Monday, April 1, 2013
In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.
Judge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints. The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed. Batts dispatched this argument with a rehearsal of the causal connections:
But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.
She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.
The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.
In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971). The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion. Judge Batts found it important that
there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.
She disagreed that the size of the cross was determinative. First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall. Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."
As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review. The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history. The museum has the choice whether or not to include atheistic symbols.
Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful. It looks as if the September 11 Museum will include the seventeen foot cross.
Friday, March 22, 2013
A state judge ruled that a Lousiana statute that criminalizes gun possession by felons violated the state's new and enanced right to bear arms, according to the Times-Picayune. The judge ruled the criminal ban unconstitutional and dismissed the felon possession charge against the defendant in the case. The ruling will go directly to the state supreme court.
Louisiana voters last year overwhelmingly passed a proposed state constitutional amendment, Proposed Amendment 2, that made "the right to keep and bear arms . . . fundamental" and explicitly provided for strict scrutiny review of any restriction of that right. The amendment also did away with previous language that permitted the state to prohibit the carrying of a concealed weapon. Here's the Lousiana SOS backgrounder; here are the ballot measures.
Under the new amendment, courts faced with a restriction on "the right to keep and bear arms" must apply strict scrutiny review. According to Judge Darryl Derbigny, Louisiana's statute criminalizing felon possession of guns just didn't cut it.
Thursday, March 14, 2013
The opinion of a New York judge holding unconstitutional the NYC Department of Health regulation regarding soda sizes - - - popularly known as Mayor Bloomberg's soda ban - - - might be viewed as a triumph of conservative principles deployed to prevent government overreaching.
But over at Slate, Emily Bazelon provides a contrary view. Indeed, she writes that
Judge Tingling paid lip service to the principle that courts must defer to elected bodies, which include executive agencies, but really, he is just substituting his judgment for theirs.
She has a good analysis of the opinion, both the separation of powers issue and the "arbitrary and capricious" conclusion, but also situates the opinion within larger notions of "conservative judicial activism."
Worth a read, especially for those outside NYC who want more depth than the surfeit of news stories are providing.
Monday, March 11, 2013
The constitutional issues in the challenge to NYC Health Code §81.53 - - - the New York City Department of Health regulation prohibiting sugary drinks in restaurants, movie theaters and arenas to exceed 16 ounces - - - largely involve the power of a city agency to promulgate such a rule. Today, a state trial judge, Milton Tingling, issued an decision in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene enjoining §81.53 for violating the state separation of powers doctrine.
After a lengthy discussion of New York City Charters - - - beginning with the first charter in 1686 - - - Judge Tingling wrote:
To accept the respondents' interpretation of the authoriy granted to the Board [of Health] by the New York City Charter would leave its authority to define, create, mandate and enforce limited only by its own imagination. . . . The Portion Cap Rule, if upheld, would create an administrative Levianthan and violate the separation of powers doctrine. The Rule would not only violate the separation of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling that sugar sweetened beverages.
The judge's conclusion that the regulation was therefor "arbitrary and capricious" followed from the lack of agency power.
The ruling is sure to be appealed from the supreme court - - - which in New York is the lowest and trial court - - - to an appellate court.
Tuesday, February 19, 2013
A bill introduced in the Missouri legislature would criminalize the introduction of other legislation. HB 633 would amend the state statutes to provide:
Any member of the general assembly who proposes a piece of legislation that further restricts the right of an individual to bear arms, as set forth under the second amendment of the Constitution of the United States, shall be guilty of a class D felony.
The bill is likely unconstitutional under its state constitution.
The Missouri state constitution, like the United States Constitution, Art. I §6, has a "speech or debate" clause that is generally construed to protect legislative action. Missouri Constitution Art. III §19, "legislative privileges," provides:
Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during the session of the general assembly, and for the fifteen days next before the commencement and after the termination of each session; and they shall not be questioned for any speech or debate in either house in any other place.
The Missouri bill seems to fall outside the general purpose of legislative privilege provisions that are intended to protect the legislature from overreaching by other branches. Nevertheless, the Missouri legislature's criminal provision would call legislators into courts to "be questioned" for their legislative acts.
[image: Missouri State Capitol via]
Wednesday, January 30, 2013
Just a month after Michigan passed so-called "right-to-work" legislation--and became the 24th state to prohibit requiring employees to join a union or pay equivalent fees in a union shop--legislatures in Iowa and Virginia both upped the ante and took up provisions to amend their state constitutions to include right to work. (The Virginia measure now appears dead.)
These aren't the first states to move to constitutionalize right to work. Arizona has a state constitutional right-to-work provision:
Article XXV Right to Work. Right to work or employment without membership in labor organization.
No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the State or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.
Article I, Section 6: Right to work.
The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.
Michigan Governor Rick Snyder (R) is taking a different tack in relation to his state's constitution: he has asked the state supreme court to issue an advisory opinion on the constitutionality of the state's recently enacted right-to-work laws. The questions: whether the new right-to-work law for the public sector interferes with the Civil Service Commission's constitutional authority, thus nullifying the law as applied to the classified state civil service; and, if so, whether the laws violate equal protection (by treating the classified civil service differently than everyone else). There's another question: whether the new laws violate state constitutional provisions stating that a bill can't be amended to change its original purpose and that bills have to meet certain procedural requirements (including sitting in each house for at least five days, and read three times).
Snyder's move appears to be designed to short-circuit promised legal actions to halt or delay the implementation of the bills. Getting a favorable ruling from the state supreme court would allow Snyder to implement the laws immediately.
Thursday, January 24, 2013
It's easy to see how writing and publishing a memoir centering on one's former spouse, especially if the theme is how "Satan (through my ex) set out to destroy my life," might lead to a defamation action in state court by the former spouse. But as the Iowa Supreme Court demonstrated in its recent opinion in Bierman v. Weier, the entwinement of the First Amendment, the state constitution, and the tort issues are far from simple to resolve.
The opinion has an excellent discussion of First Amendment Supreme Court precedent on defamation and an interesting application of last term's decision in United States v. Alvarez, the "Stolen Valor case." The defendants argued that Alvarez should be construed to invalidate libel per se presumptions because it recognized a First Amendment right to make "factually false statements." As the court stated, however, the problem with this argument "is that both opinions making up the Alvarez majority specifically highlighted defamation as a traditional area where the law was constitutional because it did not punish statements merely because of their falsity." The Iowa Supreme Court also disregarded the applicability of Citizens United to arguments invalidating libel per se as a matter of state law.
This was not merely a matter of state common law, however, for the Iowa state constitution specifically addresses the issue of libel in Article I, section 7:
Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the party shall be acquitted.
The Iowa Supreme Court emphasized that the language supported the continuance of libel per se, especially given the text that made persons "responsible for the abuse of that right."
The continued constitutionality of libel per se left open the legal status of Author Solutions, Inc. (ASI), the self-publishing venture named as a defendant for its role in producing Scott Weier's book. The status of ASI as a media or nonmedia defendant was important under the state libel law that uses a "Gertz [v. Robert Welch] -inspired framework, which distinguishes media and nonmedia defendants and reserves libel per se for private plaintiffs and nonmedia defendants." In assessing whether ASI was a media defendant, the Iowa Supreme Court found that it was, interestingly citing New York Times v. Sullivan in support of this rationale:
"It is true that Scott [Weier] paid ASI to publish his book, rather than the other way around. But this fact alone does not change the analysis. Both our precedents and the United States Supreme Court’s have accorded the same protection to media defendants when they publish advertisements as when they publish content they have paid for."
Given the heightened standard of libel per se, the majority found that there was no malice on the part of ASI and reversed the lower court's denial of ASI's motion for summary judgment. Scott Weier was less successful: the Iowa Supreme Court affirmed the district court and the plaintiffs' claims of libel, false light, and intentional emotional distress will be proceeding to trial, barring a settlement.
Tuesday, January 15, 2013
"Throughout her career, Professor Rivera has worked to defend the legal rights of all New Yorkers and make our state a fairer, more just place to live," Governor Cuomo said. "As a Judge on the Court of Appeals, Professor Rivera's legal expertise and passion for social justice will serve all New Yorkers well, and I am proud to send her nomination to the Senate today."
Readers of the ConLawProf will recall our 2008 review of Rivera's article, An Equal Protection Standard For National Origin Subclassifications: The Context That Matters, 82 Wash. Law Review 897 (2007), examining classifications that rely on terms such as "Hispanic" and "Latino" and observing that such terms actually embrace a host of national origin classifications such as Puerto Rican, Dominican, Chilean, and Portuguese, even as she contends that this is not a reason to abandon equal protection analysis, but to delve deeper.
Rivera was also a participant in a public conversation "Translating Equality" with poet Kimiko Hahn and an author of the The Law Professors’ Report on U.S. Supreme Court Nominee Sonia Sotomayor: On the Merits from the Hispanic Bar Association.
Congratulations Jenny Rivera!
Saturday, December 22, 2012
A three-judge panel of the Ninth Circuit ruled this week in Barnes-Wallace v. City of San Diego that the City's lease to the Boy Scouts for property to use for youth recreational programs did not violate the California Constitution's No Aid Clause and the state and federal establishment clauses. The plaintiffs said that the Boy Scouts prohibit atheists, agnostics, and gays and lesbians from being members or volunteers and require members to affirm a belief in God, and that a City lease to the organization on favorable terms therefore violated state and federal constitutional prohibitions on government aid to religion. The ruling almost certainly ends this long-running case in favor of the City.
California's No Aid Clause prohibits the City from "mak[ing] an appropriation, or pay[ing] from any public fund whatever, or grant[ing] anything to or in aid of any religious sect, church, creed, or sectarian purpose . . . ." Cal. Const. art. XVI Sec. 5. The state Supreme Court has read into the Clause four requirements: (1) the government program must serve the public interest and provide no more than an incidental benefit to religion; (2) the program must be available to both secular and sectarian institutions on an equal basis; (3) the program must prohibit use of public funds for "religious projects"; and (4) the program must not impose any financial burden on the government.
The Ninth Circuit said the lease satisfied the four-part test. It said that the lease was for the Boy Scouts to run youth recreational activities, not for any religious purpose; that the City leased property to scores of secular organizations; that no City funds went to "religious projects"; and that the leases weren't a financial burden on the government. (The court said that even the favorable leases netted out to the City's benefit, because the Boy Scouts substantially improved and managed the leased property.)
The court said that both the California and federal establishment clauses turned on the Lemon test, and that the City's lease satisfied it. The court held that the purpose of the lease was secular (to provide facilities and services for youth activities); that a reasonable observer could not conclude that the City was engaged in religious indocrination, or was defining aid recipients by reference to religion; and that the City wasn't involved at all in the management of the leased properties.
December 22, 2012 in Cases and Case Materials, Comparative Constitutionalism, Establishment Clause, News, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Thursday, November 1, 2012
Ballot Measure 5 before Florida voters on November 6 would, if approved, alter Florida's constitution to provide more power to the legislature at the expense to the judiciary and exceutive.
Perhaps not suprisingly, the measure is sponsored by the Florida legislature.
The full text clarifies some of the details, but the summary is not necessarily enlightening:
Proposing a revision of Article V of the State Constitution relating to the judiciary. The State Constitution authorizes the Supreme Court to adopt rules for the practice and procedure in all courts. The constitution further provides that a rule of court may be repealed by a general law enacted by a two-thirds vote of the membership of each house of the Legislature. This proposed constitutional revision eliminates the requirement that a general law repealing a court rule pass by a two-thirds vote of each house, thereby providing that the Legislature may repeal a rule of court by a general law approved by a majority vote of each house of the Legislature that expresses the policy behind the repeal. The court could readopt the rule in conformity with the public policy expressed by the Legislature, but if the Legislature determines that a rule has been readopted and repeals the readopted rule, this proposed revision prohibits the court from further readopting the repealed rule without the Legislature's prior approval. Under current law, rules of the judicial nominating commissions and the Judicial Qualifications Commission may be repealed by general law enacted by a majority vote of the membership of each house of the Legislature. Under this proposed revision, a vote to repeal those rules is changed to repeal by general law enacted by a majority vote of the legislators present. Under current law, the Governor appoints a justice of the Supreme Court from a list of nominees provided by a judicial nominating commission, and appointments by the Governor are not subject to confirmation. This revision requires Senate confirmation of a justice of the Supreme Court before the appointee can take office. If the Senate votes not to confirm the appointment, the judicial nominating commission must reconvene and may not renominate any person whose prior appointment to fill the same vacancy was not confirmed by the Senate. For the purpose of confirmation, the Senate may meet at any time. If the Senate fails to vote on the appointment of a justice within 90 days, the justice will be deemed confirmed and will take office. The Judicial Qualifications Commission is an independent commission created by the State Constitution to investigate and prosecute before the Florida Supreme Court alleged misconduct by a justice or judge. Currently under the constitution, commission proceedings are confidential until formal charges are filed by the investigative panel of the commission. Once formal charges are filed, the formal charges and all further proceedings of the commission are public. Currently, the constitution authorizes the House of Representatives to impeach a justice or judge. Further, the Speaker of the House of Representatives may request, and the Judicial Qualifications Commission must make available, all information in the commission's possession for use in deciding whether to impeach a justice or judge. This proposed revision requires the commission to make all of its files available to the Speaker of the House of Representatives but provides that such files would remain confidential during any investigation by the House of Representatives and until such information is used in the pursuit of an impeachment of a justice or judge. This revision also removes the power of the Governor to request files of the Judicial Qualifications Commission to conform to a prior constitutional change. This revision also makes technical and clarifying additions and deletions relating to the selection of chief judges of a circuit and relating to the Judicial Qualifications Commission, and makes other nonsubstantive conforming and technical changes in the judicial article of the constitution.
The measure is seen by some as coupled with political efforts to vote against the "merit retention" of the three Florida Supreme Court justices- - - Fred Lewis, Barbara Pariente (pictured) and Peggy Quince - - - arguably because "the Florida Supreme Court removed from the ballot a nonbinding amendment allowing Floridians to refuse to buy mandatory health insurance."
Another ballot initiative to watch on election day.
Tuesday, September 25, 2012
The Maryland Court of Appeals ruled in Doe v. Maryland State Board of Elections that a ballot referendum challenging the Maryland Dream Act, a law that offers in-state tuition to Maryland colleges and universities to certain qualifying unauthorized aliens, can stay on the ballot in the upcoming elections.
The decision gives reasons for the court's earlier per curiam order also allowing the referendum on the ballot. The rulings mean that the Maryland Dream Act, a validly enacted state law, will go before Maryland voters in the upcoming election. (Here's a sample ballot. The referendum is Question 4, on page 2.)
At issue was the state constitutional appropriations exception to the referendum clause. The referendum clause says,
The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor.
Md. Const. art. XVI, Sec. 1(a). But the appropriations exception prohibits a referendum on certain appropriations questions:
No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.
Md. Const. art. XVI, Sec. 2. The appropriations exception is designed to insulate essential functions of the state, funded by "appropriations for maintaining the State Government," from the whims of voters.
The state Board of Elections approved a referendum challenging the Dream Act for the fall 2012 elections, and petitioners, unnamed and unauthorized aliens who sought in-state tuition under the Act, challenged it as violating the appropriations exception.
The court said that the Dream Act does, indeed, require additional appropriations, but that those appropriations were not the kinds of outlays that the appropriations exception had in mind. The Dream Act was neither a budget bill nor an appropriations bill; it's not a revenue-raising measure; and its primary purpose was to provide a benefit, not to spend money. (Spending money is only incidental.)
The court also rejected the claim that the Dream Act was in pari materia with the state Cade Funding Formula, a formula that ensures stable year-to-year funding of state colleges and universities and itself "mak[es] any appropriation . . . for maintaining or aiding any public institution," and thus shoehorned into the appropriations exception by way of Cade. The court said that the Dream Act and Cade (and any future budget bills) operate independently, so that Cade doesn't leverage the Dream Act into the appropriations exception.
The Dream Act now goes to Maryland voters.
Tuesday, September 18, 2012
Applying the Pennsylvania Constitutional provision that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” PA. CONST. art. 1, § 5, in its opinion in Applewhite v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court today remanded the question of the constitutionality of Pennsylvania's new "Voter ID" law back to the trial judge.
In its 7 page ruling, the per curium majority stressed that the affected population involves "members of some of the most vulnerable segments of our society (the elderly, disabled members of our community, and the financially disadvantaged)." As the ruling makes clear, the statute's original plan - - - that persons needing voter ID could easily obtain it from the Pennsylvanian Department of Transportation, PennDOT - - - was unworkable given PennDOT's rigorous requirements. A bit less clearly, the opinion states:
Upon review, we find that the disconnect between what the Law prescribes and how it is being implemented has created a number of conceptual difficulties in addressing the legal issues raised. Initially, the focus on short-term implementation, which has become necessary given that critical terms of the statute have themselves become irrelevant, is in tension with the framing of Appellants’ challenge to the Law as a facial one (or one contesting the Law’s application across the widest range of circumstances). In this regard, however, we agree with Appellants’ essential position that if a statute violates constitutional norms in the short term, a facial challenge may be sustainable even though the statute might validly be enforced at some time in the future. Indeed, the most judicious remedy, in such a circumstance, is the entry of a preliminary injunction, which may moot further controversy as the constitutional impediments dissipate.
Absolutely clear, however, is the Supreme Court's remand to the Commonwealth Court and its vacating of that court's "predictive judgment" that there would be no voter dienfranchisement. Instead, the lower court must "consider whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards," and if not, issue a preliminary injunction against the voter ID law. The Supreme Court ordered the lower court to issue its opinion on or before October 2.
There were two vigorous dissents, both arguing that the Supreme Court should not remand the issue.
In her dissenting opinion, Justice Todd stated that in her view, "the time for prediction is over":
Forty-nine days before a Presidential election, the question no longer is whether the Commonwealth can constitutionally implement this law, but whether it has constitutionally implemented it. Despite impending near-certain loss of voting rights, despite the Commonwealth's admitted inability thus far to fully implement Act 18 and its acceptance that, presently, “the Law is not being implemented according to its terms,” and despite the majority's concession that the “most judicious remedy” in such circumstances would be to grant an injunction, the majority nonetheless allows the Commonwealth to virtually ignore the election clock and try once again to defend its inexplicable need to rush this law into application by November 6, 2012.
And in a dissenting opinion as long as the per curium, and in which Todd joined, Justice McCaffery made clear that not only should the court decide the matter, but that there was "no doubt that the record, as it is, establishes the immediate and irreparable harm required for the injunction." McCaffery also had some especially pointed words about the political process:
While I have no argument with the requirement that all Pennsylvania voters, at some reasonable point in the future, will have to present photo identification before they may cast their ballots, it is clear to me that the reason for the urgency of implementing Act 18 prior to the November 2012 election is purely political. That has been made abundantly clear by the House Majority Leader. Exhibit 42 at R.R. 2073a. I cannot in good conscience participate in a decision that so clearly has the effect of allowing politics to trump the solemn oath that I swore to uphold our Constitution. That Constitution has made the right to vote a right verging on the sacred, and that right should never be trampled by partisan politics.
Thus, it seems that at least two of the six sitting Justices would immediately enjoin the voter ID law, and four are waiting for a lower court judge to make additional findings but lean towards an injunction. [UPDATED INFO: Recall that Justice Orie Melvin is not on the court at present; Order of Suspension here.
[image: Pennsylvania Supreme Court Justices via]
Friday, September 14, 2012
A state judge has declared sections of the controversial 2011 Wisconsin Act 10 unconstitutional as violative of state constitutional provisions. This follows a federal district judge also declaring portions of Act 10 unconstitutional in March.
In today's 27 page opinion in Madison Teachers Inc. v. Walker by state judge Juan Colas rejected the challenges based on the state constitutional provision limiting special sessions and the takings clause, as well as arguments that the controversy was nonjusticiable.
However, the judge found Act 10 violated the free speech, free association, and equal protection state constitutional protections, construing them as consistent with federal interpretations of the First and Fourteenth Amendments. Much of the judge's reasoning stressed that Wisconsin did not come forward with any arguments. The judge also found that there was a violation of the Wisconsin constitutional provision guaranteeing Milwaukee home rule.
[image: protests of Act 10 via]
Monday, August 27, 2012
The Alabama Supreme Court ruled in Ex Parte Bentley that the state constitution prohibited a common benefit litigant--one who successfully challenged the constitutionality of a permanent legislative committee--from collecting attorneys' fees and costs.
The case is the latest chapter in the McInnish litigation, involving a permanent state legislative committee designed to dole out community service grants. McInnish sued in the earlier case, arguing that the committee violated state constitutional separation of powers. McInnish claimed that the legislative committee, which received funds from a regular legislative appropriation, encroached on executive powers by deciding on particular grants to award and then awarding them.
The Alabama Supreme Court agreed. In McInnish v. Riley the court ruled that the legislative committee engaged in a quintessentially executive power by paying out the grants. It cited the state constitutional separation-of-powers provision, Section 43:
In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.
In Ex Parte Bentley, the court ruled that McInnish couldn't collect attorneys' fees and costs under the common benefit doctrine, based on the state sovereign immunity provision, Section 14:
That the State of Alabama shall never be made a defendant in any court of law or equity.
According to the court, this section bars any action if it seeks to recover damages or funds from the state treasury--even when a litigant sues for the common benefit.
Friday, August 24, 2012
Who should help pay the costs of public transportation?
That's the underlying question posed by Edward Mangano, the Nassau County (Long Island) Executive suing Sheldon Silver, the longtime Speaker of the NY State Assembly. It's a dispute pitting suburban companies against urban interests. The NY Legislature in 2009 passed the Metropolitan Transit Authority (MTA) Tax to fund the transit authority that serves NYC and its suburbs. Basically, the law imposes a 34 cent tax per 100 dollars of payroll.
Applying state constitutional law principles, a Nassau County judge issued a six page ruling in Mangano v. Silver, that the MTA tax was a "special law" that did not serve a substantial state interest and therefore did not satisfy the state constitutional process requiring a Home Rule message or a message of necessity with two-thirds vote in each house. It's sure to be appealed: the stakes are high and the opinion superficial. Meanwhile, because the process rather than the substance is the issue, perhaps the matter will be solved by political maneuvering.
Thursday, August 23, 2012
In a brief opinion, a panel of the Ninth Circuit interpreted the Constitution of the Commonwealth of the Northern Mariana Islands to provide no property interest in continued employment necessary for a due process claim by a Special Assistant to the Governor. More precisely, the Ninth Circuit deferred to the opinion of the Supreme Court of the Commonwealth of the Northern Mariana Islands, having certified the questions to the Supreme Court and attaching the court's opinion as an appendix to its own.
The Commonwealth Constitution, Article III, section 22, establishes an "Office of Special Assistant to the Governor for Women's Affairs," and provides that the "governor shall appoint a person, who is qualified by virtue of education and experience, to be the special assistant" and the "special assistant may be removed only for cause."
In Peter-Palican v. Government of Commonwealth of Northern Mariana Islands, Ms. Peter-Palican argued that the new governor's termination of her as Special Assistant to the Governor for Women's Affairs violated her due process rights.
The Ninth Circuit held that the "removal for cause" did not extend beyond the term of the governor who appointed her, adopting the Commonwealth's Supreme Court decision. Thus, Ms. Peter-Palican did not have the requisite property interest as a threshold for a due process inquiry.
The Ninth Circuit's determination that the Commonwealth Supreme Court is the final arbiter of its constitution comports with general federalism principles, although the Commonwealth of Northern Mariana Islands is not a state. Indeed, its status is rather unique, governed by the "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America," approved by Congress, and signed by President Ford in 1976. The Covenant exempts specific portions of the Constitution as well as specific federal laws (importantly, immigration and minimum wage laws) unless adopted by the Commonwealth.
The "removal for cause" provision in a constitution would seem to provide some protection from changing elected officials such as governors. Perhaps if the position were not a "special assistant to the governor" the Commonwealth Supreme Court - - - and the Ninth Circuit - - - would have viewed the matter differently.
Monday, August 20, 2012
The Kansas Supreme Court ruled last week in In the Matter of the Care and Treatment of Ontiberos that state and federal due process require that the state provide counsel to a person in a civil proceeding to detain that person as a sexually violent predator.
The ruling means that persons subject to civil confinement as sexual predators under Kansas law get an attorney at trial, and that the attorney has to meet certain standards of performance. The case is a victory for advocates of the right to counsel in civil proceedings, even if it's not particularly groundbreaking. It also reminds us that even after the Supreme Court stepped back from granting a categorical right to counsel whenever liberty is at stake, due process may still demand counsel in certain civil cases.
The Kansas Sexually Violent Predator Act allows the state to detain a person upon a showing beyond a reasonable doubt that the person is a sexually violent predator. But the Act is ambiguous about a target's statutory right to counsel. (The Act says that any person subject to it is entitled to the assistance of counsel at every stage, but it also says that the state's failure to comply "in no way prevents the attorney general from proceeding against" the person.) Ontiberos, a prisoner subject to KSVPA proceedings, had an attorney at trial, but claimed that he was ineffective. The ambiguity of the statutory right to counsel, and Ontiberos's claim that his attorney was ineffective, allowed the court to rule first whether he had a constitutional right to counsel and next whether that counsel was ineffective.
The court ruled Ontiberos had a state and federal constitutional right to counsel. It applied the familiar three-part procedural due process balancing test in Mathews v. Eldrige and ruled that Ontiberos's liberty interest was quite high, the government's interest in saving money was comparatively low, and the risk of an erroneous deprivation of liberty without counsel was high, especially because the government was represented by counsel.
The court tipped its hat to the Supreme Court's 2011 ruling in Turner v. Rogers. That case held that there was no automatic right to counsel in a child support proceeding, even if that proceeding could result in a parent's 1-year imprisonment (for contempt), so long as sufficient alternative procedures were available. Even so, said the Kansas court, Turner didn't rule out a constitutional right to counsel in other civil cases (like this one) where the Mathews factors aligned more favorably for the claimant.
Instead, the court looked to Vitek v. Jones. In Vitek, the Supreme Court ruled that a prisoner had a right to counsel in a proceeding to transfer the prisoner to a mental hospital until his sentence expired, unless treatment was no longer necessary. The Kansas court said that Ontiberos's liberty claim (the first Mathews factor) was even greater than the liberty claim in Vitek, because without the KSVPA proceeding Ontiberos would have been released. (Remember: his sentence was coming to an end.)
Having found a right to counsel, the court then ruled that counsel had to meet the two-prong performance standard in Strickland v. Washington. The court said that this attorney didn't, and remanded the case to the trial court.
Friday, August 10, 2012
The Supreme Judicial Court of Massachusetts in In the Matter of the Enforcement of a Subpoena formally recognized a judicial deliberative privilege rooted, in part, in state constitutional judicial independence and separation of powers.
The move simply puts a formal judicial stamp of approval on a privilege already recognized in other states and the federal system, and supported by Massachusetts common law. As the court said, "Such a privilege is deeply rooted in our common-law and constitutional jurisprudence and in the precedents of the United States Supreme Court and the courts of our sister States."
The court said the privilege applied to quash a subpoena issued by the Massachusets Commission on Judicial Conduct in relation to an investigation of allegations of bias against a Massachusetts judge. But the court also said that the Commission might issue a better tailored subpoena that would survive a motion to quash based on the privilege.
The court rooted the privilege in part on two state constitutional provisions, both requiring, in different ways, an independent and impartial judiciary. The first, Article 29 of the Massachusetts Declaration of Rights, reads:
It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the right of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.
The second, Article 30 of the Declaration of Rights, referenced in a footnote in the opinion, reads:
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.
(Article 30 is part of Madison's survey of state separation-of-powers provisions in Federalist 47. Madison writes that Article 30 "corresponds precisely with the [strict separation of powers] doctrine of Montesquieu," but also that "[i]n the very Constitution to which it is prefixed, a partial mixture of powers has been admitted.")
The court said in the footnote that "[t]he circumstances of this case raise these very [separation-of-powers] concerns," because the complaint against the judge was initiated by an executive branch official (even though the Commission itself is formally a judicial body).
Wednesday, August 8, 2012
Amendment 2, the so-called "prayer amendment" to the Missouri state constitution passed by a hefty margin in yesterday's election.
The Missouri constitution Article I, section 5, was amended to include this language:
that to secure a citizen's right to acknowledge Almighty God according to the dictates of his or her own conscience, neither the state nor any of its political subdivisions shall establish any official religion, nor shall a citizen's right to pray or express his or her religious beliefs be infringed; that the state shall not coerce any person to participate in any prayer or other religious activity, but shall ensure that any person shall have the right to pray individually or corporately in a private or public setting so long as such prayer does not result in disturbance of the peace or disruption of a public meeting or assembly; that citizens as well as elected officials and employees of the state of Missouri and its political subdivisions shall have the right to pray on government premises and public property so long as such prayers abide within the same parameters placed upon any other free speech under similar circumstances; that the General Assembly and the governing bodies of political subdivisions may extend to ministers, clergypersons, and other individuals the privilege to offer invocations or other prayers at meetings or sessions of the General Assembly or governing bodies; that students may express their beliefs about religion in written and oral assignments free from discrimination based on the religious content of their work; that no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs; that the state shall ensure public school students their right to free exercise of religious expression without interference, as long as such prayer or other expression is private and voluntary,whether individually or corporately, and in a manner that is not disruptive and as long as such prayers or expressions abide within the same parameters placed upon any other free speech under similar circumstances; and, to emphasize the right to free exercise of religious expression, that all free public schools receiving state appropriations shall display, in a conspicuous and legible manner, the text of the Bill of Rights of the Constitution of the United States; but this section shall not be construed to expand the rights of prisoners in stateor local custody beyond those afforded by the laws of the United States . . . .
Whether the Missouri Amendment 2 conflicts with First Amendment doctrine is uncertain, however, it does seem that it may provide students greater rights to "opt-out" of curriculum. It may also prompt Establishment Clause challenges should the state take steps to "ensure" prayer at public events.RR
[image: Alexandre Couder, Woman Kneeling in Prayer, 1800s, via]
Saturday, July 7, 2012
A unanimous Supreme Court of Missouri last week ruled in Dujakovich v. Carnahan that a ballot proposition designed to repeal state law authorizing Kansas City to levy an earnings tax did not violate the state constitution.
The ruling means that the repeal stays on the books, thus making it more difficult and costly--though not impossible--for cities to continue to levy an earnings tax. Under the repeal, any city that enacted an earnings tax (under its previous statutory authority) could continue to levy the tax, but they'd have to put it to the city voters every five years. (Any city that did not levy an earnings tax is now entirely prohibited from doing so.) The practical effect may be to eliminate certain city earnings taxes.
The case started way back in 1963, when the Missouri General Assembly enacted enabling legislation that authorized Kansas City to levy an earnings tax for general revenue purposes. More recently, in 2009, Secretary of State Carnahan certified a voter ballot initiative to repeal that authority, but to allow cities that levied earnings taxes under it to continue to do so, so long as city voters approved the levy by ballot every five years. Here's the text of the initiative:
Shall Missouri law be amended to:
- repeal the authority of certain cities to use earnings taxes to fund their budgets;
- require voters in cities that currently have an earnings tax to approve continuation of such tax at the next general municipal election and at an election held every 5 years thereafter;
- require any current earnings tax that is not approved by the voters to be phased out over a period of 10 years; and
- prohibit any city from adding a new earnings tax to fund their budget?
After Missouri voters approved the question, appellants sued, arguing that it violated three provisions of the Missouri constitution. First, they argued that the initiative was a de facto appropriation in violation of Article III, Section 51, because it required cities to run an election to continue an earnings tax without providing a new source of revenue for the cost of those elections. (Section 51 says that an "initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby.") The court rejected this claim, stating that nothing in the initiative required cities to run an election: cities could simply decline to put the earnings tax to their voters (and thus necessarily forego the tax).
Next, appellants claimed that the initiative violated the Hancock Amendment to the Missouri constitution. That Amendment prohibits the state from imposing any new activity or service on any political subdivision of the state, or from reducing the state financed proportion of the costs of any existing activity. The court ruled that nothing in the Hancock Amendment restricts the power of the people to govern themselves by intiative--itself a state constitutional right under Article III, Section 49.
Finally, appellants argued that the initiative impermissibly amended the city's charter in violation of Article VI, Section 20. But the court said that any conflict between a city charter--authorized by the general assembly, after all--and state law must be resolved in favor of the state law.
Next step for the appellants: Get the cities to put the earnings tax to city voters, and get out the vote.