Constitutional Law Prof Blog

Illinois Supremes Strike Foreclosure Filing Fee Under State Free Access Clause

Steven D. Schwinn, University of Illinois Chicago School of Law

The Illinois Supreme Court ruled this week that the state's $50 filing fee for residential mortgage foreclosure cases violated the state constitutional Free Access Clause. (H/t Prof. Ann Lousin, author of The Illinois State Constitution, part of the Oxford series.) The ruling means that the state can no longer collect the fee from mortgage foreclosure plaintiffs--and can no longer use the revenues to address foreclosure problems and to "help people who needed help with their mortgage situation and in our foreclosure-plagued society."

The case, Walker v. Chasteen, pitted the state's $50 filing fee for mortgage foreclosure plaintiffs against the state constitution's Free Access Clause. The state adopted the "add on" fee in order to address the mortgage foreclosure crisis of 2010. In particular, the state directed that revenues would go to state programs designed to reduce foreclosures and to "repair or rehabilitat[e] . . . abandoned residential property." The court clerk retains 2% of the fee.

Mortgage foreclosure plaintiffs challenged the fee as violating the state's Free Access Clause. This Clause, a fairly common one in state constitutions (but with no parallel in the text of the U.S. Constitution), protects the right to access the courts. The Illinois version says,

Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property, or reputation. He shall obtain justice by law, freely, completely, and promptly.

(If that sounds familiar, it's because state free-access clauses trace directly from Article 40 of Magna Carta, and Coke's and Blackstone's commentaries on it. They were a mainstay of early state constitutions, and the language was reflected in Marbury v. Madison. Oh, and free-access, especially to remedy violations of human rights, is a universally recognized international human right.)

The court ruled that the fee violated free access. The court said that the fee operated as a "litigation tax," and that it wasn't sufficiently related to the purpose of the fee, under rational basis review:

The charge here has no direct relation to expenses of a petitioner's litigation and no relation to the services rendered. Rather, the charge is assessed solely to raise revenue for the Foreclosure Prevention Fund and the Abandoned Residential Property Fund.

***

We therefore hold that there is no rational basis for imposing this filing fee on mortgage foreclosure litigants, requiring them to bear the cost of maintaining a social welfare program [the programs to reduce mortgage foreclosures in the state], while excluding other classes of taxpayers from the burden. The statutes therefore violate the free access clause.

Justice Theis dissented, arguing that "it is evident that the charges at issue here are indeed rationally related to tackling a foreclosure 'tsunami' affecting the ability of the court system to function. Simply put, that is all that is required to sustain rational basis review."

Court Says Philly's Anti-Discrimination Contract Provision Violates Free Exercise, but Keeps Smith on Books

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled today that the city of Philadelphia violated Catholic Social Service's free exercise rights when it terminated CSS's foster-care contract pursuant to a clause that prohibits discrimination against same-sex adopting couples, but also allows exceptions at the "sole discretion" of the Commissioner.

At the same time, the Court declined to reconsider Employment Div., Dep't of Human Resources of Oregon v. Smith, which holds that religiously neutral and generally applicable laws that have an incidental burden on religion must only satisfy rational basis review.

As a result, the ruling is a short-term victory for CSS (which the city will likely quickly undo--see below). But it puts off the Big Issue--whether Smith is still valid law--for another day. (This issue will certainly come back to the Court, and the Court will almost certainly change the rational-basis test in Smith, raising the standard of review and thus making it easier for religious groups or individuals to challenge neutral, generally applicable laws. It's just a matter of when.)

The case, Fulton v. City of Philadelphia, arose when the city informed CSS that the city could no longer contract with CSS for foster-care services so long as CSS refused to certify same-sex couples as foster-care parents. (Instead, CSS said it would refer such a certification to another social-services agency.) The city claimed that CSS's refusal to certify same-sex couples violated a non-discrimination provision in its contract with the city and the city's Fair Practices Ordinance. CSS sued, arguing that the City violated its free exercise rights, and urging the Court to overturn Smith.

The Supreme Court agreed. Chief Justice Roberts wrote the opinion, joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. The Court held that the anti-discrimination contract provision was not generally applicable, because it allows the Commissioner to grant an exception in the Commissioner's sole discretion. Moreover, the Court held a second contractual provision, which categorically barred discrimination (with no exceptions), had to be read in harmony with the exception in the first provision--in other words, that the exception still applied. Finally, the Court held that the city's Fair Practices Ordinance didn't apply, because foster care isn't a "public accommodation" under the Ordinance.

Because no generally applicable law applied, the Court said that Smith was the wrong test. Instead, the Court applied strict scrutiny (under Church of Lukumi Bablu Aye, Inc. v. Hialeah). The Court held that the city lacked a sufficiently compelling interest to exclude CSS, and ruled that the city's action violated the Free Exercise Clause.

The ruling is narrow--it hangs on the exception in the non-discrimination clause in the city's contract with CSS. As a result, the city can easily dodge a free exercise problem by simply omitting the exception from the clause in its contract with CSS. (The city says it never used the exception, anyway.)

Moreover, the ruling doesn't do anything to Smith or the rational-basis test for religiously neutral, generally applicable laws that incidentally burden religion. This question will surely come back to the Court, though (maybe even in a next round in this very case, if the city omits the exception from its contract and holds CSS in violation). And when it does, the Court will almost certainly change the test, making it easier for religious groups or individuals to challenge neutral, generally applicable laws as violating free exercise.

Justice Barrett concurred, joined by Justice Kavanaugh and (in part) Justice Breyer. She noted that the Court would need to work through a number of questions before it overruled Smith, and that the best approach might not be to categorically apply strict scrutiny to these kinds of claims.

Justice Alito wrote a sharp and lengthy concurrence, joined by Justices Thomas and Gorsuch. He argued that the Court should overrule Smith and replace it with the test that preceded Smith (in Sherbert) and that Congress later adopted in the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act: "A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest."

Justice Gorsuch wrote his own concurrence, joined by Justices Thomas and Alito. He argued that the Court likely got it wrong on the applicability of the Fair Practices Ordinance--that in fact, the Ordinance "is both generally applicable and applicable to CSS"--and on the separate contract provision that categorically prohibited discrimination. Justice Gorsuch argued that the Court's attempts to maneuver around Smith thus failed, that the Court should've addressed Smith, and that it should've overturned it.

Court Kicks Obamacare Challenge for Lack of Standing

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled today that plaintiffs lacked standing to challenge the Affordable Care Act's zeroed-out minimum coverage provision (or "individual mandate"), and the rest of the Act, too. The ruling deals a sharp blow to opponents of the ACA. It means that the ACA--all of it--stays on the books.

The case, Texas v. California, started when Congress zeroed-out the ACA's minimum coverage provision. Remember that Congress couldn't muster the votes to overturn the ACA, so instead it set the tax-penalty for the minimum coverage provision at $0. The move invited opponents of the Act to challenge the provision as unconstitutional--exceeding congressional authority under its taxing power, because, well, the provision couldn't raise any revenue, and therefore couldn't be a "tax." (Recall that the Court in NFIB upheld the minimum coverage provision under Congress's taxing power.) The move also invited opponents to claim that the entire ACA was unconstitutional, because the rest of the well-integrated, closely-knit Act couldn't be severed from the minimum coverage provision. (Recall that the government originally argued that the minimum coverage provision was a necessary part of the larger ACA in order to provide universal access to health insurance while at the same time keeping costs affordable. Opponents picked up on this and argued that the minimum coverage provision couldn't be severed from the community-rating provision, the non-discrimination provision, and the rest of the Act (including things like the requirement that insurers allow young adults to stay on their parents' insurance until age 26).

More than a dozen states, led by Texas, and two individuals accepted the invitation and sued. They won big in the district court (which held the minimum coverage provision unconstitutional and inseverable from the rest of the Act). The Fifth Circuit agreed that the minimum coverage provision was unconstitutional, but remanded for further consideration of severability.

The Court today didn't touch the merits issues and instead ruled that the plaintiffs lacked standing to sue. The Court said that the two individual plaintiffs lacked standing, because the zeroed-out minimum coverage provision didn't, and couldn't, harm them, because the government had no way to enforce it. The Court wrote that "there is no possible Government action that is causally connected to the plaintiffs' injury--the costs of purchasing health insurance." Without connecting the minimum coverage provision to their harm, the plaintiffs lacked standing.

The Court said that the states lacked standing, too, but for different reasons. First, the Court held that the minimum coverage provision didn't cause the states to incur costs for increased enrollment in state-operated medical insurance programs (like CHIP). The Court said that the states "failed to show how this injury is directly traceable to any actual or possible unlawful Government conduct in enforcing [the minimum coverage provision]," and that in any event the states failed to show that individuals actually enrolled in state medical insurance programs because of the zeroed-out provision. Next, the Court held that the provision didn't cause them to incur costs directly, as insurers of their own employees, because other portions of the Act (not the minimum coverage provision) required them to provide insurance to their own employees.

Justice Alito wrote a sharp dissent, joined by Justice Gorsuch. Justice Alito argued that the states had standing, because "[t]he ACA saddles them with expensive and burdensome obligations, and those obligations are enforced by the Federal Government." He said that states incur costs for complying with ACA reporting requirements, for providing health insurance to their employees, and for complying with other portions of the ACA--all of which are connected to, and inseverable from, the challenged minimum coverage provision. Justice Alito went on to argue that the minimum coverage provision was unconstitutional, and other ACA obligations that harmed the states were inseverable from the minimum coverage provision, and therefore must go, too.

Cole, Jaffer, and Olson on FISA Court Transparency

Check out David Cole, Jameel Jaffer, and Ted Olson's piece in the NYT on transparency at the Foreign Intelligence Surveillance Court. The FISC "authorizes panoramic surveillance programs that can have profound implications for the rights of millions of Americans, but many of its significant decisions have been withheld from the public."

The three and others teamed up on a cert. petition, asking SCOTUS to rule on whether the First Amendment provides a qualified right of public access to the FISC's significant opinions. (The FISC and the Foreign Intelligence Surveillance Court of Review both ruled that they lacked jurisdiction to hear the question.) The Court hasn't yet decided whether to take up the case. Here's the docket, with amicus briefs supporting the cert. petition.

Check it Out: The 100 Scholars' Letter on Threats to Democracy

One hundred political scientists issued a Statement of Concern this week, detailing "the threats to American democracy and the need for national voting and election administration standards." Here's a bit, referring to state efforts to restrict the vote:

In future elections, these laws politicizing the administration and certification of elections could enable some state legislatures or partisan election officials to do what they failed to do in 2020: reverse the outcome of a free and fair election. Further, these laws could entrench extended minority rule, violating the basic and longstanding democratic principle that parties that get the most votes should win elections.

Democracy rests on certain elemental institutional and normative conditions. Elections must be neutrally and fairly administered. They must be free of manipulation. Every citizen who is qualified must have an equal right to vote, unhindered by obstruction. And when they lose elections, political parties and their candidates and supporters must be willing to accept defeat and acknowledge the legitimacy of the outcome.

 

Court Says Tribal Officer Can Detain, Search Non-Native American on Public Road in Reservation

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled today that a tribal officer may temporarily detain and search a non-Native American person traveling on a public road through Native American land for potential violations of state and federal law.

The case, United States v. Cooley, arose when James Saylor, a Crow Police Department officer, detained and searched the vehicle of Joshua James Cooley, a non-Native American, on a public highway running through the Crow Reservation (in Montana). After observing the suspect's watery and bloodshot eyes, Saylor searched Cooley's vehicle and found drug paraphernalia and two rifles. Saylor took Cooley to the Crow Police Department, where federal and local officers questioned him. A federal grand jury indicted Cooley, but the lower courts granted his motion to suppress the drug evidence on the ground that Saylor lacked authority to stop and detain a non-Native American on tribal land.

A unanimous Supreme Court reversed. The Court said that while as a "general proposition," the "inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," a tribe retains authority over nonmembers "when that conduct threatens or has some direct effect on . . . the health or welfare of the tribe." The Court said that Saylor's temporary detention of Cooley fell squarely into that exception, and that Saylor's search of Cooley's vehicle was ancillary to Saylor's authority to detain Cooley.

The ruling means that tribal officers have authority to temporarily detain non-Native Americans on public roads running through tribal land upon suspicion of a violation of state or federal law; to search the suspect's vehicle incident to arrest; and to transport the suspect to the appropriate authorities.