Monday, September 28, 2015

Ninth Circuit Rejects Franchisers' Constitutional Challenges to Seattle's $15 Minimum Wage

Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage.  Recall that the complaint challenged  the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.

Photo by Steve Rhodes via

The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine.  The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce."  Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:

 We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.

 The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause.  The Ninth Circuit panel concluded:

[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.

The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously.  The Ninth Circuit applied the lowest form of rational basis scrutiny  - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.

The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech"  was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."

Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.

The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors.  But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.

Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility.  Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.

September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Friday, September 11, 2015

Connecticut Supremes Strike Extra-Judicial Regulation of Attorneys in Debt-Relief Business

The Connecticut Supreme Court ruled that state regulation of attorneys who offer certain debt-relief services to clients violates state constitutional separation of powers principles. The ruling is quite limited, however, and does not extend to attorneys who set up a sham shop as a cover for a distinct debt-relief operation. (The ruling keeps the regulatory scheme on the books; it simply says that it can't apply to certain actual attorneys doing actual legal work.)

The ruling means that Connecticut attorneys who are really practicing law (but also providing debt-relief services) cannot be regulated outside the judiciary, but attorneys who are simply providing cover for debt-relief operations (without really practicing law) can be.

The case tested a Connecticut law that authorizes the state Banking Commissioner to license and regulate persons engaged in the debt negotiation business. Attorneys in this line of work are not exempt, except those who are "admitted to the practice of law in [Connecticut] who [engage] or [offer] to engage in debt negotiation as an ancillary matter to such [attorneys'] representation of a client . . . ."

A Connecticut law firm that enters into retainer agreements for legal services and an attorney-client relationship with clients, but also provides debt-relief counseling, challenged the licensing and regulation scheme on the ground that it's the courts, not the legislature, that regulate an attorney's law practice in Connecticut. The firm claimed that the Commissioner's attempts to regulate it intruded into the role of the judiciary and thus violated state constitutional separation of powers.

The court agreed. (Like many states, Connecticut has an explicit clause on separation of powers. Connecticut's says, "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. . . .")

The court also emphasized, however, that a presumption that an attorney is practicing law (and not subject to Commissioner regulation) can be overcome where "the Connecticut attorney has failed to (1) exercise meaningful oversight over debt negotiation staff, (2) provide any genuine legal advice or other legal services, and/or (3) maintain a bona fide attorney-client relationship with the client." The court also reminded the Office of Chief Disciplinary Counsel of its "duty to regulate lawyers when they are acting as debt negotiators," and urged it "to monitor vigilantly their activities and fees in this area of practice."

September 11, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Opinion Analysis, Separation of Powers, State Constitutional Law | Permalink | Comments (0)

Monday, September 7, 2015

Washington Supreme Court Finds Charter School Initiative Unconstitutional

Late Friday before the long Labor Day weekend, the Washington Supreme Court found Initiative 1240, known as the Charter School Act (codified at chapter 28A.7 10 RCW) unconstitutional in its divided opinion,  League of Women Voters of Washington v. State of Washington, affirming a King County Superior Court decision.

The Washington Supreme Court majority found that the Charter School Act violated Article IX §2 of the state constitution which provides:

PUBLIC SCHOOL SYSTEM. The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.

In essence because the charter schools were decidedly not "common schools" as that phrase has been defined under state law since 1909 and because the funding for charter schools was from the "common school fund," the Charter School Act's funding provision violated the state constitution.  The court, in its opinion by Chief Justice Barbara Madsen (pictured center front below), rejected the state's argument that notwithstanding the constitutional provision funding should follow the student. 

  Washington Supreme Court

The dissenting and concurring opinion by Justice Mary E. Fairhurst,  joined by Justices Steven C. González and Sheryl Gordon McCloud, agreed that charter schools are not "common schools," but disagreed that the Charter School Act required charter schools to be funded by monies intended for common schools. 

The court's majority eschewed a political interpretation of the case:

Our inquiry is not concerned with the merits or demerits of charter schools. Whether charter schools would enhance our state’s public school system or appropriately address perceived shortcomings of that  system are issues for the legislature and the voters. The issue for this court is what are the requirements of the constitution.

Nevertheless, the case will most certainly be interpreted in political terms.  Proponents of charter schools will undoubtedly continue their efforts.  Importantly, however, the case is not reviewable by the United States Supreme Court since it rests exclusively on a matter of state law.  The funding of charter schools from sources not meant for public education  - - - which the dissenting Justices believed a reality - - - could be clarified.  And the possibility of an amendment of the state constitution, of course, remains an option. 

September 7, 2015 in Courts and Judging, Current Affairs, Family, Opinion Analysis, State Constitutional Law | Permalink | Comments (0)

Wednesday, August 19, 2015

Missouri Court Upholds Ban on Felon Gun Possession

The Missouri Supreme Court ruled this week that the state's ban on felon gun possession did not violate the state constitutional right to bear arms. The ruling is notable, because it applied strict scrutiny, but nevertheless upheld the gun possession restriction.

The Missouri Constitution, article I, section 23, read as follows (at the time of the defendant's conviction for possessing a gun in violation of the state's ban on felon possession):

That the right of every citizen to keep and bear arms in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questions; but this shall not justify the wearing of concealed weapons.

But the provision was amended during the appeal. The amended provision added "ammunition, and accessories typical to the normal functioning of such arms" to the right to keep and bear arms; it added "family" to the list of things that a citizen can bear arms to protect; it struck the limitation on concealed carry; and it added language strengthening the right (explicitly subjecting it to strict scrutiny), but permitting restrictions on felons and individuals adjudicated by a court to be a danger to self or others because of a "mental disorder or mental infirmity."

Still, the court said that the previous provision applied, because the defendant was convicted before the amendment took force.

The court held that under article I, section 23, strict scrutiny applied to restrictions on gun possession. But the state's ban on felon possession satisfied even that highest level of constitutional review:

The State has a compelling interest in ensuring public safety and reducing firearm-related crime. Prohibiting felons from possessing firearms is narrowly tailored to that interest because "[i]t is well-established that felons are more likely to commit crimes than are other law abiding citizens."

The ruling means that there are possession restrictions that satisfy strict scrutiny under Missouri state con law--at least the old Missouri state con law. It's not clear how far this might extend, however, given that the new version of article I, section 23, goes to lengths to specify that strict scrutiny applies to possession restrictions and lists just two specific exceptions.

August 19, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Opinion Analysis, Second Amendment, State Constitutional Law | Permalink | Comments (0)

Tuesday, June 30, 2015

Oklahoma Supreme Court Declares Ten Commandments Monument at State Capitol Unconstitutional Under State Constitution

In a relatively brief opinion today in Prescott v. Oklahoma Capitol Preservation Commission, Oklahoma's highest court found that a Ten Commandments monument on the Oklahoma Capitol grounds violated the state constitution, Article 2, Section 5, which provides:

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

  While the monument was a gift and no public funds were expended to acquire the monument, the court agreed that its placement on the Capitol grounds constituted the use of public property for the benefit of religion, emphasizing that the constitutional provision included the words “directly or indirectly.”

The court noted that the Legislature and Governor authorized the monument relying on the United States Supreme Court’s decision Van Orden v. Perry (2005), but noted that Van Orden was decided under the First Amendment’s Establishment Clause.  Here, the Oklahoma Supreme Court interpreted the broader and more precise language of the Oklahoma state constitution.  The Oklahoma Supreme Court’s opinion contained the requisite language insulating it from United States Supreme Court review under the adequate and independent state grounds doctrine so important to federalism:

“Our opinion rests solely on the Oklahoma Constitution with no regard for federal jurisprudence. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).”

Two justices dissented, without opinion. 

image Ten Commandments Austin, Texas, via


June 30, 2015 in Establishment Clause, Federalism, First Amendment, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0)

Wednesday, May 13, 2015

Governor Looks to Constitutional Amendment to Undo Court Ruling on Pensions

Illinois Governor Bruce Rauner is looking to amend the state constitution to give the state more flexibility in cutting state worker pensions, according to the Herald & Review. Rauner's idea came in reaction to the state supreme court ruling last week holding that state efforts to cut state pensions violated the state constitutional Pension Protection Clause.

Still, an amendment is unlikely to occur, at least anytime soon. The Illinois Constitution requires a 3/5 vote of state lawmakers in both houses. But the Democratic-controlled state legislature is unlikely to approve any pension amendment at all, much less by this kind of super-majority. Even if the state legislature approved a measure, it'd need to be approved by 3/5 of the voters voting on the measure, or a majority voting in the election.

This is just the latest effort of Governor Rauner to re-make constitutions. Recall that he earlier issued an executive order cutting public-sector union fair-share fees, and filed a preemptive suit against the unions seeking to get mandatory public sector fair share fees declared unconstitutional. This bold move anticipates that the Supreme Court is ready to overturn Abood--a First Amendment mainstay that says that states can require fair share in the interests of preventing free riders and promoting labor peace. Given the Court's recent rulings, Rauner is probably right that Abood is on the chopping block. Still, his very aggressive suit is designed only to hasten Abood's demise.

May 13, 2015 in Comparative Constitutionalism, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2015

Illinois Has a Pension Protection Clause, and it Really Means What it Says

The Illinois Supreme Court ruled unanimously that the state's efforts to cut public pensions violated the state constitutional Pension Protection Clause.

The case means that the state can't balance its budget on the backs of state workers who are members of a public retirement system. It also means that the state supreme court takes the state constitutional Pension Clause seriously.

The case arose after the state legislature, and former Governor Quinn signed, Senate Bill 1 in late 2013. Senate Bill 1, which became Public Act 98-599, cut state workers' public pension benefits in several ways. State workers sued, arguing, among other things that the cuts violated the state constitutional Pension Protection Clause.

The Pension Protection Clause says that "[m]embership in any pension or retirement system of the State *** shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired." The Clause was added in the 1970 constitution in order to protect state workers from pension cuts in a system that had been (and since has been) chronically underfunded.

The Illinois high court's ruling says that the Clause means what it says. In fact, the court said exactly that: "We held in [Kanerva v. Weems] that the clause means precisely what it says." And this means that "once an individual begins work and becomes a member of a public retirement system, any subsequent changes to the Pension Code that would diminish the benefits conferred by membership in the retirement system cannot be applied to that individual." The court called the question "easily resolved."

The court also rejected the state's argument that its fiscal situation is so dire that it has to dip into public pension funds by using its "reserved sovereign powers." The court said that things might be bad, but they've been bad before, and will be bad again. It's no reason to violate the Pension Protection Clause. The court also said that other provisions of the 1970 constitution contained limitations or suspension provisions; not so the Public Pension Clause.

May 8, 2015 in Cases and Case Materials, Comparative Constitutionalism, Contract Clause, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, February 23, 2015

NJ Trial Judge Overturns Christie's Pension Cuts

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

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

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

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

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

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

Thursday, February 19, 2015

Philly DA Sues to Stop Death Penalty Reprieve

Philadelphia DA Seth Williams filed suit in the Supreme Court of Pennsylvania to stop Governor Tom Wolf from implementing his death penalty moratorium and reprieve for a certain condemned prisoner. DA Williams argues that Wolf exceeded his state constitutional authority in issuing these, because the governor has no power to issue a moratorium, and because the reprieve is really only a moratorium, beyond the scope of gubernatorial power.

On January 13, 2015, former Governor Tom Corbett issues a warrant scheduling Terrance Williams's execution for March 4. (Defendant Williams was convicted of first-degree murder, robbery, and conspiracy and sentenced to death.) Then on January 20, 2015, new Governor Tom Wolf, who said during his campaign that he'd issue a moratorium on the death penalty, did so. The moratorium runs "until the [bipartisan Pennsylvania Task Force and Advisory Commission] has produced its recommendation and all concerns [with the death penalty] are addressed satisfactorily."

Pursuant to the moratorium, Wolf also issued a reprieve for Defendant Williams, again, "until I have received and reviewed the forthcoming report of the Pennsylvania Task Force and Advisory Committee on Capital Punishment, and any recommendations contained therein are satisfactorily addressed."

DA Williams then filed this emergency case in the state high court, arguing that Wolf's actions exceeded his authority and violated the Pennsylvania constitutional Take Care Clause.

Here's the state constitutional reprieve power, in Article IV, Sec. 9(a):

In all criminal cases except impeachment the Governor shall have the power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, and, in the case of a sentence of death or life imprisonment, on the unanimous recommendation in writing of the Board of Pardons, after full hearing in open session, upon due public notice.

Under this provision, Wolf's reprieve isn't subject to approval by the Board of Pardons. But DA Williams argues that it's not really a reprieve, because it's not temporary. (It ceases when the Commission issues its report and all concerns are addressed--maybe never.) Instead, DA Williams says it's a permanent moratorium, that the governor has no authority to issue a permanent moratorium, and that the actions violate the state constitutional Take Care Clause.

If DA Williams is successful, the suit could stop Wolf's moratorium, and even his reprieve, resetting Defendant Williams's execution for March 4. If he's not successful, however, this could  mark the beginning of the end of the death penalty in Pennsylvania.

February 19, 2015 in Cases and Case Materials, Executive Authority, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 10, 2015

Massachusetts Extends Right to Counsel in Private Guardianship

The Massachusetts Supreme Judicial Court ruled today that a parent in a private guardianship proceeding is entitled to counsel as a matter of due process. (The court previously ruled that a parent in a private adoption proceeding enjoyed that same right.) The case provides a categorical right to counsel under Massachusetts law, and thus stands in contrast to the case-by-case approach to a parent's federal due process right to counsel in Lassiter v. Department of Social Services.

The case, Guardianship of V.V., involved a guardianship proceeding between a minor's mother and great-grandmother. The mother was not initially represented by counsel when the lower courts awarded guardianship to the great-grandmother, although the mother obtained a lawyer later in the proceedings.

By the time the Supreme Judicial Court had a chance to rule, the case had become moot. That's because the minor was back with the mother. (The court said that the case was not moot on account of the mother obtaining a lawyer later in the proceeding. The court said the point was that the mother didn't have an attorney at the initial guardianship proceeding.) Still, the court said that the issue was capable of repetition but evading review--that it was an issue sure to come up again, and, because of the quick turn-around in guardianship cases, likely to evade appellate review.

The court held that the weighty interests and due process considerations in guardianship proceedings meant that parties to a guardianship proceeding had a categorical right to counsel. The court also noted that the state, by statute, provided counsel to parties to a guardianship proceeding where the state is a party, and that the same interests are at stake in a private guardianship proceeding.

February 10, 2015 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, Opinion Analysis, Procedural Due Process, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

Nebraska Supremes Uphold Keystone Law

The Nebraska Supreme Court today upheld the state law delegating authority to the governor to approve the Keystone pipeline and to use eminent domain to access land along the pipeline route. The ruling does not affect fight in Washington, however, where today the House passed a bill to approve the pipeline, and where President Obama promised to veto it.

The Nebraska case arose out of a Nebraska law that delegated to the governor the power to approve the pipeline. (The former governor did so.) Taxpayers sued, arguing that the law violated the state constitution.

Four (of seven) judges agreed. They said that the law violated a state constitutional provision that reserves to the Public Service Commission this kind of decision. That provision says,

There shall be a Public Service Commission . . . . The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.

The four judges wrote that "we have held that the PSC has 'independent legislative, judicial, and executive or administrative powers' over common carriers, which powers are plenary and self-executing." Moreover, "specific legislation" means "specific restrictions," not "general legislation to divest the PSC of its jurisdiction and transfer its powers to another governmental entity besides the legislature." Thus the legislative delegation over Keystone to the governor improperly intruded upon the power of the PSC under the state constitution.

But under another state constitutional provision, four judges aren't enough to rule a law unconstitutional. The state constitution requires a super-majority of five (of seven) judges to rule a law unconstitutional. So even though a majority held the delegation unconstitutional, it's not. That means the law stays in place, the delegation is good, and the governor's action approving Keystone is untouched.

Before ruling on the merits, the court also ruled on taxpayer standing. The same four judges that argued that the delegation was unconstitutional also held that taxpayers had standing. (The other three argued that there was no standing, and that the standing decision also required a super-majority.) The court invoked its "great public concern" exception to the general rule against taxpayer standing. Under that exception, the court can take up a taxpayer case when it involves an issue of "the Legislature's obedience to the fundamental distribution of power in this state": "when a taxpayer claims that the Legislature enacted a Law that undermines the fundamental limitations on government powers under the Nebraska Constitution, this court has full power and the responsibility to address the public rights raised by a challenge to that act." The "great public concern" exception gives the Nebraska courts more leeway in taking up taxpayer cases than the Supreme Court's standing rules under Article III.


January 9, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Separation of Powers, Standing, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 10, 2014

Montana Supremes Grant Right to Counsel in Private Adoption, Termination Cases

The Montana Supreme Court ruled in In the Matter of the Adoption of AWS and KRS that state constitutionaly equal protection guaranteed the right to counsel for an indigent mother in a private termination-of-parental rights proceeding.

The ruling means that poor parents in Montana now have a constitutional right to an appointed attorney to represent them in private cases (like adoptions) involving the termination of their parental rights.

The ruling also illustrates how state constitutional rights can be more generous than federal constitutional rights. (Under Lassiter v. Dep't of Social Services, there is no categorical constitutional right to counsel in a termination proceeding under the Fourteenth Amendment.)

The Supreme Court applied Montana state constitutional equal protection, which the court said "provides even more individual protection than the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution."

The court noted that parents subject to state-initiated termination of parental rights (as in an abuse-and-neglect proceeding) have a state statutory right to counsel, but that parents subject to private termination of parental rights (as in an adoption, as in this case) don't. Because the underlying right--the right to parent--is fundamental, the court applied strict scrutiny to the distinction.

The court said that the only reason for not providing counsel in the private termination case was money. And that's not a sufficiently important state interest under strict scrutiny. So the indigent parent in a private termination case gets an attorney, too, as a matter of state constitutional equal protection.

The court suggested that an attorney in a state-initiated termination proceeding might be constitutionally compelled, or at least the issue raises a serious constitutional question, under the Montana constitution. (Under the Fourteenth Amendment and Lassiter v. Dep't of Social Services, there is no categorical constitutional right to counsel, and the answer depends on a Mathews v. Eldridge balancing.) This means that the state legislature can't solve the equal protection problem by taking away the statutory right to counsel for parents in a state-initiated termination proceeding; instead, it has to ratchet-up the rights of parents in a private termination proceeding.

For more information on civil right to counsel, or Civil Gideon, check out the National Coalition for a Civil Right to Counsel, an outstanding organization that is the clearinghouse for the excellent work in this area.

December 10, 2014 in Cases and Case Materials, Comparative Constitutionalism, Equal Protection, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

Georgia High Court Upholds Use of Private Probation Companies

The Georgia Supreme Court yesterday rejected claims by a group of plaintiffs that the state courts' use of private probation companies violated due process. At the same time, however, the court ruled that Georgia law and contract principles could limit the way those companies operate.

The plaintiffs in the case, a group of probationers, argued that the use of private probation companies violated due process, and that the company imposed excessive fees on them for unauthorized monitoring, testing, and tolling of their probation. The case illustrates the dangers and abuses that can come with hiring out a private company to conduct functions like probation.

The plaintiffs alleged first that Georgia's statute authorizing state courts to use private probation companies was facially invalid, because it them of liberty without due process of law. That's because the statute did not restrict the courts from arranging payment based on the length of a misdemeanant's probation and other probation-related services that the company provided (like monitoring and testing), creating a conflict of interest for the company. Moreover, plaintiffs claimed that courts relied on recommendations by private probation officers who had a pecuniary interest in the outcome.

The court rejected these claims:

While the supervision of probation is a function historically performed by state probation officers, the mere act of privatizing these services does not violate due process. Nothing on the face of the statute allows Sentinel or any other private probation company to deprivate an individual of his or her property or liberty without due process of law nor is there anything which authorizes the creation of a private probation system that is so fundamentally unfair that it fails to comport with our notions of due process. . . . As found by the trial court, most of the injuries alleged by the plaintiffs in these cases occurred not because of Sentinel's compliance with the restrictions placed upon it by the private probation statutory framework, but becasue of Sentinel's failure or the failure of its employees to abide by the limited statutory authority granted.

The court also rejected the plaintiffs' claims that the statute allowed their imprisonment for debt, in violation of the Georgia Constitution, and that a court couldn't order, and a private company couldn't use, electronic monitoring devices.

But the court ruled as a matter of statutory interpretation that Georgia law did not allow for the tolling of misdemeanor probationers' sentences. That's because misdemeanor sentences are set by statute at one year, at which point jurisdiction over the defendant ceases, and there's no statutory authority to deviate from that rule.

Finally, the court ruled, based on Sentinel's contracts, that some of the plaintiffs could recover fees paid to Sentinel for probation services during their original probation, and that others could recover fees paid after the expiration of the term of their original sentences or for electronic monitoring.

November 25, 2014 in Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 5, 2014

State Constitutional Amendments on the Ballot

In addition to the candidates, Tuesday's ballots contained a wide variety of proposed state constitutional amendments--from protecting and curtailing fundamental rights, to taxes, to structure and governance issues.

Maybe most notably, Colorado and North Dakota voters rejected a personhood amendment, while Tennessee voters approved an amendment giving lawmakers more power to regulate abortions.

Here's a sampling of other approved amendments:

Alabama voters passed an amendment to ban the use of foreign law in state courts, and another one to strengthen the state's constitutional right to hunt.

Illinois voters passed an amendment banning discrimination in the vote and another one that expands the rights of crime victims in the criminal justice system.

Mississippi voters aproved an amendment creating a right to hunt and fish.

Missouri voters approved an amendment to make it easier to prosecute sex crimes against children, and another one to limit the governor's ability to withhold money from the state budget.

North Carolina voters approved an amendment allowing criminal defendants to choose a judge or a jury trial.

South Carolina voters approved an amendment allowing certain nonprofits to hold raffles and use proceeds for charitable causes, and another allowing the governor to appoint the head of the South Carolina National Guard with consent of the Senate.

Tennessee approved four amendments: one to give lawmakers more power to regulate and restrict abortions; two to give more power to the governor in appointing judges (and to take that power away from a judicial nominating commission); three to forbid a state income tax; and four to allow the legislature to authorize lotteries to certain nonprofits.

Utah voters passed an amendment clarifying the term of an appointed lieutenant governor.

Virginia voters approved an amendment that exempts from local property taxes the home of a surviving spouse of an armed forces member who was killed in action.

Wisconsin voters approved an amendment that prevents governors and legislators from using state transportation funds for other purposes.

Here's a sampling of rejected amendments:

Colorado voters overwhelmingly rejected a personhood amendment.

Florida voters rejected a medical marijuana amendment. (Voters in other states also voted on marijuana initiatives, but Florida's was a proposed constitutional amendment.)

Idaho voters rejected an amendment that would allow the legislature to veto rules put in place by executive branch agencies.

Missouri voters rejected an amendment to evaluate K-12 teachers based on student performance instead of seniority, and another amendment to create a limited early voting period.

North Carolina voters rejected a personhood amendment.

November 5, 2014 in Comparative Constitutionalism, Elections and Voting, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, October 16, 2014

Arkansas Supreme Court Strikes Voter ID

The Arkansas Supreme Court yesterday struck the state's voter ID requirement under the state constitution. The unanimous ruling means that Arkansas will not use Act 595's voter ID requirements in the upcoming elections.

The ruling is based on state constitutional law only, and therefore won't and can't be appealed to the United States Supreme Court.

The state high court ruled that Act 595's voter ID requirement added a voter requirement to those set in the state constitution. Arkansas's constitution, art. 3, Section 1, says,

Except as otherwise provided by this Constitution, any person may vote in an election in this state who is:

(1) A citizen of the United States;

(2) A resident of the State of Arkansas;

(3) At least eighteen (18) years of age; and

(4) Lawfully registered to vote in the election.

The court said, "These four qualifications set forth in our state's constitution simply do not include any proof-of-identity requirement." The court struck Act 595 on its face.

The court also rejected the argument that voter ID was simply a procedural method of identifying a voter, and therefore constitutional under a state constitutional provision allowing such methods:

We do not interpret Act 595's proof-of-identity requirement as a procedural means of determining whether an Arkansas voter can 'lawfully register[] to vote in the election.' Ark. Const. art. 3, Sec. 1(4). Under those circumstances, Act 595 would erroneously necessitate every lawfully registered voter in Arkansas to requalify themselves in each election.

Justice Courtney Hudson Goodson concurred in the result, but because Act 595 failed to get a two-thirds majority vote in both houses of the legislature as required by a 1964 amendment to the constitution that sets the requirements for identification and registration of voters (and does not include photo ID) and allows for legislative amendment of those requirements if the legislature votes by two-thirds in both houses.

October 16, 2014 in Cases and Case Materials, Comparative Constitutionalism, Elections and Voting, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, August 29, 2014

Texas Supreme Court: Injunction Prohibiting Future Defamation an Unconstitutional Prior Restraint But . . .

In its unanimous opinion today in Kinney v. Barnes, the Texas Supreme Court (pictured) considered the constitutionality of requested relief on an injunction in a defamation case for removal/ deletion of speech that has been adjudicated defamatory, and that "prohibits future speech that is the same or similar to the speech that has been adjudicated defamatory." 

The court held that an injunction of the former type would be constitutional, while the latter would not.


The court's opinion, authored by Justice Debra Lehrmann, squarely rested its conclusion on state constitutional law, TEX. CONST. art. I, § 8, even as it relied heavily on United States Supreme Court cases on prior restraint under the First Amendment.  However, the court specifically declined to "determine whether the Texas Constitution provides greater protection than the First Amendment on the specific issue presented to us, as the U.S. Supreme Court has not definitively addressed it." 

The trial and intermediate appellate court both granted summary judgment in favor of the defendant based on the unconstitutionality of the relief sought.  However, the court found that an injunction could

order Barnes to remove the statements at issue from his websites (and request that third-party republishers of the statements do the same) upon a final adjudication that the statements are defamatory. Such an injunction does not prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected in the context in which it was made. As such, it is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.

This would be true assuming that the standards for an injunction were otherwise met, with the understanding that damages are the preferred remedy for defamation.  However, as to future statements, an injunction would be an impermissible prior restraint, in part because it would be almost necessarily overbroad:

The particular difficulty in crafting a proper injunction against defamatory speech is rooted in the contextual nature of the tort. In evaluating whether a statement is defamatory, the court construes it “as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement.” [citation omitted].  Given the inherently contextual nature of defamatory speech, even the most narrowly crafted of injunctions risks enjoining protected speech because the same statement made at a different time and in a different context may no longer be actionable. Untrue statements may later become true; unprivileged statements may later become privileged.

Yet in some ways, this observation highlights the problem with the removal of the adjudged defamatory statement.  It too is contextual and time-bound, but arguably this becomes (temporarily) determined if there is a finding that it is defamatory. 

The court rejected the notion that "the Internet is a game-changer" and also rejected the assertion of the importance of "cyber-bullying and online hate speech": "It is enough to say that neither of those is at issue here."

August 29, 2014 in Courts and Judging, First Amendment, Speech, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2014

Fourth Circuit: Virginia's Same-Sex Marriage Ban is Unconstitutional

Affirming the federal district judge's decision in February, a panel of the Fourth Circuit in a divided opinion has held in Bostic v. Schaefer that Virginia's same-sex marriage prohibitions are unconstitutional.

The majority opinion, authored by Judge Henry Floyd and joined by Judge Roger Gregory, notably finds marriage to be a fundamental right that encompasses same-sex marriage and applies strict scrutiny. 

Fourth Circuit map
The court's conclusion is that the "Virginia Marriage Laws" (including statutes and a state constitutional amendment)

violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages.

At various times, the court blends Due Process and Equal Protection analysis and precedent, but both spring from its conclusion that "marriage" is a fundamental right and that "marriage" includes same-sex marriage.    After discussing Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley, the court notes:

These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at 12. If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.

The court's use of "couplings" implicitly addresses a portion of the oft-called slippery slope argument that is raised by Judge Paul Niemeyer in his dissent: what would prevent this rationale from extending to polygamy?  The dissent also invokes incest, accusing the majority of "dictionary jurisprudence" when it (re)defines marriage to include same-sex marriage.  But of course, the definitional conundrum plagues the dissent as well, when it argues that certain qualities are "foundational" to marriage and other qualities are "irrelevant."  For the dissent, this is the "biological link between procreation and marriage," a link that does exist in the polygamous and incestuous marriages the dissent disapproves.

For the majority, after finding marriage a fundamental right deserving of strict scrutiny, the five governmental interests argued as supporting the marriage laws not surprisingly fail to pass constitutional muster:

  • (1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders,
  • (2) the history and tradition of opposite-sex marriage,
  • (3) protecting the institution of marriage,
  • (4) encouraging responsible procreation, and
  • (5) promoting the optimal childrearing environment.

 More surprising is that although these interests are raised by the parties the court calls the  "Proponents" of the Virginia marriage laws, there is little in the court's opinion that analyzes their standing to appeal.  The court does analyze the standing of the plaintiffs to sue the defendants George Schaefer III (in his official capacity as Clerk of Court for Norfolk Circuit Court) and Janet Rainey (in her official capacity as State Registrar of Vital Records).  And since these parties were indeed defendants, there may be little need for an extensive analysis of appellate standing as was necessary in the same-sex marriage cases decided by the United States Supreme Court in June 2013. Nevertheless, recall that the (new) Virginia Attorney General had decided during the district court litigation that the Virginia laws were unconstitutional and filed a notice of change of position; however the laws continued to be enforced. 

The Fourth Circuit thus joins the Tenth Circuit in holding that a state's same-sex marriage ban violates the Fourteenth Amendment.   While these circuit court opinions are divided, the dozen or so federal district judges who have considered the issue have been unanimous in reaching the same conclusion.


July 28, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, State Constitutional Law, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

New York's Highest Court Finds Cyberbullying Law Violates First Amendment

In its opinion in People v. Marquan M, the New York Court of Appeals (NY's highest court), found that Albany Local Law 11 (2010)  criminalizing cyberbullying was unconstitutional under the First Amendment. 

The local law for Albany County criminalized cyberbullying against any "minor or person" (with "person" interestingly defined as including corporations) with cyberbullying defined as:

any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.

450px-Bully_Free_ZoneThe majority opinion, authored by Judge Victoria Graffeo for four additional judges over a two-judge dissent, found that the law was overbroad under the First Amendment: "the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." 

The defendant and his actions here - - - a 15 year old who used Facebook to anonymously post "photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information," with "vulgar and offensive" "descriptive captions" - - -  were within the "cyberbullying" that the Local Law intended to proscribe.  But even Albany County agreed that the local law was overbroad.  However, the County argued that the severability clause of the local law should be employed to excise the word "person" so that the only covered victims were minors.  But the court found that even that would not "cure all of the law's constitutional ills."   The dissenters would have engaged in saving constructions.

In ruling that a local law intended to criminalize as a misdemeanor cyberbullying did not survive the First Amendment because it was overbroad, New York's highest court left open the possibility that a prohibition of cyberbullying could be more narrowly crafted to survive First Amendment review:  "the First Amendment does not give defendant the right to engage in these activities." 

However, the court's opinion offers little guidance about how such a law or policy should be drafted.  New York's Dignity for All Students Act  as amended in 2012 places the responsibility for developing "policies and procedures intended to create a school environment that is free from harassment, bullying and discrimination" on school boards.  While Albany's law was a general criminal statute, school boards will undoubtedly be considering Marquan M. as they review their current "cyberbullying" prohibitions in light of the First Amendment.  They may also be recalling the Third Circuit's unhelpful intervention in a pair of "My Space" cases in which principals were arguably "bullied. 

And undoubtedly, those interested in cyberbullying in and out of schools will be watching the "true threats on Facebook case," Elonis v. United States, to be heard by the United States Supreme Court next Term.

 [image via]

July 3, 2014 in Courts and Judging, First Amendment, Interpretation, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Louisiana Supremes Uphold Ban on Firearms for Ex-Felons

The Louisiana Supreme Court this week upheld the state's prohibition on the possession of firearms by convicted felons against a challenge that the law violated the state's gun-rights amendment.  The court described the prohibition as "effective, time-tested, and easily understandable," and said that "[c]ommon sense and the public safety allow no other result."

Lousisiana's gun-rights amendment is notable because it explicitly sets strict scrutiny as the standard for laws infringing on the right to keep and bear arms:

The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.

Article I, Section 11.  Louisiana voters enacted the amendment to ensure that laws regulating guns are subject to the strictest standard of review (and not some lower standard that the courts might have used under the Second Amendment and Heller.)  The previous version of the state constitution read, "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." 

The court, with little analysis, concluded that Louisiana's law banning the possession of guns by convicted felons for a period of 10 years after their release met strict scrutiny.  The court said that the state had a compelling interest in public safety, and that this ban was easily narrowly tailored to meet that interest (again, with little serious analysis).  The court also looked to legislative history of the amendment that suggested that the amendment wouldn't affect gun laws already on the books at the time of the amendment.

The court's cursory analysis (under strict scrutiny, no less) says that certain gun restrictions get a free pass, and that provisions like Louisiana's amendment are strong on paper but but weaker in application.  It also suggests that the amendment, with its strict scrutiny test, bit off more than it can chew.

July 3, 2014 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, Second Amendment, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

Seattle's Minimum Wage Challenged in Federal District Court

Seattle - - - a "progressive and expensive city" - - - "struck a blow against rising income inequality" by raising its municipal minimum wage to $15 per hour earlier this month, as Maria La Ganga reported in the LA Times. Seattle Ordinance 12449 becomes effective in 2015, with a phase-in schedule of pay rates dependent on type of employer.   But it has already been challenged as unconstitutional.

The complaint in International Franchise Association, Inc. v. City of Seattle challenges the ordinance on a variety of constitutional grounds: (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment and state constitution, the state constitutional privileges or immunities provision, preemption under the Lanham Act (trademarks), the contract clauses of the federal and state constitutions, and the First Amendment. 

skyline of Seattle via

A central issue in this complaint is the Ordinance's definitions of schedule 1 and schedule 2 employers as the definitions relate to franchises.  As paragraph 50 provides:

The Ordinance provides that, for purposes of determining whether an employer is a Schedule 1 or Schedule 2 employer, “separate entities that form an integrated enterprise shall be considered a single employer ... where a separate entity controls the operation of another entity,” but this test applies only to a “non-franchisee employer.” Under the Ordinance, if a small franchisee is associated with a franchise network that employs more than 500 workers, the small franchisee is deemed a Schedule 1 Employer even if it is not part of an “integrated enterprise” as so defined.

Filed by Bancroft LLC and signed by Paul Clement, the pleading contains various arguments detailing why such a distinction is unconstitutional, largely revolving around the competitive disadvantage the ordinance will place on franchised and parent businesses by requiring higher wages.  

LawProf David Ziff of University of Washington School of Law in Seattle has some helpful discussions of the complaint on his blog, including an overview and a specific discussion of the "classes of corporations" argument under the state constitution's privileges or immunities clause.

Certainly this is litigation to watch.  And certainly cities across the United States that are considering similar measures will be looking closely.  Cities are often rightly concerned with state constitutional powers of "home rule" allowing municpalities to vary from the state mandated wage; for example,  the courts declared the 1964 attempted minimum wage raise from 1.25 to 1.50 in NYC to be beyond the powers of the city. But the Seattle challenge raises federal constitutional issues that are necessarily obvious.

June 12, 2014 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, Federalism, Privileges and Immunities, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)