Wednesday, January 22, 2014

Bipartisan Bills Introduced to Amend Voting Rights Act

Senator Patrick Leahy (D-VT) and Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) introduced legislation last week that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance.  The legislation responds to the Supreme Court's ruling last summer in Shelby County v. Holder, striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement.  That ruling left Section 5 preclearance nearly a dead letter (although litigants could still seek to have a court order a jurisdiction to bail-in to preclearance under Section 3). 

Our Shelby County coverage is here and here (with links to most of our other posts on the case).

The bills would update the coverage formula to include states that have 5 or more voting rights violations during the previous 15 years and political subdivisions that have 3 or more voting rights violations during the previous 15 years.  (Coverage would continue for 10 years, unless the jurisdiction gets a court order releasing it.)  This new formula would cover Georgia, Louisiana, Misissippi, and Texas, but not Alabama, Arizona, Florida, North Carolina, South Carolina, and Virginia. 

The bills also contain a number of other provisions, perhaps most notably expanding Section 3 bail-in so that litigants can ask a court to bail-in a jurisdiction when that jurisdiction has intentionally discriminated (as now) and for any other violation of the VRA.  Ari Berman over at The Nation has a nice summary.

The new provisions will undoubtedly be challenged when and if they're enacted.  On the one hand, they address a major concern of the Court in Shelby County: they update the coverage formula to use more current violations as the basis for coverage.  But on the other hand, they still treat states differently (and potentially run afoul of the Court's new-found "equal sovereignty" doctrine), and the state-wide formula does not account for actual voter turn-out (although the political subdivision formula does) and neither formula addresses the number of elected officials--data that the Court found at least relevant in its ruling.

January 22, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 21, 2014

Public-Sector Fair Share Appears to be Safe

 The Supreme Court heard oral arguments today in Harris v. Quinn, the case testing whether fair-share fees for non-union in-home care providers in the Illinois Medicaid program violate the First Amendment.  (Our argument preview is here.)  The Court in Abood v. Detroit Board of Education previously upheld public-sector fair-share fees to support a union's collective bargaining activities in the interests of preventing free-riders on a union's activities and promoting workplace peace.  But this case put Abood directly in the Court's cross-hairs, as the petitioners argued to overturn the decades-old case.

If today's arguments are any indication, that seems an unlikely result.

Still, it's not entirely clear what the Court will do with the case.  For one thing, there was just a lot of confusion about it.  For example, on the question whether the union's work here (in the state's Medicaid program) represented advocacy on a public matter (thus strengthening the non-members' claims), no clear position emerged.  Here's an exchange between Justice Kagan and the attorney for the petitioners (the home-care workers):

Justice Kagan: But you're not objecting, I think, to the union as a whole.  What you're objecting to is an individual employee having to support that activity.  The scale is no different.  It's an individual employee.

Mr. Messenger: Yes, it's an individual employee being forced to support that expressive activity.  So the question becomes: What expressive activity are they being forced to support?  And when you're speaking of changing an entire government program, for example, Medicaid rates across the board, that is a matter of public concern.  That is a matter of lobbying or political --

Justice Kagan: But that's exactly what the individual employee in Justice Scalia's hypothetical is arguing for.  He wants wage rates to be changed across the board.  He knows they're not going to be changed just for him.  He wants higher wage rates.

Mr. Messenger: But, again, under this Court's private--under the public conern test, an individual simply speaking to that usually does not rise to a matter of public concern.

Chief Justice Roberts jumped in during the respondents' argument to underscore the problem.  He made a point that under the state's position one union's advocacy for increased Medicaid rates might be an issue of public concern (as in a teacher's union), but another union's advocacy for the same incrased Medicaid rates is a private employment issue (as here), suggesting that that can't be. 

Justice Breyer quickly rescued the respondents and outlined the opposite position--"Collective bargaining with any employer, meat packers, hours, safety depends on hours, always can involve public interest questions"--arguing that the Court shouldn't be in the business of this kind of line-drawing.

The one to watch here may be Justice Kennedy.  He suggested at one point that nearly all of this union's activities were public matters, but at a different point that the Court's jurisprudence provides (at least) a partial solution: non-members can be compelled to pay fair-share fees for those activities that might involve free-riding, but not for other activities for which they don't receive a benefit.  (Justice Scalia piped in to remind us that under the Court's jurisprudence non-members can opt-out of fees for benefits that they don't enjoy.)  The problem here may be sorting out which kind of benefit is which.

Justice Alito underscored this problem when he pressed the state on a hypothetical non-union teacher who has to pay a fair-share fee to support the union's advocacy of the tenure system.  But the teacher disagrees with the union's position on this, so has to pay another organization an equal amount to represent his or her views--just to counteract the advocacy supported by his or her compelled fair-share fee.  Justice Kennedy posed a similar hypo.  The state responded that here the fair-share fee supports union activity that benefits all workers, but it's not clear that a majority bought it, or, if they did, that they weren't also thinking beyond the narrow facts of this case.

The case also involved several puzzles, both practical and jurisprudential, that seem to put the petitioners' positions at odds with common sense and doctrine.  Here's Justice Sotomayor raising one with the petitioners:

Justice Sotomayor: Is there a problem for the State to say--the union, to organize has a certain amount of costs.  So putting aside fair representation laws, could the State say, this is what we're going to pay police officers, 100 dollars, but we're going to pay union members 110 to reimburse them for the cost of negotiation.  Would that be OK?

Mr. Messenger: Yes.

 Here's Justice Kagan raising another:

Justice Kagan: Because here's the thing: That in the workplace we've given the government a very wide degree of latitude and there's much that the government can do.  It can fire people.  It can demote people for things that they say in the workplace, not for things that they say as a citizen . . . .

So you're saying, well, the government can punish somebody for saying something, but the government in the exact same position cannot compel somebody to say something they disagree with.  And I want to know what's the basis for that distinction, which it seems to me is just as hard as -- as if you were answering under the petition clause.

There was also significant confusion about whether the state's flexibility in negotiating wages--and therefore why the union's participation is necessary.  (If the wages are set--by the Medicaid program, for example--what benefit does the union bring?) 

Justices Scalia and Alito both expressed some skepticism over the state's intent in requiring fair-share, Justice Alito suggesting that it was Governor Blagojevich's reward to the union for a huge campaign contribution.

In rebuttal, Justice Scalia pressed the petitioners about free-riding and what their position could do to unions; Justice Kagan pressed them about what their position would do to "thousands and thousands" of public contracts that include fair-share provisions.  Justice Kagan earlier put a finer point on the case's significance and with the help of respondents' counsel told us just what's at stake:

Justice Kagan: So, Mr. Messeenger, even on the compulsory fees, I mean, what strikes me is that this is -- I'm just going to use the word here, it is a radical argument.  It would radically restructure the way any workplaces across this country are -- are run.

And let me just put it to you this way and ask if you agree with this -- with this statement.  Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State and people have disagreed.  Some States say yes, some States say no.  It raises considerable heat and passion and tension, as we recently saw in Wisconsin.  And -- but, you know, these are public policy choices that States make.

And is it fair to say that what you're suggesting here, your argument, is essentially to say that for 65 years, people have been debating the wrong question when they've been debating that, because, in fact, a right-to-work law is constitutionally compelled?

Mr. Messenger: In the public sector, yes . . . .

January 21, 2014 in Association, Cases and Case Materials, First Amendment, Fundamental Rights, News, Oral Argument Analysis | Permalink | Comments (1) | TrackBack (0)

Ninth Circuit Extends Batson's Equal Protection Doctrine Regarding Juror Exclusion to Sexual Orientation and Applies "Heightened" Scrutiny

In its opinion today in SmithKline Beecham Corporation (GSK) v. Abbott Laboratories, a unanimous panel of the Ninth Circuit extended the equal protection rule and analysis of Batson v. Kentucky (1986) regarding juror exclusions to those based on sexual orientation. 

Lady-justice-juryThe underlying dispute between the pharmaceutical companies involved HIV medications and during jury selection the attorneys for Abbott Laboratories "used its first peremptory strike against the only self-identified gay member of the venire."  The attorneys for GSK sought to initiate a Batson inquiry on the basis of sexual orientation.  The Batson analysis first requires a "prima facie" case of intentional discrimination, after which the striking party must offer a neutral reason for the strike, and then, third and last, the court makes a determination whether there has been an equal protection violation.

The district judge allowed the preemptory strike although said she would "reconsider her ruling if Abbott struck other gay men."  While the judge advised Abbott's attorney that “it might be the better part of valor” to reveal the basis for his strike, counsel "replied that he would rely on the grounds given by the judge and further explained, 'I don’t think any of the challenge applies. I have no idea whether he is gay or not.'"  Apparently he later "added that he could not have engaged in intentional discrimination because this was only his first strike." After a four week trial, the jury returned a "mixed verdict."

In the opinion authored by Judge Reinhardt, the Ninth Circuit held that there was a "prima facie" sufficient to have triggered the Batson inquiry, and using the record before it, then engaged in the second prong of the Batson analysis, finding  that Abbott's counsel did not provide a sufficient explanation. 

As to the third prong, the Ninth Circuit panel noted that generally attorneys may "exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review."  It then stated:  "Thus, if sexual orientation is subject to rational basis review, Abbott’s strike does not require reversal."

Judge Reinhardt's opinion for the panel concluded that sexual orientation receives "heightened scrutiny" under equal protection.  The opinion turned to "the Supreme Court’s most recent case on the relationship between equal protection and classifications based on sexual orientation": United States v. Windsor (2013),  holding that Windsor was "dispositive of the question of the appropriate level of scrutiny in this case," even as the Court's majority opinion in Windsor "did not expressly announce the level of scrutiny it applied to the equal protection claim at issue."   Judge Reinhardt correctly noted that the Court in Windsor did not apply a presumption of constitutionality or supply reasons for Congressional action in DOMA.

Windsor scrutiny “requires something more than traditional rational basis review.”  Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.

Thus, the Ninth Circuit's previous precedent applying rational basis to sexual orientation classifications was no longer valid.  Applying this heightened scrutiny, the Ninth Circuit found that the peremptory challenge was unconstitutional:

permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.

In sum, the Ninth Circuit's extended Batson to sexual orientation classifications and used the term "heightened scrutiny" to comply with the doctrine that Batson did not apply to classifications that merited rational basis scrutiny. 

However, one might be reading too much into the opinion to conclude that the Ninth Circuit has ruled that sexual orientation classifications now merit heightened scrutiny akin to "intermediate scrutiny."  Indeed, the Ninth Circuit relies upon the United States Supreme Court's opinion in Windsor which it admits is less than clear about the level of scrutiny - - - and certainly much less clear than the Second Circuit's opinion in Windsor which determined and applied the intermediate level of equal protection scrutiny used in gender/sex classifications.

Instead, it seems that the Ninth Circuit read the "rational basis" exclusion from Batson to be the "mere" rationality test - - - often called the "anything goes" rational basis of Railway Express Agency v. New York (1949) (which the Ninth Circuit panel opinion did not cite) or Fed. Commc’n Comm’n v. Beach Commc’n, Inc.  (1993) (which the Ninth Circuit did cite and quote).   The "heightened scrutiny" that the Ninth Circuit finds - - - derived from Windsor - - - is akin to the "heightened rational basis" or "rational basis with bite" or "rational basis with teeth" that has become a common feature of equal protection doctrine for sexual orientation classifications.  While the Ninth Circuit opinion does not stress "animus," it does discuss Department of Agriculture v. Moreno (1973), including stating that the Ninth Circuit previously "acknowledged that Moreno applied “‘heightened’ scrutiny.”

Certainly, this is an important opinion: it extends Batson to sexual orientation classifications.  And it is also important to the litigation between two giant pharmaceutical corporations given that the case was remanded for a new trial.  However, it is not a landmark opinion that substantively changes (rather than clarifies or renames) the level of scrutiny for sexual orientation classifications in all equal protection cases.

[image via]

January 21, 2014 in Courts and Judging, Equal Protection, Fourteenth Amendment, Opinion Analysis, Sexual Orientation | Permalink | Comments (1) | TrackBack (0)

Daily Humor: Is there a First Amendment Challenge to the Marijuana Mandate?

In his satirical column for the New Yorker, humorist Andy Borowitz (pictured below) writes:

NEW YORK (The Borowitz Report)—President Obama is about to issue an executive order that would force all Americans to purchase a monthly supply of marijuana, the Fox News Channel reported today.

 


AndyBorowitz
Borowitz's "reports" of fake news have been mistaken for true, perhaps because they often have a basis, albeit quite slanted, in reality.  For example, this report springboards from President Obama's remarks quoted in a lengthy profile by David Remnick in The New Yorker.  (This is not satirical and is definitely worth a read).

It also springboards from the discourse surrounding the ACA ("Obamacare") which the Court upheld as constitutional in NFIB v. Sebelius.

ConLawProfs looking for our own "springboards" for an interesting in-class discussion could definitely use the "marijuana mandate," especially when discussing Gonzales v.Raich, 545 U. S. 1 (2005). 

And perhaps the springboarding could incorporate the First Amendment (and RFRA) challenges to the so-called "contraceptive mandate" now before the Court in Hobby Lobby, Inc. and Conestoga Wood Specialties, Corporation.   It might be an interesting to contemplate the relevance of Employment Division, Dept. of Human Resources of Oregon v. Smith in this light.

This could make for a fun discussion.

 

January 21, 2014 in Current Affairs, First Amendment, Games, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, January 20, 2014

Daily Listen: Newly Discovered Audio of MLK Speech


The New York State Museum has released the only known audio recording of Dr. Martin Luther King Jr.'s 1962 speech commemorating the centennial anniversary of the Preliminary Emancipation Proclamation.  The audio was discovered on the "lost technology" of "reel to reel recording" during an ongoing project by the museum to "digitize the thousands of audio and video recordings" in "collections of more than 15 million objects and artifacts."

The audio and other materials area available at the Musuem's website here.

A preview and explanation is in the video below:

 

January 20, 2014 in Current Affairs, Equal Protection, Fourteenth Amendment, History, News, Race, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Daily Read: Martin Luther King's Words in Judicial Opinions

Jeremiah Goulka's "How Federal Judges Use and Abuse the Words of Martin Luther King Jr. in Their Decisions," argues that when MLK is quoted in a federal court opinion, it's probably supporting a result that MLK would not have supported.

Martin_Luther_King_Jr_NYWTS_4

Goulka describes himself as a former law clerk to a judge on the Fifth Circuit, a former US Attorney and a former Republican - - - important perspectives for evaluating his largely polemical piece.  Here's a snippet:

In Vera v. Richards (1994), a panel of three Republican judges considered a Texas redistricting law that created three minority-majority congressional districts. Judge Edith Jones, a Reagan appointee whom both presidents Bush considered elevating to the Supreme Court, opened the decision by stating that the Voting Rights Act of 1965:

"marked the full maturity in American political life of the Founders' idea that "all men are created equal" and the Rev. Martin Luther King's hope that his children would be judged by the content of their character, not the color of their skin."

Ah, yes, the famous "content of their character" line. A little later in her introduction, she continues in the same vein:

"Racial gerrymandering is unconstitutional, but it is also morally wrong, inconsistent with our founding tradition and Martin Luther King's vision. The color of a person's skin or his or her ethnic identity is the least meaningful way in which to understand that person." 

I can think of less meaningful ways to understand a person. (Do you like hot dogs?) You can guess which way they ruled.

This is worth a read on this MLK holiday.  For a less provocative read, there is President Obama's Proclamation.

[image via]

 

January 20, 2014 in Courts and Judging, Elections and Voting, History, Race | Permalink | Comments (0) | TrackBack (0)

Sunday, January 19, 2014

Court Takes on Fair Share Union Dues (Again)

The Supreme Court will hear oral arguments on Tuesday in Harris v. Quinn, the case testing whether a state law requiring non-union homecare personal assistants to pay union dues for the assistants' union's colleective bargaining activities violates the First Amendment.  The case threatens the decades-long rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities), under Abood v. Detroit Board of Education.  The Court presaged this threat two Terms ago in SEIU v. Knox.

Here's a selection from my preview in the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

The Illinois Department of Human Services operates two Medicaid-waiver programs that subsidize the costs of home-based assistants for disabled individuals or patients who might otherwise face institutionalization. The programs allow Medicaid patients to live in their own homes with the help of personal assistants. One of these programs, the Home Services Program, is administered by the Division of Rehabilitative Services; the other program, the Home Based Support Services Program, is administered by the Division of Developmental Disabilities. The lower court and the parties call these programs the “Rehabilitation Program” and the “Disabilities Program,” respectively.

Under the Rehabilitation Program, a patient works with a counselor to develop an individual service plan. The plan specifies “the type of service(s) to be provided to the patient, the specific tasks involved, the frequency with which the specific tasks are to be provided, the number of hours each task is to be provided per month, [and] the rate of payment for the service(s).” The service plan must be certified by the patient’s physician and approved by the state. The patient is then free to select almost any personal assistant who meets the qualifications related to work experience, training, and skills set by the state. The personal assistant signs an employment agreement directly with the patient, but the terms of the agreement are set by the state. The state also sets wages and pays the personal assistant, withholding Social Security and federal and state taxes. (Personal assistants are also sometimes called homecare providers.)

The Disabilities Program functions similarly, although the record is less developed as to the specific relationship between a personal assistant and the state.

In the mid-1980s, personal assistants in the Rehabilitation Program sought to unionize and to bargain collectively with the state. The State Labor Relations Board found that it lacked jurisdiction over the personal assistants, however, because the state was not their sole employer. As a result, personal assistants could not unionize.

In 2003, the state amended the Illinois Public Labor Relations Act to designate “personal care attendants and personal assistants working under the Home Services Program” as state employees for the purpose of collective bargaining. Governor Rod Blagojevich then issued an executive order directing the state to recognize an exclusive representative of Rehabilitation Program personal assistants if they designated one by a majority vote and to engage in collective bargaining over all employment terms within the state’s control. The Rehabilitation Program personal assistants later voted to designate SEIU Healthcare Illinois & Indiana as their collective bargaining representative with the state. The union and the state negotiated an agreement that set pay rates, created a health benefits fund for personal assistants, and established a joint union-state committee to develop training programs. The agreement also contained a “fair share” provision that required all personal assistants who were not members of the union “to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.”

In 2009, Governor Pat Quinn issued an executive order directing the state to recognize an exclusive representative for the Disabilities Program personal assistants if they designated one by majority vote. A majority of Disabilities Program personal assistants, however, rejected union representation. (This vote was not necessarily the final decision on representation. Under state law, a union can request a new vote in the future and can even bypass a vote altogether if it collects a sufficient number of union cards from the personal assistants.)

Personal assistants in both programs sued. Non-union personal assistants in the Rehabilitation Program claimed that the fair-share fees that they were required to pay violated the First Amendment by compelling them to associate with the union. Personal assistants in the Disabilities Program claimed that they were harmed by the mere threat of an agreement requiring fair-share fees.

The district court dismissed the Rehabilitation Program personal assistants’ case on the merits, and it dismissed the Disabilities Program personal assistants’ case because they lacked standing and because their case was not ripe. The United States Court of Appeals for the Seventh Circuit affirmed. (The Seventh Circuit recognized, however, that the Disabilities Program personal assistants’ case could become ripe in the future.) This appeal followed.

CASE ANALYSIS

Compulsory union fees, or fair-share fees, implicate the First Amendment because they represent a form of compelled expressive association. In other words, fair-share fees require non-union-members to support union activities and expression with which they disagree. In particular, the fees require non-members to pay for union expression (in the form of fair-share fees to support collective bargaining), and thus to associate with that expression, even if they do not support it or wish to associate with it.

Still, the Supreme Court has long upheld requirements that non-union members financially support the costs of collective bargaining. Thus in Railway Employees’ Dep’t v. Hanson, 351 U.S. 225 (1956), the Court declined to enjoin a “union shop” agreement between a railroad company and a union that required all employees (whether unionized or not) to pay union dues as a condition of employment—even though a state constitutional “right to work” provision outlawed it. The Court held that the federal Railway Labor Act permitted the union shop agreement and superseded the state constitutional provision. The Court held that the federal act was justified by Congress’s interest in supporting “industrial peace and stabilized labor-management” and in distributing the costs of collective bargaining to all those who benefited from it. The Court upheld the federal act as an exercise of Congress’s power under the Commerce Clause, and ruled that it did not violate the First Amendment insofar as it permitted compulsory fees for collective bargaining activities.

Later, in International Association of Machinists v. Street, 367 U.S. 740 (1961), the Court read the Railway Labor Act not to extend to mandatory fees to finance the campaigns of candidates for federal and state offices. The Court ruled that while the act may authorize mandatory fees for collective bargaining activities (for the same reasons in Hanson), the act would violate the First Amendment if it authorized mandatory fees for political purposes with which an employee disagreed.

Later yet, the Court in Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977), drew on the interests in Hanson and Street to uphold a state law that allowed an “agency shop” clause in a collective bargaining agreement in the public sector. The Court ruled that the First Amendment did not prohibit an “agency shop” clause in an agreement between the Detroit Board of Education and its teachers’ union that required non-unionized teachers to financial support the union’s collective bargaining activities. The Court drew upon the government interests in Hanson and Street—supporting “industrial peace and stabilized labor-management” and avoiding “free riders” who refuse to contribute to the union while obtaining the benefits of union representation—and held that they were sufficient to justify the intrusion on First Amendment associational rights.

More recently the Court has chipped away at these principles. Most recently, in Knox v. SEIU, 132 S. Ct. 2277 (2012), the Court signaled that it was prepared to reconsider them entirely. In particular, the Court took aim at the “free rider” justification for “agency shop” agreements, saying that it was “generally insufficient to overcome First Amendment objections” and that it “represents something of an anomaly.” The Court left Abood intact, however, even if it also all but foretold Abood’s demise.

The parties frame their arguments against this history.

Pamela Harris, a personal assistant homecare provider who represents the class of personal assistants who are the petitioners in this case, argues first that Abood should be overruled, because the compulsory fees upheld in the case do not meet the “exacting scrutiny” applicable to compelled associations. She claims that Abood was based on a flawed interpretation of earlier case law, that it relied upon an anomalous justification, and that the compulsory fees upheld in Abood were not necessary for the exclusive representation by the union. In particular, Harris says that the Court borrowed the “labor peace” justification for compulsory fees from earlier case law explaining Congress’ authority to invalidate state laws prohibiting union-shop agreements under the Commerce Clause (and having nothing to do with the First Amendment). She claims the Court wrongly applied this justification to its First Amendment, compulsory association analysis in Abood. The net result, she says, is that the Court in Abood wrongly held that “labor peace” (a justification for federal laws under the Commerce Clause) was sufficient to justify compulsory union dues (in the face of the First Amendment). (Harris says that Justice Powell, joined by Chief Justice Burger and Justice Blackmun, recognized this problem in his concurrence in Abood.) Moreover, Harris contends that Abood’s “free rider” rationale for compulsory fees is an “anomaly,” and “generally insufficient to overcome First Amendment objections” (quoting Knox.) And she says that compulsory fees are not a necessary incident of exclusive representation (again drawing on Knox). For these reasons, Harris claims that Abood should be overruled.

Harris argues next that even if the Court declines to overruled Abood, it should sharply limit the case to its narrow facts. She says that Abood should apply only when the government directly supervises individuals in its workplace and when union representation does not involve matters of public concern. Harris claims that neither condition is satisfied here. She says that unlike the public-school teachers in Abood, Illinois homecare providers are not managed by the state (they are managed by the individuals they serve), and that homecare providers therefore do not fall under the Abood rationale. Moreover, she says that the personal assistants’ expressive association through the union is on a matter of public concern, that is, the operations of the state’s Medicaid program, and not merely the terms and conditions of their employment. Harris contends that the state therefore has no “labor peace” rationale for imposing mandatory fees. And Harris contends that in any event the compulsory fees are not necessary to any larger regulatory purpose, as required by Knox. She claims that if Abood were to allow compulsory expressive association here, it would allow the state to designate compulsory advocates to speak for others whose services are funded by a government program, including the medical industry and government contractors, among others—clearly an absurd result, she says.

Finally, Harris argues that personal assistants in the Disabilities Program are entitled to challenge the mandatory fees. Harris says that those providers need only show a substantial risk that they will be harmed. She claims that they did so, because Governor Quinn’s executive order substantially increases the risk that they will be forced to accept exclusive union representation, and to pay union fees.

The state argues that Abood should not be overruled. The state says that Abood follows from Hanson and Street, and that those decisions are rooted in the First Amendment. The state claims that Harris mischaracterizes those decisions as not relying on the First Amendment and “seek[s] to rewrite the many decisions that rely on [Hanson and Street] for their First Amendment analysis.” The state contends that the Court has relied on Abood’s First Amendment analysis in cases upholding mandatory bar dues (Keller v. State of California, 496 U.S. 1 (1990)), mandatory assessments for fruit producers to contribute to the costs of industry advertising (Glickman v. Wileman Brothers & Elliot, Inc., 521 U.S. 457 (1997)), and a mandatory student activity fees (Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000)). Moreover, the state says that Harris’s claims would threaten the long-held distinction between the government as regulator and the government as employer, because those claims treat the personal assistants’ speech as core political speech on matters of public concern (and not speech over the terms of their employment). (The state points to the Court’s cases on public employee speech, where the Court distinguishes between the government (relatively greater) interests as an employer regulating the speech of its employees and its (relatively lower) interests in regulating the speech of citizens in general, especially core political speech.) Finally, the state claims that Abood and related cases are entitled to stare decisis effect: it says that the Abood rule has not become unworkable, circumstances have not changed since Abood, and both public-sector unions and government have come to rely upon Abood.

Next the state argues that Harris is wrong to claim that its decision to negotiate exclusively with the union alone violates the First Amendment. The state contends that Harris’s argument is foreclosed by Minnesota State Board of Community Colleges v. Knight, 465 U.S. 271 (1984), which, by summary affirmance, sustained a state law granting public employees the right to negotiate through their exclusive representative. Moreover, the state says that granting exclusive representation to the union does not threaten the First Amendment rights of personal assistants, because personal assistants may decline to join the union.

The state argues that Harris’s proposal to limit Abood ignores and minimizes its vital interests. In particular, the state claims that it has an interest in promoting “industrial peace and stabilized labor-management relations” and the need to avoid free-riders. The state says that, contrary to Harris’s position, these interests are “vital” and well sufficient to justify fair-share fees for its employees in these programs that serve the state’s “most vulnerable citizens.” (The state argues that personal assistants are, indeed, its employees, even if they also answer in limited respects to the patients they serve. That’s because the state controls many of the terms and conditions of their employment.) For these reasons, the state claims that its system of collective bargaining satisfies the correct constitutional test, a balancing test (and not strict scrutiny, as Harris would have it.

(SEIU Healthcare Illinois & Indiana, the union that represents the personal assistants in the Rehabilitation Program, presents substantially similar arguments on the constitutionality of the fair-share fees.)

Finally, the state argues that personal assistants in the Disabilities Program have presented only a “hypothetical threat,” and not an injury ripe for adjudication. Moreover, the state says that the personal assistants in the Disabilities Program will not suffer any hardship if judicial resolution of their claim is postponed. (AFCSME Council 31 and SEIU Local 73, the unions that attempted to organize the personal assistants in the Disabilities Program, make substantially the same arguments on justiciability.)

SIGNIFICANCE

Simply stated, this case puts front-and-center the decades-old balance the Court struck in Abood. The Court in that case ruled that fair-share fees do not violate the First Amendment, because the government had sufficiently weighty interests in labor peace and avoiding free-riders. But the Court has chipped away at this principle, most recently in Knox, where the Court went so far as to suggest that it was prepared to reconsider Abood. This case gives the Court that chance.

If the Court overturns Abood, or even if it limits that case, the ruling could deal a serious blow to public sector unions. That’s because fair-share fees are designed to ensure that every employee who gains the benefits of a union’s collective bargaining also shares in the costs of that collective bargaining. In this way, fair-share fees are designed to solve a basic collective action problem: if employees can gain the benefits of collective bargaining without paying the costs, no employee will pay the costs, and the benefits will eventually disappear for all, union or not. Without fair-share fees, public-sector unions would have to carry the weight of non-members without the benefit of their financial support. And with no personal financial incentive to join a union in the first place—why would an employee join a union and pay union dues if he or she could free-ride on the union’s collective bargaining activities?—public union membership and strength will almost surely plummet.

On the other hand, this case gives the Court an opportunity to recalibrate the balance between associational rights and the government’s interests in labor peace and avoiding free-riders—and to privilege the associational rights. In other words, the case gives the Court a chance to better protect the associational rights of non-members. Again, though, this would come at the expense of union strength and the collective bargaining power of all the personal assistants, union or not.

Still, the Court need not go so far. The Court could dodge a ruling on the status of Abood by distinguishing this case on its unique facts. For example, the Court could rule that personal assistants are not employees of the state, and that therefore the state’s interests in Abood do not apply. Or the Court could rule that the personal assistants seek to speak on a matter of pure public concern—lobbying for greater reimbursements under the state’s Medicaid program—and that therefore the mandatory fees warrant greater First Amendment scrutiny than in Abood. Such a ruling would obviously affect these litigants, and other employees and states like them, but it would not (necessarily) upset the basic principles in Abood.

January 19, 2014 in Association, Cases and Case Materials, First Amendment, News | Permalink | Comments (1) | TrackBack (0)

Does Obama's Ban on Lobbyists in Advisory Slots Violate Free Speech?

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

The D.C. Circuit on Friday remanded a case challenging President Obama's ban on registered lobbyists serving on advisory committees.  The case, Autor v. Pritzker, means that the district court will have a second crack at determining whether the ban violates the First Amendment.  The ruling suggests, but does not conclude, that the D.C. Circuit thinks that it does.

Appellants in the case are federally registered lobbyists wishing appointment to an Industry Trade Advisory Committee, or ITAC, a type of advisory committee established under the Trade Act of 1974.  There are sixteen industry-specific ITACs that provide information and advice to the President on trade issues reflecting the viewpoints of the industry.  As a result, ITAC members include representatives from major corporations. 

But President Obama moved to bar lobbyists from serving on ITACs and other advisory committees in order to change "the culture of special-interest access" in Washington.  In particular, he directed "the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees."  This meant that the appellants couldn't serve on ITACs.  Appellants sued, arguing that the ban violated the First Amendment--that service on an ITAC would require them to relinquish their free-speech rights.

The D.C. Circuit ruled that their complaint stated a First Amendment claim and that it shouldn't be dismissed.  The court remanded the case for a determination of the First Amendment question.

The court distinguished Minnesota State Board for Community Colleges v. Knight.  In that case, the Court held that a union's ability to exclude non-union-members from participation in "meet and confer" sessions with government employers did not violate the First Amendment.  Here, in contrast, the court wrote that "any burden on Appellants' constitutional rights results directly from the government's decision to bar them from ITAC membership."

The court instead drew on the government-employee speech doctrine.  It ruled that the lobbyist ban might work a deprivation of a valuable benefit, service on a congressionally created ITAC, at the expense of federally registered lobbyists' free-speech rights.  In other words, the ban might violate the unconstitutional conditions doctrine. 

The court remanded the case for a calculation under Pickering of the "balance between the interests of the [appellants] . . . and the interests of the State."  The court wrote,

In doing so, the district court should ask the parties to focus on the justification for distinguishing, as the lobbyist ban does, between corporate employees (who may represent their employers on ITACs) and the registered lobbyists those same corporations retain (who may not).  The court may also want to ask the government to explain how banning lobbyists from committee composed of representatives of the likes of Boeing and General Electric protects the "voices of ordinary Americans."

January 19, 2014 in Cases and Case Materials, Executive Authority, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Court Grants Certiorari in Employee First Amendment Case: Lane v. Franks

The United States Supreme Court has granted certiorari in Lane v. Franks, a case involving a public employee's First Amendment rights in the context of retaliation and raising questions about the interpretation of Garcetti v. Ceballos.

The Eleventh Circuit affirmed a summary judgment in favor of the employer, Central Alabama Community College in a brief opinion on its summary calendar, without oral argument, and designated the opinion "do not publish."    But the Eleventh Circuit opinion nevertheless provides some very compelling facts. 

SealEdward Lane was a probationary employee of the community college's program for at-risk youth, CITY.  When he assumed his duties, he found that then-state representative Suzanne Schmitz was listed on CITY's payroll but was not reporting for work and had not otherwise performed tangible work for the program.  He was warned by the college officials not to terminate the state representative, but he did so anyway.  She filed a lawsuit challenging her termination, but more importantly, she was also being investigated by the FBI for fraud.  Lane testified before a federal grand jury and -- pursuant to a subpoena -- testified at Schmitz's subsequent federal criminal trials in 2008 and 2009 for mail fraud and fraud involving a program receiving federal funds. 
As an aside, a different Eleventh Circuit panel in 2011 reversed Schmitz's convictions for fraud regarding receiving federal funds because of prosecutorial misconduct, but affirmed her convictions for mail fraud.  She is no longer in prison.

Meanwhile, Edward Lane, like all 29 probationary employees of CITY, was laid off in 2009 due to "budget cuts."  However, Franks, as college president, then rescinded all the layoffs except two, including Lane.  

Lane sued alleging a First Amendment violation.  The district judge determined that Lane's speech was made pursuant to his official duties as CITY's Director, not as a citizen on a matter of public concern.  The Eleventh Circuit had no trouble stating it reached the same conclusion.

Although the Eleventh Circuit was seemingly not troubled, interpretations of Garcetti have caused some consternation in the circuits.  Recall the arguable circuit split between Bowie v. Maddox, from the DC Circuit (foreclosing the employee's claim) and Jackler v. Byrne, in the Second Circuit, allowing the employee's claim.  The Court denied certiorari to these cases two years ago.  

Stephen Bergstein, over at "Wait A Second!" has an excellent discussion of the legal landscape, including other cases that stress the employee's right to testify at trial, and the importance of the Court's grant of certiorari.

Certainly Lane v. Franks raises vexing issues of the First Amendment rights of employees after Garcetti and possible First Amendment protections for "whistleblowers."  It is difficult to believe that misconduct by a state representative is not a "matter of public concern" although Lane obviously came by his knowledge in the course of his employment. 

January 19, 2014 in First Amendment, Supreme Court (US) | Permalink | Comments (4) | TrackBack (0)

Saturday, January 18, 2014

Daily Read: Jonathan Hafetz on Obama's NSA Speech

In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.

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Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:

 The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.

Worth a read, in addition to our take here and Cyrus Farivar over at Ars Technica.

January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Federal District Judge Invalidates North Carolina Abortion Provision on First Amendment Grounds

In her opinion in Stuart v. Loomis, United States District Judge Catherine Eagles held the "speech and display" provisions of North Carolina's "The Woman‟s Right to Know Act" unconstitutional under the First Amendment.  Recall that Judge Eagles entered a preliminary injunction against the statute's enforcement in October 2011.

613px-Flag-map_of_North_Carolina.svgThe speech and display provision, North Carolina statute §90-21.85,  passed by the legislature over the governor's veto, generally provided

that a woman undergo an ultrasound at least four hours before an abortion

that the physician or qualified technician working with the physician display the images produced from the ultrasound “so that the [patient] may view them,” 

that the providers give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and

that the providers give “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

In a nutshell, Judge Eagles ruled:

The Supreme Court has never held that a state has the power to compel a health care provider to speak, in his or her own voice, the state‟s ideological message in favor of carrying a pregnancy to term, and this Court declines to do so today. To the extent the Act is an effort by the state to require health care providers to deliver information in support of the state‟s philosophic and social position discouraging abortion and encouraging childbirth, it is content- based, and it is not sufficiently narrowly tailored to survive strict scrutiny. Otherwise, the state has not established that the speech-and-display provision directly advances a substantial state interest in regulating health care, especially when the state does not require the patient to receive the message and the patient takes steps to avoid receipt of the message. Thus, it does not survive heightened scrutiny.

One interesting aspect of Judge Eagles' opinion is her discussion of the Ninth Circuit's 2013 opinion in Pickup v. Brown, holding constitutional California's prohibition of sexual orientation change efforts (also known as sexual conversion or reparative therapy).   Judge Eagles uses Pickup's analysis of medical speech, although noting that the court in Pickup ultimately concluded that the therapy in Pickup was conduct rather than speech.  Here, North Carolina was  "seeking to compel “doctor- patient communications about medical treatment,” in distinction to Pickup

Judge Eagles also discusses the other claims, including due process and the state's request to sever the statute (which she finds untimely).  It's a well-reasoned opinion that should survive if it is appealed.

 

January 18, 2014 in Abortion, Family, First Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

State Constitutional Challenge to Dual System of Voter Registration

Julie Ebenstein of the ACLU writes on Jurist.org that the dual system of voter registration in Kansas unlawfully denies citizens the right to vote.  Ebenstein outlines the Kansas case challenging the dual system under state constitutional provisions, filed last November and now pending in state court.

As we wrote, two states, Arizona and Kansas, adopted a dual system of voter registration in the wake of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona.  In that case, the Court held that the requirement under the National Voter Registration Act that states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration.  (The NVRA form requires applicants simply to attest to their citizenship, not to provide additional documentation.) 

Arizona and Kansas then announced that they would require voters to register separately for state and federal elections.  This created a dual system of voter registration: NVRA and state-form registrants before January 1, 2013, can vote in both state and federal elections; but NVRA registrants after January 1, 2013, can vote in only federal elections.  (NVRA registrants after that date also can't sign petitions.)  Now only state-form registrants who provide the additional proof of citizenship can vote in state elections.  State-form registrants who fail to provide the additional proof of citizenship cannot vote at all.

The ACLU and ACLU of Kansas filed suit last November challenging the dual registration system.  The complaint, filed in state court, alleges that the system violates state constitutional equal protection by distinguishing between classes of voters in the state, that state officials exceeded their state constitutional authority, and that the system wasn't properly promulgated as a rule or regulation under Kansas law.

January 18, 2014 in Cases and Case Materials, Comparative Constitutionalism, Congressional Authority, Elections and Voting, Equal Protection, Federalism, News, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, January 17, 2014

Obama's Speech and Directive on NSA Surveillance

In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities,"  regarding NSA Surveillance.   Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper,  Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional - - - and that the national discussion on this issue is largely attributable to Edward Snowden.

While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:

Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.

As for Obama's specific reforms, critics might also argue that they are more "heat than light."  Importantly, Obama did pay more attention to "foreign" persons.  He also broadly stated:
 
In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially; or achieving any purpose other than those identified in this section.

But the details, as usual, can be a bit more perplexing.  For example, consider this qualification to "competitive advantage" :

Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.

The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive.  Afterwards, it tweeted the results of its assessment of Obama's performance:

EFF scorecard

 

January 17, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Foreign Affairs, International, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, January 16, 2014

Equality and Statutes of Limitations in the Washington State Supreme Court

In its opinion today in Schroeder v. Weighall, the Washington Supreme Court held a medical malpractice statute of limitations violated the state constitution's equality provisions. 

The statute at issue, RCW 4.16.190, tolls the statute of limitations during the time a person suffers from a disability, including being a minor.  However, subsection (2) of the statute is an exemption only for persons under the age of 18 and only with respect to actions under RCW 4.16.350, the statute governing claims for medical malpractice.  

The court found the exemption provision unconstitutional under Washington Constitution Art. 1 §12 :

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

While the court noted that this provision could be "substantially similar" to the Fourteenth Amendment's Equal Protection Clause, it was also different and more protective and paid special attention to "undue political influence" that was "exercised by a privileged few." 

Washington Supreme Court
Justices of the Washington Supreme Court


The court applied a two prong test, first looking at whether there was a "privilege or immunity," at stake, easily concluding that the benefit in the statutory exemption was  "limited liability-an immunity from suits pursued by certain plaintiffs."  The court quickly turned to the mirror image of this benefit, concluding that the right to sue for what is essentially common law negligence was within these definitions.

The court then turned to the second prong of the test, considering whether there is a "reasonable ground" for "limiting medical malpractice defendants' liability to patients injured during minority," and noting that "reasonableness" under the state constitution was more rigorous that rational basis.  The court carefully looked at the purported interests of the statute, and noted an inconsistency:

 If the statute is to be justified on the basis that it will greatly reduce medical malpractice claims, it cannot also be justified on the ground that it will not prevent very many plaintiffs from having their day in court. If it is to be justified on the basis that it is a substantial wrong to permit even one stale medical malpractice claim to proceed, then there can be no rational explanation for the legislature's failure to eliminate tolling for other incompetent plaintiffs.

 Again, however, the court indulged in a mirror image discussion, looking at the statutory scheme's affect on a "particularly vulnerable population not accountable for its status.  While children are not a suspect or even semi-suspect class, the court did note that "the group of minors most likely to be adversely affected" by the statutory exemption are those "whose parent or guardian lacks the knowledge or incentive to pursue a claim on his or her behalf" or who are in state care.

 While 7 of the 9 justices of the court assented to this opinion, authored by Justice Gordon McCloud, there was a dissenting opinion by Justice James M. Johnson, joined by Justice Susan Owens, arguing that the most deferential standard of scrutiny should apply and accepting the claims of legislative interest in reducing claims of medical malpractice.

The Washington Supreme Court's majority opinion is a well-reasoned example of the vibrancy of state constitutional equality provisions, including a somewhat unusual application to a statute of limitations provision. 

January 16, 2014 in Courts and Judging, Disability, Equal Protection, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Oklahoma's License Plate Survives Constitutional Challenge on Remand

Oklahoma District Judge Joe Heaton declined to find that the Oklahoma license plate violated the First Amendment or other constitutional rights of Keith Cressman in his  opinion in Cressman v. Thompson.

Recall that the Tenth Circuit, in a divided opinion in June 2013, held that Cressman had made plausible allegations that the symbol on the Oklahoma license plate - - - arguably the “Sacred Rain Arrow”  - - - could be the basis of a compelled speech claim, similar to the classic First Amendment case of Wooley v. Maynard.

But on remand, Judge Heaton found that the plate's image (pictured below and included as the final page on Judge Heaton's opinion) did not rise to the level of symbolic speech with a particularized message.  Although stating that there should be a broad interpretation, Judge Heaton nevertheless held:

Viewed by itself, all the disputed image involves is a depiction of a Native American shooting a bow and arrow. There is nothing about the image that suggests the man is praying or that the arrow he is shooting is sacred. There is nothing about the image that suggests he is worried about rain, or the lack thereof. There is nothing about the image that suggests he believes in one god, no god, or several. It simply depicts a Native American shooting a bow and arrow.

 

Houser
"Sacred Rain Arrow" sculpture by Allan Houser via

OK-Archer-Plate2Judge Heaton rejected the constitutional significance of the "other things" Cressman learned about the image through "research."  He opined that the "fact that additional research is necessary to know or identify the message of which plaintiff complains is itself “strong evidence” that the image, as such, is not subject to constitutional protection."  Further, the image on the license plate is "not an exact replica" of the "Sacred Rain Arrow” sculpture; the plate image has the arrow pointing at a 60 degree angle "a pose consistent with a variety of scenarios in which a bow and arrow might be used," while the sculpture "involves a Native American shooting his arrow almost vertically into the air, a pose which arguably is more suggestive of a spiritual motive or connection."

Additionally, Cressman did not object to the words "Native America" on the license plate, another distinction from Wooley v. Maynard's "Live Free or Die" New Hampshire license plate.

Judge Heaton's final paragraph expressed a lack of sympathy for Cressman along with a suggestion:

The absence of a constitutional violation does not, of course, mean that plaintiff lacks a practical solution to the problem as he sees it. Oklahoma provides a simple, inexpensive, and readily available alternative, in the form of a specialty plate, for those who object to any aspect of a standard plate, an option which plaintiff has exercised both before and since his concerns with the current standard license plate arose.

January 15, 2014 in Courts and Judging, Due Process (Substantive), Establishment Clause, First Amendment, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

Obamacare Tax Credit Survives Lawsuit

Judge Paul Friedman today upheld an IRS rule that extends tax credits to individuals purchasing health insurance on a federally-facilitated exchange under Obamacare.  The ruling in Halbig v. Sebelius deals a blow to opponents of Obamacare in one of the several cases against the Act still percolating in the courts.  We wrote on some of those cases and issues most recently herePolitico reports on this case here.

The case was a challenge to an IRS rule that extended tax credits not only to health-insurance purchasers on state exchanges, but also to health insurance purchasers on federally-facilitated exchanges.  That's a problem, the plaintiffs said, because the ACA didn't authorize the IRS to extend credits to purchasers on federally-facilitated exchanges.

In particular, the ACA calculates the credit based in part on the premium expenses for the health plan "enrolled in [by the individual] through an Exchange established by the State . . . ."  (Emphasis added.)  But the IRS rule makes tax credits available to qualifying individuals who purchase health insurance on state-run or federally-facilitated exchanges.

A group of individuals and employers residing in states that have declined to establish state exchanges sued, arguing that the IRS exceeded its authority under the ACA in extending tax credits to individuals in states without exchanges (and where the federal government facilitates the exchange). 

You might wonder about standing, given that the rule is designed to make insurance cheaper.  The court said at least one plaintiff had standing.  That's because one plaintiff lives in a state that declined to create an exchange, plans to earn $20,000 in 2014, and does not plan to enroll in a health insurance plan.  That plaintiff also introduced evidence that the cost of minimum health insurance coverage, if unsubsidized, would exceed eight percent of his income, allowing him to qualify for an unaffordability exemption.  But the IRS rule would lower the cost of his insurance premiums so significantly that he no longer qualifies for the unaffordability exemption.  As a result, the IRS rule means that he (1) has to purchase subsidized health insurance at about $20 per year or (2) has to pay some higher amount per year as a tax penalty (for not buying health insurance).  Because the rule encourages him to buy insurance--and that costs money (more than the exemption), even if only $20 a year--he has standing.  The irony wasn't lost on the court: "Counterintuitively, by making health insurance more affordable, the IRS Rule imposes a financial cost on Klemencic."As to the merits, the court said that the ACA is ambiguous when it extends credits to purchasers on exchanges "established by the State."  That's because the ACA, taken as a whole (and not just the limited provision cited by the plaintiffs, taken in isolation), can be reasonably understood to assume that states establish exchanges, and to leave it to the federal government to step in and establish an exchange only when a state declines to do so.  When the federal government does this, the court said, then it (the federal government) creates an exchange "established by the State."  "In other words, even where a state does not actually establish an Exchange, the federal government can create 'an Exchange established by the State . . .' on behalf of that state."The court also said that other provisions of the ACA suggest that Congress intended to extend credits to purchasers on federally-facilitated exchanges, and that those provisions would clash with the plaintiffs' preferred reading of the Act. 

January 15, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Oral Argument in McCullen v. Coakley, the Clinic Buffer Zone Case

The United States Supreme Court heard oral arguments today in McCullen v. Coakley regarding a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics.  Recall that the First Circuit had rejected both a facial and as-applied challenge to the statute.  While the statute is a "time, place, manner" statute similar to others that had been upheld, throughout the arguments it often seemed as if the statute was being more than strictly scrutinzed.

The oral arguments evidenced several definitional disagreements.  A pronounced dispute was the characterization of the actors and actions covered by the statute.  Throughout his argument on behalf of the petitioners, Mark Rienzi described the activity as "peaceful, consensual conversations" and as "counseling."  When Jennifer Grace Miller, representing the state of Massachusetts opened her argument by characterizing the activities of the petitioners as "protest" or abortion, Justice Scalia quickly interrupted, accusing her of distortion.  Instead, he insisted, the petitioners "want to talk to the women who are about to get abortions and try to talk them out of it."  For Scalia, the case is a "counseling case, not a - - - not a protest case."  Later in the argument, he came back to the point:

I -- I object to you calling these people protestors, which you've been doing here during the whole presentation. That is not how they present themselves. They do not say they want to make protests. They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protestors?

This definitional disagreement arose a number of times, implicating the issue of whether the state had other, less restrictive, means to accomplish its goals.  Justice Kennedy asked Ian Gershengorn, Deputy Solicitor General of the United States, supporting the state of Massachusetts, how many federal prosecutions there had been in Massachusetts, to which Gershengorn replied that the federal FACE Act is a "very different statute" aimed at "murder, arson, and chaining to doorways."  Such definitional issues also implicated the activity being regulated by the statute as speech based on content or even viewpoint.  

Importantly, the state action before the Court is a statute rather than an injunction, a point made apparent several times.  The record before the Massachusetts legislature as well as analogies to other types of buffer zones - - - Justice Alito seemed especially preoccupied with labor - - - was an important focus.  Justice Kagan raised protests around slaughterhouses by animal rights activists, noting to Mark Rienzi that it was raised in his brief for Petitioners, and saying that while he might have meant it to be "terrible," her reaction was that it might be sensible: "Just have everybody take a step back."

But how far back?  The question of "why 35?" was explicitly asked by Justice Kagan of Jennifer Miller arguing for the state.   Comparisons to the courtrrom space littered the arguments.  Justice Ginsburg translated the distance into time, asking Mark Reinzi how long is one in the buffer zone.  He replied, about "7 to 10 seconds":

JUSTICE GINSBURG: There's not much you're going to be able to do to have a conversation that will persuade people in 7 to 10 seconds.

MR. RIENZI: I respectfully disagree on that last point, Your Honor. The evidence in this record is that the -- the inability to speak with people close to the clinic has a dramatic effect on the Petitioners' ability to reach their audience. So if someone happens to be walking from the same side of the zone that you're standing on, you may have a shot.

Not surprisingly, Justice Thomas maintained his usual practice of foregoing verbalizing questions.  More surprisingly, perhaps, Chief Justice Roberts did not ask any questions.  His final "Thank you, counsel," provided no clues to his future deliberations on the case.

 

January 15, 2014 in Abortion, Current Affairs, First Amendment, Oral Argument Analysis, Privacy, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 14, 2014

Oklahoma District Judge Invalidates State's Prohibition of Same-Sex Marriage (But Stays Judgment)

In a lengthy opinion today in Bishop v. United States (Smith), Judge Terence Kern of the Northern District of Oklahoma found unconstitutional the state constitutional amendment, article 2, §35 that defines marriage as consisting "only of the union of one man and one woman," and further that no law "shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

The lawsuit, originally filed in 2004 soon after the state constitutional amendment, also challenged the federal DOMA, as well as other portions of the state "little DOMA" and includes several plaintiffs.  As to these challenges, the judge found a lack of standing.  However,  as to the definitional section of article 2, §35 (above), known as "Part A" of the Oklahoma Constitutional Amendment, the judge found that the "Bishop couple" had standing - - - and that the provision violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Map_of_USA_highlighting_Oklahoma
As to the Equal Protection claim, the judge rejected the argument by Smith, the Oklahoma county clerk, that Baker v. Nelson (1972) was binding precedent.  More interestingly, the judge also rejected the argument that last Term's decision in Windsor v. United States, holding section 3 of the federal DOMA unconstitutional was determinative:  "Both parties argue that Windsor supports their position, and both are right." 

Judge Kern correctly observed:

The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the law’s justifications. Instead, the Windsor Court based its conclusion on the law’s blatant improper purpose and animus. See id. at 2693. The Court reasoned that DOMA’s “unusual deviation” from the tradition of “accepting state definitions of marriage” was “strong evidence of a law having the purpose and effect of disapproval of the class.” Id. The Court concluded, based upon DOMA’s text and legislative history, that DOMA’s principal purpose “was to impose inequality.” Id. Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test for reviewing Part A [of the Oklahoma Constitutional Amendment].

The judge then applied the Tenth Circuit's framework for analyzing equal protection questions:

First, the Court asks “whether the challenged state action intentionally discriminates between groups of persons.”  Second, after an act of intentional discrimination is identified, the Court must ask “whether the state’s intentional decision to discriminate can be justified by reference to some upright government purpose.”

By examining the legislative actions - - - including a press release - - - the judge found that the exclusion of the defined class was not a "hidden or ulterior motive," but was "consistently communicated to Oklahoma citizens as a justification" for the amendment.  

For the next line of inquiry focusing on the justification for the discrimination, the judge rejected the argument that it was gender discrimination (relying on "common sense"), and concluded it could be best described as "sexual-orientation discrimination."  The judge applied the familiar "rationality" standard, but rejected the "morality" government interest originally proffered, as well as the "negative impact on marriage" interest.  While he did not use the label of "animus" for these interests, the import of the analysis is sympathetic to such a reading.

He similarly rejected the interests of "Encouraging Responsible Procreation/Steering Naturally Procreative Couples to Marriage," and "Promoting the “Optimal” Child-Rearing Environment,"  finding that while these interests might be legitimate, they were not being rationally served by the means chosen of prohibiting same-sex couples from marriage.  

The judge concluded:

The Court permanently enjoins enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the U.S. Supreme Court’s issuance of a stay in a nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final disposition of any appeal to the Tenth Circuit Court of Appeals.

Thus, same-sex marriages will not occur in Oklahoma as they did in Utah while the state government sought stays.  Instead, the Tenth Circuit's expedited appeal in Herbert v. Kitchen is now also determinative of Oklahoma.

January 14, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Senate Confirms Wilkins to D.C. Circuit

The Senate voted yesterday 55 to 43 to confirm Robert L. Wilkins to serve on the U.S. Court of Appeals for the D.C. Circuit.  WaPo reports here.  The confirmation marks the third time since the Senate abolished the filibuster for executive and lower-court nominees that the body voted by a bare majority to confirm one of President Obama's nominees to this court.  We last posted on the issue here.

January 14, 2014 in Appointment and Removal Powers, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, January 13, 2014

Daily Read: Understanding Zablocki v. Redhail and "Marriage Equality"

The United States Supreme Court in Zablocki v. Redhail (1978) held unconstitutional a Wisconsin state statute requiring judicial permission for a marriage license for any person who had a support order for a minor. 

The opinion, authored by Justice Marshall, considers the case as one of equal protection and opines that

our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.

 The Court also states that more recent decisions "have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause," citing Griswold v. Connecticut.

Thus, although not as famous as Loving v. Virginia, Zablocki v. Redhail is also frequently cited in any argument that marriage is a fundamental right, notwithstanding the Court's qualification in Zablocki that "not every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny," but only ones that interfere directly and substantially with the right to marry.

In a new essay, Chronicle of a Debt Foretold: Zablocki v. Red Hail, by Tonya L. Brito, R. Kirk Anderson and Monica Wedgewood, forthcoming in The Poverty Law Canon and available on ssrn, the authors revive the importance of the wealth inequality relevance of the case and also reveal a racial aspect.  Redhail, whose name is actually Roger Red Hail, is a Native American man, now in his late 50s, who still owes child support for the child he fathered when he was 16.  Although the "child" is now in her 40s, he owes the money to state (with interest) and the state continues to garnish his wages.

Tribal

There is a possibility that Red Hail's pending child support cases now under the jurisdiction of Milwaukee County would be transferred to the Oneida Tribal Judicial System.

The essay is a must-read for anyone considering the constitutional ramifications of equality or marriage.

January 13, 2014 in Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, History, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)