Constitutional Law Prof Blog

Federal District Judge Issues Preliminary Injunction Against Ohio's Differential Early Voting Deadlines

In a 23 page opinion and order today, United States District Judge Peter Economus issued a preliminary injunction in Obama for America v. Husted, enjoining the enforcement of new Ohio legislation and specifically restoring in-person early voting on the three days preceding Election Day for all eligible voters.

Recall that Obama for America and other plaintiffs filed a complaint and motion for preliminary injunction in July, arguing that the Ohio scheme violated the Equal Protection Clause.  The Complaint summed up the problem thusly:

Taken together, [Ohio] Amended Substitute House Bill Number 194 (“HB 194”), Amended Substitute House Bill Number 224 (“HB 224”) and Substitute Senate Bill Number 295 (“SB 295”), all enacted by the 129th Ohio General Assembly, impose different deadlines for in-person voting prior to Election Day (“early voting”) on similarly situated voters. Prior to the enactment of these laws, there was a single uniform deadline of the Monday before Election Day for in- person early voting. After the enactment of these laws, voters using the Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”) may vote early in-person at a board of elections office up through the Monday before Election Day, while non-UOCAVA voters can vote early in-person at a board of elections office (or designated alternate site) only up until 6 p.m. on the Friday before Election Day.

Judge Economus' opinion expands on the facts, including the relevancy of weekends, as well as the legislative ambiguities, but recognizes the differential for UOCAVA and non-UOCAVA voters.  In his analysis of the constitutional inquiry, he stresses that the right to vote is a fundamental right, and quotes from Bush v. Gore, 531 U.S. 98 (2000):

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. It must be remembered that the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.

(bolding in Obama for America v. Husted Opinion).

Judge Economus easily finds that there is a classification and a burdening of the right to vote, and indeed, Ohio did not vigorously assert otherwise.   As to Ohio's argument that this is "justified to address the needs of Ohio elections boards as they prepare for Election Day" and that it the classification into two groups is justified "to serve the particular needs of the military and, albeit to a lesser extent, overseas voters," Judge Economus found the evidence did not support these justifications.  The lack of evidence is attributable to the county boards of elections and their various responses.  As to the "military voters," the Judge found that the prospect of sudden deployment could have constituted a supporting rationale for the state's scheme, except that "whether a service member— or overseas voter—can actually vote during those three days is up to each county elections board," with almost all counties not allowing voting on Sunday.  The Judge finds Ohio's justification "completely eviscerated, county by county."

Given these weak justifications, Judge Economus easily finds that the burden on voting outweighs any state interests, again citing Bush v. Gore:

The issue presented is the State’s redefinition of in-person early voting and the resultant restriction of the right of Ohio voters to cast their votes in person through the Monday before Election Day. This Court stresses that where the State has authorized in-person early voting through the Monday before Election Day for all voters, “the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). Here, that is precisely what the State has done.

(bolding in Obama for America v. Husted Opinion).

The decision comports with well-established Equal Protection principles, including those articulated by the Court in Bush v. Gore, and although sure to be appealed, should withstand review.

RR

Eighth Circuit Says False Conveyance of Bomb Threat is Not Protected Speech

A three-judge panel of the Eighth Circuit ruled yesterday in US v. Williams that a person's false conveyance of a bomb threat on an airplane is not protected speech.  The ruling upholds two federal statutes criminalizing the false conveyance of bomb threats and affirms the defendant's conviction.

Defendant Williams was convicted under two federal statutes.  The first, 18 U.S.C. Sec. 35(b), says,

Whoever willfully and maliciously, or with reckless disregard for the safety of human life, imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter or chapter 97 or chapter 111 of this title--shall be fined under this title, or imprisoned not more than five years, or both.

The other, 18 U.S.C. Sec. 844(e), says,

Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle or other real or personal property by means of fire or an explosive shall be imprisoned for not more than 10 years or fined under this title, or both.

Williams argued that the statutes were invalid content-based restrictions on speech, not falling within one of the categorical exceptions, and were overbroad.

The court disagreed.  The court ruled that the statutes were "true threats," a categorical exception to the general ban on content-based restrictions on speech.  The court rejected Williams's claim that he had no subjective intent to threaten when he made the statement--and that therefore the statement couldn't have been a true threat--saying that its 2011 case U.S. v. Mabie held that true threats did not need such a subject intent; instead, under Mabie, the court uses an objective test for determining whether a communication is a true threat, considering the entire context of the statement.

The court also rejected Williams's argument that the statutes were overbroad.  The court said that the narrowing elements of the statutes--the requisite mental states, "willfully," "maliciously"--"narrow the field as far as those who may potentially fall within their reach."  Op. at 7.

The court recognized that "[t]here is no general exception to the First Amendment for false statements," citing the Supreme Court's recent ruling in United States v. Alvarez.  But here, according to the court, the statutes fall within a categorical exception to the regular content-based rules, they pose no threat of criminalizing speech broader statements, they do not chill otherwise valuable speech, and they only criminalize speech that is likely to cause harm.

SDS

DOJ Closes Torture Investigations, Declines to Prosecute

Attorney General Eric Holder announced yesterday that the Justice Department will not pursue criminal charges in the two cases--the only two, and the last two--that it investigated involving torture of detainees in U.S. custody.  The announcement means that no U.S. official, employee, or service member will face criminal charges for torture.

This announcement, along with the courts' now widely adopted view that civil suits for torture are barred by either the state secrets privilege or by "special factors" counseling against such suits (under Bivens), means that no U.S. official, employee, or service member is likely to face any judicial accountability for torture.

Recall that the Justice Department in 2009 tasked Assistant U.S. Attorney John Durham of the District of Connecticut with an expanded investigation into whether federal laws were violated in connection with the interrogations of specific detainees at overseas locations.  But AG Holder said that the Department wouldn't prosecute anyone who acted in good faith and within the scope of legal guidance by the OLC.  In June 2011, Durham recommended opening full criminal investigations into only two cases.  The announcement today means that those investigations are now closed--without prosecutions.

SDS

Fordham Discussion of the Constitutionality of "Targeted Killings"

Registration here

RR

Court Permanently Enjoins Enforcement of Florida's Third Party Voter Registration Laws

Judge Robert L. Hinkle (N.D. Fla.) permanently enjoined Florida officials from enforcing certain state third party voter registration laws after the state issued new emergency regulations to comply with Judge Hinkle's earlier preliminary injunction.  The ruling ends the legal challenge to the laws and their enforcement in favor of the plaintiffs; it also means that Florida's new (and less harsh, more forgiving) emergency regulations will now govern third party voter registration efforts--for the 40 days until the October 9 deadline in Florida for voter registration for the general election.  (Thanks to the Brennan Center for links to the docs.  The Brennan Center case page is here.)

The case, League of Women Voters of Florida v. Detzner, involved the plaintiffs' constitutional and statutory challenges to Florida's excessively restrictive third party voter registration laws enacted in 2011.  Those laws erected major barriers to third party voter registration efforts, stymieing those efforts in this 2012 battleground state.

Judge Hinkle issued a preliminary injunction back in May, writing that there was no substantial state interest in certain of the law's requirements, including these: 

• that registration organizations turn in voter-registration applications within 48 hours after completion;
• that registration organizations must file the names of every officer and employee and volunteer who is a "registration agent," including those who merely solicit applications;
• that each registration agent file a sworn statement that he or she will obey registration laws, on a form that incorrectly suggests that a registration agent commits a felony and could be imprisoned for five years for sending in a voter-registration application that includes false information;
• that registration organizations must account for all registration forms and file certain onerous reports.

In response, the state issued new emergency regulations for third party voter registration organizations.  After the plaintiffs agreed that the new regs were consistent with Judge Hinkle's injunction, the parties filed a joint motion for a permanent injunction against enforcement of the old laws.  Judge Hinkle granted that injunction yesterday.

(Judge Hinkle styled his ruling as "indicative," because the state's appeal of his preliminary injunction is still pending at the Eleventh Circuit.  That appeal will die, leaving in place the permanent injunction against enforcement of the old laws and the state's new emergency regs.)

SDS

Three Judge Court on Texas Voter ID Law

In State of Texas v. Holder, a well-reasoned opinion today from a three judge court denied Texas' motion for declaratory judgment that its new voter identification law, SB 14, satisfied section 5 of the Voting Rights Act, 42 U.S.C. §§ 1973 et seq.  Although the  court ordered the parties to provide a proposed schedule to the court on the constitutional issue, the Voting Rights Act (VRA) issue was intertwined with constitutional ones, as is so often the case in VRA cases.

For example, the parties disagreed about the import of Crawford v. Marion County, (2008), in which the Court upheld Indiana's voter ID law against a facial equal protection challenge.  Texas contended that Crawford controlled, while the United States argued Crawford was "largely irrelevant."  For the three-judge court, "the correct answer lies somewhere between these two positions." Contrary to Texas’s argument, in Crawford itself, the Court noted that it was “consider[ing] only the statute’s broad application to all Indiana voters," and the Texas' SB14 poses different questions - - - "does SB 14 have discriminatory purpose or retrogressive effect?" - - - and requires focus "on the limited subset of voters who are racial and language minorities."  And, perhaps most importantly, unlike Indiana in Crawford involving a constitutional challenge, Texas bears the burden of proof under the VRA. Contrary to the position taken by the United States, however, Crawford informs the analysis of SB 14 in two important ways: purpose and effect.  

Much of the 56 page opinion discussed the evidence, with the court including this summary:

We pause to summarize the evidentiary findings we have made so far. Contrary to Texas’s contentions, nothing in existing social science literature speaks conclusively to the effect of photo ID requirements on voter turnout. Moreover, scant lessons, if any, can be drawn from Indiana and Georgia, largely because SB 14 is more restrictive than the photo ID laws adopted by either of those states. Finally, no party has submitted reliable evidence as to the number of Texas voters who lack photo ID, much less the rate of ID possession among different racial groups.  Given this, we could end our inquiry here. Texas bears the burden of proving that nothing in SB 14 “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise" [citation omitted].  Because all of Texas’s evidence on retrogression is some combination of invalid, irrelevant, and unreliable, we have little trouble concluding that Texas has failed to carry its burden.

But the court went further, stating that the "record evidence suggests that SB 14, if implemented, would in fact have a retrogressive effect on Hispanic and African American voters."

This conclusion flows from three basic facts: (1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty. Accordingly, SB 14 will likely “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.”

The three judge court carefully considered Texas and distinguished SB14, as well as other laws and conditions, from other states. One distinguishing feature was Texas' size.  The court's opinion attempts to strike a note of humor when discussing the requirement that would-be voters lacking photo identification would have to apply for a "election identification certificate" (EIC) at a Texas Department of Public Safety (DPS) office, and "almost one-third of Texas’s counties (81 of 254) lack" such an office:

This means that many would-be voters who need to obtain an EIC—individuals who by definition have no valid driver’s license—will have to find some way to travel long distances to obtain one. This is hardly an insignificant concern, especially given that “everything is bigger in Texas.” See, e.g., Rick Perry, Amid a Dim National Economy Texas Remains in the Spotlight, October 31, 2008, available at http://www.tradeandindustrydev.com/region/texas/amid-a-dim-national- economy-texas-remains-spotlight-554 (last visited August 28, 2012).

 The opinion then resorts to another interesting citation: 

Even the most committed citizen, we think, would agree that a 200 to 250 mile round trip— especially for would-be voters having no driver’s license—constitutes a “substantial burden” on the right to vote. Our own Federal Rules of Civil Procedure support this conclusion, specifying that witnesses are unavailable to testify if they must travel more than 100 miles to do so. See Fed. R. Civ. P. 45(c)(3).

 The court found tremendous deficiencies in the United States' evidence and arguments, but Texas' deficiencies were ultimately much more serious, even without the burden of proof.   The court found it worth detailing some of these problems:

during closing arguments, Texas’s counsel complained that they had been shouldered with an “impossible burden” in this litigation. This may well be correct, but Texas’s lawyers have only their client to blame. The State of Texas enacted a voter ID law that—at least to our knowledge—is the most stringent in the country. That law will almost certainly have retrogressive effect: it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty. And crucially, the Texas legislature defeated several amendments that could have made this a far closer case.

Ignoring warnings that SB 14, as written, would disenfranchise minorities and the poor, the legislature tabled or defeated amendments that would have:

• waived all fees for indigent persons who needed the underlying documents to obtain an EIC,
• reimbursed impoverished Texans for EIC-related travel costs,
• expanded the range of identifications acceptable under SB 14 by allowing voters to present student or Medicare ID cards at the polls,
• required DPS offices to remain open in the evening and on weekends,
• and allowed indigent persons to cast provisional ballots without photo ID.

Put another way, if counsel faced an “impossible burden,” it was because of the law Texas enacted—nothing more, nothing less.

[Record citations omitted].

The opinion is worth reading in full.  Its import is that Texas SB 14 voter identification law will not be in effect in November, unless the United States Supreme Court acts exceedingly quickly.

RR

West Virginia Federal Judge Issues Preliminary Injunction Against Sex-Segregated Middle School

In a relatively brief opinion today, Judge Joseph Goodwin issued a preliminary injunction in the controversial sex-segregated Middle School program in West Virginia.  Recall that the school mandated a practice of sex-segregated classrooms based on teacher-training that posits the differences between children based upon sex.  Girls do not like stress; boys do.  Girls like warmer rooms; boys cooler.  Girls like to be face-to-face; boys learn better in rows.  Girls learn better when their movement is minimized and their rooms are darker; boys "need" to move and have light.

The judge's opinion rests on the Title IX claim: "The court again emphasizes that its decision today rests on the requirement of the Department of Education regulations that single-sex programs be “completely voluntary.” 34 C.F.R. § 106.34(b)(1)(iii)."

Indeed, the judge held that sex-segregated education could be constitutional, citing United States v. Virginia (VMI) if the "school meets the heightened scrutiny standard."  Thus, the judge was not willing to "go so far" as to enjoin any sex-segregated education. 

Nevertheless, the judge did explicitly note 

that the science behind single-sex education appears to be, at best, inconclusive, and certain gender-based teaching techniques based on stereotypes and lacking any scientific basis may very well be harmful to students. Even Professor Salomone, the expert witness called by the defense, agreed with the ACLU on the issue of brain research—that it’s based on the rationale of pseudoscience—and suggested that many schools were “led astray” by the teachings of Dr. Leonard Sax. Professor Salomone served as an expert witness for the defense not because she agreed with the gender-based teaching techniques, but because she felt that the individual teachers at VDMS were, in fact, not teaching students based on gender stereotype, despite the training given by Dr. Sax and David Chadwell.

Given the testimony of the school's own expert, it seems this constitutional controversy will be best resolved by settlement.

RR
[image: Jeunes Filles regardant un album by Pierre August Renoir via]

Ninth Circuit Grants Petition for Writ of Habeas Corpus of Death Row Inmate on Equal Protection and Due Process Grounds

In a divided opinion in Ayala v. Wong, the Ninth Circuit today granted a petition for a writ of habeas corpus based on equal protection and due process grounds.  

As the opinion describes, during the

selection of the jury that convicted Ayala and sentenced him to death, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his counsel were excluded. The trial judge then accepted the prosecution’s justifications for its strikes without disclosing them to the defense or permitting it to respond.

The failure to disclose the prosecution's rationales and allow defense counsel to demonstrate they were pretextual violates the process the Court mandated in Batson.  In Alaya's case, this was compounded by what the opinion labels  "the state’s later loss of a large portion of the record."  This portion included juror information and the court concluded that because "the state’s loss of the questionnaires deprived Ayala of the ability to meaningfully appeal the denial of his Batson claim, he was deprived of due process."

In a dissenting opinion as lengthy as the majority, Judge Consuelo M. Callahan accuses the majority of not honoring the procedural obstacles to Alaya's claim, of making unwarranted suppositions, and of opening the floodgates.  She writes:

In essence, the majority holds that because the record does not affirmatively negate the existence of a possible racial bias, the existence of such a bias may be assumed. Under this approach all Batson challenges in federal habeas petitions must be granted because no one can disprove a negative.

Yet the converse would also be true, of course.  If Alaya's petition were not granted, it would allow judges to deny all litigants, including criminal defendants, the ability to refute the proffered race-neutral explanation, and to absolutely insulate a Batson claim from appellate review.

RR
[image: The Jury by John Morgan, 1861, via]

Ninth Circuit on Fraudulently Wearing Military Medals Redux

The Ninth Circuit denied rehearing en banc and issued an amended opinion in United States v. Perelman today.  The Ninth Circuit essentially reaffirmed its holding eleven months ago upholding the constitutionality of subsection(a) of the "Stolen Valor Act" applied to Perelman when he wore the Purple Heart, which he had actually been awarded by the US Air Force, but under a fraudulent claim.  (Apparently Mr. Perelman shot himself in the thigh, but claimed it was a shrapnel injury from his service in Viet Nam 20 years earlier; he also collected disability benefits from the military).

As might be predictable, the amended opinion in Perelman applies the United States Supreme Court's June decision in United States v. Alvarez, rather than the Ninth Circuit opinion that the Court affirmed.  In both the Ninth Circuit and United States Supreme Court opinion, subsection (b) of The Stolen Valor Act, 18 USC §704 was declared unconstitutional.  But subsection (a) of the Stolen Valor Act was at issue in Perelman.  The difference between the two subsections is twofold: 

Subsection (b) criminalizes an act (the wearing of the medal) rather than "pure speech" and is thus subject to the lower standard afforded expressive conduct;

Subsection (b) contains a scienter requirement, not only in the wearing of the medal, but in an "intent to deceive." 

Thus, Alvarez leaves untouched criminal sanctions for obtaining a military medal by fraudulent means.  And as Congress attempts to amend subsection (b) to be more aligned with the constitutional subsection (a), it does make one wonder why Congress chose to enact the questionably constitutional subsection (b) as part of the Stolen Valor Act.

RR
[image via]

Federal Court Declines to Preclear Texas Electoral Districts Under Voting Rights Act

In the latest chapter of the Texas redistricting saga, a three-judge panel of the D.C. District ruled in Texas v. United States that Texas's redistricting maps failed to merit preclearance under Section 5 of the Voting Rights Act.

The ruling means that the Texas legislature's original redistricting maps fail.  But the ruling doesn't touch the interim maps most recently drawn by the Western District of Texas in the companion Section 2 suit.  Those maps have not been challenged.

The ruling also doesn't say anything about the constitutionality of Section 5.  That's the topic of a cert. petition now before the Supreme Court.

Recall that the case arose when Texas sought preclearance for its redrawn State House, State Senate, and Congressional districts from the three-judge panel in the D.C. District (and not the DOJ).  (Texas redrew its districts to account for its ballooning population and to meet the one-person-one-vote standard.  But Texas, as a covered jurisdiction under Section 4 of the VRA, had to receive preclearance under Section 5 before it could finalize and implement the new maps.)  Soon after Texas filed its Section 5 preclearance case, opponents of the maps filed a claim under Section 2 of the VRA in the Western District of Texas.  While the Section 5 case was pending in the D.C. District, the Western District drew its own maps that, it said, complied with the VRA so that Texas could move ahead with its scheduled primary elections.

The Western District maps went to the Supreme Court in Perry v. Perez, where the Court invalidated them.  After Perry, the Western District redrew the maps, and they haven't been challenged.

Meanwhile, the Section 5 case in the D.C. District moved forward, and that court ruled today that the state's original maps--the ones for which it originally sought preclearance--did not merit preclearance.  As a result, the only maps out there seem to be the Western District's redrawn maps.

Today's case says nothing about the constitutionality of Section 5.  The D.C. Circuit recently ruled on that question, and said that Section 5 is constitutional.  The cert. petition in that case, Shelby County v. Holder (and a related, companion case), is now before the Supreme Court.

The Texas redistricting case is something of a side-show, now that the more central issue in Shelby County is on cert.--with the Supreme Court almost surely to grant review.  But even if the Court overturns Section 5, as seems likely, any maps still have to pass muster under Section 2--the original cause of action in the Western District case.  Shelby County doesn't challenge Section 2.

SDS

Ohio Federal District Judge Enjoins Portions of State Provisional Voting Scheme

A federal district judge has enjoined specific provisions of Ohio’s election code that disqualify provisional ballots cast in the wrong precinct or cast with deficiencies in the ballot envelope form, when the ballot’s deficiency is the result of an error by the poll worker.  In the 61 page opinion in the consolidated case, SEIU v. Husted, Judge Algenon Marbley first describes the "turbulent saga of Ohio’s provisional voting regime." The bulk of the opinion is a carefully reasoned application of equal protection principles to the various provisions as part of the likelihood of success on the merits prong for granting a preliminary injunction. 

Marbley's opinion considers four equal protection challenges: the Wrong-Precinct Ballot Prohibition;  Ballot Envelope Deficiencies; Disparate Impact of Poll-Worker Error by County; and Unequal Treatment of Provisional Voters.  The most extensive analysis focuses on the wrong precinct issue, especially given the part that poll workers play in the process resulting in errors.

The Judge does cite Bush v. Gore several times, including quoting the statement that "[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05.  As expected, the Sixth Circuit case of Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) (“Hunter I”) is also prominent, not only for its adoption of Bush v. Gore language but because many of the same issues are involved. The opinion is sure to be quickly appealed to the Sixth Circuit, even as a complaint challenging Ohio's early voting regime on the basis of equal protection is also being litigated.

All the documents in the case can be found over at  ElectionLaw@Moritiz blog, as well as an analysis by Prof Edward Foley.

RR
[image: 1850 map of Ohio via]

Another Catholic School Challenge to Women's Health Regs Dismissed

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

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

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

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

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

SDS

No Fees, Costs for Common Benefit Litigant

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.

SDS

Eleventh Circuit: Settlement Offer Without Judgment Does Not Moot Case

The Eleventh Circuit ruled in Zinni v. ER Solutions, Inc. that the defendants' settlement offer for the full amount available under federal law, but not including an offer of a judgment, did not moot the plaintiffs' Fair Debt Collection Practices Act case.

The plaintiffs sued defendants in federal court for harassing debt collection calls in violation of the FDCPA and sought monetary damages and a judgment against the defendants.  The defendants offered $1,001 to each plaintiff--one dollar more than the maximum damage award under the FDCPA--plus unspecified attorneys' fees and costs.  But they didn't offer a judgment against them.

The Eleventh Circuit ruled that the offer didn't moot the plaintiffs' case.  The court said that the defendants' offer wasn't the full relief requested by the plaintiffs (because the plaintiffs also asked for a judgment), and that a settlement for monetary damages without a judgment could simply lead to more litigation--for state law breach-of-contract--while at the same time divesting the federal court of jurisdiction over the claim.  In other words: If the court dismissed the case as moot, the plaintiffs had only the defendants' promise to pay, and no means of enforcement in the federal courts.  (With no judgment, the federal court where the plaintiffs brought the case would lack jurisdiction to enforcement a settlement.  The plaintiffs could only enforce it in state court, on a breach-of-contract claim.)

The court distinguished two Seventh Circuit cases that held that an offer of full settlement did moot the claims, because the offer in those cases included a court-enforceable judgment.

The ruling allows the case to move forward, presumably on the issue of the judgment alone (assuming that the plaintiffs accept the offer of monetary damages).

SDS

D.C. Circuit Rules FDA Cigarette Labels Unconstitutional

A sharply divided three-judge panel of the D.C. Circuit ruled in R.J. Reynolds Tobacco Co. v. FDA that the FDA's new regulations requiring textual warnings and graphic pictures depicting the negative health consequences of smoking violate the First Amendment.  The ruling affirms an earlier ruling by Judge Richard Leon (D.D.C.), but applying a different level of scrutiny.

The panel split, together with the several different opinions (including Judge Leon's) as to the appropriate level of scrutiny, make this case a likely candidate for en banc review and, ultimately, Supreme Court review.  The case offers a good opportunity to clarify the level of scrutiny for compelled speech that seems both commercial and non-commercial in different ways.  In determining the standard, this case also offers a good opportunity to decide how to interpret Zauderer's correction-of-misleading-speech: Does Zauderer's rational basis review apply only when the government compels speech to correct currently misleading speech (as the majority says); or does it also apply when the government compels speech to correct historically misleading speech (as the dissent argues)?  Finally, the case also offers a good opportunity to apply a level of scrutiny, where the compelled speech--including graphic pictures--is designed to inform consumers of the dangers of smoking and to reduce smoking.

 

Those questions were front and center for the D.C. Circuit.  Judge Brown wrote the opinion, ruling that the Central Hudson intermediate scrutiny test was the appropriate standard.  (The court thus rejected the Zauderer rational basis test, for largely the same reasons that Judge Leon rejected that test: because FDA's pictures were not designed to correct the same kind of misleading speech at issue in Zauderer and its progeny.  But the court also rejected strict scrutiny (Judge Leon's test), saying that circuit law required application of Central Hudson's intermediate standard.)

Judge Brown wrote that the FDA's compelled textual warnings and graphic pictures were simply not sufficiently tailored under Central Hudson to meet its two interests--even if those interests were substantial.  As to the FDA's interest in reducing smoking, the court ruled that the FDA failed to produce any evidence showing that pictures like this would cause smokers to quit and persuade non-smokers not to start.  As to the FDA's interest in "effectively" informing consumers of the harms of smoking, the court said that this was too vague an interest and would allow the FDA itself to define "effectively," ultimately "render[ing] Central Hudson's 'substantial interest' requirement a complete nullity" and "eviscerat[ing] the requirement that any restriction 'directly advance' that interest."  Op. at 29.  

Judge Rogers dissented, arguing that the court didn't take sufficient account of the government's informational interest and that the compelled speech, with the exception of the inclusion of the toll-free number "1-800-QUIT-NOW," satisfied either Zauderer's rational basis review or Central Hudson's intermediate scrutiny.  (Judge Rogers argued first that the compelled speech was accurate and designed to correct the tobacco companies' "decades-long campaign to deceive consumers" and thus fell squarely within Zauderer.  Judge Brown rejected this approach, looking only to whether the tobacco companies' here-and-now statements were misleading.)  Judge Rogers wrote that the FDA had amassed volumes of evidence showing that its warnings and pictures would best get consumers' attention and inform them of the dangers of smoking.

SDS

New York Trial Judge Declares MTA Taxing Scheme Unconstitutional

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.

RR
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ICE Officers Sue to Halt DHS Deferred Action

A group of ICE officers sued DHS Secretary Janet Napolitano today in the United States District Court for the Northern District of Texas to halt the Department's deferred action program, which defers removal of qualifying aliens.  (Deferred action is simply an exercise of executive discretion not to remove certain aliens; it's the administration's way of achieving the goals of the DREAM Act without a DREAM Act.)  The administration has argued that the program is a valid exercise of prosecutorial discretion.  We last posted on it here, including a link to a letter by immigration and constitutional law profs arguing that the action is fully constitutional (and outlining a handful of different ways that the administration might go about it).

It's not easy to get a case like this into the courts: by definition, it's hard to identify somebody who has been harmed (and thus who has Article III standing) by a non-action by the government.  The ICE officers claim that they're harmed because their bosses, through deferred action, are forcing them to violate federal law and their oaths to uphold federal law and the Constitution.  It's not clear that this will be enough; and even if it is, there's this problem: If the officers here have sufficient Article III harm, then any federal officer who has even a vague constitutional disagreement with his or her bosses' policies will be able to sue to stop them.  There are other preliminary problems, too, maybe most obviously the political question doctrine and related separation-of-powers considerations. 

The officers state five causes of action.  First, the officers claim that deferred action requires them to violate federal law that requires them to detain any alien "who is not clearly and beyond a doubt entitled to be admitted."  Next, they say that deferred action confers a benefit on qualifying aliens, the deferred action itself, that is not authorized by federal law.  Third, the officers argue that deferred action confers the benefit of employment authorization on qualifying aliens without any statutory basis and "under the false pretense of 'prosecutorial discretion.'"  Fourth, they say that deferred action amounts to a legislative act (as evidenced by the numerous DREAM Act bills in Congress that didn't pass) and thus intrudes on the powers of Congress.  Finally, they claim that deferred action violates the executive's constitutional obligation to take care that the laws are faithfully executed.

Between the preliminary problems and the inherently weak claims, it's hard to see that this case has much of a future.  But maybe it's not supposed to.  The complaint--signed by Kris Kobach and apparently bankrolled by NumbersUSA, a group that advocates for "lower immigration levels"--seems as much designed to get the issue out in the public as it is to get the issue into the courts.

SDS

Probationer Lacks Standing to Sue Alcohol Testing Company

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

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

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

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

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

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

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

SDS

Ninth Circuit "Interprets" Constitution of Commonwealth of the Northern Mariana Islands

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.

RR
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Alaska Challenges Preclearance Under the Voting Rights Act

Alaska became the latest state to lodge a constitutional challenge against Section 5 of the Voting Rights Act when it sued AG Eric Holder yesterday for declaratory and injunctive relief in the United States District Court for the District of Columbia.  It's not clear that the case will even make it out of the starting gate, though.  As we wrote here, the Shelby County case, also challenging Section 5 under the exact same theories, is almost surely going to the Supreme Court this Term.

The suit, State of Alaska v. Holder, takes on Section 5 both on its face and as applied to Alaska.  The allegations are simple and familiar: Congress exceeded its authority under the Fourteenth and Fifteenth Amendments in reauthorizing Sections 4 and 5 of the VRA; and the VRA violates the principle of "equal sovereignty" and the Tenth Amendment.

Alaska, a covered jurisdiction under Section 4 of the VRA, says that preclearance is a hassle and potentially interferes with its ability to run its elections.  The state cites DOJ's denial of preclearance earlier this year for a proposed new distribution scheme for the state's Spanish/Tagalog translation of its voter information pamphlet.  It also cites an eleventh-hour preclearance of a redistricting plan, arguing that any later decision by DOJ (either way) might have interfered with the state's primaries.

While this case is disconnected to those events, it probably doesn't matter for standing.  Judge Bates ruled in Shelby County that the County had standing based on its need, as a covered jurisdiction without the possibility of bailout, to prepare for preclearance--the time, expense, etc.  So too here.

But even so, the case is unlikely to move forward, given the near certainty that the Supreme Court will pick up Shelby County this Term.

SDS