November 21, 2007
Public Records and Football Skirmishes
A divided Pennsylvania Supreme Court this week issued its opinion in a dispute regarding public access to salary and related information about Penn State University employees including football coach Joe Paterno.
See Penn State Univ., et al, Aplts v. State Employees Retirement Board - No. 107 MAP 2006.
The case arose in 2002, when a Harrisburg newspaper sought disclosure of data regarding Paterno's salary level insofar as that information is evident in state employees retirement board records. The litigation led the court to interpret key aspects of Pennsylvania’s Right to Know Act (RTKA), 65 P.S. §§ 66.1-66.9, specifically the definition of "public record" as including "any account, voucher or contract dealing with the receipt or disbursement of funds by an agency."
A four-judge majority concluded that the information about Paterno's salary held by the Retirement Board was covered by this definition, even though the information had not been created by the Retirement Board (but was held by the Board and used to determine a future guaranteed payment to Paterno). Nor was the information exempt from disclosure based on the status of the Retirement Board, common law or statutory fiduciary duties, or federal statutes regulating the financial services industry. The majority also rejected a claim that the information was exempt from disclosure under a statutory provision stating that public records do not include "any record, document, material, exhibit, pleading, report, memorandum or other
paper, . . . which would operate to the prejudice or impairment of a person's reputation or
In dissent, Chief Justice Cappy contended that the majority had erred in its threshold analysis, since in his judgment prior case law required that salary information not be deemed to all within the definition of public record until "retirement benefits are computed and paid."
November 13, 2007
Preemption and tobacco
The United States Supreme Court will hear argument on 11/28/07 in Rowe v. N.H. Motor Transp. Ass'n, a case involving Maine's efforts to gain tax revenue that had been lost to unlicensed retailers and to limit sale of tobacco products to minors, pursuant to state legislation (codified at Me. Rev. Stat. Ann. tit. 22, §§ 1551, 1555-C, and 1555-D (2007)). The legislation directed licensed mail-order retailers to use only delivery services that would ensure that the parties to whom tobacco products are delivered are indeed the purchasers and are of an age to purchase tobacco products legally. Delivery services in Maine are also prohibited from knowingly delivering tobacco products from unlicensed retailers (where knowledge is imputed based on markings on packages or the inclusion of retailers on a list of unlicensed retailers maintained by the state).
The Transport Association and other associations of air and motor carriers challenged the legislation on grounds that it was preempted by the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"). The FAAA prohibits states from enacting laws "related to a price, route, or
service" of a carrier. 49 U.S.C. §§ 14501(c) & 41713(b)(4)(A). The Maine Attorney General argued that Maine's effort to control access by minors to tobacco products was designed to address health and safety concerns, rather than to impose additional economic regulation, and should therefore not be seen as preempted.
The First Circuit concluded that the FAAAA applied, notwithstanding Maine's police power argument. The court also concluded that key aspects of the Maine legislation were "related to" carrier services and had a significant impact on those services. While Maine could punish knowing transportation of contraband tobacco or delivery of prohibited products to minors with actual knowledge, other features of the legislation was preempted. The First Circuit opinion is available at N.H. Motor Transp. Ass'n v. Rowe, 448 F.3d 66 (1st Cir. 2006).
May 07, 2006
Arm of State: Not
The Supreme Court late last month provided further clarification about the implications of the "arms of the state" sovereign immunity doctrine under the 11th amendment in other circumstances. Northern Insurance Company of NY v. Chatham County, Georgia involved a suit in admiralty by an insurance company that sought damages in connection with the collision between an insured boat and a county drawbridge that was alleged to have malfunctioned. The county asserted immunity from suit in admiralty, arguing that it possessed "residual immunity" for purposes of admiralty law, even though it could not have asserted immunity under the "arm of the state" immunity doctrine for purposes of 11th amendment sovereign immunity analysis.
In an opinion by Justice Thomas, the unanimous court held that: an entity that does not qualify as an “arm of the State” for Eleventh Amendment purposes cannot assert sovereign immunity as a defense to an admiralty suit. He reasoned that sovereign immunity from federal actions results from sovereignty that pre-existed ratificaiton of the Constitution and that related principles regarding "arms of the state" should apply in admiralty actions as well. The Court also rejected the county's alternative argument that a distinct sovereign immunity doctrine should bar in personam admiralty suits in cases arising from the county's exercise of core state functions relating to navigable waters.
March 10, 2006
States Seek Redress on Medicare Clawback
The National Conference of State Legislatures reports that five states (Texas, Kentucky, Maine, Missouri, and New Jersey) have filed a U.S. Supreme Court complaint regarding provisions of the Medicare Modernization Act relating to drug expenditures for individuals with dual eligibility under Medicaid and Medicare. Ten others have filed an amicus brief in support of the base complaint. The complaint focuses on adverse effects on state sovereignty. Press releases from the respective attorneys general of the complaining states explain their view, in terms such as the following from the New Jersey Attorney General:
"Under the new law, which took effect in January of this year, New Jersey and the 49 other states are required to help fund federal Medicare coverage for dual eligibles via a monthly payment to Medicare commonly referred to as the “clawback.” It represents the first time since enactment of the Medicare program in 1965 that a significant portion of a federal Medicare benefit is being financed by state payments. New Jersey’s lawsuit contends that, in requiring states to help fund an entirely federal program, the federal government is encroaching on the State’s sovereignty.
“Our contention is that the Medicare clawback provision is unconstitutional because, among other things, it undermines the ability of New Jersey to control its own destiny as a state,” said Attorney General Farber. “In requiring the states to pay a specified dollar amount to support a federal program, the new law eliminates our ability to exercise control over a fundamental state function – spending.”
Here's how the National Conference of State Legislatures explained the situation:
"Phased-down state contribution payment refers to the states' monthly payment made to the Federal government beginning in 2006 to defray a portion of the Medicare drug expenditures for full-benefit dual eligible individuals whose Medicaid drug coverage is assumed by Medicare Part D. The monthly state contributions for each year, beginning in January of 2006, will be the product of the projected monthly per capita drug payment, the total number of full-benefit dual eligible individuals for the state in the applicable month, and the applicable ten year phased- down factor for the year (see the following table). State contributions will decline each year until 2015, at which time the applicable 10 year phased-down factor for each year will be fixed at 75 percent."
March 06, 2006
Rumsfeld v. FAIR & constitutional conditions
Today the U.S. Supreme Court issued its decision in Rumsfeld v. Forum for Academic Institutional Rights (FAIR) (No. 04-1152), the case that challenged the Solomon Amendment that sought to condition federal funding on law schools' willingness to permit military recruiters on their campuses despite the military's "don't ask, don't tell" policies. The unanimous Court (Alito, J. not participating) spoke in a decision authored by Chief Justice Roberts.
As indicated in the Syllabus (continued below), the Court found that the Solomon Amendment regulates conduct rather than speech. The Court indicated that law schools were required by the statute to offer the military the same access to their campuess and students as is provided to non-military recruiters. The Court noted that there are limits on Congress' ability to condition recruit of funds but said that a funding condition could not be found unconstitutional if it could be imposed directly. The Court concluded that the First Amendment did not bar Congress from imposing an access requirement since the Solomon Amendment regulated conduct (rather than speech), did not require law schools to engage in compelled speech (since they could still disagree with military policy), and did not require undesired expressive association (recruiters were not deemed to impact law schools' associational rights).
Respondent Forum for Academic and Institutional Rights, Inc. (FAIR), is an association of law schools and law faculties, whose members have policies opposing discrimination based on, inter alia, sexual orientation. They would like to restrict military recruiting on their campuses because they object to the Government’s policy on homosexuals in the military, but the Solomon Amendment—which provides that educational institutions denying military recruiters access equal to that provided other recruiters will lose certain federal funds—forces them to choose between enforcing their nondiscrimination policy against military recruiters and continuing to receive those funds. In 2003, FAIR sought a preliminary injunction against enforcement of an earlier version of the Solomon Amendment, arguing that forced inclusion and equal treatment of military recruiters violated its members’ First Amendment freedoms of speech and association. Denying relief on the ground that FAIR had not established a likelihood of success on the merits, the District Court concluded that recruiting is conduct, not speech, and thus Congress could regulate any expressive aspect of the military’s conduct under United States v. O’Brien, 391 U. S. 367. The District Court, however, questioned the Department of Defense (DOD) interpretation of the Solomon Amendment, under which law schools must provide recruiters access at least equal to that provided other recruiters. Congress responded to this concern by codifying the DOD’s policy. Reversing the District Court’s judgment, the Third Circuit concluded that the amended Solomon Amendment violates the unconstitutional conditions doctrine by forcing a law school to choose between surrendering First Amendment rights and losing federal funding for its university. The court did not think that O’Brien applied, but nonetheless determined that, if the activities were expressive conduct rather than speech, the Solomon Amendment was also unconstitutional under that decision.
Held: Because Congress could require law schools to provide equal access to military recruiters without violating the schools’ freedoms of speech and association, the Third Circuit erred in holding that the Solomon Amendment likely violates the First Amendment. Pp. 5–21.
1. The Solomon Amendment should be read the way both the Government and FAIR interpret it: In order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access. Contrary to the argument of amici law professors, a school excluding military recruiters could not comply with the Solomon Amendment by also excluding any other recruiter that violates its nondiscrimination policy. The Secretary of Defense must compare the military’s “access to campuses” and “to students” to “the access to campuses and to students that is provided to any other employer.” 10 U. S. C. A. §983. The statute does not focus on the content of a school’s recruiting policy, but on the result achieved by the policy. Applying the same policy to all recruiters does not comply with the statute if it results in a greater level of access for other recruiters than for the military. This interpretation is supported by the text of the statute and is necessary to give effect to the Solomon Amendment’s recent revision. Pp. 5–8.
2. Under the Solomon Amendment, a university must allow equal access for military recruiters in order to receive certain federal funds. Although there are limits on Congress’ ability to condition the receipt of funds, see, e.g., United States v. American Library Assn., Inc., 539 U. S. 194, 210, a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds. Pp. 8–20.
(a) As a general matter, the Solomon Amendment regulates conduct, not speech. Nevertheless, the Court of Appeals concluded that the statute violates law schools’ freedom of speech in a number of ways. First, the law schools must provide military recruiters with some assistance clearly involving speech, such as sending e-mails and distributing flyers, if they provide such services to other recruiters. This speech is subject to First Amendment scrutiny, but the compelled speech here is plainly incidental to the statute’s regulation of conduct. Compelling a law school that sends e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance to the flag, West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, or forcing a Jehovah’s Witness to display a particular motto on his license plate, Wooley v. Maynard, 430 U. S. 705, and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.
Second, that military recruiters are, to some extent, speaking while on campus does not mean that the Solomon Amendment unconstitutionally requires laws schools to accommodate the military’s message by including those recruiters in interviews and recruiting receptions. This Court has found compelled-speech violations where the complaining speaker’s own message was affected by the speech it was forced to accommodate. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566. Here, however, the schools are not speaking when they host interviews and recruiting receptions. They facilitate recruiting to assist their students in obtaining jobs. Thus, a law school’s recruiting services lack the expressive quality of, for example, the parade in Hurley. Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what they may say about the military’s policies.
Third, freedom of speech can be violated by expressive conduct, but the expressive nature of the conduct regulated by the Solomon Amendment does not bring that conduct within the First Amendment’s protection. Unlike flag burning, see Texas v. Johnson, 491 U. S. 397, the conduct here is not so inherently expressive that it warrants protection under O’Brien. Before adoption of the Solomon Amendment’s equal-access requirement, law schools expressed their disagreement with the military by treating military recruiters differently from other recruiters. These actions were expressive not because of the conduct but because of the speech that accompanied that conduct. Moreover, even if the Solomon Amendment were regarded as regulating expressive conduct, it would be constitutional under O’Brien. Pp. 8–18.
(b) The Solomon Amendment also does not violate the law schools’ freedom of expressive association. Unlike Boy Scouts of America v. Dale, 530 U. S. 640, where the Boy Scouts’ freedom of expressive association was violated when a state law required the organization to accept a homosexual scoutmaster, the statute here does not force a law school “ ‘to accept members it does not desire,’ ” id., at 648. Law schools “associate” with military recruiters in the sense that they interact with them, but recruiters are not part of the school. They are outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. The freedom of expressive association protects more than a group’s membership decisions, reaching activities that affect a group’s ability to express its message by making group membership less attractive. But the Solomon Amendment has no similar effect on a law school’s associational rights. Students and faculty are free to associate to voice their disapproval of the military’s message; nothing about the statute affects the composition of the group by making membership less desirable. Pp. 18–20.
390 F. 3d 219, reversed and remanded.
March 01, 2006
State Tax Credits: Cuno Argument
The U.S. Supreme Court will hear argument today in Daimler Chrysler Corp. v. Cuno and Wilkins v. Cuno (Docket 04-1704).
Questions presented are as follows: (1) Whether Ohio's investment tax credit, Ohio Revised Code, sec. 5733.33, which seeks to encourage economic development by providing a credit to taxpayers who install new manufacturing machinery and equipment in the state, violates the Commerce Clause of the U.S. Constitution? (2) Does the dormant Commerce Clause allow a state to attempt to attract new buisness investment in the state by offering credits against the state's general corporate franchise or income taw, where the amount of the credit is based on the amount of the business' new investment in the state? (3) Whether Cuno has standing to challenge Ohio's investment tax credit law?
The case may have major implications for states' use of investment tax credits to lure and retain business.
February 26, 2006
Conundrums of government torts & immunity
I've always found it challenging to teach the unit on state tort law involving local governments. That may be in part because: it's difficult to paint a national picture since the states do many different things; there have been changing standards of immunity from the courts over time; legislation doesn't always cure these problems; and facts vary widely. At least it's useful to have some interesting fact patterns. A new North Carolina Court of Appeals case, Willett v. Chatham County Board of Education, provides precisely that.
Plaintiff had been attending a public middle school basketball game when the bleachers folded beneath him, allegedly giving rise to injuries for which he sought redress. The school had charged an admission fee to help support the program ($1 for students and $2 for adults). The plaintiff argued that this charge should qualify the program as "proprietary" in character. He further argued that the school board's participation in a state-wide trust fund amounted to a waiver of immunity and that the obligation of the Board to maintain facilities in good repair gave rise to a duty that had been breached.
The appellate court found for the defendant school board on the ground that there had been no waiver of immunity by participation in the trust fund under prior precedent (North Carolina allows government entities to waive immunity to the extent of insurance coverage). More notably, the court reiterated traditional law, explaining that "If the undertaking of the municipality is one in which only a governmental agency could engage, it is governmental in nature. It is proprietary and 'private' when any corporation, individual, or group of individuals could do the same thing." The court rejected the claim that the athletics program had become proprietary because a fee had been charged, citing the statute giving local boards of education the power to regulate programs "including a program of athletics, where desired, without assuming liability therefor." The school board's statutory duty to maintain the school in good repair was focused on the obligation to protect public investment and did not give rise to a private cause of action against the board.
February 24, 2006
New York City "Equal Benefits" Law Preempted
An important recent case from New York's high court considers the preemptive effective of state and federal laws on a city requirement that city agencies not contract with contractors that failed to provide their employees' domestric partners with employment benefits equal to those provided to employees' spouses. Council of City of New York v. Bloomberg, __N.E.2d__, 21006 WL 346293 (N.Y. Feb. 14, 2006).
In 2004, the Equal Benefits Law (NYC Admin Code S 6-126) was passed over the Mayor's veto. The Mayor then unsuccessfully sought a temporary restraining order, asserting that the law was preempted by the General Municipal Law and the City Charter relating to municipal contracting as well as by the federal ERISA statute, and was invalid as curtailing the Mayor's powers without a referendum in violation of the Municipal Home Rule Law and City Charter. The City Council in turn sued the mayor in an article 78 proceeding in the nature of mandamus to compel implementation and enforcement of the Equal Benefits Law.
A majority of the NY Court of Appeals concluded that Equal Benefits Law conflicted with the state's competitive bidding statute (rejecting the City Council's claim that the requirements imposed were "de minimis" on affected contractors, and that home rule powers allowed departure from generally applicable provisions of General Municipal Law s 103 which requires that municipalities contract with the lowest responsible bidder). The majority also found that the Equal Benefits Law was preempted by ERISA [relating to employee benefit plans] except to the extent that it governed benefits falling outside of ERISA's scope, rejecting the argument that a "market participant" theory should be incorporated into that statute as a way of permitting governments to use their marketplace powers to implement preferred policies. Accordingly an action in the nature of mandamus could not lie to require the Mayor to engage in an unlawful act.
Justice Rosenblatt dissented, in an opinion joined by Chief Justice Kay and Justice Ciparick. The dissent focused on the procedural dimensions of NY law, contending that the Mayor could not challenge the validity of the Equal Benefits Law as part of the article 78 proceeding, but should have executed the law until a court declared it invalid (which might have occurred had he continued to pursue a declaratory judgment action). The dissent accordingly did not reach the preemption issues the majority found dispositive.
February 22, 2006
Oregon Supreme Court Upholds Measure 37
In 2004, Oregon voters passed "Measure 37", ORS 197.352 (set out in full in the continuation of this post), which requires government to either compensate landowners for reductions of real property fair market value due to certain "land use regulation[s]" or modify, remove, or not apply such regulations. The measure was challenged on state and federal constitutional grounds in the Oregon courts. Although the lower court had found the provisions unconstitutional, the Oregon Supreme Court in a unanimous en banc decision yesterday reversed and upheld Measure 37as permissible under both state and federal constitutions. MacPherson v. Department of Administrative Services, (CC No. 05C10444; SC S52875).
The court summarized its conclusions as follows: "[W]e conclude that (1) plaintiffs' claims are justiciable; (2) Measure 37 does not impede the legislative plenary power; (3) Measure 37 does not violate the equal privileges and immunities guarantee of Article I, section 20, of the Oregon Constitution; (4) Measure 37 does not violate the suspension of laws provision contained in Article I, section 22, of the Oregon Constitution; (5) Measure 37 does not violate separation of powers constraints; (6) Measure 37 does not waive impermissibly sovereign immunity; and (7) Measure 37 does not violate the Fourteenth Amendment to the United States Constitution."
This is an exceptionally important case which may trigger more reactions against land use regulation around the country. Because it effectively applies an eminent domain "just compensation" requirement to land use plans and requirements, it resonate with public unease in the aftermath of the Kelo decision which upheld the use of eminent domain in some circumstances relating to economic development.
Measure 37, codified at ORS 197.352, provides:
"The following provisions are added to and made a part of ORS chapter 197:
"(1) If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of this amendment that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.
"(2) Just compensation shall be equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation under this act.
"(3) Subsection (1) of this act shall not apply to land use regulations:
"(A) Restricting or prohibiting activities commonly and historically recognized as public nuisances under common law. This subsection shall be construed narrowly in favor of a finding of compensation under this act;
"(B) Restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations;
"(C) To the extent the land use regulation is required to comply with federal law;
"(D) Restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing. Nothing in this subsection, however, is intended to affect or alter rights provided by the Oregon or United States Constitutions; or
"(E) Enacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first.
"(4) Just compensation under subsection (1) of this act shall be due the owner of the property if the land use regulation continues to be enforced against the property 180 days after the owner of the property makes written demand for compensation under this section to the public entity enacting or enforcing the land use regulation.
"(5) For claims arising from land use regulations enacted prior to the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the effective date of this act, or the date the public entity applies the land use regulation as an approval criteria to an application submitted by the owner of the property, whichever is later. For claims arising from land use regulations enacted after the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the enactment of the land use regulation, or the date the owner of the property submits a land use application in which the land use regulation is an approval criteria, whichever is later.
"(6) If a land use regulation continues to apply to the subject property more than 180 days after the present owner of the property has made written demand for compensation under this act, the present owner of the property, or any interest therein, shall have a cause of action for compensation under this act in the circuit court in which the real property is located, and the present owner of the real property shall be entitled to reasonable attorney fees, expenses, costs, and other disbursements reasonably incurred to collect the compensation.
"(7) A metropolitan service district, city, or county, or state agency may adopt or apply procedures for the processing of claims under this act, but in no event shall these procedures act as a prerequisite to the filing of a compensation claim under subsection (6) of this act, nor shall the failure of an owner of property to file an application for a land use permit with the local government serve as grounds for dismissal, abatement, or delay of a compensation claim under subsection (6) of this act.
"(8) Notwithstanding any other state statute or the availability of funds under subsection (10) of this act, in lieu of payment of just compensation under this act, the governing body responsible for enacting the land use regulation may modify, remove, or not to [sic] apply the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property.
"(9) A decision by a governing body under this act shall not be considered a land use decision as defined in ORS 197.015(10).
"(10) Claims made under this section shall be paid from funds, if any, specifically allocated by the legislature, city, county, or metropolitan service district for payment of claims under this act. Notwithstanding the availability of funds under this subsection, a metropolitan service district, city, county, or state agency shall have discretion to use available funds to pay claims or to modify, remove, or not apply a land use regulation or land use regulations pursuant to subsection (6) of this act. If a claim has not been paid within two years from the date on which it accrues, the owner shall be allowed to use the property as permitted at the time the owner acquired the property.
"(11) Definitions - for purposes of this section:
"(A) 'Family member' shall include the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the property.
"(B) 'Land use regulation' shall include:
"(i) Any statute regulating the use of land or any interest therein;
"(ii) Administrative rules and goals of the Land Conservation and Development Commission;
"(iii) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances;
"(iv) Metropolitan service district regional framework plans, functional plans, planning goals and objectives; and
"(v) Statutes and administrative rules regulating farming and forest practices.
"(C) 'Owner' is the present owner of the property, or any interest therein.
"(D) 'Public entity' shall include the state, a metropolitan service district, a city, or a county.
"(12) The remedy created by this act is in addition to any other remedy under the Oregon or United States Constitutions, and is not intended to modify or replace any other remedy.
"(13) If any portion or portions of this act are declared invalid by a court of competent jurisdiction, the remaining portions of this act shall remain in full force and effect."
Measure 37 defines the term "land use regulation" as follows:
"(i) Any statute regulating the use of land or any interest therein;
"(ii) Administrative rules and goals of the Land Conservation and Development Commission;
"(iii) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances;
"(iv) Metropolitan service district regional framework plans, functional plans, planning goals and objections; and
"(v) Statutes and administrative rules regulating farming and forest practices."
February 14, 2006
Twists on Kelo: Taking from A to Give to Church in PA
The Pennsylvania Commonwealth Court last week held that a city redevelopment authority could not take a private homeowner's property that was located in a blighted area in order to turn the property over to a religious organization that sought to establish a private independent school. The problem was the establishment clause, rather than the "taking clause." The case is A condemnation Proceeding in Rem by the Redevelopment Authority of the City of Philadelphia, in an appeal by Mary Smith, 2005 WL 3734901 (Pa.Cmwlth.))
Homeowners Associations are Quasi-Municipal Actors in NJ
The New Jersey Superior Court, Appellate Decision issued an important decision last week in Committee For A Better Twin Rivers, et al. v. Twin Rivers Homeowners' Association, et al. (A-4047-03T2). The case concerned a dispute concerned competing factions of residential homeowners in a large planned unit development (Twin Rivers). A dissident faction sought the right to post political advertising, use the community room, tape homeowner board meetings, gain access to financial records, and gain access to voter roles. The controlling board refused, arguing that the homeowners group was not subject to state constitutional requirements. The Court concluded that a homeowners association that functioned in a "quasi-muncipal" capacity should be viewed as a government actor and held that the expressive rights guaranteed by the New Jersey Constitution (Art. I, sections 6 and 18) applied. There was therefore a requirement that fair and open elections be permitted for the board of the homeowners association, including the right of opposing candidates to run.
According to the Court's summary, the Court also concluded that: provisions of the New Jersey Planned Real Estate Development Full Disclosure Act (PREDFDA) as amended, N.J.S.A. 45:22A-21 to -48, apply to a community association founded before the enactment of the statute and its amendments. The exemption provision of N.J.S.A. 45:22A-42 was narrowly construed.
The Court also indicated that standard-setting and standard-applying exercises that do not implicate the expressive rights guarantees of the State Constitution but, rather, bear upon operational features of the community association are properly evaluated under statutory standards, the business judgment rule, and assessments of the parties' contractual rights and interests. The court also indicated that association by-laws that provided for weighted voting according to property value (and denied tenants the right to vote while allowing non-resident owners to do so) were not illegal under the New Jersey constitution or state statute.
It seems likely that there will be a further appeal.
January 27, 2006
Church/State and Schools in Massachusetts
The U.S. Supreme Court denied cert this week in Wirzburger v. Galvin, 412 F.3d 271 (C.A.1-Mass. 2005), a case that had involved First Amendment challenge by parents of children enrolled in private, religiously-affiliated schools in Massachusetts who sought to change provisions of the state constitution regarding to public support for private education.
Article 18 of the Massachusetts Constitution includes a provision that prohibits public financial support for private primary or secondary schools (the "Anti-Aid Amendment"). Article 48 of the state constitution provides that the Constitution may be amended by popular initiative. However, Article 48 specifically includes a provision (the "Anti-Aid Exclusion") specifying that "[n]either the eighteenth [Anti-Aid] amendment of the constitution . . . nor this provision for its protection, shall be the subject of an initiative amendment;" as well as another provision (the "Religious Exclusion") mandating that "[n]o measure that relates to religion, religious practices or religious institutions .. .shall be proposed by an initiative petition."
Following the required procedure, plaintiffs submitted an initiative petition, for certification, to the Massachusetts Attorney General to modify the Anti-Aid Amendment by adding a sentence stating that nothing in the Anti-Aid Amendment shall prevent the Commonwealth from providing loans, grants, or tax benefits to students attending private schools, regardless of the schools' religious affiliation. The Attorney General declined to certify the measure in light of the state constitution's provisions summarized above.
The First Circuit considered plaintiff's challenge under Free Speech, Free Exercise, and Equal Protection analysis. The court discussed the nature of the initiative process as speech, but recognized that this process also involved a lawmaking act involving both speech and conduct. Under United States v. O'Brien, 391 U.S. 367 (1968), the key inquiries are whether (1) the regulation "is within the constitutional power of the Government;" (2) "it furthers an important or substantial governmental interest;" (3) "the governmental interest is unrelated to the suppression of free expression;" and (4) "the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." O'Brien, 391 U.S. at 377. The court concluded that Massachusetts had a substantial interest in maintaining the proper balance between promoting free exercise and preventing state establishment of religion as well as in restricting the means by which these fundamental rights can be changed. It also found that the impact on First Amendment rights was no more than essential to achieve the state's goals.
The court likewise found no discrimination based on religious belief or status, and concluded that no suspect classificiation was therefore involved. In addition, no impermissible animus was shown.
W. Virginia: Governor's Prerogatives--Not
In a decision out last week, the federal district court for the Southern District of West Virginia appears has weighed in on the prerogatives of the state's Governor in his interaction with a major corporate executive who opposed a proposed public bond package designed to cover state employee pensions. Blankenship v. Manchin is especially interesting in light of the tragic deaths of West Virginia miners in the last month and the tensions that will undoubtedly continue as government agencies endeavor to protect miner safety. It presents a compelling depiction of the struggles of government and powerful coal mining interests, one that might in time make it to the silver screen.
Governor Manchin had apparently had prior run-ins with Blankenship, who is the president, CEO and chairman of the board of Massey Energy. Blankenship had previously actively opposed re-election of a sitting state supreme court judge and imposition of an increased coal severance tax to fund workers compensation costs.
Press reports included in the court's decision described Manchin's comments about Blankenship as follows:
"The most frustrating thing going on is that there's a person who has been very successful financially in the business world, and when someone asked him to be a part of a positive movement in West Virginia, he said, 'No.' "
When asked, Manchin said that Blankenship's campaign against the pension bonds should and will prompt even more scrutiny of Blankenship, who is arguably already the state's highest-profile coal executive.
"If you want to throw yourself into public policy, your record is open," the governor said.
Manchin declined to personally offer any specific criticisms of the way Massey or Blankenship has operated, except to note that the company has had numerous run-ins with state environmental regulators.
"I think there have been many violations that hopefully they've been able to correct," the governor said.
[taken from an article from the Charleston Gazette]
Blankenship alleged that Manchin's comments represented a threat of retaliation based upon Blankenship's exercise of speech protected by the First Amendment. He further alleged that Massey's effort to build an additional coal silo in Raleigh County, W.Va. had been stymied because of investigations into possible safety issues with the site (notwithstanding Massey's claim that all safety standards had been satisfied) which caused apprehension by the potential landlord.
After the Governor moved to dismiss, the district court held that Blankenship had standing, and that the Governor's alleged threat, if proven, impacted Blankenship's First Amendment rights. The court then undertook an extended analysis of qualified immunity under 42 USC 1983, relying on Fourth Circuit precedent in Suarez Corp. Indus. v. McGraw, 202 F.3d 676 (4th Cir. 2000). The McGraw standard requires that: "First, the plaintiff must demonstrate that his or her speech was protected. Second, the plaintiff must demonstrate that the defendant's alleged retaliatory action adversely affected the plaintiff's constitutionally protected speech. Third, the plaintiff must demonstrate that a causal relationship exists between its speech and the defendant's retaliatory action."
The court concluded that the Governor had not demonstrated that he was entitled to qualified immunity "at this stage of the case. The court is nevertheless mindful of the chief executive officer's sworn responsibility and solemn duty to faithfully execute the laws of the state of which he is Governor--a factor that is to be given due consideration throughout this litigation."
January 19, 2006
9th Circuit on Cell Phone Towers and Local Powers
The Ninth Circuit ruled on Tuesday that Sprint and other wireless companies had power under the California Utilities Code to install wireless equipment (cell phone transmitters and antenna) on power poles along residential streets. The City of La Canada didn't want to allow that in residential areas, denying needed permits for this form of above-ground construction in rights of way based on aesthetic grounds. In Spring PCS v. LaCanada Flintridge (05-55014) the appellate court sided with the cellphone company.
The court first considered the requirement of the Federal Telecommunications Act that permit denials be based on substantial evidence (47 USC 332(c)(7)(B)(iii) states that "[a]ny decision by a State or local government or instrumentality therof to deny a request to place, construct, or modify personal wireless service facilities shall be be writing and uspported by substantial evidence contained in a written record." The substantial evidence requirement has been applied "in the context of state and local law," and has not been read to limit the application of local land use law.
The California Public Utililities Act (section 7901) states that: "Telegraph or telephone corporation smay construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navication of the waters." Section 7901.1(a) (added in 1991) states that "It is the intent of the Legislature, consistent with Section 7901, that municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed."
Article XI, section 7 of the California Constitution states that a "county or city may make and enforce within its limits all local, police, sanitary,and other ordinances and regulations not in conflict with the general laws." The court considered whether the Utilities Code provision preempted local powers under this state constitutional home rule provision.
Focusing on the language from the Utilities Code that specified that telecomm construction could not "incommode" the public use of the highway, the court said that the statute should be read as addressing the "function" of the road rather than its enjoyment. It then turned to the "time, place, and manner" language added in 1991. The court concluded that this reference gives more authority to determine what constitutes a reasonable use of the road, but does not confer authority to engage in aesthetic regulation (rejecting the city's claim that references to the "manner" of use should be seen to encompass local authority). The court also emphased the reference to how roads "are accessed" as included in the 1991 amendment, and stressed that the language meant what it said--how roads "are accessed" does not refer to how they "appear."
The court also rejected the city's argument that the reasoning of Aegerter v. City of Delafiel, 174 F.3d 886 (7th Cir. 1999) controlled (in that case the court had ruled that "Nothing in the Telecommunications Act forbids local authorities from applying general and nondiscrminatory standards dervied from their zoning codes, and we note that aethetic harmony is a prominent goal underlying almost every such code." In the court's view "whether aesthetic evidence can be used to support a permit denial in the abstract is not at issue--the issue is simply whether a city can consider such evidence consistent with California law" (that is, the Utilities Code).
The court next considered section 332(c)(7)(A) of the Telecom Act which states that "[e]xcept as provided in this paragraph, nothing in this Chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regard the placement, construction, and modification of personal wireless service facilities." The Court said that "If the local ordinance is valid under the Telecom Act, despite being invalid under state law... then the Telecom Act effectively provides a measure of sovereign authority to cities, which their own state constitutions and statutes deny them" (a notion that had played a central role in Nixon v. Missouri Municipal League). The court then reasoned that the statutory language did not confer authority at the local level but instead had addressed "State or local government" power, and regarded local authority as preempted under the court's reading of the Public Utility law.
Since, in the court's view, the city had acted beyond its power, any evidence in support of its ordinance was for naught.
The Los Angeles Times has a good piece placing the California case in perspective. citing disputes in Minnesota, New York and Delaware and suggesting that there will be more litigation to come. Some forward-looking cities (at least some of the best here in NC) have been working their way through difficulties like this by getting wireless companies to put their towers inside church steeples.
It's interesting to see the fairly well-established principal that aesthetics can be addressed under zoning law put at risk in the cell tower context. The court's reading of the California Public Utilities law seems somewhat stretched to this reader on the other side of the country. It's likely that other states' Public Utilities statutes are equally ambiguous and that the issue will come up again elsewhere. The California municipalities apparently haven't decided whether to file an appeal and seek U.S. Supreme Court review.
January 17, 2006
Oregon Death With Dignity Decision
Earlier today, the U.S. Supreme Court issued its opinion in GONZALES V. OREGON (04-623), the case involving the Oregon Death with Dignity Act, which allows excempts physicians from civil and criminal liability when the prescribe lethal doses of controlled substances subject to very constrained requirements. The U.S. Attorney General had issued and Interpretive Rule under federal controlled substances legislation (21 USC 824(a)(4), 882(a)(2)), ditermining that physicians who prescribed schedule II controlled substances under the Oregon legislation were acting "inconsistent with the public interest" and could have their authority to prescribe such medication revoked. In an opinion by Justice Kennedy (joined by Justices O'Connor, Bryer, Stevens, Ginsberg, and Souter), the Court concluded that Controlled Substances Act did not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure. The Attorney General's rule was not entitled to deference since it was not issued pursuant to Congresial delegated authority to issue rules having the fource of law (and was instead only effective to the extent it had the power to persuade). The rule was also not entitled to deference under the Auer line of reasoning, since the Attorney General did not have the kind of specialized experience and expertise required. Nor was it entitled to deference under Chevron since the "specific respects in which the Attorney General is authorized to make rules under the CSA show that he is not authorized to make a rule declaring illegitimate a medical standard for patient care and treatment specifically authorized under state law. Congress delegated to the Attorney General only the authority to promulgate rules relating to “registration” and “control” of the dispensing of controlled substances, 21 U.S.C. A. §821, and “for the efficient execution of his [statutory] functions,” 21 U.S.C. § 871(b)." The Court also found the rule unpersuasive, citing the role of the states in regulating medical practice and the purpose of the federal statute as addressing primarily recreational drug use. As stated in the Syllabus: "The CSA’s structure and operation presume and rely upon a functioning medical profession regulated under the States’ police powers. The Federal Government can set uniform standards for regulating health and safety. In connection with the CSA, however, the only provision in which Congress set general, uniform medical practice standards, 42 U.S.C. § 2990bb2a, strengthens the understanding of the CSA as a statute combating recreational drug abuse, and also indicates that when Congress wants to regulate medical practice in the given scheme, it does so by explicit statutory language. The difficulty in defending the Attorney General’s declaration that the CSA impliedly criminalizes physician-assisted suicide is compounded by the Act’s consistent delegation of medical judgments to the Secretary and its otherwise careful allocation of powers for enforcing the CSA’s limited objectives. The Government’s contention that the terms “medical” or “medicine” refer to a healing or curative art, and thus cannot embrace the intentional hastening of a patient’s death, rests on a reading of 21 U.S.C. § 829(a)’s prescription requirement without the illumination of the rest of the statute. Viewed in context, that requirement is better understood as ensuring that patients use controlled substances under a doctor’s supervision so as to prevent addiction and recreational abuse. To read prescriptions for assisted suicide as “drug abuse” under the CSA is discordant with the phrase’s consistent use throughout the Act, not to mention its ordinary meaning. The Government’s interpretation of the prescription requirement also fails under the objection that the Attorney General is an unlikely recipient of such broad authority, given the Secretary’s primacy in shaping medical policy under the CSA and the Act’s otherwise careful allocation of decisionmaking powers." Justices Scalia, Thomas and Chief Justice Roberts dissented. It's too bad that Justice O'Connor won't be staying. It surely looks as though the "moderate middle" is coalescing in some key areas with implications for more balanced approaches to federalism. Additional background on the case is available from Cornell's excellent LII site.
Earlier today, the U.S. Supreme Court issued its opinion in GONZALES V. OREGON (04-623), the case involving the Oregon Death with Dignity Act, which allows excempts physicians from civil and criminal liability when the prescribe lethal doses of controlled substances subject to very constrained requirements. The U.S. Attorney General had issued and Interpretive Rule under federal controlled substances legislation (21 USC 824(a)(4), 882(a)(2)), ditermining that physicians who prescribed schedule II controlled substances under the Oregon legislation were acting "inconsistent with the public interest" and could have their authority to prescribe such medication revoked.
In an opinion by Justice Kennedy (joined by Justices O'Connor, Bryer, Stevens, Ginsberg, and Souter), the Court concluded that Controlled Substances Act did not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure. The Attorney General's rule was not entitled to deference since it was not issued pursuant to Congresial delegated authority to issue rules having the fource of law (and was instead only effective to the extent it had the power to persuade). The rule was also not entitled to deference under the Auer line of reasoning, since the Attorney General did not have the kind of specialized experience and expertise required. Nor was it entitled to deference under Chevron since the "specific respects in which the Attorney General is authorized to make rules under the CSA show that he is not authorized to make a rule declaring illegitimate a medical standard for patient care and treatment specifically authorized under state law. Congress delegated to the Attorney General only the authority to promulgate rules relating to “registration” and “control” of the dispensing of controlled substances, 21 U.S.C. A. §821, and “for the efficient execution of his [statutory] functions,” 21 U.S.C. § 871(b)."
The Court also found the rule unpersuasive, citing the role of the states in regulating medical practice and the purpose of the federal statute as addressing primarily recreational drug use. As stated in the Syllabus:
"The CSA’s structure and operation presume and rely upon a functioning medical profession regulated under the States’ police powers. The Federal Government can set uniform standards for regulating health and safety. In connection with the CSA, however, the only provision in which Congress set general, uniform medical practice standards, 42 U.S.C. § 2990bb2a, strengthens the understanding of the CSA as a statute combating recreational drug abuse, and also indicates that when Congress wants to regulate medical practice in the given scheme, it does so by explicit statutory language. The difficulty in defending the Attorney General’s declaration that the CSA impliedly criminalizes physician-assisted suicide is compounded by the Act’s consistent delegation of medical judgments to the Secretary and its otherwise careful allocation of powers for enforcing the CSA’s limited objectives. The Government’s contention that the terms “medical” or “medicine” refer to a healing or curative art, and thus cannot embrace the intentional hastening of a patient’s death, rests on a reading of 21 U.S.C. § 829(a)’s prescription requirement without the illumination of the rest of the statute. Viewed in context, that requirement is better understood as ensuring that patients use controlled substances under a doctor’s supervision so as to prevent addiction and recreational abuse. To read prescriptions for assisted suicide as “drug abuse” under the CSA is discordant with the phrase’s consistent use throughout the Act, not to mention its ordinary meaning. The Government’s interpretation of the prescription requirement also fails under the objection that the Attorney General is an unlikely recipient of such broad authority, given the Secretary’s primacy in shaping medical policy under the CSA and the Act’s otherwise careful allocation of decisionmaking powers."
Justices Scalia, Thomas and Chief Justice Roberts dissented.
It's too bad that Justice O'Connor won't be staying. It surely looks as though the "moderate middle" is coalescing in some key areas with implications for more balanced approaches to federalism.
Additional background on the case is available from Cornell's excellent LII site.
January 16, 2006
US Supreme Court Hears Case re Tax Sale Due Process
Argument is scheduled for tomorrow before the U.S. Supreme Court in Jones v. Flowers (04-1477), on appeal from the Arkansas Supreme Court. The case involves the claim of homeowner (Jones) whose house was sold to pay taxes. The tax authorities had mailed a certified notice of impending public sale to his last known address. The notice was returned as unclaimed since the taxpayer had not updated the address after moving. The notice was also published in the newspaper but the taxpayer made no response. Flowers offered to buy the house and another notice was mailed to the property owner but was again unclaimed. Flowers then purchased the property. Jones subsequently sued, claiming that he had been deprived of due process because he had not received actual notice. The trial court and the Arkansas Supreme Court each upheld the state's action in selling the property based on the notice given.
The issue on appeal is: "When mailed notice of a tax sale or property forfeiture is returned undelivered, does due process require the government to make any additional effort to locate the owner before taking the property?"
For more analysis of the decisions below, the issues raised, and their consequences, check Cornell's Legal Information Institute.
January 14, 2006
English Only Policies and Hispanic Employees
The 10th Circuit issued an important decision late last week in Maldanado v. City of Altus, Oklahoma, 2006 WL52805, a case in which bilingual Hispanic employees challenged the city's "English Only" policy applicable to city employees. The EEOC and ACLU joined as amici when the plaintiff employees appealed the lower court's dismissal of challenges under Title VI, Title VII, 42 USC 1981, and 42 USC 1983. The 10th Circuit upheld the dismissal under Title VI and the First Amendment aspect of the section 1983 claim, but reversed and remanded for further proceedings in connection with Title VII disparate treatment and disparate impact claims, intentional discrimination in violation of section 1981 and denial of equal protection under section 1983.
The City had adopted the following "English Only" policy in 2002:
To insure effective communications among and between employees and various departments of the City, to prevent misunderstandings and to promote and enhance safe work practices, all work related and business communications during the work day shall be conducted in the English language with the exception of those circumstances where it is necessary or prudent to communicate with a citizen, business owner, organization or criminal suspect in his or her native language due to the person or entity's limited English language skills. The use of the English language during work hours and while engaged in City business includes face to face communication of work orders and directions as well as communications utilizing telephones, mobile telephones, cellular telephones, radios, computer or e-mail transmissions and all written forms of communications. If an employee or applicant for employment believes that he or she cannot understand communications due to limited English language skills, the employee is to discuss the situation with the department head and the Human Resources Director to determine what accommodation is required and feasible. This policy does not apply to strictly private communications between co-workers while they are on approved lunch hours or breaks or before or after work hours while the employees are still on City property if City property is not being used for the communication. Further, this policy does not apply to strictly private communication between an employee and a family member so long as the communications are limited in time and are not disruptive to the work environment. Employees are encouraged to be sensitive to the feelings of their fellow employees, including a possible feeling of exclusion if a co-worker cannot understand what is being said in his or her presence when a language other than English is being utilized.
The City gave three primary reasons for adopting the policy:
1) workers and supervisors could not understand what was being said over the City's radios ···; 2) non-Spanish speaking employees, both before and after the adoption of the Policy, informed management that they felt uncomfortable when their co-workers were speaking in front of them in a language they could not understand because they did not know if their co-workers were speaking about them; and 3) there were safety concerns with a non-common language being used around heavy equipment. The city showed no record of having experienced difficulties of these sorts prior to adopting the policy.
Defendants offered evidence that the restrictions in the written policy were actually relaxed to allow workers to speak Spanish during work hours and on City property if everyone present understood Spanish. But Plaintiffs offered evidence that employees were told that the restrictions went beyond the written policy and prohibited all use of Spanish if a non-Spanish speaker was present, even during breaks, lunch hours, and private telephone conversations. Plaintiff Lloyd Lopez stated in his deposition that “we were told that the only time we could speak Spanish is when two of us are in a break room by ourselves, and if anybody other than Hispanic comes in, we are to change our language.” In addition he said, “We no longer can speak about anything in general in Spanish around anybody. Even if we were on the phone talking to our wives and we were having a private conversation with them and somebody happened to walk by, we were to change our language because it would offend whoever was walking by.”
The EEOC has adopted guidelines on English-only workplace rules, 29 C.F.R. § 1606.7. Under the relevant provisions of the guideline: (1) an English-only rule that applies at all times is considered “a burdensome term and condition of employment,”§ 1606.7(a), presumptively constituting a Title VII violation; and (2) an English-only rule that applies only at certain times does not violate Title VII if the employer can justify the rule by showing business necessity, § 1606.7(b). According to its brief, the EEOC's rationales for the guideline are: (1) English-only policies “may ‘create an atmosphere of inferiority, isolation, and intimidation’ that could make a ‘discriminatory working environment’; (2) “English-only rules adversely impact employees with limited or no English skills ··· by denying them a privilege enjoyed by native English speakers: the opportunity to speak at work"; (3) “English-only rules create barriers to employment for employees with limited or no English skills;" (4) “English-only rules prevent bilingual employees whose first language is not English from speaking in their most effective language"; and (5) “the risk of discipline and termination for violating English-only rules falls disproportionately on bilingual employees as well as persons with limited English skills."
The decision is exceptionally well-written and well-reasoned. Judge Seymour's opinion (concurring with the majority in most respects but dissenting from the dismissal of the First Amendment claim under section 1983) provides a thoughtful discussion of the Mt. Healthy causation issue and other aspects of protected employee speech.
Texas School Finance and More
Some may have missed an important decision from the Texas Supreme Court rendered on November 22, 2005, addressing the legality of the state's school finance scheme under the state constitution. The State Supreme Court reversed the lower court's finding that the state's finance system violated the constitutional efficiency or adequacy standard (although it acknowledged that the system was drifing toward constitutional infirmity). The Texas Supreme Court instead focused on a different part of the state consitution, concluding that
The National Conference of State Legislatures maintains an excellent searchable database on educational finace issues.
January 13, 2006
Law Professors/First Amendment
An interesting case recently in from the 8th Circuit reversed the lower court's judgment on the pleadings for the former director of the University of North Dakota law school clinical program in a suit by a citizen activist.
The clinic had been involved in a suit on behalf of North Carolina State University clients who sought removal of a Ten Commandments monument from city property. The citizen (unhappy with the clinic's work in the suit just mentioned), contacted the clinic to request assistance in bringing suit to challenge the statute of the goddess Themis on the top of the county courthouse (saying that he wanted the same assistance that the "atheistic" professors involved in the Ten COmmendments monument challenge had received). The clinic declined to represent him, saying that their workload did not allow taking on such a case at that time and that the citizen's "antagonistic" relationship with the clinic would preclude establishment of an effective lawyer-client relationship in any event. The citizen brought suit under 42 USC 1983 claiming that his First Amendment rights have been abridged.
The 8th Circuit indicated that clinical programs may not exclude potential clients solely based on their viewpoints, said that the fact that the citizen was only a "potential" client was not enough to foreclose challenges based on "viewpoint discrimination" by a public entity, said that further fact-finding was needed to determine whether the asserted problems with adequate resources met the Mt. Healthy causation test, and treated issues of judgment about which cases to take and concerns of academic freedom as matters that should be looked at in a factual context upon remand. The AALS and CLEA participated as amici. This is a worrisome case. Wishnatsky v. Rovner, No. 04-3503 (8th Cir. January 05, 2006)
January 10, 2006
Federalism, Disability, and Section 1983
Earlier today, the U.S. Supreme Court issued its decision in United States v. Georgia. The case involved a suit by
In a decision authored by Justice Scalia, the Court held that a paraplegic state prisoner who challenged the conditions of his confinement under Title II of the Americans with Disability Act of 1990 via 42 U.S.C. 1983. The summary provided by the Syllabus states:
Held: Insofar as Title II creates a private cause of action for damages against States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity. Pp. 5—8.
(a) Because this Court assumes that the Eleventh Circuit correctly held that Goodman had alleged actual Eighth Amendment violations for purposes of §1983, and because respondents do not dispute Goodman’s claim that this same conduct violated Title II, Goodman’s Title II money damages claims were evidently based, at least in part, on conduct that independently violated §1 of the Fourteenth Amendment. No one doubts that §5 grants Congress the power to enforce the Fourteenth Amendment’s provisions by creating private remedies against the States for actual violations of those provisions. This includes the power to abrogate state sovereign immunity by authorizing private suits for damages against the States. Thus, the Eleventh Circuit erred in dismissing those of Goodman’s claims based on conduct that violated the Fourteenth Amendment. Pp. 5—7.
(b) Once Goodman’s complaint is amended, the lower courts will be best situated to determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such conduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity in such contexts is nevertheless valid. Pp. 7—8.