Constitutional Law Prof Blog

Another Reason Why Justice Gorsuch Matters: Public Sector Unions

The Court today agreed to take up a First Amendment challenge to a public sector union fair-share law in Janus v. AFSCME. The case pits non-members' First Amendment right not to pay dues for a union's collective bargaining activities (even if they benefit from those activities) against a union's interest in collecting dues for its collective bargaining efforts that everyone benefits from in a union shop.

This isn't the first time the Court has considered the issue, not by a long shot. The Court originally upheld fair-share laws--state requirements that non-members pay union dues for collective bargaining (but not for a union's political activities)--in 1977 in Abood v. Detroit Board of Education. In that case, the Court held that a state's interests in avoiding non-union-member free-riders and labor harmony permitted a state to require non-members to pay a "fair share" of a union's collective bargaining activities. (Under federal law, the union has to represent even non-members in a union shop.)

But more recently, the Court has hinted in a couple of cases that it's ready to reconsider Abood and overturn fair share laws under the First Amendment. A case, Friedrichs v. California Teachers Association, was teed up for just such a ruling when Justice Scalia passed away. When the 8-member Court decided Friedrichs, it deadlocked, leaving a Ninth Circuit ruling upholding fair share in place.

At the time, Senator Mitch McConnell was refusing to give Judge Garland, President Obama's nominee to replace Justice Scalia, a hearing in the Senate. McConnell famously waited President Obama's term out, and the Senate then confirmed President Trump's nominee, Neil Gorsuch.

With Justice Gorsuch on board, the Court now agreed to hear another case testing fair share, Janus. And that doesn't bode well for fair share laws and public sector unions. If Justice Gorsuch votes with the conservatives (who all presumably would have voted against fair share in Friedrichs), as seems likely or even certain, it'll mark the end of fair share and the likely demise of public sector unions. That's because if the Court strikes fair share, non-members in a union shop will have no requirements and few incentives to pay for the union's collective bargaining activities that benefit them. And without a requirement or incentive to pay fair share, many won't. And seeing that non-members can free ride on the union (because even non-members benefit from a union's collective bargaining activities), members will likely drop out to free ride, too. The siphoning of dues-paying non-members and members will leave the union with less and less resources to support collective bargaining, potentially decimating public sector unions.

There's no guarantee, of course, that a Justice Garland, or any other Obama appointee, would have voted to uphold fair share laws. But with Justice Gorsuch filling Justice Scalia's seat, we can all but guarantee that fair share will go away.

Federal Judge Upholds New York's Prohibition of Ballot Selfies or Polling Site Photographs Against First Amendment Challenge

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 In his opinion in Silberberg v. Board of Elections of New York, Senior District Judge P. Kevin Castel upheld the constitutionality of two New York provisions restricting photographs related to elections.  N.Y. Election Law §17-130(10) makes it a misdemeanor to show one's ballot after it has been prepared for voting to any person and has been interpreted to prohibit the taking and posting on social media of so-called "ballot selfies." Less centrally, the New York City Board of Elections had a policy that prohibits photography at polling sites. The challengers argued that both of these provisions infringed on their First Amendment rights.

Recall that Judge Castel had previously denied a motion for preliminary injunction against the ballot-selfie statute.  However, Castel's main rationale was based on the preliminary injunction standards, and heavily weighed the age of the statute (enacted in 1890) against the timing of the lawsuit (13 days before the election).

In the present opinion, Judge Castel, after a bench trial, more carefully analyzed the First Amendment claims. On the N.Y. Election Law §17-130(10) challenge, he concluded that despite the age of the statute, it plain language, underlying purpose, and likely legislative intent all supported the interpretation that the statute did prohibit ballot-selfies.  He then concluded that the statute did restrict political speech and was thus subject to strict scrutiny.

Judge Castel relied in large part on Burson v. Freeman (1992) in which the Court upheld a prohibition of campaigning within 100 feet of a polling place, noting that the Tennessee statute at issue in Burson was also first enacted in 1890 and "intended to combat the same evils that the 1890 New York statute was intended to combat; vote buying and voter intimidation." Judge Castel found that both of these interests were compelling as well as actual.  Distinguishing the recent First Circuit decision in Rideout v. Gardner, Judge Castel reasoned:

Plaintiffs urge this Court to follow Rideout v. Gardner, where the First Circuit, in upholding the district court’s injunction against the enforcement of a New Hampshire statute updated in 2014 to specifically prohibit the sharing via social media of a digital photograph of a marked ballot, found that the statute did not address an “actual problem in need of solving.”  In that case, decided on summary judgment, virtually no specific evidence was presented regarding vote buying or voter intimidation in New Hampshire. In the present case, ample evidence has been presented regarding vote buying and voter intimidation in New York, both historic and contemporary. And New Hampshire is not New York City. New York elections were bought and sold for decades before the introduction of the Australian ballot reforms. The statute was an appropriate response to the political corruption in New York in 1890 and is a valid measure today to prevent that history from repeating itself.

 [citations omitted]

Judge Castel also found the criminalization was narrowly tailored, again relying in large part on Burson. Castel also noted that the challengers had put forth no acceptable alternative and also discussed the issue of "social coercion," reasoning that employers and other organizations could use the ballot selfie to "enforce political orthodoxy."

As an alternative ground, Judge Castel concluded that the election statute was not necessarily subject to strict scrutiny because although it was a content-based restriction, it occurred in a non-public forum. The polling site was not a public forum: the sites are "opened by the government only for the specific purpose of enabling voters to cast ballots and are not historically open for public debate or speech."  Relatedly, the ballot itself is not a public forum, relying on cases such as Burdick v. Takushi (1992). Judge Castel then found that the restrictions were "reasonable."

In a few pages, Judge Castel dispatched the challenge to the City's unwritten policy of prohibiting photography at polling places.  Judge Castel found this 20 year old policy was content-neutral and again relied on the finding that the polling sites were not public fora. However, even if the sites were public fora, there were ample alternative means for political expression.

Judge Castel therefor rendered final judgment for the government defendants, allowing for appeal to the Second Circuit.  Given the First Circuit's opinion in Rideout with a contrary result, this may be the next step to a circuit split on the issue of ballot selfies.

[image via]

Court to Hear Union Fair Share Challenge

The Supreme Court today granted cert. in Janus v. American Federation, the case challenging union fair-share laws under the First Amendment.

The Court previously deadlocked on the issue. But with the addition of Justice Gorsuch, the Court can rule (likely against union fair share laws).

Call for Papers: ACS Con Law Scholars Forum

The American Constitution Society, Barry University Law School Student Chapter, and Texas A&M University School of Law are soliciting paper proposals for the Third Annual Constitutional Law Scholars Forum, March 2, 2018, in Orlando.

The deadline is December 1, 2017. Send a short (300 word) abstract and short (150 word) bio to Prof. Eang Ngov, engov.barry.edu, with "Constitutional Law Scholars Forum" in the subject line.

Here's the call. Prof. Ngov and Prof. Meg Penrose, megpenrose@law.tamu.edu, are the organizers.

Greenhouse on the Travel Ban Case

Check out Linda Greenhouse's take on the travel ban case at the NYT, the case's likely mootness, and what it all means. Here's a link to Robert Loeb's piece at Lawfare (cited by Greenhouse) on the "presumption of regularity"--the basis for the administration's argument that the Court should grant it deference, and not look behind the stated purposes of the travel ban to the President's and surrogates' anti-Muslim statements.

Senate Judiciary on Special Counsels and Separation of Powers

The Senate Judiciary Committee heard testimony yesterday on two bi-partisan measures to protect the Special Counsel from arbitrary firing. The bills, and the hearing, are a push-back against earlier White House murmurings and more recent public concerns that President Trump may try to fire Special Counsel Robert Mueller.

The bills, S. 1735 (sponsored by Senators Graham, Booker, Whitehouse, and Blumenthal) and S. 1741 (sponsored by Senators Tillis and Coons), would both codify the heightened "for cause" firing standard already in the DOJ regs. They'd also provide independent judicial oversight of any termination.

But they differ in the way they'd provide judicial oversight. The Graham-Booker bill would require the AG to file a case before a three-judge district court before firing the Special Counsel; in contrast, the Tillis-Coons bill would allow the Special Counsel to challenge the termination before a three-judge district court after the firing.

That distinction may make all the constitutional difference between the two approaches. That's because there may be Article III problems (standing, and possibly the bar on advisory opinions) with a court hearing a pre-termination challenge, as in Graham-Booker (as Prof. Steve Vladeck's suggested before the Committee). Moreover, adding a second-level determination of "for cause" prior to firing (as in Graham-Booker), but not after firing (as in Tillis-Coons), may run afoul of the prohibition on double-for-cause provisions in Free Enterprise Fund v. PCAOB (as Prof. John Duffy argued).

But more generally, the witnesses, with one exception, seemed to agree that there were no problems codifying the for-cause firing standard, so long as Morrison v. Olson remains good law. (Prof. Eric Posner argued that both bills are well within Morrison; Vladeck and Duffy more or less agreed.)

Only Prof. Akhil Reed Amar argued that Morrison is (at least de facto) no longer good law (that Justice Scalia has been vindicated), that the bills violate the separation of powers, and that, in any event, it'd be "unwise" to pass either law given the likelihood of a veto and the resulting blowback from the White House.

Sixth Circuit Finds Lack of Procedural Due Process in Title IX Disciplinary Hearing

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 In its opinion in Doe v. University of Cincinnati, a Sixth Circuit panel affirmed a district judge's grant of a preliminary injunction against the university suspension of student John Doe.  The university suspended graduate student John Doe after a finding of a sexual offense in a Title IX hearing at which the complaintant did not appear. 

Using the well-established criteria for procedural due process claims, Judge Richard Griffin's relatively succinct opinion found that the risk of erroneous deprivation of Doe's acknowledged interest was great.  Doe claimed that his inability to cross-examine the complaintant in a context in which the basic issue was one of credibility - - - a choice of believing Doe's assertion that the sex was consensual and Jane Roe's complaint that it was not consensual - - - was a fundamental flaw.  The court agreed, even though the university had no ability to compel Jane Roe's appearance.  The court also found the time lapse troubling: the university waited a month after the complaint to interview Jane Roe, four months after that to notify John Doe, and four months after that to hold the hearing.

The court did consider the potential for "emotional trauma" to Jane Roe, but concluded that when there is an issue of credibility, there must be a mutual test of credibility as part of the process "where the stakes are this high."  The court did seek to qualify its rationale as not requiring John Doe be allowed to cross-examine Jane Roe during the hearing:

However, we emphasize that UC’s obligations here are narrow: it must provide a means for the ARC [the university’s Administrative Review Committee] panel to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.

The University has procedures in place to accommodate this requirement. A month before the ARC hearing, Mitchell informed Doe and Roe that they could “participate via Skype . . . if they could not attend the hearing.” Doe did not object to Roe’s participation by Skype, and he does not object to this practice on appeal. To the contrary, the record suggests that he or one or more of the ARC panelists in fact appeared at the hearing via Skype. What matters for credibility purposes is the ARC panel’s ability to assess the demeanor of both the accused and his accuser. Indisputably, demeanor can be assessed by the trier of fact without physical presence, especially when facilitated by modern technology.

The court's opinion added that it was "sensitive" to the "competing concerns" of the case: the goal of reducing sexual assault is more than laudable, it is necessary; but the elimination of "basic procedural protections" may not be a "fair price" to achieve that goal. 

These "competing concerns" are likewise the subject of debate as controversial Secretary of Education Betsy De Vos has acted to rescind the previous guidelines for educational institutions dealing with sexual assault based in part on the perceived "deprivation of rights" for accused students. While the new memo does not mandate cross-examination (unless it is provided to one party and then must be provided to both),  no doubt the Sixth Circuit's opinion in Doe v. University of Cincinnati will be used to bolster Secretary de Vos's decision.

 

Paper Call: ACS Junior Scholars Public Law Workshop

The American Constitution Society is calling for papers for a workshop on public law on January 4, 2018, at the 2018 AALS Annual Meeting in San Diego.

Here's the call.

This is an excellent opportunity. The ACS Board of Academic Advisors will select 10 papers, and each author will have a chance to discuss her or his work with two experienced scholars.

The deadline is October 18, 2017; submissions should be works that have not been published as of January 1, 2018. Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2017, are eligible.

Inquiries? Send to kstein@acslaw.org.

Seventh Circuit Strikes Illinois's Full-Slate Ballot Access Requirement

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled on Friday that Illinois's requirement that a new political party field candidates for all offices on the ballot in the relevant political subdivision violated the First Amendment. (H/t Aggie Baumert.) The ruling strikes the full-slate requirement for new parties, but leaves in place a signature requirement for them.

The case tested Illinois's requirement that a "new" political party field candidates for every office on the ballot in the political subdivision where it wishes to compete. (A "new" political party is one that's not (yet) "established" based on performance in prior elections.) New parties also have to obtain a minimum number of signatures on nominating petitions.

These rules meant that when the Libertarian Party sought to put up a candidate for Kane County auditor, it had to get the signatures, and it also had to put up candidates for circuit clerk, recorder, prosecutor, coroner, board chairman, and school superintendent.

The Party sued, arguing that the full-slate requirement (but not the signature requirement) violated the First Amendment.

The Seventh Circuit agreed. The court ruled first that the Party had standing, even though it didn't get enough signatures (and therefore couldn't get on the ballot even if it did field a full slate). The court explained that the Party's injury wasn't not getting on the ballot; it was the burden on its free association:

It isn't simply that the Party couldn't run its candidate for county auditor in the 2012 election. It's that Illinois law imposes a burdensome condition on the Party's exercise of its right of political association; that is, the Party's injury is its inability to access the ballot unless it fields a full slate of candidates. That requirement persists and stands as an ongoing obstacle to ballot access.

The court went on to rule that the full-slate requirement "severely burdens the First Amendment rights of minor parties, their members, and voters," thus triggering strict scrutiny. And under strict scrutiny, the court said that the full-slate requirement simply didn't meet the state's interests promoting political stability, avoiding overcrowded ballots, and preventing voter confusion--and, indeed, cut against those interests:

By creating unwanted candidacies, the requirement increases political instability, ballot overcrowding, and voter confusion. . . . Whatever its aim, the requirement forces a minor party to field unserious candidates as a condition of nominating a truly committed candidate. . . .

In reality, then, the full-slate requirement does not ensure that only parties with a modicum of support reach the ballot. Instead it ensures that the only minor parties on the ballot are those that have strong public support or are willing and able to field enough frivolous "candidates" to comply with the law.

Court Takes Travel Ban Arguments Off Calendar

The Supreme Court today took the travel ban arguments off its oral argument calendar. The Court also ordered the parties to submit short briefs on whether the case is moot in light of President Trump's new proclamation on travel restrictions.

Court Rebuffs Challenge to New Jersey's Bail Reform Law

Steven D. Schwinn, John Marshall Law School

Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.

The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.

The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.

The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."

Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)

Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.

The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:

Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.

As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)

Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."

As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.

Seventh Circuit Upholds Chicago's Puppy-Mill Ban

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit upheld Chicago's "puppy mill" ordinance, which limits the sources from which city-licensed pet stores may obtain certain pets for resale, against a challenge under the Illinois Constitution's home-rule provision and the federal dormant Commerce Clause. The ruling leaves the ordinance in place.

Chicago's ordinance says that pet retailers in the city "may offer for sale only those dogs, cats, or rabbits" obtained from an animal control or care center, pound, or kennel operated by local, state, or federal government or "a humane society or rescue organization." The ordinance means that pet stores can't get their animals from large, mill-style breeders. Chicago adopted the law in order to protect against the "economic and emotional burdens for pet owners and [the] financial costs on the City as owners abandon their physically or emotionally challenged pets or surrender them to the [city shelter]."

Two Chicago pet stores and a Missouri dog breeder sued, arguing that the ordinance exceeded Chicago's authority under the Illinois Constitution's home-rule provision and violated the federal dormant Commerce Clause.

The Seventh Circuit disagreed. As to the home-rule argument, the court said that the Illinois Constitution permits Chicago to regulate in an area, concurrently with the state, so long as the General Assembly doesn't "specifically limit" it or "specifically declare the State's exercise to be exclusive." Because state law doesn't restrict, but actually preserves, municipal power to regulate animal care and welfare, the court said that Chicago's ordinance doesn't exceed its home-rule authority.

As to the dormant Commerce Clause, the court said that it didn't even apply, because Chicago's ordinance doesn't discriminate against interstate commerce. The court ruled that circuit law said that a state or local law that doesn't discriminate on its face or in effect doesn't even implicate the dormant Commerce Clause. "No disparate treatment, no disparate impact, no problem under the dormant commerce clause." The court therefore declined to apply Pike balancing, and ruled that the ordinance easily satisfied the default rationality review.

Judge Hamilton dissented in part, arguing that the court should have applied Pike balancing, because Dep't of Revenue of Kentucky v. Davis and United Haulers Ass'n v. Oneida-Herkimer Solid Waste clarified that "even nondiscriminatory burdens on commerce" are subject to Pike balancing and "may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice." Judge Hamilton also argued that the majority applied an overly rigid pleading standard by not crediting the plaintiffs' allegations in the complaint that Chicago's ordinance would disparately impact out-of-staters.

Ninth Circuit Finds San Francisco's Soda-Warning Ordinance Subject to Injunction Under First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Ninth Circuit's opinion in American Beverage Association v. City and County of San Francisco, reversing the district judge, found that San Francisco's ordinance requiring a warning about the health effects of sugary drinks likely violated the First Amendment and should be enjoined.

The ordinance required advertisements for sugar-sweetened beverages (SSB) to include a statement:

WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.

The ordinance not only defined SSBs, but also required that the warning "occupy 20 percent of the advertisement and be set off with a rectangular border." 

The Ninth Circuit panel's opinion, authored by Judge Ikuta, applied the well-known Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) First Amendment standard for disclosures in the context of commercial speech, joining a previous Ninth Circuit panel regarding Berkeley's cell-phone warnings as well as sister-circuits in applying Zauderer beyond the context of preventing consumer deception.

Judge Ikuta articulated the Zauderer factors as requiring that the compelled disclosure be factual and non-controversial, that it not be “unjustified or unduly burdensome” so that it chills protected commercial speech, and that there is a substantial government interest to which the mandated disclosure is reasonably related.   Applying the factors, Judge Ikuta's opinion concluded that the mandated disclosure failed both the "factual and noncontroversial" factor and the not unduly burdensome factor.

Regarding the noncontroversial factor, Judge Ikuta reasoned that it was not so much that the warning was untrue as to the drinks defined as SSB, mostly sodas, but that it did not extend to "other products with equal or greater amounts of added sugars and calories."

By focusing on a single product, the warning conveys the message that sugar-sweetened beverages are less healthy than other sources of added sugars and calories and are more likely to contribute to obesity, diabetes, and tooth decay than other foods.This message is deceptive in light of the current state of research on this issue. According to the FDA, “added sugars, including sugar-sweetened beverages, are no more likely to cause weight gain in adults than any other source of energy.”  The American Dental Association has similarly cautioned against the “growing popularity of singling-out sugar-sweetened beverages” because “ the evidence is not yet sufficient to single out any one food or beverage product as a key driver of dental caries.”

 [citations omitted]. San Francisco sought to distinguish SSBs as unique because they are more likely to be over-consumed, but the opinion noted that the risk of over-consumption was not the risk addressed by the warning.

As to burdensomeness, Judge Ikuta concluded that the 20% requirement chilled the commercial speech. Judge Ikuta appended three examples, concluding that as "the sample advertisements show, the black box warning overwhelms other visual elements in the advertisement."  While the advertisers could engage in counter-speech in the remaining 80% of the advertisement, this would "defeat the purpose of the advertisement, turning it into a vehicle for a debate about the health effects of sugar-sweetened beverages."

Having found that the challengers were likely to succeed on the First Amendment merits, the panel then found that the other factors for preliminary injunction weighed in favor of enjoining the ordinance. 

Thus, like the New York City attempt to regulate super-size sodas, the San Francisco ordinance makes another unsuccessful attempt to require warnings on products in an effort to change health habits.

Arizona Supreme Court Accords Parental Status to Same-Sex Married Partner

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 In its opinion in McLaughlin v. McLaughlin (Jones), the Arizona Supreme Court interpreted the United States Constitution to require that the statutory presumption of parentage applies to a woman in a same-sex marriage in the same way as would to a man in a different-sex marriage.

The Arizona Supreme Court relied on the United States Supreme Court's 2015 decision in Obergefell v. Hodges as well as the Court's per curiam opinion a few months ago in Pavan v. Smith, reversing the Arkansas Supreme Court's divided decision to deny a same-sex parent's name be listed on the child's birth certificate.  The Arizona Supreme Court in McLaughlin, echoing Pavan, quoted Obergefell as constitutionally requiring same-sex married couples be afforded the “constellation of benefits the States have linked to marriage.”

The majority opinion of the Arizona Supreme Court, authored by Chief Justice Scott Bales, rejected the interpretation of Obergefell advanced by Kimberly McLaughlin, the biological mother, that "Obergefell does not require extending statutory benefits linked to marriage to include same-sex couples; rather, it only invalidates laws prohibiting same-sex marriage."  Instead, Chief Justice Bales wrote that that such a "constricted reading is precluded by Obergefell itself ad the Supreme Court's recent decision in Pavan v. Smith."  Moreover, as in Pavan, the statute itself did not rest on biology but sought to sideline it.  The marital presumption assigns paternity based on marriage to the birth mother, not biological relationship to the child.  Thus, any differential treatment cannot be justified and the statute was unconstitutional as applied.

As a remedy, Judge Bales' opinion concluded that the extension of the presumption rather than striking the presumption was proper, relying on yet distinguishing the Court's recent decision in Sessions v. Morales-Santana.  It was on this issue that one Justice dissented, contending that the court was rewriting the statute.  Two other Justices wrote separately to concur on the remedy issue, noting that the majority must follow the United States Supreme Court and "circumstances require us to drive a remedial square peg into a statutory round hole," but "nothing in the majority opinion prevents the legislature from fashioning a broader or more suitable solution by amending or revoking" the statute.

Perhaps the Arizona legislature will see fit to abolish the marital presumption for all children?

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Ninth Circuit Rejects Second Amendment Challenge to Seattle's Use-of-Force Policy

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit today rejected a Second Amendment challenge by Seattle police officers to the city's use-of-force policy. The ruling means that the policy stays in place.

The case arose when Seattle agreed to adopt a use-of-force policy for its police officers as part of a settlement agreement with the U.S. government in a case alleging that Seattle police engaged in a pattern or practice of excessive use of force. The policy says that "[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective." It goes on to provide a set of factors that officers must consider to determine whether a use of force is objectively reasonable, necessary, and proportional to the threat, but only "[w]hen safe under the totality of the circumstances and time and circumstances permit[.]" The policy requires officers to use de-escalation tactics in order to reduce the need for force only "[w]hen safe and feasible under the totality of the circumstances."

Seattle officers sued, arguing that the policy violated the Second Amendment, due process (fundamental rights), and equal protection.

The Ninth Circuit disagreed. The court applied the familiar two-part Second Amendment analysis and concluded (1) that while the policy "burdens conduct protected by the Second Amendment," (2) it satisfies intermediate scrutiny.

As to the burden step, the court said that the policy "does not resemble any of the 'presumptively lawful' regulations recognized in Heller," and that "the parties have adduced no evidence that the [policy] imposes a restriction on conduct that falls outside the historical scope of the Second Amendment . . . ." As a result, the court held that the policy burdened Second Amendment conduct.

As to the scrutiny step, the court set the level of review at intermediate scrutiny, because the city "has a significant interest in regulating the use of department-issued firearms by its employees," and because the policy "does not impose a substantial burden on [the officers'] right to use a firearm for the purpose of lawful self-defense." The court noted that the government, in adopting the policy, was acting as "proprietor," and not "regulator," in that it was regulating its own officers' use of force. This might've put a thumb on the scale in favor of the regulation, but, if so, it's not clear how weighty a thumb, because the court nevertheless applied intermediate scrutiny (and not a lower level of scrutiny).

The court went on to say that the policy satisfies intermediate scrutiny, because it's reasonably related to the city's significant interests in public safety and officer safety.

The court also rejected the officers' due process and equal protection claims.

Ninth Circuit Says California's Foie Gras Force-Feeding Law Not Preempted

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled on Friday that the federal Poultry Products Inspection Act did not preempt California's ban on force-feeding ducks and geese for foie gras production. The ruling means that California's ban stays on the books; this is definitely one for the birds.

In 2004, California joined a growing list of countries that ban force-feeding ducks and geese to produce foie gras. The California law doesn't ban foie gras itself, just the force-feeding method of production. Foie gras producers sued, arguing that California's ban was preempted by the federal Poultry Products Inspection Act.

The Ninth Circuit disagreed. The court said that the federal law didn't expressly preempt the California ban, because the federal law's prohibition on states from imposing "ingredient requirements" that are "in addition to, or different than" the PPIA or its regs applied to "the physical composition of poultry products," and not the way animals are raised or how they're fed (which the California ban covers). According to the court, California law

does not require that foie gras be made with different animals, organs, or physical components. Nor does it require that foie gras consist of a certain percentage of bird liver. It simply seeks to prohibit a feeding method that California deems cruel and inhumane. [The law] therefore addresses a subject entirely separate from any "ingredient requirement": how animals are treated long before they reach the slaughterhouse gates.

Moreover, the court said that the PPIA didn't field-preempt California law, because the PPIA doesn't occupy the field (and in fact allows for "extensive" state regulation). It also said that the PPIA didn't obstacle preempt California law, because California law doesn't interfere with the federal food-regulation scheme and its purposes.

Unless and until producers come up with a different way to make foie gras, this ruling will keep it out of California.

District Judge Enjoins Sanctuary Cities Conditions in Part

Steven D. Schwinn, John Marshall Law School

Judge Harry D. Leinenweber (N.D. Ill.) yesterday enjoined two conditions nationwide, but declined to enjoin a third, that AG Sessions placed on a federal grant program to clamp down on sanctuary cities. The order came in the lawsuit that Chicago filed against Session.

The ruling is a partial victory for the City and partial victory for the government. It partially halts two key conditions that AG Sessions placed on Byrne Grant recipients, but upholds a third, requiring certification of compliance with Section 1373.

Recall that AG Sessions placed three conditions on a municipality's receipt of federal funds under the Byrne Memorial Justice Assistance Grant Program: (1) that a state law or practice is in place to honor a request by DHS to provide advance notice of any scheduled release date and time for a particular alien (the "notice" condition); (2) that a state law or practice permits federal agents to have access to any correctional facility to meet with aliens and interrogate them (the "access" condition); and (3) that a local government submit a certification of compliance with 8 U.S.C. Sec. 1373, the federal law prohibiting state and local laws and practices that restrict state and local officials from sending to, or receiving from, federal officials information regarding the citizenship or immigration status of any individual, and prohibiting officials from maintaining such information or exchanging it with federal officials. (the "certification" condition).

The conditions ran up against Chicago's "Welcoming Ordinance." That Ordinance prohibits any "agent or agency" from "request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by [state law], federal regulation, or court decision." It goes on to forbid any agent or agency from "disclos[ing] information regarding the citizenship or immigration status of any person."

So Chicago sued Sessions, arguing that all three conditions were unconstitutional and unlawful.

Judge Leinenweber agreed in part and disagreed in part. As to the notice and access conditions, the court said that Sessions lacked statutory authority and exceeded his power to implement these conditions. In particular, the court held that only Congress could impose these conditions, or authorize the AG to do so, and that the statutory scheme in place didn't do that. Because the court ruled on statutory grounds, it declined to rule on the constitutionality of those two provisions.

But in contrast to its ruling on the notice and access conditions, the court held that Chicago did not show a likelihood of success on the merits of its challenge to the certification condition. The court held that this condition was authorized by Congress under the Byrne Grant statute, which says that a recipient must certify that it's in compliance "with all provisions of this part and all other applicable Federal laws" (emphasis added). The court said that Section 1373 fell into that latter category, "all other applicable Federal laws."

Moreover, it held that the certification condition didn't violate the Spending Clause and the anti-commandeering principle. In particular, the court said that Section 1373 doesn't compel Chicago to do anything; instead, it merely forbids it from doing something. The court said that the anti-commandeering principle only prohibits the federal government from requiring states or state officials to act, not from prohibiting them from acting, so Section 1373 doesn't violate it. 

Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. . . . Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.

But the court went on to recognize that Section 1373 raises an unanswered constitutional question: Does the provision commandeer insofar as it prevents local governments from disciplining an employee for spending time assisting in the enforcement of federal immigration law? The court punted, leaving that novel question for appeal:

[B]y leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers' ability to extricate their state or municipality from involvement in a federal program. . . . Here, we follow binding Supreme Court precedent and the persuasive authority of the Second Circuit, neither of which elevates federalism to the degree urged by the City here. A decision to the contrary would require an expansion of the law that only a higher court could establish.

ACS Term Preview

The American Constitution Society hosted its Supreme Court Preview yesterday at the National Press Club. C-Span coverage is here. The panel included Anil Kalhan, Claire Prestel, Dale Ho, Erin Murphy, and Marty Lederman. Kara Stein introduced the program; I moderated.

 

More Challenges to DACA Rescission

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 Recall that last week, fifteen states and the District of Columbia filed New York v. Trump challenging the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.

Today, several other states - - - California, Maine, Maryland, and Minnesota - - - filed a complaint in the Northern District of California, California v. Department of Homeland Security, also challenging the DACA rescission making similar but not identical arguments.  In the California challenge, equal protection is the sixth of the six counts, with no mention of anti-Mexican animus in the allegations.  Instead, the equal protection claim contends that "rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and fu1ther their education."

However, like New York v. Trump, the California complaint includes a challenge based on the Fifth Amendment's Due Process Clause, contending in its first cause of action that:

Given the federal government's representations about the allowable uses of information provided by DACA applicants, Defendants' change in policy on when to allow the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non- citizens, is fundamentally unfair.

This "informational use" due process claim is buttressed by the California complaint's fifth cause of action sounding in equitable estoppel, a claim not made in the New York complaint. Claims similar to the New York complaint include violations of the Administrative Procedure Act and the Regulatory Flexibility Act. Factual allegations supporting these causes of action include references to the President's tweets as advancing rationales for the rescission that are absent or contrary to the Homeland Security memorandum, thus making the rescission arbitrary and capricious.

Additionally, last week in a separate complaint in Regents of the University of California v. Department Homeland Security, also filed in the Northern District of California, another challenge to the DACA rescission was filed by named plaintiff, Janet Napolitano, now Chancellor of the University of California, but also former Secretary of the Department of Homeland Security.  In the University of California (UC) complaint, there is no equal protection claim, and the due process claim is third of three claims for relief and sounds in procedural due process:

¶69.    The University has constitutionally-protected interests in the multiple educational benefits that flow from a diverse student body. Thousands of DACA students have earned prized places as undergraduate and graduate students at the University of California through their record of high— even extraordinary—personal achievement in high school and college. In reliance on DACA, the University has chosen to make scarce enrollment space available to these students and to invest in them substantial time, financial aid, research dollars, housing benefits, and other resources, on the expectation that these students will complete their course of study and become productive members of the communities in which the University operates, and other communities throughout the nation. If these students leave the University before completing their education, UC will lose the benefits it derives from their contributions, as well as the value of the time and money it invested in these students with the expectation that they would be allowed to graduate and apply their talents in the United States job market.

¶70.    UC students who are DACA recipients also have constitutionally-protected interests in their DACA status and the benefits that come from that status, including the ability to work, to pursue opportunities in higher education, to more readily obtain driver’s licenses and access lines of credit, to obtain jobs, and to access certain Social Security and Medicare benefits.

¶71.    The Rescission and actions taken by Defendants to rescind DACA unlawfully deprive the University and its students of these and other constitutionally-protected interests without due process of law. Such deprivation occurred with no notice or opportunity to be heard.

 The other two causes of action in the UC complaint are based on the Administrative Procedure Act, with the first claim for relief contending the rescission is "arbitrary and capricious" and the second cause of action objecting to lack of notice and comment.  However, the "arbitrary and capricious" claim for relief does include a reference to the Fifth Amendment:"The Rescission and actions taken by Defendants to rescind DACA are arbitrary and capricious, an abuse of discretion, and not in accordance with law because, among other things, they are contrary to the constitutional protections of the Fifth Amendment."

It may be that even more constitutional and statutory challenges to DACA are forthcoming as protests against the rescission continue.

[image: DACA Rescission Protest at Trump Tower, NYC, September 2017, photo by Rhododendrites via]

 

 

New Hampshire Federal Judge Finds Panhandling Laws Violate First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 In a lengthy opinion in Petrello v. City of Manchester, United States District Judge Landya McCafferty found the City's efforts to control "panhandling" through its enforcement of a disorderly conduct statute and through an ordinance directed at panhandling both violated the First Amendment.

 Ms. Petrello was arrested under the disorderly conduct statute although her panhandling was "passive" and she was not in the roadway.  Any "disorder" was actually caused by a third party driving a Cadillac who stopped the car to hand something to Petrello, who did not step into the road.

The Cadillac then drove through the intersection, but the light turned red and the Jeep was unable to make it through the intersection. If the Cadillac had not stopped at the green light, then the Jeep would have made it through the intersection while the light was still green and would not have had to wait for the next green light.

Judge McCafferty found that the Manchester Police Department (MPD) policy was a sufficient basis for  liability. The policy was clearly directed at enforcing the statute against even passive panhandling and under the First Amendment, she stated that the policy was content-neutral, because the discussions of the anti-handling policies were "not in terms of any message the panhandler is conveying, such as requests for donations." Nevertheless, she reasoned  that "in the end," she "need not resolve the question of whether the MPD Policy is content based, because it does not survive scrutiny as a content-neutral regulation."  Applying the doctrine of Ward v. Rock Against Racism (1989), Judge McCafferty found that while public safety and free flow of traffic are significant government interests, the policy burdens more speech than necessary.  Essential to this conclusion was the fact that the statute was applied to Ms. Petrello who did not step into the street, and that her speech should not be curtailed by third party driving a Cadillac or traffic lights that turned red too quickly. Judge McCafferty issued an injunction and ruled this could proceed to trial on damages.

In its other attempt to curtail panhandling. the City of Manchester passed an ordinance providing:

“No person shall knowingly distribute any item to, receive any item from, or exchange any item with the occupant of any motor vehicle when the vehicle is located in the roadway."

Again, Judge McCafferty found the ordinance content-neutral and again that the ordinance violated the First Amendment. Again, Judge McCaffery found that while the government interests were valid, the Ordinance was not sufficiently tailored to those interests for four main reasons: (1) the Ordinance bans roadside exchanges that do not obstruct traffic or pose safety risks; (2) the Ordinance is geographically overinclusive because it applies citywide; (3) the Ordinance is underinclusive because it penalizes only pedestrians, not motorists; and (4) the City has less speech- restrictive means available to address its concerns. In reaching these conclusions, Judge McCafferty relied in part on the Ninth Circuit en banc decision in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach (2011) regarding day labor solicitation.

The opinion also addresses Petrello's standing to challenge the ordinance since she was not charged under it, but only the disorderly conduct statute, finding that she satisfied Article III standing although the City argued she had no imminent injury.  The opinion rejects Petrello's Fourth Amendment claim based on her original arrest and an equal protection challenge to the implementation of the statute.

The City could certainly appeal to the First Circuit, but it probably has little chance of success.

[image: William-Adolphe Bouguereau, Petites Mendiantes (1880) via]