Tuesday, February 28, 2017
District Judge Finds School District's Exclusionary Bathroom Policy Likely Violates Equal Protection
In his well-reasoned and comprehensive 48 page opinion in Evancho v. Pine-Richland School District, Judge Mark Hornak of the Western District of Pennsylvania has issued a preliminary injunction against a school policy that limits students to facilities that "correspond to their biological sex" or to "unisex facilities," finding that the policy likely violates the Fourteenth Amendment's Equal Protection Clause.
The Pittsburgh-area school district passed Resolution 2 in 2016 by a close vote (5-4), after Resolution 1 which would have preserved the status quo failed to pass in a tied vote (4-4), after meetings and after some sporadic parental complaints. The policy seemed focused on three transgender students, including the named plaintiff Juliet Evancho, the sister of Jackie Evancho who sang at the President's January inauguration. As Judge Hornak relates, before 2016 "there were simply no issues or concerns" about the plaintiffs and everyone in the school district treated the students "consistently with their gender identities." He added that the "most distinctive and illustrative evidence of this is that Juliet Evancho ran for Homecoming Queen in 2016, and she was elected by her peers to the “Homecoming Court” of ﬁnalists for that honor."
After extensively discussing the record, including the school district's privacy concerns, Judge Hornak found there was a indeed a classification being made, the plaintiffs being "distinguished by governmental action from those whose gender identities are congruent with their assigned sex" and the "only students who are not allowed to use the common restrooms consistent with their gender identities.” Later in the opinion, Judge Hornak discussed the unsatisfactory solution of the "safety valve" of unisex facilities:
the law does not impose on the Plaintiffs the obligation to use single-user facilities in order to “solve the problem.” In these circumstances, that would compel them to use only restrooms inconsistent with their gender identities or to use the “special” restrooms. That is a choice directed by official edict, and it is not a choice compelled of other students. It is no answer under the Equal Protection Clause that those impermissibly singled out for differential treatment can, and therefore must, themselves “solve the problem” by further separating themselves from their peers.
As to the Equal Protection standard to be applied, Judge Hornak first discussed rational basis but decided that the intermediate scrutiny standard of United States v. Virginia (VMI) for sex classifications was applicable. The selection of standard rested on the conclusion that "transgender status" is the "epitome of gender noncomformity" and discrimination based on transgender status is "akin to discrimination based on sex." Additionally, the opinion recited factors determining whether a "new" classification deserves heightened scrutiny.
In applying the standard, Judge Hornak found that the record did not establish facts that demonstrated there was an important government interest or exceedingly persuasive justification that was substantially related to those interests:
First, such an application of Resolution 2 would not appear to be necessary to quell any actual or incipient threat, disturbance or other disruption of school activities by the Plaintiffs. There is no record of any such thing. ****
Second, Resolution 2 would appear to do little to address any actual privacy concern of any student that is not already well addressed by the physical layout of the bathrooms. The District has stated that Resolution 2 is necessary to protect the privacy of students (presumably including the Plaintiffs), by which the District has stated it means the sanctity of excretory functions. The record simply does not reveal any actual risk (or even an actual risk of a risk) in such regards. ****
Third, Resolution 2 would not appear to have been necessary in order to fill some gap in the District’s code of student conduct or the positive law of Pennsylvania in order to proscribe unlawful malicious “peeping Torn” activity by anyone pretending to be transgender.” There is no evidence of such a gap. The existing disciplinary rules of the District and the laws of Pennsylvania would address such matters. And as noted above, there is no record evidence of an actual or threatened outbreak of other students falsely or deceptively declaring themselves to be “transgender” for the purpose of engaging in untoward and maliciously improper activities in the High School restrooms.”
Fourth, such application of Resolution 2 also would not appear to be supported by any actual need for students to routinely use the comers of the restrooms for changing into athletic gear from street clothes.
Interestingly, this last consideration seems to have arisen from a "hypothetical matching a personal experience from his own school days" asserted by counsel for the school district. (Evidence and Professional Responsibility Professors might take note of this). Judge Hornak opined that perhaps that "reported anecdotal evidence can be treated" as being a "plausible historical recitation of life events," but there was no "record evidence" that this was the situation in the district.
While Judge Hornak found that the plaintiffs would prevail on the Equal Protection Clause claim, the judge did not find a likelihood of success on the Title IX claim in light of the pending Supreme Court case of Gloucester County School Board v. G.G., oral argument scheduled later this month. Section IV of the Judge Hornak's opinion, about 10 pages, coupled with the preliminary footnote regarding the recent Department of Education activities, is an excellent overview of the GG litigation including the pertinent issues.
Judge Hornak's opinion is also an excellent reminder that whatever might happen in GG at the Supreme Court, there are remaining equal protection issues. Recall that although the Fourth Circuit in GG centered on Title IX and the administrative law issues, Count I of the original complaint in GG is an equal protection claim.
video: from Lambda Legal representing Evancho
Monday, February 27, 2017
The Court heard oral argument in Packingham v. North Carolina in which the North Carolina Supreme Court upheld the constitutionality of a state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access certain commercial social networking sites. Packingham was convicted of a felony for his facebook page on which he wrote " Thank you Jesus. God is good" regarding a result on his parking ticket.
Justice Kagan distilled the importance of the issue in her questioning of the North Carolina Deputy Attorney General, Robert Montgomery:
JUSTICE KAGAN: So --so a --so a person in this situation, for example, cannot go onto the President's Twitter account to find out what the President is saying today?
JUSTICE KAGAN: Not only the President. I mean, we're sort of aware of it because the President now uses Twitter. But in fact, everybody uses Twitter. All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial --crucially important channel of political communication. And a person couldn't go onto those sites and find out what these members of our government are thinking or saying or doing; is that right?
Montgomery answered both queries in the affirmative, but suggested that Packingham could go onto the websites of government officials to learn their views.
The possibility of ample available alternatives, the question of narrow tailoring, and the overbreadth of the statute were the linchpins of the First Amendment argument, as David Goldberg representing Packingham explained when Justice Kennedy inquired about the "doctrinal choices" supporting an argument that the statute was unconstitutional. There were analogies to felon disenfranchisement and felons restricted Second Amendment rights, but Goldberg insisted that the First Amendment was different.
Prompted by this distinction based in part on originalist invocations, Chief Justice Roberts seemed to eschew originalism, given that the issue involves "access to websites and all the sort of things we're dealing with here." For his part, Justice Alito tried "to translate this into terms that would be familiar at the time of the adoption of the First Amendment," analogizing to a state law prohibiting anyone convicted of kidnapping children from visiting a nursery school. Goldberg first noted that the First Amendment did not apply to the states at the time of the Framers, but then stated that there was not a First Amendment right to visit a nursery school.
The notion that internet social sites are "virtual places" like playgrounds was one advanced by the state attorney, but one that the Justices did not seem to accept. Yet even if the virtual-spatial analogy was pertinent, the type of prophylactic rule upheld in Burson v. Freeman (1992) regarding a prohibition of campaigning within 100 feet of a polling place, seemed unpersuasive. Montogomery seemed to contend this was North Carolina's best case, to which Justice Kennedy replied that it "does not help you at - - - at all." The conversation continued:
JUSTICE KENNEDY: That was --number one, it was applied to everyone. It was 100 yards. You could have all the political speech in the world outside the --was it 100 yards or 100 feet, whatever it was. It seems to me that --do you have --do you have any better case than that?
MONTGOMERY: Well, the only --the reason -
JUSTICE KENNEDY: If you cite Burson, I think --I think you lose.
MONTGOMERY: The reason that that case is the one that I mentioned is because the rationale for that was that these kinds of crimes that happened in that zone often go undetected -
JUSTICE KAGAN: Mr. Montgomery, I agree with you. That's your closest case. It's the one that I asked Mr. Goldberg about, because it's the only case that I know of where we've permitted a prophylactic rule where we've said not all conduct will have these dangerous effects, but we don't exactly know how to separate out the dangerous --dangerous speech from the not-dangerous speech, so we're going to have a prophylactic rule. That is like one out of a zillion First Amendment cases that we've decided in our history.
And as Justice Kennedy says, there are many reasons to think it's distinguishable from this one.
MONTGOMERY: Well, the fact that it applied to all in Burson, I believe, makes our case a better case because it doesn't apply to all. It applies to sex offenders who have committed crimes, who have shown that they cannot conform to the law and are likely to be recidivists. So the fact that it's a narrower group is not --does not make it more problematic, but makes it --makes it better than Burson.
JUSTICE KENNEDY: Well, that was --that was not the rationale of Burson v. Freeman. Under that rationale, you --you could have said that it applies only to members of a political party and it would have been narrower. That would make it worse. The Petitioner here is saying you are singling me out and saying that I can't have the First Amendment rights that everybody else does. That's exactly the opposite of what was happening in Burson.
MONTGOMERY: But it wouldn't be like singling out a political party. These are people who have committed sex offenses. So, again, they have had certain disabilities already, civil disabilities. . . .
While making predictions of outcomes based on oral arguments is always fraught, the fact that Mr. Montgomery did not have a better "best case" than Burson to support the constitutionality of the North Carolina statute strongly suggests the case will be reversed.
There are at least two letters circulating amongst law professors regarding Neil Gorsuch's nomination to Associate Justice on the United States Supreme Court.
The opposition letter, available here, stresses Gorsuch's "judicial philosophy," as, "in his own words" "focusing backward, not forward.” With references to specific cases, it argues that Gursuch lacks "the necessary commitment to independence to hold government officials accountable," that he will "undermine reproductive rights," that he repeatedly "sides with big corporations over workers' rights," that he has "undermined federal laws meant to protect persons with disabilities," and that he will hamper agencies' ability to enforce Congressional laws meant to protect environmental and health safety.
The supporting letter, available here, stresses Gorsuch's qualifications, his "fairness and integrity, his analytical rigor, and his persuasive writing." It describes him as a "scholar and a teacher" whose views fall well within the bounds of modern jurisprudence.
The supporting letter, although brief, also tackles an issue unmentioned by the opposition letter: the previous nominee's treatment. The supporting letter states:
In closing, we note how little good comes from playing politics with judicial nominations. In his 2016 Year End Report, Chief Justice Roberts asked “why any lawyer would want a job that requires long hours, exacting skill, and intense devotion – while promising high stress, solitary confinement, and guaranteed criticism.” The political gauntlet that judicial nominations have become – highlighted most recently by the Senate’s outright refusal to consider the nomination of Judge Merrick Garland, also a brilliant judge eminently qualified for the Supreme Court – underscores this concern. Nominees expose themselves and their families to the withering glare of the modern media cycle and to political fortunes unconnected to their merit for the position. Senators of both parties employ arguments to delay and block nominees of the other party’s President, only to denounce these tactics when political fortunes are reversed. Litigants who depend on the efficient functioning of the courts to see justice done ultimately pay the price.
Law Professors wishing to sign one or the other of the letters should do so quickly.
image: Donald Trump nominates Neil Gorsuch to the United States Supreme Court via.
Thursday, February 23, 2017
The WZB Berlin Social Science Center, the European University Institute, and the London School for Economics and Political Science invite submissions for the Inaugural Annual European Junior Faculty Forum for Public Law and Jurisprudence, to be held at WZB Berlin Social Science Center on June 28 and 29, 2017.
Authors may be invited to publish in Global Constitutionalism.
Check out Ben Wofford's interview at Politico with David Cole (Georgetown), the ACLU's recently appointed legal director. Cole talks about the ACLU agenda for the Trump presidency, and, drawing on his book, Engines of Liberty, and his essay in the NY Review of Books, how lawyers, academics, and citizens can hold a president accountable and make constitutional change.
Wednesday, February 22, 2017
In a brief Order in IMBD v. Becerra, federal district judge Vince Chhabria enjoined California AB 1687, added as §1798.83.5, stating that "it's difficult to imagine how AB 1687 could not violate the First Amendment."
The statute provides that a commercial online entertainment employment service provider, such as IMBD,
that enters into a contractual agreement to provide employment services to an individual for a subscription payment shall not, upon request by the subscriber, do either of the following:(1) Publish or make public the subscriber’s date of birth or age information in an online profile of the subscriber.(2) Share the subscriber’s date of birth or age information with any Internet Web sites for the purpose of publication.
To be sure, the government has identified a compelling goal – preventing age discrimination in Hollywood. But the government has not shown how AB 1687 is "necessary" to advance that goal. In fact, it's not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all. And even if restricting publication on this one website could confer some marginal antidiscrimination benefit, there are likely more direct, more effective, and less speech-restrictive ways of achieving the same end. For example, although the government asserts generically that age discrimination continues in Hollywood despite the long-time presence of antidiscrimination laws, the government fails to explain why more vigorous enforcement of those laws would not be at least as effective at combatting age discrimination as removing birthdates from a single website. Because the government has presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that it's necessary to combat age discrimination), there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.
The en banc Fourth Circuit yesterday upheld Maryland's ban on assault weapons and large-capacity magazines against a Second Amendment challenge. The ruling reverses an earlier panel decision and puts the circuit in line with other circuits that have ruled on the issue. (We posted on the earlier panel ruling here.)
The court said first that assault weapons aren't even protected by the Second Amendment. Quoting Heller, the majority wrote, "Because the banned assault weapons and large-capacity magazines are 'like' 'M-16 rifles'--'weapons that are most useful in military service'--they are among those arms that the Second Amendment does not shield."
The court said next that even if the Second Amendment applied, the ban satisfied intermediate scrutiny. (The court applied intermediate scrutiny, not strict, because Maryland's ban "does not severely burden the core protection of the Second Amendment, i.e., the right of law-abiding, responsible citizens to use arms for self-defense in the home.") The court wrote that the ban is "reasonably adapted" to the state's "substantial" (indeed, compelling) interest in public safety, because assault weapons and large-capacity magazines are especially dangerous and are disproportionately used in crime and to kill law enforcement officers. The court also noted that the ban did not regulate the more typical weapon used in the home for self-defense (the core of the Second Amendment right, under Heller)--the handgun.
The court also ruled that the ban didn't violate equal protection by allowing retired police officers to possess assault weapons, because police officers are highly trained, and thus not situated similarly to civilians. Finally, the court held that the ban on "copies" of assault weapons wasn't unconstitutionally vague, because the term ("copy") is sufficiently clear under well established Maryland law.
The ruling drew a sharp dissent and several other opinions.
Tuesday, February 21, 2017
The Supreme Court heard oral arguments today in Hernandez v. Mesa, the case testing whether the family of a Mexican youth can sue a border patrol agent for Fourth and Fifth Amendment violations for shooting and killing the youth while the agent was on the U.S. side of the border, but the youth was in the concrete border culvert, 60 feet into Mexico.
The parties briefed three issues--whether a formalist or functionalist approach governs the Fourth Amendment's application outside the U.S., whether the officer enjoyed qualified immunity for the Fifth Amendment violation, and whether Bivens provided a remedy--but only two were really on display today: the extraterritorial application of the Fourth Amendment, and Bivens. And if the arguments are any prediction, it looks like a closely divided Court could rule for the agent. But the case could also be a good candidate for re-argument, when a ninth Justice joins the Court.
The plaintiffs' biggest problem was defining a workable test for the application of the Fourth Amendment. The formalist approach has the benefit of providing a bright-line for the application of the Fourth Amendment--the actual border. But the functional approach (or something like it) is more flexible in a situation like this, where the difference in a remedy could (absurdly, to some) be measured in the 60-foot distance between Hernandez and the U.S. border when he was shot.
Trying to walk a line between a rigid-border approach and a functional approach without any clear and determinate limits, the plaintiffs argued for a test that would apply the Fourth Amendment only in the culvert area straddling the border--an area that includes both U.S. and Mexican territory, but just barely. They justified this case-specific approach on the number of cross-border shootings that occurred of late: a particular problem demands a particular solution.
Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed on board with this approach; Chief Justice Roberts and Justice Alito did not. If the Court splits 4-4 on the issue (as seems likely), the lower court ruling simply stays in place. That ruling said that neither the Fourth nor Fifth Amendment applied, and that Hernandez therefore had no federal constitutional remedy.
But whatever the Court says about the "extraterritorial" application of the Fourth Amendment, there's another issue--a threshold one: Bivens. Here, the Justices seemed to divide along conventional political lines. Justice Kennedy well outlined the conservatives' case when he asked the plaintiffs this:
Since 1988, this Court has not recognized a single Bivens action. We look for special considerations. You've indicated that there's a problem all along the border. Why doesn't that counsel us that this is one of the most sensitive areas of foreign affairs where the political branches should discuss with Mexico what the solution ought to be? It seems to me that this is an extraordinary case for us to say there's a Bivens action in light of what we've done since 1988 where we haven't created a single one.
The four conventional progressives pushed back, equally hard.
If the Court divides 4-4 on Bivens, as seems likely, it might not matter to the outcome, because a 4-4 split on extraterritoriality would hand the win to Mesa, the border agent. But a 4-4 split on Bivens would leave open a substantial question that the Court itself directed the parties to answer: does Bivens provide a remedy here? Because there's no lower-court ruling on Bivens (the en banc Fifth Circuit did not address the issue, and only reinstated the non-Bivens portions of the panel ruling), a 4-4 split would not even leave in a place a lower court ruling. Given that the Court itself added this question--suggesting that it would like an answer--a 4-4 split may mean that the Court holds this case over for re-argument with a ninth Justice.
Monday, February 20, 2017
In its divided opinion in Bormuth v. County of Jackson (Michigan), a panel of the Sixth Circuit has concluded that the prayer practices of a county commission violate the First Amendment's Establishment Clause.
The constitutionality of legislative prayer has most recently been before the United States Supreme Court in the sharply divided opinion in Town of Greece v. Galloway upholding the practice of the town beginning its meetings with invited religious leaders providing prayers. The Court essentially extended Marsh v. Chambers (1983), regarding legislative prayer in the Nebraska legislature, to town meetings despite their quasi-legislative and quasi-adjudicative function.
The Sixth Circuit first held that the County of Jackson's Board of Commissioners’ practice strays from the traditional purpose and effect of legislative prayer:
A confluence of factors distinguishes the Jackson County practice from the practices upheld in Marsh and Town of Greece. These factors include the deliverance of the invocations by the Commissioners themselves in a local setting with constituent petitioners in the audience, as well as the Board’s intentional decision to exclude other prayer givers in order to control the content of the prayers.
Additionally, the Sixth Circuit in Bormuth was troubled by the issue of coercion raised by the plaintiff. The facts were not only that the Chair of the Jackson County Commission generally "directs those in attendance to “rise” and “assume a reverent position" before a County Commissioner delivers a Christian prayer, but that a Commissioner "made faces" and "turned his chair around" when Bormuth expressed concern about the prayers. One Commissioner later stated that Bormuth was attacking "my Lord and savior Jesus Christ," and another Commissioner remarked, “All this political correctness, after a while I get sick of it.” As Judge Karen Nelson Moore wrote for the panel majority:
Admittedly, the precise role of coercion in an Establishment Clause inquiry is unclear, especially within the context of legislative prayer. In that sense, both Justice Kennedy’s and Justice Thomas’s opinions involve at least some departure from the state of the law as it existed before Town of Greece. However, given that there is controlling precedent supporting Justice Kennedy’s opinion and no controlling precedent supporting Justice Thomas’s concurrence, Justice Thomas’s concurrence is neither the “the least doctrinally far-reaching-common ground among the Justices in the majority,” nor the “opinion that offers the least change to the law.” [citation omitted]. What is more, when viewed within the context of the majority’s holding, Justice Kennedy’s opinion clearly represents the narrowest grounds. The majority’s holding was that there was no coercion. According to Justice Kennedy, this was because there was no coercion in the record. According to Justice Thomas, this was because there could never be coercion absent formal legal compulsion. Within the context of a ruling against the respondents, therefore, the narrower opinion is Justice Kennedy’s, not Justice Thomas’s. Accordingly, Justice Kennedy’s conception of coercion is the holding of the Court under binding Sixth Circuit precedent.
In finding coercion in Bormuth, Judge Moore noted that Town of Greece ruled that “[t]he analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.” Judge Moore then detailed the presence of all three of these criteria in Bormuth.
Judge Moore discussed Lund v. Rowan County, North Carolina, in which a divided Fourth Circuit held that the identity of the person leading a prayer opening the county Board of Commissioners meeting was irrelevant and upheld a prayer led by a Board member. Dissenting Sixth Circuit Judge Griffin wrote at length and relied heavily on Lund. For her part, Judge Moore specifically stated that Judge Wilkinson’s panel dissent in Lund is much more convincing than the majority opinion, and noted that because Lund has been granted a rehearing en banc, this view is one that "a significant number of Fourth Circuit judges presumably share." Additionally, however, Judge Moore found that there are "significant factual differences" between the practice at issue in the Fourth Circuit and the one before the court in the Sixth Circuit.
The issue of legislative prayer in the context of local government continues to vex the courts; there is almost sure to be a petition for rehearing en banc in the Sixth Circuit mirroring the successful one in the Fourth.
image: Bernardo Strozzi, St Francis in Prayer, circa 1620, via National Gallery of Art
Friday, February 17, 2017
The Eleventh Circuit ruled yesterday that Florida's law banning doctors from asking patients about gun ownership violated the First Amendment. The en banc court struck three key provisions of Florida's law, but upheld a fourth, banning discrimination against gun owners.
Florida's Firearms Owners' Privacy Act bans doctors from asking about guns in patients' homes, from keeping records on patient gun ownership, from "unnecessarily" harassing patients about gun ownership, and from discriminating against patients based on gun ownership. The legislature enacted the provisions after hearing about six instances involving doctors asking patients about gun ownership or discriminating against patients because of gun ownership.
Doctors sued, arguing that the provisions violated free speech. The court agreed (again, except for the anti-discrimination provision).
The court held that FOPA was a content-based restriction on speech, subject to the heightened-review standard in Sorrell v. IMS, and that FOPA failed to stand up. (Because FOPA failed under heightened review, the majority said that it didn't need to consider whether strict scrutiny applied. Judges Wilson and Martin would have applied strict scrutiny, however, arguing that FOPA is both content- and viewpoint-based. Judge Tjoflat dissented, taking issue with the majority's failure "to elucidate and apply a particularized standard of review," especially in wake of the "uncertainty" created by Reed v. Town of Gilbert.) In a separate majority opinion, the court said that the anti-unnecessary harassment provision was unconstitutionally vague.
Florida proffered four interests: protecting Second Amendment rights; protecting patient privacy; ensuring equal access to health care; and regulating the medical profession to protect the public. The court said that FOPA's wasn't necessary to achieve any of these.
As to the Second Amendment, the court said that doctors can't violate it, because they're not state actors, and because the Second Amendment doesn't protect against questions on gun ownership:
The first problem is that there was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients' firearms or otherwise infringed on patients' Second Amendment rights. This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter). The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right.
As to the state's interest in protecting patient privacy, the court noted that the FOPA itself, in a provision not contested in this case, protects a patient's right not to answer questions about gun ownership. "So any patients who have privacy concerns about information concerning their firearm ownership can simply refuse to answer questions on this topic." Moreover, "Florida law already places significant limits on the disclosure of a patient's confidential medical records, and there is no evidence that doctors or medical professionals have been improperly disclosing patients' information about firearm ownership."
As to ensuring equal access to health care, the court noted that it upheld FOPA's anti-discrimination provision, and that the other challenged provisions in FOPA simply weren't narrowly tailored to promote that interest.
Finally, as to the state's interest in regulating the medical profession "in order to protect the public," the court said that this just "is not enough here." "There is no claim, much less any evidence, that routine questions to patients about the ownership of firearms are medically inappropriate, ethically problematic, or practically ineffective. Nor is there any contention (or, again, any evidence) that blanket questioning on the topic of firearm ownership is leading to bad, unsound, or dangerous medical advice."
Judge Marcus, in a separate majority opinion, added that the anti-unnecessary-harassment provision was unconstitutionally vague.
The court upheld the anti-discrimination provision, because it raised no First Amendment concerns as applied to non-expressive conduct such as "failing to return messages, charging more for the same services, declining reasonable appointment times, not providing test results on a timely basis, or delaying treatment because a patient (or a parent of a patient) owns firearms."
The court severed the record-keeping, inquiry, and anti-harassment provisions, so that other provisions of the FOPA stay on the books. These include a provision relating to firearm inquiries by emergency medical professionals, a provision allowing patients to decline to answer questions about firearm ownership, the anti-discrimination provision, a provision prohibiting insurers from discriminating against gun owners, and a provision stating that a violation of any of these constitutes grounds for disciplinary action.
Thursday, February 16, 2017
The Ninth Circuit issued an Order staying the en banc consideration of Washington v. Trump based on the Department of Justice's representation that “the President intends to issue a new Executive Order” and has urging the Court to “hold its consideration of the case until the President issues the new Order.” Recall that the Executive Order at issue is Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." (There have reportedly been conflicting versions of the EO). Recall also that the Ninth Circuit panel had issued an opinion in an emergency appeal denying a stay of the injunction from Washington District Judge Robarts in Washington (and Minnesota) v. Trump.
A week ago, the court had instructed the parties to file simultaneous briefs regarding en banc review, in response to a sua sponte request (by a judge who remains anonymous) that a vote be taken as to whether panel opinion should be reconsidered en banc.
The DOJ Brief on behalf of the United States argued that while the panel opinion "readily meets the normal standards for rehearing en banc,"
Nevertheless, the United States does not seek en banc review of the merits of the panel’s ruling. Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns. Cf. Op. 24 (declining to narrow the district court’s overbroad injunction because “[t]he political branches are far better equipped to make appropriate distinctions”). In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation. Under the unusual circumstances presented here—including the extraordinarily expedited proceedings and limited briefing to the panel, the complexity and constitutional magnitude of the issues, the Court’s sua sponte consideration of rehearing en banc, and respect for the President’s constitutional responsibilities—the government respectfully submits that the most appropriate course would be for the Court to hold its consideration of the case until the President issues the new Order and then vacate the panel’s preliminary decision. To facilitate that disposition, the government will notify the Court of the new Order as soon as it is issued.
For his part, the President of the United States in a press conference, addressed the issue by claiming that a "bad court" from a circuit "in chaos" and "frankly in turmoil" and that issued a "bad decision." He insisted that the roll out of the Executive Order was "perfect." But although he did say "we are appealing that," he also said there would be a "new order" "sometime next week, toward the beginning or middle at the latest part. …….."
As far as the new order, the new order is going to be very much tailored to the what I consider to be a very bad decision.
But we can tailor the order to that decision and get just about everything, in some ways, more. But we’re tailoring it now to the decision, we have some of the best lawyers in the country working on it.
And the new executive order, is being tailored to the decision we got down from the court. OK?
In its unanimous opinion in State v. Arlene's Flowers, the Supreme Court of Washington upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding.
The owner of Arlene's Flowers argued that the anti-discrimination statute was not applicable to her and if it did, it violated her constitutional rights of free speech, free exercise, and free association under the First Amendment as well as under the Washington state constitution.
On the First Amendment claims, the court found that Arlene's Flowers argument regarding compelled speech failed because the owner's flower arranging did not meet the threshold of expression. The court relied on Rumsfeld v. FAIR to hold that the owner's
decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As [she] acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. [She] also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need." Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock.
The court rejected the applicability of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1985), as well as a litany of other United States Supreme Court cases regarding this threshold of expression. In essence, the court emphasized that it was the sale of all flowers from her shop rather than any particular floral arrangement that was at issue in the case.
On the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
However, the analysis of free exercise under the Washington state constitution, article I §11 was not so simple because Washington has not always adopted the Smith standard when reviewing claims under its state constitution. Nevertheless, the court found that even subjecting the Washington anti-discrimination law to strict scrutiny, the statute survives. The court "emphatically" rejected the claim that there was no compelling interest of the state in flowers for weddings: the "case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."
Finally, the court rejected Arlene's Flowers' argument regarding free association, noting that all of the cases upon which she relied were not businesses. As to the business itself, the court also upheld a finding of personal liability of the owner, the person who had refused service.
The United States Supreme Court has denied petitions for writ of certiorari in similar cases, but it is highly likely that a petition for certiorari will follow, especially given the nomination of Neil Gorsuch to the Court.
February 16, 2017 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Speech, State Constitutional Law | Permalink | Comments (0)
Check out Jared Goldstein's (Roger Williams) piece in Slate, on How Trump's immigration ban explicitly smears Muslims as being potentially hostile to the Constitution.
The Sixth Circuit ruled yesterday that a lower court should go ahead and rule on a First Amendment challenge to Tennessee's Campaign Finance Disclosure Act, and not wait for the outcome of a state administrative proceeding in a different case. The court also hinted toward a likely outcome: the Act violates the First Amendment.
The decision overturns the lower court's invocation of Pullman abstention and orders the lower court to move ahead to the merits. But the Sixth Circuit still gave the lower court a chance to certify interpretation of the state law to the Tennessee Supreme Court (but suggested that this wouldn't really help).
The case arose when two parents of school-aged children formed an unincorporated group to advocate in an upcoming school board election. The group planned to spend less than $250 on independent expenditures, and not make any direct campaign contributions to candidates.
But group members learned that Tennessee law might regulate their activities. The Tennessee Campaign Financial Disclosure Act defines a "political campaign committee" as "a combination of two (2) or more individuals, including any political part governing body, whether state or local, making expenditures, to support or oppose any candidate for public office or measure." The Act goes on to require committees to pay an annual registration fee, appoint a treasurer, maintain a separate bank account, file financial disclosure statements, and keep financial records--all things that the two members weren't prepared to do.
So they sued in federal court, arguing that the Act violated the First Amendment. But the district court punted, invoking Pullman abstention, and citing a pending state administrative proceeding involving the application of the Act to a different group.
The Sixth Circuit reversed. The court said that Pullman abstention wasn't appropriate here, because the state administrative proceeding dealt with different issues (and not the ones that the plaintiffs raised here), because the Act wasn't "so ambiguous as to necessitate abstention," and because the Act wasn't really susceptible to a limiting construction that would save it from a First Amendment challenge.
The court left open an option for the district court to certify a question on the construction of the Act to the Tennessee Supreme Court. But it also suggested that certification wouldn't do any good, because the Act says what it says.
Wednesday, February 15, 2017
A habeas petition filed in Ramirez Medina v. US Department of Homeland Security avers constitutional violations of procedural due process and substantive due process under the Fifth Amendment as well as unlawful seizure under the Fourth Amendment.
The petition comes amidst reported "raids" by Immigration and Customs Enforcement (ICE) across the country. Ramirez, who is a 23 year old non-citizen, had been granted employment authorization under the Deferred Action for Childhood Arrivals (DACA) program in 2014, and it was renewed in 2016. According to the allegations in the petition, he was not the target of ICE agents, but encountered them when the agents arrested his father. When the ICE agents asked him if he was "legally here," Mr. Ramirez responded that was, relying on his employment authorization under DACA. Nevertheless, as the petition alleges
ICE agents then took Mr. Ramirez to a processing center in Seattle, Washington. When he again informed them about his work permit, one of the ICE agents stated: “It doesn’t matter, because you weren’t born in this country.” At this point, the ICE agents had Mr. Ramirez’s wallet, which contained his work permit, which clearly identified him as a DACA recipient with a “C-33” code, which reflects a work authorization issued pursuant to DACA. Despite this fact, Mr. Ramirez was questioned further, fingerprinted, booked, and taken to a detention center in Tacoma, Washington.
The first count argues that the detention (apparently still continuing) is a violation of procedural due process rights. Ramirez alleges an interest in his liberty, but also alleges a property interest by virtue of the promises made in the DACA program. Thus, the Matthews v. Eldridge balancing test should apply, affording Ramirez both notice and hearing, as well as application of the extant policies - - - which provide he should not be detained - - - given his DACA status. The second count of substantive due process alleges that Ramirez's liberty is a fundamental interest of which he has been wrongly deprived. And lastly, the Fourth Amendment claim alleges an absence of probable cause for his arrest.
The Western District of Washington Magistrate has set a hearing for the morning of Friday, February 17, with briefs due the previous day. The Magistrate has ordered the brief of DHS to answer, with an opportunity for Ramirez to respond, to the following questions:
- a. Is petitioner still detained? What is the basis for his detention, given that he has been granted deferred action under the Deferred Action for Childhood Arrivals program?
- b. Has petitioner been placed in removal proceedings? What was the result of ICE’s initial custody determination? Has petitioner requested a bond hearing before an Immigration Judge? When is any bond hearing scheduled to occur?
- c. Does the Court have the authority to order an Immigration Judge and the Board of Immigration Appeals to consider any challenge to petitioner’s detention status on an expedited basis?
- d. If petitioner is still detained and removal proceedings have not been initiated against him, what is the basis for ICE’s authority to detain him? What limitations are there, if any, on the Court’s ability to hold a detention hearing for petitioner before the merits of his habeas petition have been decided?
Tuesday, February 14, 2017
Eighth Circuit Says Restrictions on University Trademark for Student NORML Group Violate Free Speech
The Eighth Circuit ruled yesterday that Iowa State University's restrictions on NORML's use of the school's trademark violates the First Amendment. The court said that the restrictions amounted to viewpoint-based discrimination in a limited public forum and enjoined the school from applying its trademark-use policy in a viewpoint-discriminatory way.
The case arose when the ISU student NORML group sought university permission to use the school's trademark on NORML t-shirts. (The school's trademark-use policy allows any student group, including NORML, to use the trademark upon request and permission.) The shirt design featured the words "NORML ISU" on the front with the "O" represented by Cy the Cardinal, the school's mascot. The back read, "Freedom is NORML at ISU" with a small cannabis leaf above "NORML."
The school initially approved the group's use of the school's trademark for the t-shirt. But then the Des Moines Register ran a story on marijuana legalization, with a picture of the shirt and a quote from NORML ISU's president saying that ISU has supported the group. The school received blowback, including calls from the state legislature and governor's office asking whether the school really approved the use of its trademark, and university officials backtracked. Officials denied the use of the trademark for a second run of the shirt; they required NORML (and NORML alone) to get additional administrative approval for any future trademark requests; and they changed their trademark policy to prohibit the use of the trademark in "designs that suggest promotion of . . . dangerous, illegal or unhealthy products, actions or behaviors . . . [or] drugs and drug paraphernalia that are illegal or unhealthful." Under the new policy, the school denied NORML's request to use the trademark for any design that included a cannabis leaf, but it approved use of the trademark for a design that simply stated the group's name (with no leaf).
Group members sued and won a permanent injunction in the district court, prohibiting the school from enforcing is trademark-use policy in a viewpoint-discriminatory way. The Eighth Circuit affirmed.
The court held that the university created a limited public forum in its trademark-use policy, and that the additional barriers to that policy that it erected for NORML constituted viewpoint-based discrimination of speech. The court also rejected the school's argument that NORML's use of the trademark constituted government speech under the three-part test for government speech in Walker v. Texas Sons of Confederate Veterans.
Monday, February 13, 2017
The federal district judge in Aziz v. Trump, having previously granted the Motion of the State of Virginia to intervene, has granted a Preliminary Injunction against section 3(c) of the President's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." The judge's order is supported by a 22 page Memorandum Opinion. Recall that the Ninth Circuit has also recently ruled on the matter (refusing to stay a district judge's injunction); our general explainer of the issues is here.
Judge Leonie Brinkema rested her opinion on the Establishment Clause, finding a likelihood of success on the merits on that claim, and thus not reaching the Equal Protection Clause and Due Process Clause or statutory claims.
Judge Brinkema found that the case was justiciable and that Virginia as a state has standing to raise claims based on the injuries to its universities. The judge rejected the contention that the President has unbridled power to issue the EO, stating that
Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights. It is a bedrock principle of this nation’s legal system that “the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution.” The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.” Zadﬂdas v. Davis, 533 U.S. 678, 695 (2001).
As to whether or not the EO is a "Muslim ban," the judge relied on public statements by the President and his senior advisors, noting that although the Government disputes the relevancy of the statements, the government does not contest their accuracy. Among the statements the Judge found relevant are candidate Trump's campaign statements and Rudolph Guiliani's January 29, 2017 interview on Fox News.
Judge Brinkema's analysis of the Establishment Clause issue relies heavily on McCreary County v. ACLU of Kentucky in which the Court found unconstitutional the display of the Ten Commandments in a courthouse based in large part of the motive of the state actors. The judge also rejected the argument that the EO could not be a "Muslim ban" because it did not ban all Muslims:
The argument has also been made that the Court cannot infer an anti-Muslim animus because the E0 does not affect all, or even most, Muslims. The major premise of that argument—that one can only demonstrate animus toward a group of people by targeting all of them at once—is ﬂawed. For example, it is highly unlikely that the Supreme Court considered the displays of the Ten Commandments erected by the Kentucky counties in McCreary, which had a localized impact, to be targeted at all persons outside the Judeo-Christian traditions. Moreover, the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefﬁcient the execution. [citations omitted]
Thus, the judge entered a preliminary injunction of 3(c) of the EO against Virginia residents or those affiliated with Virginia's education institutions.
Thursday, February 9, 2017
The Ninth Circuit panel has issued its opinion in the emergency appeal denying a stay of the injunction from Washington District Judge Robarts in Washington (and Minnesota) v. Trump. Thus, the injunction against the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban" remains in place. Recall our explainer on the background issues and a specific discussion of the equal protection issues.
After reciting the procedural history, the unanimous opinion first concludes that the Ninth Circuit has jurisdiction on appeal, treating Judge Robarts' order as an appealable preliminary injunction. The panel also held that Washington and Minnesota have standing to bring the claims (at least at this juncture) an issue that was highly contested during the oral arguments both at the Ninth Circuit and before the District Judge, concluding that:
the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.
The panel next rejected the federal Government's argument that "the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections" (emphasis in original), citing such cases as Boumediene v. Bush and Holder v. Humanitarian Law Project. The Ninth Circuit distinguished cases in which the issue was the application of a Congressional statute to a specific individual from the current situation involving "the President’s promulgation of sweeping immigration policy" (emphasis in original).
In its discussion of the likelihood of success on the merits of the individual constitutional claims, the Ninth Circuit panel focused on Due Process:
The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
The court made clear that the "procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens." As to lawful permanent residents, the court was clear that the confusion in the EO's implementation weighed against the court narrowing the district judge's injunction to only lawful permanent residents:
the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”[citation omitted].
The court discussed but ultimately reserved consideration of the First Amendment and Equal Protection claims, although the opinion states that the claims "raise serious allegations and present significant constitutional questions." However given the court's conclusion on the due process issue and "the pace of the current emergency proceedings," these constitutional issues should await fuller briefing.
In weighing the balance of the hardships and public interest necessary for a stay of the injunction, the Ninth Circuit panel returned to the federal Government's claim it was entitled to total deference. In a footnote, the court stated:
In addition, the Government asserts that, “[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that. 28 C.F.R. § 17.17(c) (describing Department of Justice procedures to protect classified materials in civil cases); 28 C.F.R. § 17.46(c) (“Members of Congress, Justices of the United States Supreme Court, and Judges of the United States Courts of Appeal and District Courts do not require a determination of their eligibility for access to classified information . . . .”); W.D. Wash. Civ. L.R. 5(g) (providing procedures governing filings under seal).
The Ninth Circuit thus denied the stay and the matter returns to the district judge - - - unless the Trump Administration seeks emergency review from the United States Supreme Court.
Wednesday, February 8, 2017
Public Citizen, the NRDC, and the Communications Workers of America (AFL-CIO) sued the Trump administration today over President Trump's two-for-one administrative regulation executive order. That EO requires an agency to revoke two regulations for every new regulation it adopts.
The plaintiffs argue that the EO violates the separation of powers, the Take Care Clause, and the Administrative Procedure Act, among others. In short:
To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law, for at least three reasons. First, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a limit of $0) that regulations may impose on regulated entities or the economy. Second, the Executive Order forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated. Third, no governing statute authorizes an agency to base its actions on a decisionmaking criterion of zero net cost across multiple regulations.
The plaintiffs say that the EO violates the separation of powers, because "[b]y requiring agencies engaged in rulemaking to consider and take final action or to withhold final action based on factors that are impermissible and arbitrary under the governing statutes, the Executive Order purports to amend the statutes through which Congress has delegated rulemaking authority to federal agencies." They say it violates the Take Care Clause, because it "directs agencies to take action contrary to numerous laws passed by Congress." (The plaintiffs also bring claims under non-statutory review of ultra vires action, and the APA.)
The plaintiffs point to harms they'll incur under several statutes, if administrative agencies follow the two-for-one rule. Those include the Motor Vehicle Safety Act and Motor Carrier Safety Act, OSHA, the Mine Safety and Health Act, the Toxic Substance Control Act, and several other environmental protection acts.
The plaintiffs point to harms (for standing purposes) throughout, including organizational harms (by requiring the plaintiffs to shift advocacy priorities) and member harms (because a lack of regulation, where a statute requires it, will harm individual members).
Tuesday, February 7, 2017
The White House and Congress are working at a very quick pace to strike late-promulgated Obama-era administrative regulations under the Congressional Review Act.
That Act allows Congress to pass, and the President to sign, a joint resolution of disapproval to revoke certain administrative regulations. The Congressional Research Service has a backgrounder here, with links to other CRS reports on the Congressional Review Act.
President Trump has issued statements telling Congress that he'll sign four joint resolutions now pending in Congress: (1) a Labor rule on drug testing of unemployment compensation applicants, (2) a BLM reg that establishes procedures to prepare, revise, or amend federal land-use plans, (3) an Ed. rule relating to accountability and state plans under the Elementary and Secondary Educational Act of 1965, an (4) Ed. rule related to teacher preparation.
Congress has considered several resolutions of disapproval since 1996, but overturned just one regulation, a 2000 OSHA rule related to workplace ergonomics standards. President Obama vetoed five resolutions of disapproval, and Congress failed to override the vetoes, so none passed.
With the Republican-controlled House and Senate likely to pass these disapproval resolutions--the Senate minority can't filibuster a CRA disapproval resolution--President Trump's anticipate four overrides will set a record.