Tuesday, September 11, 2012
In 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.
[image: The Prisoner, artist unknown, circa 1907, via]
Thursday, September 6, 2012
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.
Monday, August 27, 2012
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.
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
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.
Monday, August 20, 2012
Sections 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.
[image of Georgia flag/map via]
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.
Sunday, August 5, 2012
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.
Saturday, July 21, 2012
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.
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)
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.
Wednesday, July 4, 2012
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.
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
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.
The 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."
Wednesday, June 6, 2012
Yet another opinion has held section 3 of DOMA, the Defense of Marriage Act, unconstitutional.
Coming on the heels of the First Circuit's opinion issued last week, today's opinion by federal district judge for the Southern District of New York, Barbara Jones, in Windsor v. US reached the same conclusion that section 3 of DOMA does not pass rational basis. In November 2010, Edith Windsor filed a complaint in the Southern District of New York as the survivor of a same-sex couple married in Canada. Windsor sought a refund of estate taxes paid because the marriage was not recognized by the federal government and argued that the Defense of Marriage Act, DOMA, section 3 is an unconstitutional denial of equal protection. The New York Attorney General filed an amicus brief in support of Windsor.
Judge Jones' opinion rehearses grounds that are becoming quite familiar, and while she cites and quotes the First Circuit's opinion in Massachusetts v. HHS, she does not substantially rely upon it.
Instead, Judge Jones does not stress the heightened rational basis standard for legislation based on animus, but concluded that the Congressional interests support DOMA did not pass the threshold of being "legitimate." Judge Jones specifically considered the additional interest advanced by BLAG (supporting DOMA) that Congress intended to approach "same-sex marriage with caution." Judge Jones did not quite say that this was not a legitimate interest, but did conclude that "whatever the social consequences of this legal development" that is same-sex marriage "ultmately may be, DOMA has not, and cannot, forestall them."
Of particular interest to New York constitutional scholars, Judge Jones confronts Hernandez v. Robles, the 2006 decision by New York's highest court that rejected a constitutional claim against barring same-sex marriage. Yet this is in the context of Windsor's standing to raise the claim as to the 2009 tax year. As Jones notes, subsequent executive and legislative action in New York has disavowed that stance in 2009, rendering BLAG's reliance on the case to show a lack of injury "unpersuasive."
DOMA, it can certainly be said, has had its constitutionality seriously cast into doubt, yet again.
Tuesday, May 22, 2012
Judge Katherine B. Forrest (SDNY) ruled last week that the detention authority in the National Defense Authorization Act likely violates free speech. Judge Forrest granted the plaintiffs' motion for a preliminary injunction in Hedges v. Obama and thus enjoined enforcement of Section 1021.
The case is notable in that the government could easily have side-stepped the whole thing: It simply could have taken the position that the plaintiffs, based only on their affidavits and testimony, did not fall within Section 1021. This would have taken away the plaintiffs' standing (as Judge Forrest noted) and undermined the suit. (The government need not have said anything about whether the plaintiffs would have been covered by Section 1021 if additional evidence arose.) But it refused, suggesting that it keeps open the possibility that Section 1021 could apply to a remarkably wide swath of individuals, notwithstanding the President's efforts to limit it upon signing the NDAA. More on this below.
The ruling is the first against the controversial detention authority in the NDAA. The section at issue, Section 1021, defines a detainable person broadly (and vaguely, as it turns out) and apparently authorizes indefinite detention. The Section, titled Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force, provides:
(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described under subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
. . .
(d) Construction. Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].
But President Obama, upon signing the NDAA, issued a signing statement that said that Section 1021 did nothing to existing government detention authority under the AUMF and that the Section was therefore unnecessary. In short, according to the President, Section 1021 changed nothing. As to indefinite detention, the President wrote: "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."
Moreover, while the White House issued a policy directive that included procedures for detention under Section 1022 (relating to military custody of foreign al-Qaeda terrorists), it issued no such directive on Section 1021--further suggesting that, in its view, nothing changed.
A group of writers, reporters, and activists brought suit, claiming Section 1021 could be interpreted to include them based on their reporting and writing on terrorist groups, including al-Qaeda, and terrorist activities; that they feared detention under Section 1021; and that Section 1021 chilled their further speech. They said that Section 1021 was overbroad and vague in violation of the First Amendment.
Judge Forrest agreed. In a lenghty and careful ruling, she wrote that the plaintiffs had standing, and that Section 1021 likely violated the First Amendment based on its overbreadth and vagueness.
The ruling was based as much on the govenrment's stubborn position that it couldn't rule out detaining the plaintiffs based on their affidavits and testimony as it was based on the law. The government refused to say that the plaintiffs wouldn't be detained under Section 1021 based on their affidavits and testimony, even though it also said that the plaintiffs' fears of detention were unreasonable. And in a remarkable set of exchanges, reproduced in the opinion (at pages 31 to 34), government lawyers were unable to define phrases like "substantially support" or "directly support," or to give examples, or to assure the court that these plaintiffs, based on their affidavits and testimony alone, would not be subject to detention under Section 1021.
Outside the government's inability to define terms, give examples, or say whether the plaintiffs would be detainable, the court was also concerned about the lack of mens rea in Section 1021--an authority that it viewed as criminal-like, because of the potential for physical detention. The problem is that a person could violate Section 1021 without intending to, even without knowing. This, it said in addition to the government's inability to define key terms, rendered the Section unconstitutionally vague, in violation of due process.
The court said the government's position was strongest on the definition of "associated forces"--a phrase that the government said is rooted in the laws of war. But even so, "that does not resolve plaintiffs' concerns since they each testified to activities with or involving individuals or organizations that are 'associated forces' as defined by the Government." Op. at 55-56. The plaintiffs had the better of the case on "substantially," "direct," and "support."
If the government maintains its positions, keeping its options fully wide open under Section 1021, it's hard to see how an appeals could could rule any differently in this case.
May 22, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Music, Opinion Analysis, Standing, War Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, May 10, 2012
Judge Colleen Kollar-Kotelly (D.D.C.) ruled today in Wildearth Guardians v. Salazar that Wildearth lacked standing to challenge the Bureau of Land Management's rejection of its petition to recertify the Powder River Basin in Wyoming as a "coal production region" and thus, according to Wildearth, to limit the environmental impact of coal mining in the Basin.
The ruling ends Wildearth's efforts to get the BLM to recertify the basin, at least unless Wildearth refiles, or appeals and (as seems unlikely) wins.
The case grew out of Wildearth's petition to the BLM to recertify the Basin as a "coal production region." The BLM had earlier decertified the region, thus allowing land to be leased in the Basin for coal production by application. Wildearth claimed that leasing-by-application diminished competition and prevented the BLM from analyzing and addressing the environmental impacts of coal leasing in the Basin. It petitioned the BLM to recertify the Basin as a "coal production region."
The BLM declined to recertify, and Wildearth sued.
Judge Kollar-Kotelly ruled that Wildearth lacked standing, because a favorable result in the case wouldn't necessarily redress its alleged harms. In particular, she wrote that even if the court granted Wildearth's requested relief--to vacate BLM's decision and to remand to the BLM for reconsideration--the BLM might nevertheless re-decide not to recertify. Moreover, even if BLM were to recertify, it might set a coal leasing ceiling at a high level that wouldn't redress Wildearth's aesthetic and recreational harms. "The central point is this: the denial of WildEarth Guardians' petition and the recertification of the Powder River Basin are many, many steps removed from the injuries identified by Plaintiffs." Op. at 18.
Judge Kollar-Kotelly also rejected Wildearth's arguments for procedural standing (because Wildearth did not plead that the BLM omitted a procedural requirement before denying its petition) and informational standing (because nothing required the BLM to disclose the relevant information, even if they won the case).
Thursday, April 26, 2012
Judge Ursula Ungaro of the Southern District of Florida has permanently enjoined the Executive of Order of controversial Florida Governor Rick Scott (pictured in caricature at right) requiring drug testing of all prospective state employees and random testing of all state employees in her opinion in AFSCME v. Scott.
Scott's fondness for drug-testing has not fared well in the federal courts. His previous efforts to have all public entitlement recipients drug-tested was similarly enjoined as unconstitutional last year. In this opinion, Judge Ungaro distinguishes the drug-testing policies that were upheld under the Fourth Amendment as being tailored to address a specific, serious problem. "In contrast, the rationale for the Governor’s policy consists of broad prognostications concerning taxpayer savings, improved public service, and reductions in health and safety risks that result from a drug-free workplace." Judge Urango stated that his "explanation of the EO’s concern with public safety offers a particularly telling example of the speculative nature of the public interest behind the testing policy," quoting from the brief that:
Even a desk-bound clerk may become violent with other employees or the public, may present a danger when driving in a car in the workplace parking lot, or may exercise impaired judgment when encountering any of the myriad hazards that exist in the workplace environment (from stacks of heavy boxes, to high staircases, to files in high shelves, to wet floors, to elevators and escalators.)
For Judge Ungaro, "the Governor’s safety rationale for the EO essentially relies on the Governor's common sense belief that because illegal drug use exists in the general population, it must also exist among state employees." Common sense as articulated by the state's governor is not weighed heavily in evaluating a drug-testing program, unsupported by any individualized suspicion, that is "judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."
The judge also rejected the Governor's analogy to financial disclosure statements by government employees: "the Governor’s reasoning is hardly transparent and frankly obscure."
Before reaching the substantive Fourth Amendment claim, the judge carefully considered the standing of AFSCME, a union, to bring the action. Governor Scott argued that the union did not suffer an "injury in fact" because only the individuals who actually have a Fourth Amendment right are injured, not an association. However, the judge found convincing the union's argument that it would have to devote considerable energy to representing individual union members selected for testing and will have to devote similar energies to engage in collective bargaining on the issue, deflecting its energies from other issues. Moreover, the judge found the union had associational standing to assert the rights of its members. As to new hires, who are not union members, the judge found that the new hires could be union members by the time of the testing, and that new hires included union members who were applying for transfers or promotions.
This well-crafted opinion is certainly a blow to Governor Scott's controversial and somewhat breezy approach to law. Rather than appeal to the Eleventh Circuit, perhaps Scott will attempt a more carefully crafted Executive Order.
[image: Caricature of Governor Rick Scott by DonkeyHotey via]
Friday, April 6, 2012
The Second Circuit's opinion today in Disability Advocates, Inc. v. New York Coalition for Quality Assisted Living, Inc. denies Article III standing to the nonprofit Disability Advocates, Inc (DIA) in its suit against various state agencies and the governor of New York pursuant to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
The panel found that because DAI was a contractor to supply services, it did not meet the requirement for associational standing. Although in a footnote, the panel clarified that this was not necessarily true in all cases:
Our holding does not stand for the proposition that all organizations contracted to provide protection and advocacy within a P&A system [under the Protection and Advocacy for Individuals with Mental Illness Act] necessarily lack standing. We do not reach the question of whether some such contractors can fulfill the statutory requirements under § 10805 and meet the constitutional threshold established under Hunt [ v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)]. We hold simply that, in the circumstances presented here, DAI has not met its burden to establish constitutional standing.
We reject the argument that merely because DAI lacks standing to assert this claim on its own, it cannot fulfill its legislative responsibility to “pursue . . . legal . . . remedies to ensure the protection of individuals with mental illness.” 28 U.S.C. § 10805(a)(1)(B); see United States Br. 66. In circumstances where P&A contractors cannot bring suits “in their own right” because of constitutional standing requirements, they may provide representation to individuals with mental illness and litigate those cases in the names of those individuals. That contractors such as DAI must satisfy the minimum requirements of constitutional standing does not foreclose access to the federal courts for those organizations or the individuals whose interests they are intended to serve.
In addition to holding that DAI lacked standing, the Second Circuit held that "the intervention of the United States after the liability phase of the litigation had concluded was insufficient to cure the jurisdictional defect created by DAI’s lack of standing." The panel relied upon civil procedure rules regarding jurisdiction, even as it noted that precedent established "a district court’s discretion to treat the pleading of an intervenor as a separate action in order to adjudicate the claims raised by the intervenor even if the underlying claim was jurisdictionally deficient." The panel found that discretion was not warranted here because the United States intervened too late: "the District Court decided important questions of fact and law based entirely on the presentation of a plaintiff who lacked standing. The fact that the United States later “adopted” those findings and conclusions cannot remedy the absence of jurisdiction at trial and in pretrial proceedings."
The panel concluded with its observations about judicial economy - - - as well as its opinion on the merits, or, at least the remedy:
In reaching this conclusion, we are mindful of the possibility that this litigation will continue, inasmuch as the United States—whose standing is not disputed—has represented that, in the event of a dismissal on the basis of standing, it would re-file the action and submit the same evidence at a subsequent trial. Individual plaintiffs with standing could, of course, pursue further litigation as well, either in conjunction DAI or on their own. We are not unsympathetic to the concern that our disposition will delay the resolution of this controversy and impose substantial burdens and transaction costs on the parties, their counsel, and the courts. Should that situation arise, we are confident that the experienced and able district judge, as a consequence of his familiarity with prior proceedings, can devise ways to lessen those burdens and facilitate an appropriate, efficient resolution.
Although we are not presently required to consider the issue of remedy, we do have concerns about the scope of the proposed remedy. If this controversy continues, and if the renewed litigation reaches the remedial phase, the parties and the District Court will have another opportunity to consider an appropriate remedy.
The court's "concerns" send a clear message about the merits of the case, which have for the present been expressed as dicta and otherwise collapsed into discretionary judgements regarding standing and procedural rules.
[image: Vincent Can Gogh, Corridor in the Asylum, circa 1889 via]
Sunday, March 25, 2012
The opinion in ACLU of Mass. v. Sebelius, by District Judge Richard Stearns of the District of Massachusetts grants summary judgment on behalf of the ACLU in the controversial Catholic Bishops funding case under the TVPA.
At issue is implementation of the TVPA, the Trafficking Victims Protection Act, 22 USC §7101-7112 (2000). Congress appropriated funds and directed the Secretary of HHS to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.” HHS first accomplished this by making grants to nonprofit organizations that worked with trafficking victims, but in 2005 decided it would delegate this task to an independent contractor to administer the funds.
Only two organizations bid for the role of “independent contractor,” both of which are religious organizations. The winner of the independent contractor bid was United States Conference of Catholic Bishops (USCCB). This was despite the USCCB’s frank statement in its proposal that “as we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs,” and therefore “subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.” This statement did raise concerns, and although HHS asked whether USCCB could abide by a “don’t ask, don’t tell” policy with regard to the exception, the USCCB essentially rejected that possibility. It stated it would require an assurance form all subcontractors regarding compliance.
Nevertheless, HHS awarded USCCB the contract, and it was renewed four times, for a total of almost $15 million.
The ACLU sued, arguing that the USCCB contract violated the Establishment Clause, because the government was allowing the USCCB to impose religious restrictions on taxpayer funds. The present secretary of HHS, Sebelius, contended that the ACLU lacked standing, that the case was moot, and that on the merits, there was no Establishment Clause violation.
On standing, the judge rejected the government’s argument that standing was foreclosed by Arizona Christian School Tuition Organization v. Winn (2011), noting that this case involves an expenditure, and not a tax credit as in Winn.
On the merits, the judge applied the well-known “Lemon test:” First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster “an excessive government entanglement with religion.” The judge also discussed the endorsement test, rejecting the argument that the endorsement inquiry is not relevant to funding, but only applicable in cases of religious displays. The judge noted that the reproductive limits in the contracting scheme were absolutely linked to religion: “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.” Thus, the government’s delegation of authority to USCCB as an independent contractor provides a significant benefit to religion.
Judge Stearns explicitly addressed the possibility that his opinion would be controversial, especially in light of rhetoric regarding hostility to religion:
“I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies.” That conviction remains unshaken. To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.
The case is sure to be appealed.
Wednesday, March 14, 2012
The D.C. Circuit ruled in Coalition for Mercury-Free Drugs v. Sebelius that the plaintiff-organization lacked standing to force the FDA to ban the mercury-based preservative thimerosal from vaccines.
The case grows out of the Coalition's petition to the FDA and subsequent suit seeking an order forcing the FDA to ban thimerosal-preserved vaccines. The FDA moved to dismiss for lack of standing; the D.C. District dismissed; and the D.C. Circuit affirmed.
The D.C. Circuit ruled that the FDA did not force any member of the Coalition to take thimerosal-preserved vaccines--instead, the FDA only allowed them--and therefore no Coalition member could show actual and imminent harm.
The Circuit court also ruled that doctor-members did not have standing based on reputational harm, because the FDA did not force them to prescribe or to use thimerosal-preserved vaccines. (Those doctors could have used thimerosal-free vaccines.)
Finally, the court rejected the plaintiff's claim that the FDA's policy of allowing thimerosal-preserved vaccines made thimerosal-free vaccines prohibitively expensive. The court said that the plaintiffs could still reasonably obtain thimerosal-free vaccines, even if their price went up slightly becuase of the policy allowing thimerosal-free vaccines, and therefore no Coalition member alleged a sufficient injury based on lack of access to thimerosal-free vaccines.
Friday, February 17, 2012
A broad statute banning persons convicted of certain sex offenses from accessing "social media" has been held unconstitutionally overbroad under the First Amendment in Doe v. Jindal, by Judge Brian Jackson, Chief Judge of the Middle District of Louisiana.
Louisiana Revised Statute §14:91.5, passed in 2011, provides that the "using or accessing of social networking websites, chat rooms, and peer-to-peer networks by a person who is required to register as a sex offender and who was previously convicted" of specified crimes involving minors. The penalties are severe:
(1) Whoever commits the crime of unlawful use or access of social media shall, upon a first conviction, be fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.
(2) Whoever commits the crime of unlawful use or access of social media, upon a second or subsequent conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.
The federal judge first found that John Doe and James Doe had standing to challenge the act. In construing the overbreadth challenge under the First Amendment, the judge looked to the Court's recent pronouncements in US v. Stevens, and similarly found that the statutory ban reached a substantial number of unconstitutional applications. The judge noted that the statute reached many commonly read news and information sites and interpreted the offense to be completed once a user accessed the website, whether intentionally or by mistake. The judge found the definition of "chat room" particularly problematic, as its ban would reach "the website for this Court."
While the state's interest in protecting children was undoubtedly "legitimate," the statute was not sufficiently precise or narrow.
As Louisiana officials consider an appeal to the Fifth Circuit, the legislature might also consider statutory revision.
[image: "Facebook man" via]
Tuesday, February 7, 2012
The Ninth Circuit panel has rendered its opinion in Perry v. Brown, on the constitutionality of California's Proposition 8 that prohibited same-sex marriage, affirming 2-1 Judge Vaugn Walker's extensive opinion based on the trial (our recap here) the videotapes of which will not be released as the Ninth Circuit ruled recently.
The Ninth Circuit Judges on panel, Stephen Reinhardt (middle), NR (Randy) Smith (right, and Michael Hawkins (left) disagreed on the major constitutional issue.
The panel was unanimous that the proponents had standing and that Judge Walker's opinion should not be vacated on the basis of his sexuality. The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional. Judge Smith, dissented as to the constitutionality of Proposition 8, arguing that it was rationally related to a legitimate government interest.
MORE ANALYSIS HERE.