurance plan which ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the health care services used by its plan participants, thereby removing one of the "degrees" of separation that the court deemed relevant in O'Brien.

Op. at 23-24.

Judge Walton also concluded that the government's compelling interests in promoting public health and providing employed women with access to health care on par with employed men wouldn't be undermined by exempting Tyndale (and therefore weren't necessary here), because the government already exempts a number of other employers.  He noted that Tyndale objected only to certain kinds of contraception--Plan B, ella, and intrauterine devices--and provided some other contraceptive coverage through its health plan, and that requiring Tyndale to provide the full range of contraceptives wasn't necessary to achieve public health and equality between female and male employees.

SDS

November 18, 2012 in Cases and Case Materials, First Amendment, Free Exercise Clause, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, November 5, 2012

D.C. Circuit Says Navy Chaplains Have Standing to Challenge Promotion Policies

A three-judge panel of the D.C. Circuit ruled in In re Navy Chaplaincy that Navy chaplains have standing to lodge their Establishment Clause claims against the Navy's chaplain promotion policies.  The court also ruled that the lower court issued insufficient factual findings for it to review the chaplains' likelihood of success on the merits in evaluating their motion for a preliminary injunction.  The court thus reversed the lower court ruling and remanded for further findings.  In short, the ruling means that the case will go back to the lower court for additional findings related to one of the chaplains' Establishment Clause claims on their motion for a preliminary injunction.

The chaplains argued that Navy policies violated the Establishment Clause in two ways.  First, they argued that the Navy improperly delegated government authority over promotion decisions to a religious entity by allowing chaplains themselves to make promotion decisions without sufficient, secular standards.  Next, they argued that the Navy's promotion procedure--small selection boards, secret votes, and the appointment of the Chief of Chaplains as president--have resulted in denominational discrimination and, if not, will likely result in such discrimination in the future.

The district court ruled that the chaplains lacked standing (because they alleged future speculative harms, not imminent harms) and that they were unlikely to succeed on either substantive claim.  It thus dismissed the case and alternatively rejected the chaplains' motion for a preliminary injunction.

The D.C. Circuit reversed.  It ruled that the chaplains had standing, because they challenged actual policies that the Navy planned to use in the future, and because at least some chaplains will probably appear before selection boards in the near future.  Comparing the case to City of Los Angeles v. Lyons the court wrote, "Unlike in other cases, like Lyons, where plaintiffs speculated about the very existence of the unwritten discriminatory practices at issue, here the Navy acknowledges that the challenged policies and procedures not only exist, but will continue to govern the conduct of future selection boards."  Op. at 9.

The court agreed with the district court that the chaplains were unlikely to succeed on their first substantive claim--the one about delegation of authority to a religious entity without standards.  (The court wrote that there were standards, making this case a "far cry from the 'standardless' delegation scheme at issue in [Larkin v. Grendel's Den, Inc.]."  Op. at 14.  But the court said that the lower court didn't issue sufficient facts for it to evaluate the second claim--the one about the likely discriminatory effects of the promotion procedure.  It thus remanded the case for findings on this claim.

SDS

November 5, 2012 in Cases and Case Materials, Establishment Clause, First Amendment, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, October 29, 2012

Government Faces Skeptical Court on Standing to Challenge FISA Amendments

The Supreme Court heard oral arguments today in Clapper v. Amnesty International, the case testing the plaintiffs' standing to challenge the government's vastly expanded surveillance authority under the FISA Amendments Act, or the FAA.  We posted on the lower court ruling that a group of attorneys, journalists, and human rights organizations had standing to challenge the FAA here.

The plaintiffs always faced a unique standing problem in challenging the FAA: The very nature of government surveillance says that those surveilled cannot know that they've been surveilled, or harmed, especially when the real targets of the surveillance are the plaintiffs' overseas clients and contacts (and not immediately the plaintiffs themselves).  As a result, the plaintiffs had to argue two kinds of harm to satisfy standing requirements:  (1) that they've had to take current measures to ensure against FAA surveillance and (2) that their communications are imminently going to be surveilled (given the nature of them).

The government, on the other hand, argued that any harm is purely speculative and the result of the plaintiffs' own doing (and not the authority under the FAA), and that any harm could have occurred, anyway, but under a different surveillance authority.  (This last argument says that the plaintiffs' harm isn't sufficiently traceable to the FAA, and that a judgment on the FAA wouldn't redress the plaintiffs' harm.  Causation and redressibility are two other requirements for standing, in addition to harm.)

The Court seemed skeptical of the government's claims at arguments today.  Justices Ginsburg, Breyer, Sotomayor, and Kagan grilled SG Verrilli on his arguments, and Justices Sotomayor and Kagan seemed especially troubled that the government's position would leave the plaintiffs without any effective way to challenge surveillance under the FAA.  Chief Justice Roberts and Justice Scalia chimed in with concerns about the government's argument that it might conduct surveillance of the plaintiffs' communications under a different authority, leaving the plaintiffs unable to show causation or redressibility.  (It wasn't clear that their concerns with the government's position extended beyond that particular argument, though.)  And finally Justice Kennedy seemed especially troubled with the government's position on the attorney-plaintiffs: the government said that any decision by the attorney-plaintiffs not to communicate with overseas clients for fear of surveillance was caused by rules of professional responsibility, and not by the threat of FAA surveillance.  (Justice Kennedy's concern is one to watch.  This harm--attorney-plaintiffs curtailing communication with clients for fear of surveillance--is the most acute and well defined harm in the case.  It's also one that will resonate best with this group of nine lawyers.  And it's important that Justice Kennedy raised it: He may provide the key vote.)

In all, the government's argument came across as overly formalistic, especially considering the very high stakes for the plaintiffs.  The Court's questions seemed to highlight that.

On the other side, there was some back-and-forth on just how certain government surveillance must be to create a sufficiently likely harm--"certainly impending," or "substantial risk."  Chief Justice Roberts pushed for the former (and higher) standard, while Justice Kennedy pointed out that in those cases where we knew the government act was occurring (as here) the standard was the lower "substantial risk."  Justice Alito asked whether the plaintiffs might manufacture their own standing (and thus work an end-run around a higher "certainly impending" standard) by alleging current preventative measures as the harm--just as the plaintiffs did here.  As to the threat of surveillance and the plaintiffs' precautions against that threat, Chief Justice Roberts wondered whether that wasn't a harm in every case, e.g., in an ordinary criminal case when a criminal defense attorney seeks to get information from his or her client.  (The attorney wouldn't use e-mail or phone; he or she would talk in person.)  Finally, Justice Scalia asked whether the FISA court didn't serve as a check on Fourth Amendment violations.

If the government's argument was overly formalistic, the plaintiffs' claimed harms might have seemed too vague to some on the Court, especially if the Court adopts the higher "certainly impending" standard for the plaintiffs' claimed future harms.

Arguments today revealed what we already knew about this case: It'll be close.  But on balance, the Court seemed to favor standing.

SDS

October 29, 2012 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, October 4, 2012

Eighth Circuit Rejects ACA Challenge for Lack of Standing

The Eighth Circuit ruled in Kinder v. Geithner that a private individual and Missouri's Lieutenant Governor (acting in his personal capacity) lacked standing to challenge the universal coverage provision of the Affordable Care Act.

The Supreme Court, of course, settled the issue last summer.  But that didn't stop the plaintiffs here (who filed before the Court ruled)--even if they couldn't identify the relief they sought (after the Court ruled).  The Eighth Circuit side-stepped these problems, though, and ruled instead that the plaintiffs lacked standing.  The ruling means that the case is dismissed.

One plaintiff, Samantha Hill, wrote in her complaint that the ACA forced her to purchase a health plan that she didn't want.  In particular, Hill claimed that she wanted to buy only a high-deductible, "catastrophic" health plan, but that the ACA allowed a person to buy such a plan only if that person were under 30 years old and certified that his or her premiums amounted to more than eight percent of his or her household income. 

The court ruled that Hill misread the statute.  The ACA allows a person under 30 or a person whose premiums amount to more than eight percent of household income to purchase a catastrophic plan.  Hill was under 30, and the Act therefore allowed her to buy a catastrophic plan.  No injury.

(The court rejected Hill's several creative readings of her own complaint to get around this result.  In the end, it seems, one of two things happened: somebody mis-read an "and" for an "or" in the ACA; or somebody wrote a pretty sloppy complaint.)

The court rejected LG Morris's claim, because he never said he'd be affected by the universal coverage requirement: he's already insured.  No injury.

If the case weren't dismissed for lack of standing, it obviously would have been dismissed on the merits, after the Court's ruling in NFIB v. Sebelius.

SDS

October 4, 2012 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 11, 2012

Ninth Circuit on the Unconstitutionality of Criminalizing Women's Self-Abortion

449px-The_PrisonerIn its opinion in McCormack v. Hiedeman today, a panel of the Ninth Circuit considered the constitutionality of Idaho's "unlawful abortion" statutes, making it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged with a felony by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  While a state magistrate had dismissed the charge without prejudice, the prosecutor had not determined whether or not to re-file a criminal complaint. McCormack brought an action in the federal district court challenging the constitutionality of the Idaho statutes.  The district judge granted a preliminary injunction against the statutes' enforcement.

At the heart of the constitutional inquiry was whether or not a pregnant woman could be constitutionally held criminally liable under an abortion statute.  The prosecutor essentially argued that criminalizing nonphysicians performing abortions is consistent with Roe v. Wade and Planned Parenthood v. Casey.   

The Ninth Circuit, however, agreed with the district judge that imposing criminal sanctions on a pregnant woman imposes an "undue burden" under Casey.  The "undue burden" resulted because the statute required the woman to police the abortion providers' actions or risk criminal sanctions herself:

If a woman terminates her pregnancy during the first trimester but fails to ask the physician whether the office has made “satisfactory arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise,” she would be subject to a felony charge if the physician has not made such arrangements. Idaho Code § 18-608(1). If a woman finds a doctor who provides abor- tions during the second trimester of a woman’s pregnancy, but the doctor fails to tell the pregnant woman that the abortion will be performed in a clinic as opposed to a hospital, the pregnant woman would be subject to felony charges. Idaho Code § 18-608(2). Or, as is the case here, if a woman elects to take physician prescribed pills obtained over the internet to end her pregnancy, which is not authorized by statute, she is subject to felony charges. Idaho Code §§18-608(1)-18- 608(3).

The court also found McCormack's economic situation and the lack of abortion providers in her area to contribute to the "undue burden."

The Ninth Circuit panel found McCormack had standing, but narrowed the district court's injunctive relief to apply only to McCormack since there had been no class certification.

For pregnant women facing prosecutions under abortion statutes, the Ninth Circuit's opinion is an important and persuasive statement on the unconstitutionality of criminal sanctions.

RR
[image: The Prisoner, artist unknown, circa 1907, via]

September 11, 2012 in Abortion, Due Process (Substantive), Gender, Medical Decisions, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, September 6, 2012

Court Orders FEC to Reconsider Ruling on Access to Debates

Judge Rudolph Contreras (D.D.C.) ruled in La Botz v. FEC that the Commission's decision upholding a private organization's standards that kept the plaintiff out of the organization-sponsored U.S. Senate debates in Ohio in 2010 were not supported by substantial evidence.  Judge Contreras sent the case back to the FEC for further consideration.

La Botz, a member of Ohio's Socialist Party, didn't get an invitation to the U.S. Senate debates sponsored by the Ohio News Organization (ONO), a consortium of eight newspapers in Ohio.  He complained to the FEC that the ONO failed to use "pre-established, objective criteria" in determining who got to participate, as required by FEC regs.  The FEC dismissed the complaint with no more than a conclusory sentence of analysis (based on a single, flawed affidavit of an editor of one of the ONO newspapers) concluding that the ONO's standards satisfied FEC regs.  La Botz sued.

Judge Contreras ruled that La Botz had standing, and that the case was not moot (because it was capable of repetition yet evading review).  Then he sent the case back to the FEC for a more complete analysis, supported by substantial evidence.

The ruling means that the FEC will have another crack at it.  But even a ruling for La Botz (obviously) won't have a direct impact on his 2010 Senate run.  At most, it'll tell the ONO what kinds of criteria it needs to adopt the next time around. 

SDS

September 6, 2012 in Cases and Case Materials, Courts and Judging, Elections and Voting, Mootness, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, August 27, 2012

Another Catholic School Challenge to Women's Health Regs Dismissed

Judge Ellen Segal Huvelle (D.D.C.) dismissed Wheaton College's case against Secretary Sebelius over federal regs under the ACA that require covered employers to provide women with certain forms of preventive care, including all FDA-approved forms of contraception, without cost sharing.

The case is the second in as many months dismissed for lack of standing and ripeness in the D.C. District.  We posted on the earlier case, Belmont Abbey College v. Sebelius, here.  This case, by a different judge, now makes it even less likely that any of these suits will succeed.

(There are two other district court rulings.  In one, State of Nebraska ex rel. Bruning v. Sebelius, Judge Warren Urbom (D. Ne.) dismissed claims by religious organizations, individuals, and the state itself for lack of standing--the same ruling as in Belmont Abbey and Wheaton College, but also including individual and state plaintiffs.  In another, Newland v. Sebelius, Judge John Kane (D. Co.) granted a preliminary injunction to a private corporation, not a religious organization covered under the safe harbor.  Newland is different than the other cases, because it was brought by a private corporation with no protection under the safe harbor.)

The most recent case, Wheaton College v. Sebelius, involved the same and very similar issues as those in Belmont Abbey--that is, whether the government's "safe harbor" and commitment to reconsider its regs left the plaintiff without standing and the case without ripeness.  Like Judge Boasberg in Belmont Abbey, Judge Huvelle said yes on both counts.

Judge Huvelle rejected Wheaton College's argument that it might be subject to litigation as too speculative.  She also rejected Wheaton College's argument that it might be subject to a new government position at any time--just as the D.C. Circuit ruled in Chamber of Commerce v. FEC that the Chamber of Commerce might have been subject to an FEC enforcement proceeding at any time, even with an FEC evenly split between Democrats and Republicans.  Judge Huvelle wrote that Chamber of Commerce was different, because here the government's commitment not to act against employers that qualify for the safe harbor (including Wheaton College) "was the product of sustained agency and public deliberation, and it represents a final decision, that has been reiterated twice."  Op. at 11.

SDS

August 27, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Free Exercise Clause, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Ripeness, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, August 23, 2012

Probationer Lacks Standing to Sue Alcohol Testing Company

The Eighth Circuit ruled today in Miller v. Redwood Toxicology Laboratory, Inc. that a probationer, Miller, who was wrongly determined to have consumed alcohol in violation of his probation lacked standing to sue an alcohol testing company under a state false advertising law.

The case arose out of Miller's suit against Redwood Toxicology after Redwood submitted alcohol test results that indicated that Miller consumed alcohol in violation of his probation terms.  Based on the results, Miller was taken into custody--for four-and-a-half months.  But the judge at the contested probation violation hearing ruled that the state failed to meet its burden--in part because Miller had "significant incidental exposure" to alcohol that led to the result--and ordered his release. 

Miller sued Redwood under the Minnesota False Statement in Advertising Act and common law negligence, arguing, among other things, that Redwood's test results led to his erroneous probation report, detention, lost income and work, lost liberty, and emotional harm. 

The Eighth Circuit ruled that Miller lacked standing on the False Statement claim, because he didn't sufficiently allege causation.  The court explained:

Indeed, Redwood did not file a probation violation against Miller.  It was the State that filed the probation violation and incarcerated Miller.  Too, it was the State that chose the particular test, ultimately established and implemented the cut-off levels for the probationers it tested, and interpreted the test results provided by Redwood accordingly.  The amended complaint does not and cannot allege a causal connection between Redwood's actions and any presumed injury suffered by Miller sufficient for purposes of Article III.

Op. at 9.  This holds, said the court, even though the state supreme court has said that a strict showing of causation is not required in a damages claim under the law.  Whatever the state supreme court says about standing in the state's own courts, it cannot override Article III requirements for cases in federal court.

In contrast, the court ruled that Miller did have standing on his common law claims--based on Redwood's failure to warn him of its known false positive rate when it gave Miller the results.  The court nevertheless dismissed these claims, too, though, saying that Miller failed to allege that Redwood violated its duty of care.

SDS

August 23, 2012 in Cases and Case Materials, Courts and Judging, News, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, August 20, 2012

Eleventh Circuit on Georgia's Immigration Statute

517px-Flag-map_of_Georgia_(U.S._state).svgSections 7 and 8 of Georgia's immigration regulation statute, known as HB 87, were enjoined by federal district Thomas Thrash in June 2011, a few months after the law was passed. 

Today, the Eleventh Circuit, in its opinion in Georgia Latino Alliance for Human Rights v. Governor of Georgia, upheld the injunction against Section 7 - - - the criminalization of transporting, harboring, or inducing to enter Georgia any "illegal alien" - - - finding the provisions preempted by federal law. The court found that the Georgia statute directly conflicted and was an obstacle to federal immigration law. 

The court, however, reversed the injunction against Section 8 - - - the "show me your papers" provision - - - relying upon the Supreme Court's June opinion in Arizona v. United States.  However, the Eleventh Circuit left open an "as applied challenge" to section 8, much as the Court did in Arizona v. US.

While the Eleventh Circuit spent a substantial portion of its 33 page opinion rejecting the state's challenge to plaintiffs' standing as well as the state's argument that there was no private cause of action under the Supremacy Clause or preemption, the preemption analysis is central and well-supported.

RR
[image of Georgia flag/map via]

 

August 20, 2012 in Federalism, Opinion Analysis, Preemption, Standing, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit: No Standing to Challenge EPA Fuel Regs

A sharply divided three-judge panel of the D.C. Circuit ruled on Friday in Grocery Manufacturers Ass'n v. EPA that three trade associations lacked standing to challenge EPA's "partial" waivers allowing the introduction of a new ethanol biofuel.

The ruling means that EPA's waivers stand, allowing the introduction of an unleaded gasoline blend containing 15 percent ethanol for use in model-year 2001 and newer light-duty motor vehicles and engines.  The case also deepens a circuit split on the question whether prudential standing is jurisdictional (and therefore reviewable even if a party doesn't challenge it).  The panel majority said yes--a holding that seems in tension with the direction of both the Supreme Court and the circuit itself. 

Between these two issues--the underlying issue of EPA's authority to issue waivers for a new biofuel, and the issue whether prudential standing is jurisdictional--this case may make a good candidate for Supreme Court review.

The case arose out EPA's "partial" waivers of the Clean Air Act provision that prohibits manufacturers from introducing into commerce "any fuel or fuel additive for use by any person in motor vehicles manufactured after model year 1974 which is not substantially similar to any fuel or fuel additive" used in the federal emissions certification of those vehicles.  42 U.S.C. Sec. 7545(f)(1)(B).  The CAA allows the EPA to grant a waiver, however, if it "determines that the applicant has established that such fuel or fuel additive or a specific concentration thereof, and the emission products of such fuel or fuel additive or specified concentration thereof, will not cause or contribute to a failure of any emission control device or system . . . to achieve compliance by the vehicle or engine with the emission standards with respect to which it has been certified."  42 U.S.C. Sec. 7545(f)(4) (emphasis added).

The waivers allowed manufacturers to introduce a new biofuel, E15 (an unleaded gasoline blend containing 15 percent ethanol), for light-duty motor vehicles and engines with a model year 2001 and newer.  (E10, a different ethanol blend with just 10 percent ethanol, is already on the market.  Put simply: E15 uses more corn.)

The plaintiffs, three different trade associations, sued, arguing, among other things, that EPA lacked authority to grant a "partial" waiver.  (See (f)(4), above, and the phrase "any emission control device or system.")  An intervenor argued that the plaintiffs lacked standing.

(Note that the government challenged neither Article III standing nor prudential standing.  Under well settled law, the court can still address Article III standing, because it's jurisdictional.  But the panel split on whether the court could address prudential standing: the majority wrote that it could (because it's jurisdictional); the dissent wrote that it could not (because it's not jurisdictional).  (Judge Tatel wrote that circuit precedent required the court to rule that it's jurisdictional, even though the weight of authority seems to be going the other way.)

Chief Judge Sentelle and Judge Tatel agreed that two of the three trade associations lacked Article III standing, because their claimed harms were too far removed from the EPA's partial waivers.  (The engine-products group claimed that EPA waivers would cause E15 to enter the market and cause damage to certain engines and create liability for those engine manufacturers.  The court held that this was neither "concrete and particularized" nor "actual or imminent."  The petroleum group claimed that the waivers would require refiners and importers to introduce E15 into commerce (because there'd be no other way to meet increasing renewable fuel requirements under federal law) and downstream firms to accommodate E15.  The court said that the waivers caused neither of these results.)

They also agreed that the third plaintiff, the food producers, lacked prudential standing, because their interests weren't within the zone of interests to be protected or regulated by the statute.  They said that the food producers, which argued that the waiver would cause corn prices to rise, drew on an interest protected by a different statute, not the CAA.

Judge Kavanaugh argued in dissent that both the food producers and the petroleum group had Article III standing, that prudential standing was non-jurisdictional, and that even if prudential standing were jurisdictional both had it. 

(Judge Tatel agreed that the food producers had Article III standing, but because Judge Tatel also agreed with Chief Judge Sentelle that they lacked prudential standing, the case is dismissed.)

Judge Kavanaugh went on to argue that the EPA lacked authority to grant the partial waivers.

SDS

August 20, 2012 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Sunday, August 5, 2012

Sixth Circuit Says Pastors Lack Standing to Challenge Hate Crime Law

A three-judge panel of the Sixth Circuit ruled in Glenn v. Holder that a group of pastors who "say that homosexuality is 'forbidden by God'" lacked standing to challenge the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act.

The Act makes it a crime to batter a person because of the person's religion, national origin, gender, sexual orientation, gender identity, or disability.  18 U.S.C. Sec. 249(a)(2)(A).  The plaintiffs claimed that the expression and practice of their anti-gay religious beliefs would lead to federal prosecution under the Act in violation of their First Amendment rights.

The court rejected the claim for lack of standing, saying that "this lawsuit is really a political statement against the Hate Crimes Act."  Op. at 1.  The court:

Quite simply, we agree with the district court that Plaintiffs have not established standing because they have not alleged any actual intent to "willfully cause[] bodily injury," the conduct proscribed by the Act.

Op. at 5.  The court noted that the Act didn't prohibit the plaintiff's proposed speech and concluded that the plaintiffs therefore couldn't say just what they might do that would subject them to prosecution.  The court also rejected for similar reasons the plaintiffs' theory that they might be subject to prosecution for aiding or abetting a violation of the Act and the plaintiffs' theory that the Act chills their speech.

Judge Stranch concurred in full but wrote separately to say why the plaintiffs' claims based on legislative history and statements by federal prosecutors failed to support their chilled-speech argument.

SDS

August 5, 2012 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Saturday, July 21, 2012

Catholic College Lacks Standing to Challenge ACA's Contraception Requirement

Judge James E. Boasberg (D.D.C.) ruled in Belmont Abbey College v. Sebelius that a Catholic college lacked standing to sue HHS over its regulations under the Affordable Care Act that require health insurance plans to cover contraceptives.  The problem: HHS said that it would reconsider the regs and look for other alternatives to provide contraceptive coverage, and so the case sounds more than a little like a pre-enforcement challenge.  In other words, the government's working on it, and Belmont's suit will have to wait.

The ruling comes just two months after forty-three Catholic institutions filed 12 separate suits in a high-profile, coordinated move challenging the regulations.  (Belmont filed its suit much earlier, in November 2011, arguing that the regs violated the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.)  The ruling here will certainly influence the direction of those cases, even if it won't necessarily dictate the direction of those cases.

Current HHS regs, enacted under the ACA, require health insurance plans to provide contraceptive services starting August 1, 2012.  But the regs exempt religious organizations who meet these four criteria:

(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious tenets of the organization.

(3) The organization serves primarily persons who share the religious tenets of the organization.

(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.

In response to criticism, HHS added a "safe harbor" period through February 10, 2012, for "certain non-exempted, non-profit organizations with religious objections to covering contraceptive services."  Moreover, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM) on March 21, 2012, indicating that it would seek ways to "accommodat[e] non-exempt, non-profit religious organizations' religious objections to covering contraceptive services," while "assuring that participants and beneficiaries covered under such organizations' plans receive contraceptive coverage without cost sharing."

Belmont argued that it didn't qualify for an exemption, that the safe harbor provision only delayed the implementation of the contraceptive requirement, and that the new Rulemaking provided no certain exemption and, in any event, would lead to a similar harm.

Judge Boasberg agreed that Belmont didn't qualify for an exemption (as did the government) and that the safe harbor provision only delayed the harm (and therefore didn't deny Belmont standing).  But he concluded that HHS's ANPRM provided enough certainty that HHS was seriously examining a solution to the problem so as to deny Belmont standing.  From the ruling:

Plaintiff argues that non-binding promises of future rulemaking cannot defeat standing.  Contrary to the Plaintiff's assertions, however, Defendants have done more than simply "open another docket to propose addressing related matters."  They have published their plan to amend the rule to address the exact concerns Plaintiff raises in this action and have stated clearly and repeatedly in the Federal Register that they intend to finalize the changes before the enforcement safe harbor ends.  Not only that, but Defendants have already initiated the amendment process by issuing an ANPRM.  The government, moreover, has done nothing to suggest that it might abandon its efforts to modify the rule--indeed, it has steadily pursued that course--and it is entitled to a presumption that it acts in good faith.

Op. at 15.

Judge Boasberg also ruled that the case was not ripe, for similar reasons.

SDS

July 21, 2012 in Cases and Case Materials, Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)

Chicken Farmers' Challenge to EPA Standards Doesn't Cluck

A three-judge panel of the D.C. Circuit ruled in National Chicken Council v. EPA that the plaintiff's challenge of new EPA standards for renewable fuel wasn't justiciable, because a even a favorable ruling wouldn't redress the plaintiff's alleged injuries.

The case arose out of new EPA regs for renewable fuels, including (sometimes) ethanol, under the Energy Independence and Security Act of 2007.  That law grandfathered ethanol production plants that were in construction before December 19, 2007, but also said that "[f]or calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance . . . with the [new EISA standards]."  EPA said that the clause was ambiguous because it did "not specify whether [ethanol plants fired with natural gas and/or biomass]are deemed to be in compliance only for the period of 2008 and 2009, or indefinitely."  But it adopted the latter interpretation.

The Chicken Council sued, arguing that this will drive up ethanol production, thus driving up corn demand, thus increasing the price of corn, thus increasing the price of chicken farmers' feed.  The Council argued that the narrower interpretation--the former one--wouldn't have this effect.

The court didn't buy it.  It ruled that the Council failed to show a "substantial probability" that qualifying ethanol plants would reduce their ethanol production if the court ruled in the plaintiff's favor--that is, if the plants were subject to the narrower interpretation of the grandfather clause.  This was a simple matter of proof (or the petitioner's lack of proof); the court explained:

True, the EPA claimed in the Final Rule that "many of the current technology corn ethanol plants may find it difficult if not impossible to retrofit existing plants to comply with the [new regs]," and that "[g]iven the difficulty of meeting such threshold, owners of such facilities could decide to shut down the plant."  But that statement referred to all grandfathered plants, not just the qualifying ethanol plants, and there are good reasons to think the qualifying ethanol plants will find it much easier than the other, older grandfathered plants to meet the emissions-reduction requirement should they have to.  

The petitioners also cite several comments ethanol producers submitted during the rulemaking proceedings.  These comments assert it would be difficult to retrofit ethanol plants to meet the emissions-reduction requirement, but the comments do not satisfy the petitioners' burden of proof for one of two reasons: they are either not specific to qualifying ethanol plants, or they do not claim ethanol plants would be forced to shut down or reduce production if they had to coply with [the new standards].

Op. at 5-6.  The court said that the Council didn't produce the kind of evidence that supported standing in Duke Power Co. v. Carolina Environmental Study Group--the principal case that the Council relied on.  The Court in Duke Power held that a district court was not clearly erroneous in concluding that the plaintiffs showed a "substantial likelihood" of harm, where congressional testimony, legislative findings, and testimony in that case all pointed to harm, causation, and redressibility.  

SDS

July 21, 2012 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 4, 2012

Florida Judge Overturns "Medical Privacy Concerning Firearms" Act

Judge Marcia Cook (S.D. Fl.) last week ruled in Wollschlaeger v. Farmer that the Florida's law restricting health care providers from asking whether a patient owns a firearm violates free speech.  The ruling permanently enjoins the state from enforcing four provisions of the act and from disciplining health care providers who violate them.  We posted on the case previously--when Judge Cook granted a preliminary injunction--here.

The ruling is a blow to state efforts to restrict health care providers from talking and asking patients about gun ownership.  But the ruling makes clear that any worries about discrimination against gun owners was based on only the thinnest actual evidence.  (In other words, the law protected against something that didn't exist--at least in any widespread, systematic way.)  Thus, this case isn't a ruling on a clash between First and Second Amendment rights--because the state failed to show that there was any real interference with Second Amendment rights driving the law.  This is a pure free speech case, and the state's stated interests just don't hold up.

A group of doctors and health care providers brought the case challenging Florida's ban--which prohibits doctors and health care providers from talking or asking patients about firearms ownership.  The plaintiffs claimed that the law chilled their speech about preventive health issues.  Judge Cook agreed.  The state's biggest problem, according to Judge Cook, was that it didn't show that the law was tailored to meet any particular problem--that the state failed to show that there was any widespread infringement on the right to bear arms or any widespread discrimination against gun owners by health care providers.

Florida Statutes 790.338 provides:

(1) A health care practitioner . . . or a health care facility . . . may not intentionally enter any disclosed information concerning firearm ownership into the patient's medical record if the practitioner knows that such information is not relevant to the patient's medical care or safety, or to the safety of others.

(2) A health care practitioner . . . or a health care facility . . . shall respect a patient's right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.  Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry.

. . .

(5) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.

(6) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.

After ruling that the plaintiffs had standing to challenge these four provisions of the law, and that the challenge was ripe, Judge Cook ruled that these provisions violated the First Amendment.  She wrote that the provisions were content-based restrictions on speech, subject to strict scrutiny; that they were a ban on (especially protected) truthful, non-misleading speech; and that the state's interests didn't stand up.

The state said that it had interests in protecting patients' Second Amendment rights, protecting patients' access to health care in the face of discrimination (against those who own firearms), protecting patients' privacy rights, and regulating professionals.  

But Judge Cook ruled that the state couldn't show any widespread infringement on patients' Second Amendment rights, access, or equal treatment.  The law was based entirely on a handful of anecdotes.  Moreover, the law itself contains protections for patients--for example, allowing them not to answer questions about firearms ownership.  The state's interests, Judge Cook ruled, were therefore insufficient to withstand strict scrutiny analysis.

They were also insufficient to withstand a less rigorous balancing under Gentile v. State Bar of Nevada, a case setting the free speech bar lower when a state seeks to regulate a lawyer's speech.

Judge Cook also ruled that two clauses were unconstitutionally vague: "relevant to the patient's medical care or safety, or the safety of others"; and "unnecessarily harassing."  Those phrases, she said, do not give sufficient guidance to health care providers as to what speech is covered and what speech is not.

SDS

July 4, 2012 in Cases and Case Materials, Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Ripeness, Second Amendment, Speech, Standing | Permalink | Comments (1) | TrackBack (0)

Friday, June 8, 2012

Hawai'i Beach Weddings Permitting Scheme Upheld by Ninth Circuit

Wedding ceremonies on Hawai'ian beaches may be the stuff of some fantasies, but they may also require permits from the state as any other commercial activity on state land would.  In its opinion in Kaahumanu v. Hawai'i Department of Land and Natural Resources, the Ninth Circuit upheld Hawai'i's permitting scheme, except to the extent it allowed the state to alter the permits once issued.

Hawai'i beachThe permitting scheme applies to ceremonies all state-owned beaches, even if there are three people at the wedding, if the officiant is receiving compensation.  It prohibits tables, chairs, tents, and strictures demarcating the area, while allowing flowers, leis, chairs for the elderly/infirm, and "unamplified musical instruments including a conch shell."

The Ninth Circuit's unanimous panel opinion easily found that one of the plaintiffs, a wedding and events professional association, had standing, and quickly proceeded to the gravamen of the constitutional claim. 

As the court expressed it, the First Amendment challenge posed three questions:

  • First, do wedding ceremonies constitute “speech” protected by the First Amendment?
    Second, what is the nature of the forum?
    Third, are the challenged restrictions on commercial weddings permissible in the forum?

The Hawai'i Department of Land and Natural Resources (DLNR) contended that weddings were not speech at all and thus excluded from First Amendment protection.  Applying the "particularized message" expressive conduct test from Spence v. Washington, 418 U.S. 405 (1974), the court had "no difficulty" concluding that wedding ceremonies were protected expression: "The core of a wedding ceremony’s “particularized message” is easy to discern, even if the message varies from one wedding to another."

The forum issue was not so easily resolved - - - and indeed, remained unresolved.  The panel seemed hesitant to render an opinion that might be used in other contexts.  Moreover, while the DLNR  contended that "all unencumbered state beaches are nonpublic forums" and the plaintiffs contended that "they are all traditional public forums," the court ruled that  Hawai’i’s unencumbered state beaches were not so easily categorized.  Instead, the beaches "vary from heavily trafficked beaches to isolated beaches accessible only by foot or watercraft," and on the present record, it was "difficult to put all of Hawai’i’s unencumbered state beaches into a single forum category."  Thus, the court assumed - - - without deciding - - - that  "unencumbered state beaches in Hawai’i are, as Plaintiffs contend, a traditional public forum."  Thus, the panel stated it would assess the validity of all regulations "that we uphold under the most exacting test for restrictions on forum access."  On the contrary, the panel assessed the particular provisions of the regulation that it did not uphold under the most lenient standard.  The panel summarized its First Amendment holding thusly:

In sum, we hold that DLNR’s regulation requiring a person to obtain a permit for commercial weddings on unencumbered state beaches is narrowly tailored to a significant governmental interest, is content-neutral, leaves ample alternative spaces for hosting a wedding, and does not vest too much discretion in the government official when issuing the permits. We hold that the limitation on accessories, insurance requirement, and the indemnification/hold-harmless clause also satisfy the tra- ditional public forum standard. However, we hold invalid the grant of discretion to DLNR to revoke, or add terms to, a per- mit under the least exacting standard of review for a nonpublic forum.

The panel opinion also briefly referred to the plaintiffs' freedom of religion arguments, rejecting them because that while the regulation may have an incidental effect on specific religious "implements or physical symbols," this does not "render it impermissible."  Seemingly, a more specific as-applied challenge, perhaps also stating a RLUIPA claim, might be taken more seriously. 

Additionally, the court rejected the Equal Protection and Due Process claims: while recognizing that the "right to marry" is a fundamental right, the DLNR’s "regulation of commercial weddings on unencum- bered state beaches does not impinge on the right to marry."

RR

June 8, 2012 in Due Process (Substantive), Equal Protection, Family, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0) | TrackBack (0)