Monday, November 14, 2022
The Supreme Court today rejected an attempt by Kelli Ward, the chair of the Arizona Republican Party, to stop the January 6 Committee from obtaining her phone records around the time of the insurrection.
The ruling means that Ward's phone provider must turn the records over. (The subpoena seeks telephone numbers, not the content of the conversations.)
The Court didn't provide an explanation for denying Ward's application. Justice Thomas and Alito would have granted it, but they provided no explanation, either. (That's not unusual for this kind of request. The Court often issues a decision on an emergency application without an explanation.)
The Committee subpoenaed Ward's provider after Ward, who played an instrumental role in various efforts to reverse the election and prevent the peaceful transition of power, repeatedly invoked the Fifth Amendment when she testified to the Committee earlier this year. Ward then sued, seeking to quash the subpoena. The district court and the Ninth Circuit both rejected her motion; today the Supreme Court rejected it, too.
Ward argued that the subpoena violated her First Amendment associational rights under Americans for Prosperity Foundation v. Bonta. In that case, the Supreme Court struck a California requirement that charitable organizations that solicit contributions in the state must disclose to the state attorney general the identities of their major donors. The Court applied "exacting scrutiny," and ruled that the disclosure regime wasn't sufficiently tailored to meet the state's asserted interests. Ward claimed that "exacting scrutiny" should apply to the Committee's subpoena, too, as a form of compelled disclosure that interfered with her associational rights.
The Ninth Circuit flatly rejected that argument. The court said that Americans for Prosperity didn't even apply, because unlike the disclosure requirement in that case, the Committee's subpoena was targeted at a particular person, Ward, for particular and relevant information to the Committee's investigation, and because Ward made no allegation that disclosure would lead to any harassment (which would interfere with Ward's associational rights). The court noted that the subpoena sought "to uncover those with whom [Ward] communicated in connection with" the January 6 attack, not members of a political party. It also noted that Ward's theory would allow anyone to "raise a First Amendment objection to any subpoena for records of calls that included discussions of politics--or, presumably, of 'social, economic, religious, [or] cultural' matters. (Narcotics traffickers, or anyone else who might face such subpoenas, would be well advised to make at least a few calls to their preferred political party.)"
The court held that even if Americans for Prosperity's "exacting scrutiny" applied, the subpoena met it. That's because it's "narrowly tailored" to get only the information that the Committee needs, and because the Committee already tried to get this information from Ward when she testified, but she invoked the Fifth.
Judge Ikuta dissented from the Ninth Circuit ruling.
Thursday, November 3, 2022
The Ninth Circuit ruled yesterday that the Miss United States of America Pageant can exclude a transgender woman as a matter of free speech. The court said that the Pageant was inherently expressive, and that requiring it to include a transgender woman would impermissibly interfere with its message.
The case, Green v. Miss United States of America, arose when Anita Noelle Green, a transgender woman, sued the Pageant for excluding her in violation of the Oregon Public Accommodations Act. The Pageant claimed that it declined to include Green because she failed to meet its "natural born female" eligibility criterion, and that the Oregon Act violated the First Amendment insofar as it required the Pageant to include her. The district court ruled for the Pageant, and the Ninth Circuit affirmed (though for a slightly different reason).
The Ninth Circuit held that the Pageant was an expressive activity, protected by free speech, and that forcing it to accept a transgender woman would fundamentally alter its expressive message. The court said that compelling the Pageant to include the woman would amount to a content-based regulation on speech, triggering strict scrutiny--a standard the government couldn't meet. According to the court, that's because eliminating discrimination against LGBTQ individuals isn't a compelling government interest, at least in the speech context.
Judge VanDyke concurred and argued that requiring the Pageant to include Green would also violate the Pageant's First Amendment right to expressive association. (That was the basis of the district court's ruling.)
Judge dissented. She argued that the court should first figure out whether the Oregon Act even applied to the Pageant. But if it did, she argued that Green should prevail: the Oregon law compels neither speech nor association.
Wednesday, October 26, 2022
Arizona GOP Chair Kelli Ward filed an Emergency Application for Stay with Justice Kagan (as Ninth Circuit Justice), seeking to halt a subpoena by the January 6 Commission for her cell-phone records.
UPDATE: Justice Kagan issued a stay and ordered the Committee to respond by Friday.
After the Committee subpoenaed Ward's cell-phone provider, Ward filed for an injunction. The district court dismissed her case, and rejected her motion for an injunction pending appeal. A divided panel of the Ninth Circuit affirmed. The two rulings meant that Ward's cell-phone provider would have to comply with the subpoena pending her appeal on the merits.
Ward argued that the subpoena violates her First Amendment associational rights. Here's what the district court said about that, in its denial of Ward's motion for an injunction pending appeal:
[T]he Court finds Plaintiffs have not presented a serious legal question regarding the merits of Plaintiffs' First Amendment claims. Although Plaintiffs discuss at length the application of the exacting scrutiny standard in their briefing and how this case mirrors Republican National Committee v. Pelosi, the Court already found Plaintiffs failed to raise a viable First Amendment claim because of the speculative nature of their alleged harm. Indeed, the Court noted that Plaintiffs "provided no evidence to support their contention that producing the phone numbers associated with this account will chill the associational rights of Plaintffs or the Arizona GOP" and that "'absent objective and articulable facts' otherwise, the Court finds Plaintiffs' arguments constitute 'a subjective fear of future reprisal' that the Ninth Circuit has held as insufficient to show an infringement of associational rights."
Ward contends that the lower courts didn't properly account for Americans for Prosperity v. Bonta. (Bonta struck a state law requiring charitable organizations to disclose their "major donors.") In short, she says that under Bonta, disclosure requirements are subject to heightened scrutiny even if a plaintiff demonstrates no burden. According to Ward, that means that a majority of justices would likely vote to reverse the lower courts. And she says that she meets the other requirements for emergency relief, too.
Justice Kagan could order the Committee to respond, and she could rule on the motion herself, or she could refer it to the entire Court. A ruling could come sooner, or later.
Saturday, August 21, 2021
The Fifth Circuit earlier this week rejected free-speech and free-association claims of a public employee, who was also a public-union leader, after he was terminated for performance reasons. The court also rejected the plaintiffs' class-of-one equal protection claim.
The case, United Steel v. Anderson, arose when Sergio Castilleja, a community service officer for the Bexar County Community Supervision and Corrections Department, was terminated for violating Department rules and other performance issues, including using Department equipment for union activities. But prior to his termination, Castilleja had been elected president of the Bexar County Probation Officers Association, and, in that role, oversaw a no-confidence petition against the Department chief, Jarvis Anderson. When he was fired, Castilleja's children and various unions sued, arguing that the Department terminated him for his union activities in violation of the First Amendment and that the Department treated him differently than officers in other unions in violation of equal protection.
The Fifth Circuit rejected the claims. The court ruled that the Department provided a legitimate, non-speech and non-association reason for his termination--his performance deficiencies--and that the plaintiffs failed to show that this reason was a pretext for reprisal for protected speech and association. The court also ruled that the unions' equal protection argument failed, because under Engquist v. Oregon Department of Agriculture class-of-one equal protection claims (where one person alleges unequal treatment as compared to similarly situated persons) don't apply to discretionary public-employment decisions.
Friday, July 2, 2021
The Supreme Court ruled yesterday that California's requirement that tax-exempt organizations operating in the state disclose the names and addresses of their major donors violated the First Amendment.
The ruling strikes California's requirement from the books. It puts similar reporting and disclosure requirements on the chopping block, and it could even lay the groundwork for striking campaign finance disclosure requirements.
The case, Americans for Prosperity Foundation v. Bonta, involved California's requirement that tax-exempt organizations in the state provide to the state attorney general their IRS Form 990, along with Schedule B, which includes the names and addresses of major donors. The state says that it needs the information in order to police misconduct by charities.
Organizations sued, arguing that the requirement violated their First Amendment rights. A sharply divided Court--6-3, along conventional ideological lines--agreed.
The six-justice majority ruled that California's requirement did not sufficiently serve its interest in policing misconduct:
There is a dramatic mismatch, however, between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end. . . .
Given the amount and sensitivity of this information harvested by the State, one would expect Schedule B collection to form an integral part of California's fraud detection efforts. It does not. To the contrary, the record amply supports the District Court's finding that there was not "a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General's investigative, regulatory or enforcement efforts."
The Court ruled the requirement overbroad and facially unconstitutional, which means that it is unconstitutional not just in this case, but in every conceivable application.
The six-justice majority split on the level of scrutiny to apply to such requirements. Chief Justice Roberts, joined by Justices Kavanaugh and Barrett, argued that "exacting scrutiny" is the right standard for all disclosure requirements, with no least-restrictive-means requirement. Justice Thomas argued that the more stringent strict scrutiny applied. (Justice Thomas also argued that the Court shouldn't rule the requirement facially unconstitutional, just unconstitutional in this case.) Justice Alito, joined by Justice Gorsuch, wrote that he was "not prepared at this time to hold that a single standard applies to all disclosure requirements."
Still, all six agreed that the requirement failed either level of scrutiny in this case, and five (minus Justice Thomas) agreed that it was therefore facially unconstitutional.
Justice Sotomayor wrote the dissent, joined by Justices Breyer and Kagan. Justice Sotomayor argued that the Court wrongly heightened the standard for disclosure requirements, failed to demand that the plaintiffs show a real harm or actual burden, and wrongly held the requirement facially invalid.
In so holding, the Court discards its decades-long requirement that, to establish a cognizable burden on their associational rights, plaintiffs must plead and prove that disclosure will likely expose them to objective harms, such as threats, harassment, or reprisals. It also departs from the traditional, nuanced approach to First Amendment challenges, whereby the degree of means-end tailoring required is commensurate to the actual burdens on associational rights. Finally, it recklessly holds a state regulation facially invalid despite petitioners' failure to show that a substantial proportion of those affected would prefer anonymity, much less that they are objectively burdened by the loss of it.
She noted that "[t]oday's analysis marks reporting and disclosure requirements with a bull's-eye."
Sunday, December 29, 2019
The Ninth Circuit ruled last week in Danielson v. Inslee that a public sector union is not liable for mandatory union dues paid before the Supreme Court struck mandatory union fees in Janus. The ruling follows a similar one in the Seventh Circuit.
Recall that the Supreme Court ruled in 2018 in Janus v. AFSCME that public sector unions could not collect mandatory fair-share fees (fees used for collective bargaining activities) consistent with the First Amendment. The ruling overturned the 1977 case Abood v. Detroit Board of Education, which upheld mandatory fees against a First Amendment challenge.
After Janus, public sector unions stopped collecting the fees. But some public sector employees sued for pre-Janus fees paid. That's what happened in the Seventh Circuit, which led that court to hold that unions weren't on the hook for pre-Janus fees. And it's what happened in the Ninth Circuit, too.
The Ninth Circuit held that the union could invoke a good-faith defense against the plaintiffs' claims, relying on the pre-Janus state of the law to continue to collect mandatory fair-share fees. As to the strong hints from the Court even before 2018 that fair-share fees were on the chopping block, the Ninth Circuit said,
Although some justices had signaled their disagreement with Abood in the years leading up to Janus, Abood remained binding authority until it was overruled. We agree with our sister circuit that "[t]he Rule of Law requires that parties abide by, and be able to rely on, what the law is, rather than what the readers of tea-leaves predict that it might be in the future."
The Supreme Court has admonished the circuit courts not to presume the overruling of its precedents, irrespective of hints in its decisions that a shift may be on the horizon.
Friday, December 6, 2019
SCOTUS Grants Certiorari in First Amendment Challenge to Delaware Constitution's Judicial Appointment Provision
The United States Supreme Court granted certiorari in Adams v. Carney, Governor of Delaware in which the Third Circuit held several sections of the Delaware Constitution regarding the selection of judges violated the First Amendment.
Centrally, the Delaware Constitution, Art IV §3 seeks to achieve a partisan balance in the judiciary and provides that appointments to the state judiciary "shall at all times be subject to the following limitations":
First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.
Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party.
Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.
In its opinion, the Third Circuit panel found that this political balancing violated the First Amendment, concluding that it was not within the protections for political policymakers of Elrod v. Burns (1976) and Branti v. Finkel (1980). The Third Circuit found that even assuming that "judicial political balance is a vital Delaware interest," Delaware failed to demonstrate that this goal could not be realized using less restrictive means of infringing on the plaintiff's associational interests.
And while the Third Circuit found that the plaintiff, a retired Delaware attorney who belonged to neither major party. lacked standing to challenge the Delaware constitutional provisions regarding Family Court and the Court of Common Pleas. The United States Supreme Court, however, has directed briefing on the issue of Article III standing, presumably pertinent to the other provisions.
Wednesday, February 6, 2019
The Third Circuit ruled in Adams v. Governor of Delaware that the state's constitutional requirement for political balance among the judges on most state courts violated the plaintiff's free association rights under the First Amendment. The ruling means that plaintiff James Adams can throw his hat in the ring for state judicial positions, even if his independent party status would otherwise bar his appointment under the balancing requirement.
The case tests Delaware's constitutional requirement that most state courts have political balance on the bench between the two major political parties. (The provision is at Article IV, Section 3 of the Delaware Constitution.) The governor's appointments are thus restricted by available slots for Democrats or Republicans. And in most cases the provision makes no room for independents or other party candidates for the bench. (Delaware's judges are appointed by the governor on the advice of a judicial nominating commission, with confirmation by the state Senate. When advertising for open positions, the commission designates available slots by party--"Democrat" or "Republican.")
The court ruled that restriction violated Adams's free association rights under Elrod v. Burns, Branti v. Finkel, and Rutan v. Republican Party of Illinois. First, the court (creating a split with the Sixth and Seventh Circuits) concluded that state judges were not policy-making positions or confidential positions:
Judges simply do not fit this description. The American Bar Association's Model Code of Judicial Conduct instructs judges to promote "independence" and "impartiality," not loyalty. It also asks judges to refrain from political or campaign activity. The Delaware Code of Judicial Conduct similarly makes clear that judges must be "unswayed by partisan interests" and avoid partisan political activity. The Delaware Supreme Court has stated that Delaware judges "must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override properly stated legislative will." Independence, not political allegiance, is required of Delaware judges.
[T]he question before us is not whether judges make policy, it is whether they make policies that necessarily reflect the political will and partisan goals of the party in power. . . .
To the extent that Delaware judges create policy, they do so by deciding individual cases and controversies before them, not by creating partisan agendas that reflect the interests of the parties to which they belong. . . . [T]he operation of the judicial branch is not "so intimately related to [Delaware] policy" that the Governor would have "the right to receive the complete cooperation and loyalty of a trusted advisor [in that position]."
Next, the court said that even if the state's interest in partisan balance on the bench was a compelling interest, the constitutional requirement of balance wasn't the only (or narrowest) way it could achieve that interest.
Judge McKee concurred and wrote separately "to note the potential damage to the image of the judiciary [in states that select judges in general elections preceded by partisan political campaigns] and the extent to which it can undermine the public's faith in the judges who are elected."
Tuesday, December 4, 2018
The Ninth Circuit ruled in Soltysik v. Padilla that the lower court didn't sufficiently weigh the evidence in a candidate's challenge to California's rule that only candidates who "prefer" a recognized political party can list that party as their "preference" on the ballot.
The ruling means that the lower court will take a second crack at the case.
The case tests California's law that allows candidates who prefer a recognized political party to list that party on the ballot, but requires candidates who prefer a nonrecognized party to list their preference as "none." (California has voter-nominated (not party-nominated) primary process, and primary candidates list their "preference" for a party (and not their designation as the party's nominee).) Under the rule, Soltysik, a candidate for the state assembly who preferred a nonrecognized party (the Socialist Party USA), had to list "Party Preference: None" next to his name on the ballot. He argued that this violated free association, equal protection, and free speech.
The district court, applying the Burdick/Anderson sliding-scale test, deferred to the state and dismissed the case. The Ninth Circuit reversed and remanded.
The Ninth Circuit held that the burden on Soltysik's rights "is not severe," but that "it is more than 'slight,' warranting scrutiny that is neither strict nor wholly deferentially." The court then recognized that the state's interest in avoiding voter confusion is important; but it also said that the rule seems to have the opposite effect--to create confusion--and that the state may have other ways to achieve its interest.
In any event, the court held that the parties didn't get the chance to develop evidence to support their positions, because the lower court dismissed the case before discovery. So the court remanded for further proceedings.
Judge Rawlison dissented, arguing, among other things, that the court applied too high a level of scrutiny in evaluating the rule.
Wednesday, August 15, 2018
Eighth Circuit Upholds Public Union Exclusive Representation Designation Against First Amendment Challenge
The Eighth Circuit this week held that a Minnesota law that authorizes public employees to organize and to designate an exclusive representative to negotiate employment terms with the state did not violate the First Amendment.
The case, Bierman v. Dayton, may represent a next front, after Janus, in First Amendment challenges to public-sector unions. The Eighth Circuit quoted the time-bomb in Janus (see below) that could well foretell the end of exclusive representation, even without a fair-share requirement.
The case tested Minnesota's Public Employee Labor Relations Act, as applied to in-home care providers for disabled Medicaid recipients. The Act permits those employees to organize and designate an exclusive bargaining representative, but it doesn't require fair-share fees for non-union members. Still, dissenting home-health-care workers challenged the Act, arguing that it compelled them to associate with a union that they want no part of. (Again: They were not charged an agency fee or fair-share fee. Their claim was that the state, merely by allowing their union colleagues to designate an exclusive bargaining representative, violated their First Amendment rights.)
The court flatly rejected this claim, pointing to Minnesota State Board for Community Colleges v. Knight, which, the court said, squarely answered the question.
As to Janus's impact on this kind of case, the court wrote,
Recent holdings in [Janus] and [Harris] do not supersede Knight. Under those decisions, a State cannot compel public employees and homecare providers, respectively, to pay fees to a union of which they are not members, but the providers here do not challenge a mandatory fee. Janus did characterize a State's requirement that a union serve as an exclusive bargaining agent for its employees as "a significant impingement on associational freedoms that would not be tolerated in other contexts," but the decision never mentioned Knight, and the constitutionality of exclusive representation standing alone was not at issue. Of course, where a precedent like Knight has direct application in a case, we should follow it, even if a later decision arguably undermines some of its reasoning.
Wednesday, June 27, 2018
The Supreme Court today ruled that Illinois's fair-share, agency-fee requirement for non-members of public sector unions violated the First Amendment. The ruling deals a significant blow to public sector unions.
The 5-4 ruling wasn't entirely a surprise: The Court has sent several signals in recent years that fair-share was on the chopping block. The big question for the Court in today's ruling, Janus v. AFSCME, was how Justice Gorsuch would vote. He voted with the other conservatives against fair-share.
As part of the ruling, the Court overturned Abood v. Detroit Bd. of Ed., the 1977 case upholding a fair-share requirement against a First Amendment challenge. The Abood Court held that the state's interests in avoiding free-riders and maintaining labor peace justice any intrusion into First Amendment rights of non-members. Today the Court said that "Abood was poorly reasoned," that it "has led to practical problems and abuse," and that it "is inconsistent with other First Amendment cases . . . ."
The ruling means that states can no longer allow public sector unions to require non-members in a public-sector union shop to pay "agency fees" or "fair share" fees that go to the union's collective bargaining activities (but not to its political activities).
The ruling could have a devastating effect on public sector unions, or it could energize them. Time will tell.
It's unclear at this point whether the ruling could be used to challenge fair-share in the private sector.
Justice Kagan wrote the principal dissent, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Sotomayor dissented separately.
Monday, June 18, 2018
In its opinion in Gill v. Whitford involving a challenge to Wisconsin's alleged partisan gerrymandering the Court, in an opinion by Chief Justice Roberts, with a concurring opinion by Justice Kagan (joined by Justices Ginsburg, Breyer, and Sotomayor), found that the plaintiffs did not prove sufficient Article III standing to sustain the relief granted in the divided decision by the three judge court. Additionally, in a per curiam opinion in Benisek v. Lamone, involving a challenge to alleged political gerrymandering in Maryland, the Court declined to disturb the three judge court's decision not to grant to a preliminary injunction.
Chief Justice Roberts' opinion for the Court in Gill admits that
Over the past five decades this Court has been repeatedly asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines. Our previous attempts at an answer have left few clear landmarks for addressing the question.
The Chief Justice's Gill opinion does little, if anything, to remedy this lack of "landmarks" in the doctrine. However, the Chief Justice's opinion continues that the Court's "efforts to sort through those considerations have generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury" and it is this set of "conflicting views" that the Chief Justice's opinion sets out to resolve. The resolution seems simple: to the extent that plaintiffs' "alleged harm is the dilution of their votes" in violation of the Equal Protection Clause, "that injury is district specific." In sum, the injury must be an individual one that arises from an individual's vote being diluted by the voter's placement in a "cracked" or "packed" district. The Chief Justice's opinion concludes that while the individual plaintiffs had "pleaded a particularized burden along such lines," they failed to prove those facts at trial.
Yet this simplicity is less straightforward when combined with Justice Kagan's concurring opinion, which correctly notes that in addition to the Equal Protection Clause claim of vote dilution, "at some points in this litigation, the plaintiffs complained of a different injury — an infringement of their First Amendment right of association." [Indeed, the opinion for the three judge court seems to combine the equal protection and First Amendment claims.] On the First Amendment claim, Kagan writes:
when the harm alleged is not district specific, the proof needed for standing should not be district specific either. And the associational injury flowing from a statewide partisan gerrymander, whether alleged by a party member or the party itself, has nothing to do with the packing or cracking of any single district’s lines. The complaint in such a case is instead that the gerrymander has burdened the ability of like-minded people across the State to affiliate in a political party and carry out that organization’s activities and objects. Because a plaintiff can have that complaint without living in a packed or cracked district, she need not show what the Court demands today for a vote dilution claim. Or said otherwise: Because on this alternative theory, the valued association and the injury to it are statewide, so too is the relevant standing requirement.
Moreover, even on the equal protection vote dilution claim, Kagan's opinion instructs that the Court's determination of remand rather than dismissal means that
the plaintiffs—both the four who initially made those assertions and any others (current or newly joined)—now can introduce evidence that their individual districts were packed or cracked. And if the plaintiffs’ more general charges have a basis in fact, that evidence may well be at hand. Recall that the plaintiffs here alleged—and the District Court found —that a unified Republican government set out to ensure that Republicans would control as many State Assembly seats as possible over a decade (five consecutive election cycles). To that end, the government allegedly packed and cracked Democrats throughout the State, not just in a particular district (see, e.g., Benisek v. Lamone) or region. Assuming that is true, the plaintiffs should have a mass of packing and cracking proof, which they can now also present in district-by-district form to support their standing. In other words, a plaintiff residing in each affected district can show, through an alternative map or other evidence, that packing or cracking indeed occurred there.
[emphasis added]. The Court remanded and declined to "direct dismissal" given that this "is not the usual case" because the it "concerns an unsettled kind of claim," the "contours and justiciability of which are unresolved." Justice Thomas, joined by Justice Gorsuch, wrote separately to disagree with the remand, arguing there is "nothing unusual" about the case and that the matter should be dismissed.
In the five page per curiam opinion in Benisek v. Lamone, the Court declined to disturb the three judge court's denial of a motion for preliminary injunction. Seemingly without irony, the Court noted that one rationale for the three judge court's denial of a preliminary injunction was its concern about assessing the merits of the partisan gerrymandering claim and its prediction it would be "better equipped to make that legal determination and to chart a wise course" after the United States Supreme Court issued its decision in Gill. However, the per curiam opinion of the Court also reasoned that even if the plaintiffs were likely to succeed on the merits, the other factors in a preliminary injunction decision including the balance of equities and the public interest "tilted against" the issuance of a preliminary injunction.
In sum, the decisions in Gill and Benisek leave the constitutionality of partisan gerrymandering as unsettled as before.
[image: "the gerrymander" via]
June 18, 2018 in Association, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Reconstruction Era Amendments, Standing, Supreme Court (US) | Permalink | Comments (0)
Wednesday, March 28, 2018
In oral arguments in Benisek v. Lamone, the United States Supreme Court again confronted the the constitutionality of gerrymandering on the basis of political party. Recall that the Court heard arguments earlier in this Term in Gill v. Whitford involving the state of Wisconsin and centering on the Equal Protection Clause challenge. In Benisek, involving Maryland, recall that a divided three judge court denied the motion for preliminary injunction, but with Fourth Circuit Judge Paul Niemeyer arguing that the redistricting of Maryland's Sixth District diluted the votes of Republicans in violation of the First Amendment.
The Benisek argument before the Supreme Court did center the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. Arguing for Maryland, Steve Sullivan sought to distinguish the two doctrines, with Justice Kagan responding:
JUSTICE KAGAN: But we would be looking at the same things. We would be looking at the same kind of direct evidence, the same kind of statements. We would be looking at the same circumstantial evidence that has to do with where the lines were drawn and how they were drawn. So it's -- it's all the same kind of evidence, isn't it?
Sullivan sought to distinguish the two doctrines and stated that while there may be similar types of evidence, the Court had not applied "the First Amendment retaliation rubric to that analysis," as the challengers suggested. However, Chief Justice Roberts offered another comparison:
CHIEF JUSTICE ROBERTS: Well, one difference between -- one difference between the race and partisanship is that we've always recognized that a certain degree of partisanship is acceptable. We've never recognized that a certain degree of racial discrimination is acceptable.
The earliest moments of the oral argument offered a possible procedural escape hatch. The three judge court had denied the preliminary injunction and the possibility that any remedy could occur before the 2018 election seemed unlikely. Moreover, the Justices questioned Michael Kimberly, attorney for the plaintiffs-challengers, regarding the lateness of the challenge, with Chief Justice Roberts asking about the elections that have been held in 2012, 2014, and 2016 before the challenge - - - relevant to the preliminary injunction factor of irreparable harm.
Justice Breyer offered a strategy for determining whether there are manageable standards and if so, what the standard should be. (Recall that Justice Breyer outlined a several-step possible standard in the oral argument in Gill v. Whitford). Justice Breyer noted that there are three cases - - - Wisconsin (Gill v. Whitford); Maryland (Benisek); and "the one we are holding, I think, is North Carolina" - - - with different variations. He began by asking the attorney for the challengers what he thought of reargument for the three cases:
JUSTICE BREYER: * * * * What would you think of taking the three cases and setting them for reargument on the question of standard and there we'd have all three variations in front of us and we would enable people who have an interest in this subject generally to file briefs, and we'd see them all together and they could attack each other's standards or they could support each other's standards or they could attack any standard? But there we'd have right in front of us the possibilities as -- as -- as thought through by lawyers and others who have an interest in this subject.
I raise it because I want to think if there's some harm in doing that that I haven't thought of. Is there some reason - would it be harmful to somebody? Because I do see an advantage. You could have a blackboard and have everyone's theory on it, and then you'd have the pros and cons and then you'd be able to look at them all and then you'd be able see perhaps different ones for different variations and, you know, that's -- maybe there are different parts of gerrymandering that rises in different circumstances, dah-dah-dah. You see the point.
Later, in a colloquy with the attorney for Maryland, Justice Breyer again surfaced his proposal:
That's why I was thinking you've got to get all these standards lined up together, you know, and you have to have people criticizing each one back and forth and see if any of them really will work or some work in some cases and some work in other cases and it depends on the type you have.I -- I mean, that isn't squarely addressed by the lawyers because they're focused on their one case, et cetera.
Will there be a reargument? It's difficult to tell. But if there is, one might expect more than one brief that outlines the possible standards, with their advantages, disadvantages, and possible results in different cases, suitable for a "blackboard."
[image: Winslow Homer, Blackboard, 1877, via]
March 28, 2018 in Association, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Oral Argument Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Monday, February 26, 2018
There were no surprises today at oral arguments in Janus v. AFSCME, the case testing whether a state law that permits a public-sector collective-bargaining agreement to require non-union-members to pay a "fair share" fee violates the First Amendment. The justices seemed to divide along predictable (and conventional political) lines, given their votes in other recent cases. The only one we haven't heard from on this issue--and didn't hear anything today--is Justice Gorsuch. If previous positions hold, as expected, the case will turn on his vote.
The case asks whether a state can require non-union members to pay the union for its collective-bargaining work (but not its outside political work) in a public-sector agency shop. The Court held in Abood v. Detroit Board of Education (1977) that it could. In particular, the Court said that the state's interests in avoiding free-riders in the agency shop and promoting and protecting labor peace justified any intrusion into First Amendment rights.
Janus tests whether the Court should overrule Abood and strike mandatory public-sector fair-share fees.
Recall that the issue has come to the Court, directly or indirectly, three times in recent years. In the first two cases, Knox v. SEIU and Harris v. Quinn, the Court sent strong signals that a majority thought fair share fees violated the First Amendment. Then, in 2016, the Court deadlocked 4-4 on the issue in Friedrichs v. California Teachers Association. Justice Scalia participated in oral arguments in Friedrichs--and indicated his position against fair share--but passed away before the Court issued its ruling.
Arguments today largely rehearsed the points made in Friedrichs and that have by now become familiar: on the one side, mandatory fair share represents compelled speech on public issues that a non-union-member (like Janus) may disagree with; on the other side, the interests in Abood justify any mild intrusion into First Amendment rights represented by a fee (and not actual compelled speech). Lurking just below the surface is the political wrangling over public-sector unions and the reality that a ruling against fair share will strike a serious blow to them.
If prior positions hold among the eight justices who participated in Friedrichs, as expected, the case will then turn on Justice Gorsuch. He revealed no cards today, though, staying quiet throughout the arguments.
Monday, February 12, 2018
In its opinion in Perez v. City of Roseville, a panel of the Ninth Circuit reversed a district judge's granting of summary judgment to the government on a constitutional challenge by Janelle Perez to her termination from the City of Roseville after an internal affairs investigation into her "romantic relationship" with a fellow officer. The investigation noted that both officers "are married and have young children."
Authored by Judge Reinhardt, the opinion noted that its conclusion was required by Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), in which the Ninth Circuit held that the city violated Thorne's constitutional rights when it relied on her private, non-job-related sexual conduct as a clerk-typist in refusing to hire her as an officer, without “any showing that [her] private, off-duty personal activities ... [had] an impact upon [her] on-the-job performance,” or contravened “specific policies with narrow implementing regulations.” Likewise, Roseville failed to "introduce sufficient evidence that Perez’s affair had any meaningful impact upon her job performance."
Interestingly, the Ninth Circuit identifies a circuit split on the issue: We recognize that, since Thorne, at least two other circuits have adopted rules that appear to be in some tension with our case. See Coker v. Whittington, 858 F.3d 304, 306 (5th Cir. 2017) (concluding Constitution not violated where two sheriff’s deputies were fired for moving in with each other’s wives before finalizing divorce from their current wives because the Sheriff’s policies were supported by a rational basis); Seegmiller v. LaVerkin City, 528 F.3d 762, 770 (10th Cir. 2008) (upholding termination of officer on basis of extramarital affair under rational basis test because there is no “fundamental liberty interest ‘to engage in a private act of consensual sex’”). > However, the Ninth Circuit rejects the "approach taken by the Fifth and Tenth Circuits" for two reasons. First, there is the "binding precedent" of Thorne:
Because the State’s actions in this case “intrude on the core of a person’s constitutionally protected privacy and associational interests,” we must analyze them under “heightened scrutiny.” Thorne, 726 F.2d at 470. Moreover, even if we were to agree that the Department’s action here need only satisfy rational basis review, Thorne explains that it cannot survive any level of scrutiny without either a showing of a negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation. Id. at 471. Under our precedent, the Department must do more than cite a broad, standardless rule against “conduct unbecoming an officer.”
Second, the "Fifth and Tenth Circuits fail to appreciate the impact of Lawrence v. Texas, 539 U.S. 558 (2003), on the jurisprudence of the constitutional right to sexual autonomy."
"Lawrence did much more than merely conclude that Texas’ anti-sodomy law failed the rational basis test. Instead, it recognized that intimate sexual conduct represents an aspect of the substantive liberty protected by the Due Process Clause. As such, the constitutional infirmity in Texas’ law stemmed from neither its mere irrationality nor its burdening of a fundamental right to engage in homosexual conduct (or even private consensual sexual conduct, Rather, Texas’ law ran afoul of the Constitution’s protection of substantive liberty by imposing a special stigma of moral disapproval on intimate same-sex relationships in particular. As the Court explained, the liberty protected by the Due Process Clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are of the same sex or not, married or unmarried. . . . Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has “traditionally viewed a particular practice,” such as extramarital sex, “as immoral.” Thus, without a showing of adverse job impact or violation of a narrow, constitutionally valid departmental rule, the Constitution forbids the Department from expressing its moral disapproval of Perez’s extramarital affair by terminating her employment on that basis.
Thus, the Ninth Circuit holds that Thorne, decided 20 years before Lawrence was correct and the Fifth and Tenth Circuit opinions, both decided after Lawrence, do not give Lawrence proper effect.
Concurring, Judge Tashima stresses that Perez was a probationary police officer and thus the government need not have provided reasons. However, when the government did provide reasons "those reasons all arose in such short order after the internal affairs review that a reasonable inference may be drawn that they may have been pretextual." Additionally, the majority opinion held that the government had no right to qualified immunity because the rights were clearly established, again relying on Thorne, decided in 1983.
The majority panel opinion rejected a procedural due process claim and a gender discrimination claim.The court thus reversed the summary judgment in favor of the government and remanded the case for further proceedings given the factual disputes regarding the actual reasons Perez was termination.
Thursday, February 1, 2018
In his opinion in Hand v. Scott, United States District Judge for the Northern District of Florida Mark Walker declared Florida's re-enfranchisement scheme for persons convicted of felonies to be restored their right to vote unconstitutional under both the First Amendment and the Fourteenth Amendment's Equal Protection Clause.
The court's decision was on cross motions for summary judgment and Judge Walker opens his opinion by describing the Florida scheme:
Florida strips the right to vote from every man and woman who commits a felony. To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members. These citizens are subject to the consequences of bills, actions, programs, and policies that their elected leaders enact and enforce. But these citizens cannot ever legally vote unless Florida’s Governor approves restoration of this fundamental right.
Florida’s Executive Clemency Board has, by rule, unfettered discretion in restoring voting rights. “We can do whatever we want,” the Governor said at one clemency hearing. One need not search long to find alarming illustrations of this scheme in action. In 2010, a white man, Steven Warner, cast an illegal ballot. Three years later, he sought the restoration of his voting rights. He went before the state’s Executive Clemency Board, where Governor Scott asked him about his illegal voting.
“Actually, I voted for you,” he said. The Governor laughed. “I probably shouldn’t respond to that.” A few seconds passed. The Governor then granted the former felon his voting rights.
While the state can deny persons convicted of a felony the right to vote under the Fourteenth Amendment as construed by the Court in Richardson v. Ramirez (1974), the issue before Judge Walker was whether the vote restoration process was constitutional. Seemingly, the state argued it had absolute discretion to restore voting rights. Judge Walker held that such discretion violated the First Amendment rights to free association and expression, and the Fourteenth Amendment's Equal Protection Clause.
On the First Amendment claim, Judge Walker first articulated the right of free political association and then the right to vote as including a First Amendment right, interestingly relying in part on Citizens United. Judge Walker writes that the unfettered discretion in vote restoration cannot survive exacting scrutiny. Even if the government interest in limiting the franchise to responsible persons is valid, "Florida does not use the least-restrictive means to pursue its interests in preventing possibly irresponsible citizens from choosing their leaders."
Florida’s vote-restoration scheme is crushingly restrictive. The scheme crumbles under strict scrutiny because it risks—if not covertly authorizes the practice of—arbitrary and discriminatory vote-restoration. When a scheme allows government officials to “do whatever [they] want,” viewpoint discrimination can slip through the cracks of a seemingly impartial process. [citing record] Such discrimination can lead to a denial of “the fruits of their association, to wit: [former felons’] political impact”—or widespread, insidious bias to benefit the Governor’s political party. Touchston, 234 F.3d at 1154 (Tjoflat, J., dissenting). State officials’ potential political, racial, or religious biases cannot poison the well of vote-restoration.
Judge Walker discussed several instances of possible discrimination and disparities, but ultimately concluded that it was the possibility of discrimination from unfettered discretion that was crucial. Additionally, the Governor as ultimate arbiter was fatal:
[t]he Governor has de facto veto authority over anyone’s restoration. All the component parts of the vote- restoration process that Defendants wave like shiny objects to distract from potential viewpoint discrimination—the investigations, case analyses, and hearings—mean nothing if the Governor alone has final authority to restore Plaintiffs’ rights.
Further, Judge Walker rejected the State's argument that the vote restoration scheme was akin to unreviewable executive clemency:
Executive clemency by its mere existence cannot serve as a legitimate, let alone compelling, state interest. No serious person would argue that an act of executive clemency that, for example, is motivated by race cannot run afoul of the Constitution simply because it is an act of executive clemency. This Court recognizes the novelty of a challenge to an executive clemency scheme. But “it is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And so, if a court finds unconstitutionality in an executive clemency scheme, its role is to strike the acts permitting the constitutional violation—not to declare its hands tied.
On the Equal Protection Clause claim, Judge Walker essentially applied rational basis scrutiny and found that the "violation in this case—the substantial risk of arbitrary and discriminatory vote-restoration based on an applicant’s identity and perceived voting preferences from partisan government officials— is worse than a coin flip." Judge Walker stated that while the state may have a legitimate interest in limiting the franchise to responsible voters, the means chosen failed because it was at best, "arbitrary and disparate," interestingly quoting Bush v. Gore, on which the plaintiffs relied. Judge Walker added that at worst, the scheme would be discriminatory.
Judge Walker ordered additional briefings regarding remedies. Even if the state does not appeal, the question of remedies will be a difficult one.
Meanwhile, a ballot measure to restore voting rights to persons convicted of felonies has just been approved for the November ballot.
Wednesday, December 20, 2017
The Sixth Circuit ruled this week that the DOJ's and FBI's designation of a group as a "gang" wasn't a final agency action, and therefore the group couldn't challenge the designation as violating the First Amendment under the Administrative Procedure Act.
The case arose when the FBI's National Gang Intelligence Center designated Juggalos, fans of the musical group Insane Clown Posse, as a gang. Juggalos display distinctive tattoos, art, clothing, symbols, and insignia that demonstrate their affiliation with Insane Clown Posse, and associate with each other in order to share their support of the group. According to the NGIC Report, "many Juggalo subsets exhibit gang-like behavior and engage in criminal activity and violence."
Juggalos brought an APA claim against the DOJ and FBI, arguing that the gang designation violated their First and Fifth Amendment rights, because other law enforcement officers (including state and local officers) used the NGIC Report to target them.
The Sixth Circuit dismissed the case. The court said that the designation didn't cause law enforcement officers to target Juggalos; instead, officers voluntarily relied on the NGIC and used it for their own enforcement purposes. Therefore, the designation didn't cause any legal consequences to Juggalos, and it wasn't a final agency action under the APA.
The court noted, however, that its ruling didn't foreclose First Amendment suits against local law enforcement officers under 42 U.S.C. Sec. 1983.
Thursday, September 28, 2017
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.
Monday, January 16, 2017
While we often think of protest and civil disobedience under the First Amendment, in her article Protest is Different in Richmond Law Review, Professor Jesssica West of University of Washington essentially argues that the First Amendment has not been a sufficiently robust defense criminal prosecutions. Instead, she contends that we should reconceptualize protest relying upon evolving concepts of capital jurisprudence flowing from the Eighth Amendment contention that "death is different." She argues that similar to the complexity of the moral determination inherent in a sentence of death requiring a judgment of community condemnation, a criminal conviction resulting from acts of protest likewise involves deep and complex values of individualization and community conscience.
It's a worthwhile read on this Martin Luther King Day: "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws." Martin Luther King, Jr., Letter from a Birmingham Jail, Apr. 16, 1963.
Tuesday, November 22, 2016
The factual predicate for the case does not involve the most recent election. Writing for the majority, Seventh Circuit Judge Kenneth Ripple began by explaining:
The plaintiffs have brought this action alleging that Act 43, the redistricting plan enacted by the Wisconsin Legislature in 2011, constitutes an unconstitutional partisan gerrymander. Specifically, they maintain that the Republican-controlled legislature drafted and enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide. We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.
In its discussion of "foundational case law," the court begins its discussion with the equal protection case of Reynolds v. Sims (1964), and concludes with League of United Latin American Citizens v. Perry (“LULAC”) (2006), although interestingly it does not cite Bush v. Gore (2000). In considering the "close relationship between equal protection and associational rights," the court found Williams v. Rhodes (1968) especially instructive. The court concluded:
We therefore believe that there is a solid basis for considering the associational aspect of voting in assessing the gravamen of the harm allegedly suffered by the plaintiffs. Indeed, in this case, the associational harm is especially important to the analysis because the testimony of the defendants’ witnesses as well as the plaintiffs’ demonstrate that, given the legislative practice and custom of Wisconsin, legislative action is controlled, as a practical matter, solely by the majority caucus. In such a circumstance, when the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view. The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic.
It therefore rejected the notion that equal protection "must be limited to situations where the dilution is based on classifications such as race and population."
The court summarized the applicable doctrine as follows:
the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.
The court then exhaustively applied these standards to the complex facts, concluding that the plaintiffs had carried their burden. As to remedy, however, the court deferred because the parties had not had the opportunity to completely brief the matter and ordered simultaneous briefs within 30 days with 15 days thereafter to respond.
The dissenting judge, William Griesbach, relied on Davis v. Bandemer (1986) (plurality), in which the Court refused to invalidate Indiana's redistricting scheme, to support his conclusion that "partisan intent is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches of government," and interestingly notes that
"It was only a term ago that the Court held by a 5 to 4 vote that it was constitutionally permissible to remove redistricting from the political branches. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (2015). Adoption of the majority’s standard may well compel States to do so."
The incessant issue of gerrymandering may be headed to the United States Supreme Court yet again.
[image 1, Wisconsin map 1865 via; image 2, Appendix 2 to the court's opinion]