Monday, June 17, 2019

SCOTUS Upholds Virginia's Ban on Uranium Mining

The Supreme Court today upheld Virginia's ban on uranium mining against a federal preemption challenge by a mining company. The ruling says that the federal Atomic Energy Act does not preempt Virginia's ban.

The case, Virginia Uranium, Inc. v. Warren, arose when Virginia Uranium sought to mine raw uranium ore from a site near Coles Hill, Virginia. The problem: Virginia law prohibits uranium mining in the Commonwealth. So Virginia Uranium sued, arguing that the ban was preempted under the federal AEA.

The Court ruled 6-3 that the AEA did not preempt the Commonwealth's ban. Justice Gorsuch wrote the lead opinion, joined by Justices Thomas and Kavanaugh. He wrote that the AEA, by its plain terms, regulated milling and waste disposal, but not mining. So the AEA doesn't field-preempt Virginia's ban, and it doesn't obstacle-preempt Virginia's ban. Justice Gorsuch emphasized a textual approach, because, he argued, considering state legislative purposes (in a field preemption analysis) and congressional purposes (in an obstacle preemption analysis) would be fraught with difficulties and uncertainties.

Justice Ginsburg wrote a concurring opinion, joined by Justices Sotomayor and Kagan. She agreed with Justice Gorsuch, but argued that "his discussion of the perils of inquiring into legislative motive sweeps well beyond the confines of this case, and therefore seems to me inappropriate in an opinion speaking for the Court, rather than for individual members of the Court." Moreover, "Virginia Uranium's obstacle preemption arguments fail under existing doctrine, so there is little reason to question, as Justice Gorsuch does, whether that doctrine should be retained."

Chief Justice Roberts dissented, joined by Justices Breyer and Alito. He argued that Virginia sought an end-run around the AEA by banning mining (which the AEA doesn't regulate), but for the purpose of banning milling and waste (which the AEA does regulate).

Thus, the question before us is whether, consistent with the AEA and our precedents, the Commonwealth may purport to regulate a non-preempted field (mining safety) with the purpose and effect of indirectly regulating a preempted field (milling and [waste]). That should have made for an easy case.

Under our AEA precedents, a state law is preempted not only when it "conflicts with federal law," but also when its purpose is to regulate within a preempted field.

June 17, 2019 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

High Court Affirms Separate Sovereigns Doctrine

The Supreme Court today upheld the "separate sovereigns" doctrine that permits, consistent with double jeopardy, the prosecution of the same person for the same criminal act under state and federal law.

The ruling means that both a state government and the federal government can prosecute the same person for the same crime without running afoul of the Fifth Amendment's prohibition on double jeopardy.

It also means that those subject to federal prosecution in the Mueller investigation can be prosecuted under state law. That's significant, because President Trump can't pardon someone for a violation of state law.

The ruling, Gamble v. United States, grew out of a federal felony-in-possession charge against Terance Gamble after he had been convicted of felony in possession under Alabama law. Gamble argued that the federal charge violated double jeopardy. The Court disagreed.

Justice Alito wrote for the Court, including Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Alito made it simple:

We start with the text of the Fifth Amendment. Although the dual-sovereignty rule is often dubbed an "exception" to the double jeopardy right, it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place. "[T]he language of the Clause . . . protects individuals from being twice put in jeopardy 'for the same offence,' not the same conduct or actions," as Justice Scalia wrote in a soon-vindicated dissent. And the term "'[o]ffense was commonly understood in 1791 to mean 'transgression,' that is, 'the Violation or Breaking of a Law.'" As originally understood, then, an "offence" is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two "offences."

The Court rejected Gamble's claim that the dual sovereignty doctrine contradicts the common-law rights that the Double Jeopardy Clause was originally understood to protect:

The English cases are a muddle. Treatises offer spotty support. And early state and federal cases are by turns equivocal and downright harmful to Gamble's position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns' laws--much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.

The Court also rejected his claim that "the Double Jeopardy Clause's incorporation against the states washed away any theoretical foundation for the dual-sovereignty rule," because "the premises of the dual-sovereignty doctrine have survived incorporation intact." "Incorporation meant that the States were now required to abide by this Court's interpretation of the Double Jeopardy Clause. But that interpretation has long included the dual-sovereignty doctrine, and there is no logical reason why incorporation should change it."

Justice Thomas wrote a concurring opinion and argued that "the Court's typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions--meaning decisions outside the realm of permissible interpretation--over the text of the Constitution and other duly enacted federal law." Justice Thomas argued that the Court's strong application of stare decisis to "demonstrably erroneous precedent" means that the Court is making the law, and impermissibly encroaching on the role of Congress in violation of the separation of powers. If there were any doubt, he singled out precedents under substantive due process as examples of "demonstrably erroneous precedent."

Justice Ginsburg dissented, arguing that "[t]he United States and its constituent States, unlike foreign nations, are 'kindred systems,' 'parts of ONE WHOLE'" and that "[w]ithin that 'WHOLE,' the Federal and State Governments should be disabled from accomplishing together 'what neither government [could] do alone--prosecute an ordinary citizen twice for the same offense.'"

Justice Gorsuch also dissented, arguing that "this 'separate sovereigns exception' to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history."

June 17, 2019 in Cases and Case Materials, Federalism, News, Opinion Analysis | Permalink | Comments (0)

SCOTUS: No State Action in First Amendment Challenge to Public Access Channel

In its divided opinion in Manhattan Community Access Corporation v. Halleck, a majority of the United States Supreme Court held that the actions of a private nonprofit corporation operating a public access television channel did not constitute sufficient state action warranting application of the First Amendment.

Recall that in the Second Circuit's divided opinion (2018), the majority concluded that the "public access TV channels in Manhattan are public forums and the MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal" of the complaint, thus reversing the district judge. Importantly, the public access channels are part of  Time Warner's cable system and Time Warner is a private company.  At the heart of the First Amendment claim are allegations that the Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content.  During oral argument the Justices grappled with the question of doctrines: whether general constitutional state action doctrine applied or whether public forum doctrine under the First Amendment applied or whether there is a convergence of the two doctrines. 

Writing for the majority, Justice Kavanaugh, joined by C.J. Roberts, and Justices Thomas, Alito, and Gorsuch, concluded that general constitutional state action doctrine was the threshold — and determinative — issue.  The Court rearticulated the applicable state action doctrine governing when a private entity can qualify as a state actor as limited to a few circumstances:

(i) when the private entity performs a traditional, exclusive public function (citing Jackson v. Metropolitan Edison Co. (1982));

(ii) when the government compels the private entity to take a particular action (citing Blum v. Yarestsky (1982);

(iii) when the government acts jointly with the private entity (citing Lugar v. Edmondson Oil Co. (1982)).

Interestingly, neither the majority nor dissenting opinion cited Edmonson v. Leesville Concrete Co. (1991), in which a six-Justice majority articulated a test for meeting the state action threshold when there was a private actor involved. 

Justice Kavanaugh's opinion focused on the first circumstance, and stressed that the requirement means that the government must have traditionally and exclusively performed the function.  Given that the relevant function was defined as the "operation of public access channels on a cable system," the Court had little difficulty in concluding that the requirement was not met under a "commonsense principle":

Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.

The majority further rejected the plaintiffs' argument that state action was present because New York City designated MNN to operate the public access channels and New York state heavily regulates public access channels. The majority stated, however, that even where there is a contract or monopoly, the private actor is not converted into a private actor into a state actor "unless the private entity is performing a traditional, exclusive government function."

The majority also rejected the plaintiffs' argument that the public access channels are the "property" of the state of New York rather than the property of the cable network (Time Warner) or of MNN itself. The majority found, however, that "nothing in the franchise agreements" suggests that the city "possesses any property interest" in Time Warner's cable system or in the public access channels operated by Time Warner.  The government could have decided to operate the public access channels itself, in which case that might be different, but that did not happen here.

Dissenting, Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, argued that the majority misconstrued the case before the Court and this case is actually "about an organization appointed to administer a constitutional public forum" and not simply "about a private property owner that simply opened up its property to others." For the dissenting Justices, when MNN accepted the contractual agency relationship, it "stepped into the City's shoes and thus qualifies as a state actor, subject to the First Amendment like any other."  The dissent argued that MNN was not simply a private actor that "simply sets up shop against a regulatory backdrop," but that it occupies its role because it was asked by New York City to do so, and was deputized by the city to administer the public access channels.  The dissent also argued that the requirement that the private actor be performing a traditional and exclusive function only applies when the "private actor ventures of its own accord into territory shared (or regulated) by the government." Otherwise, the doctor hired to provide medical care to state prisoners would not be a state actor, unlike the Court's unanimous holding in West v. Atkins (1988), because "Nobody thinks that orthopedics is a function 'traditionally exclusively reserved to the State.'"

The Court's divided opinion reveals an established political rift in state action doctrine and theory.  In the penultimate paragraph in Justice Kavanaugh's opinion for the majority, he writes:

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.

On the other hand, Justice Sotomayor for the four dissenting Justices concludes:

This is not a case about bigger governments and smaller individuals; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amendment, just as if the City had decided to run the public forum itself.

While the majority emphasizes that its decision is narrow and factbound, that does not make it any less misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our precedents, that private actors who have been delegated constitutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent.

Thus, while the decision seems narrow, it could be a harbinger of a narrowing of state action doctrine to release private entities that contract with the state from constitutional constraints unless the entities are performing a traditional and exclusive function of the government, even if the entities are "in the shoes" of the state.

June 17, 2019 in Federalism, First Amendment, Fourteenth Amendment, Opinion Analysis, State Action Doctrine, Supreme Court (US) | Permalink | Comments (0)

Monday, June 10, 2019

Court Says Federal Law Does Not Borrow State Labor Law on Outer Continental Shelf

The Supreme Court ruled today that federal law does not borrow state labor law on the Outer Continental Shelf. The unanimous ruling reverses the Ninth Circuit.

Given the unusual statutory provision at issue, and given the federal enclave status of the OCS, the ruling is quite narrow, based only on the particular statutory language, and does not say anything more general about the Court's preemption or federalism jurisprudence.

The case, Parker Drilling Management Services, Ltd. v. Newton, tested an unusual provision in federal law that applies to the OCS. That provision says that the laws of the adjacent state will apply to the OCS "[t]o the extent that they are applicable and not inconsistent with [federal law]." In other words, federal law applies on the OCS, and federal law borrows state law when it's "applicable and not inconsistent with" federal law.

So what happens when state law is more generous to workers than federal law? Does the state law apply (as it would under ordinary preemption analysis), or does the federal law apply?

A unanimous Supreme Court said that federal law applies. Justice Thomas, writing for the Court, noted first that the OCS is a federal enclave, where only federal law applies. (Remember, under the Act federal law borrows state law as its own.) He said that in that situation, ordinary preemption analysis doesn't apply; instead, the Court needs to determine what the phrase "applicable and not inconsistent" means in a location where the default is that only federal law applies.

Taken together, these provisions convince us that state laws can be "applicable and not inconsistent" with federal law under [the Act] only if federal law does not address the relevant issue. As we have said before, [the Act] makes apparent "that federal law is 'exclusive' in its regulation of [the OCS], and that state law is adopted only as surrogate federal law." [The Act] extends all federal law to the OCS, and instead of also extending state law writ large, it borrows only certain state laws. These laws, in turn, are declared to be federal law and are administered by federal officials. Given the primacy of federal law on the OCS and the limited role of state law, it would make little sense to treat the OCS as a mere extension of the adjacent State, where state law applies unless it conflicts with federal law. That type of pre-emption analysis is applicable only where the overlapping, dual jurisdiction of the Federal and State Governments makes it necessary to decide which law takes precedence. But the OCS is not, and never was, part of a State, so state law has never applies of its own force.

June 10, 2019 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Friday, June 7, 2019

Washington Supreme Court on Remand in Arlene's Flowers: No First Amendment Violation

In its unanimous opinion in State of Washington v. Arlene's Flowers, the Washington Supreme Court concluded there was no First Amendment infringement when the state found Arlene's Flowers violated the Washington Law Against Discrimination (WLAD), by refusing to sell wedding flowers to a same-sex couple.

Recall that in June 2018, the United States Supreme Court without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of its decision earlier than month in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n. Given the holding in Masterpiece Cakeshop that the Colorado Civil Rights Commission, or one specific commissioner, exhibited "hostility" to the cakemaker in that case, the Washington Supreme Court was now tasked with determining whether there was a similar hostility towards the religion of the florist in Arlene's Flowers, Baronnelle Stutzman, and if so, applying strict scrutiny.

Van_Gogh_-_Zwölf_Sonnenblumen_in_einer_Vase1The Washington Supreme Court, on page 2 of its 76 page opinion, proclaimed: "We now hold that the answer to the Supreme Court's question is no; the adjudicatory bodies that considered this case did not act with religious animus when they ruled that the florist and her corporation violated the Washington Law Against Discrimination . . . ." 

The Washington Supreme Court's lengthy opinion admittedly includes passages from its 2017 opinion which thoroughly discussed and applied the First Amendment standards, but it also carefully delves into the question of government hostility toward religion.  The court found irrelevant one contested incident involving the Attorney General of Washington which occurred after the Washington Supreme Court's 2017 opinion, noting that the issue was one of adjudicatory animus and not executive branch animus; any claim that there was selective prosecution lacked merit. The Washington Supreme Court also rejected Stutzman's claim that the scope of the injunction in the 2017 opinion mandated that Stutzman "personally attend and participate in same-sex weddings."

The Washington Supreme Court's opinion concludes that "After careful review on remand, we are confident that the courts resolved this dispute with tolerance, and we therefore find no reason to change our original judgment in light of Masterpiece Cakeshop. We again affirm the trial court's rulings."

It is a solid well-reasoned unanimous opinion, but given this hard-fought and well-financed litigation, it's likely that Arlene's Flowers will again petition the United States Supreme Court for certiorari.

image: Vincent Van Gogh, Twelve Sunflowers in a Vase, circa 1887, via.

June 7, 2019 in Courts and Judging, Family, Federalism, First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Recent Cases, Religion, Sexual Orientation, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)

Wednesday, May 22, 2019

New York and More Sue to Halt Trump's "Conscience Protections" in Health Care

The State of New York and a host of other states and cities yesterday filed suit in the Southern District of New York to halt the implementation of President Trump's "conscience protection" regulations for health-care providers.

We posted on the regs here. In short, they require health-care providers and state and local recipients of certain federal funds to permit employees to opt out of providing health services if they have a religious objection to those services.

New York's lawsuit follows San Francisco's, filed earlier this month.

The plaintiffs in the New York case allege that the regs exceed statutory authority, violate federal law, are arbitrary and capricious, and violate the Spending Clause, the separation of powers, and the Establishment Clause.

Plaintiffs focus on the expansive definitions in the new regs that sweep beyond the administration's statutory authority, and HHS's ability under the regs to cut off vast amounts of federal funding to states and local governments who do not comply with the "conscience protections." They allege that they'll be harmed in their ability to enforce their own laws (which, among other things, require health-care providers to provide certain services, irrespective of religious beliefs) and in their receipt of federal funds.

In a bit of what-goes-around-comes-around, the plaintiffs draw on the Court's ruling in NFIB v. Sebelius--the Medicaid expansion portion of the ruling--to argue that the sheer amount of threatened federal funds under the new regs turns the condition on federal funding for state and local governments (compliance with the "conscience protections") from pressure into compulsion, in violation of federalism principles. They also contend that the conditions are vague, and that the administration impermissibly imposed them without prior congressional action in violation of the separation of powers. (This latter point is based on HHS's apparent ability to withhold funds not authorized for withholding under existing federal law.)

May 22, 2019 in Cases and Case Materials, Congressional Authority, Establishment Clause, Executive Authority, Federalism, News, Separation of Powers, Spending Clause | Permalink | Comments (0)

Court Clarifies Preemption Standard in Pharmaceutical Failure-to-Warn Cases

The Supreme Court ruled on Monday that a drug manufacturer, in order to escape state-tort failure-to-warn liability, must show that "it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning." The Court also ruled that this was a legal question for a judge, not an evidentiary (factual) question for the jury.

The ruling clarifies the standard that the Court set for "impossibility" preemption cases ten years ago in Wyeth v. Levine. In that case, the Court held that in order to show that a drug manufacturer could not simultaneously comply with federal and state requirements on drug warning labels--and that federal law therefore preempted state law--the manufacturer had to show "clear evidence" that the FDA would not have approved a change to the drug label (even as state law required it). Lower courts had trouble with the "clear evidence" standard--what it meant, and who (judge or jury) should apply it. Monday's case, Merck Sharp & Dohme Corp. v. Albrecht, clarified things a little.

The issue pits the FDA's authority to approve the contents of drug-label warnings, or to say that a manufacturer cannot include certain warnings, against state tort standards that require warnings in order to avoid failure-to-warn liability. As the Court explained:

The central issue in this case concerns federal preemption, which as relevant here, takes place when it is "impossible for a private party to comply with both state and federal requirements." The state law that we consider is state common law or state statutes that require drug manufacturers to warn drug consumers of the risks associated with drugs. The federal law that we consider is the statutory and regulatory scheme through which the FDA regulates the information that appears on brand-name prescription drug labels.

The Court in Wyeth v. Levine held that a manufacturer had to show "clear evidence" that the FDA would not have approved a warning in order to demonstrate that it couldn't simultaneously comply with federal law (rejecting a warning) and state law (requiring it). The Court on Monday elaborated:

In a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning.

But the Court said that this isn't a traditional evidentiary or factual standard. Instead, it's a legal question, and it goes to the judge, not the jury. At bottom, then, a judge has to decide "whether the relevant federal and state laws 'irreconcilably conflic[t]."

This could be tough for manufacturers, given FDA labeling options. Under FDA regs there are at least two ways that a manufacturer might add a warning: through the FDA approval process; or through the "changes being effected" ("CBE") process, which allows a manufacturer unilaterally to strengthen a warning when there is "newly acquired information" about the drug (subject to later FDA review and approval). Moreover, the Court has been clear: the manufacturer bears ultimate responsibility for appropriate and sufficient warnings.

In this case, Merck went back and forth with the FDA on adding a warning about atypical femoral fracture to its label for Fosamax, an oral drug that slows the breakdown of old bone cells and thus helps postmenopausal women avoid osteoporotic fractures. Merck added a "precaution" about "low-energy femoral shaft fracture" through the FDA-approval process, but the FDA rejected Merck's request to cross-reference a longer discussion that focused on "the risk of stress fractures associated with Fosamax." (The FDA explained that "[i]dentification of 'stress fractures' may not be clearly related to the atypical subtrochanteric fractures that have been reported in the literature.") Merck added that change itself through the CBE process, but made no changes to the "Precautions" section of the label--the section at issue in this case.

On remand, then, the judge will have to apply the refined Wyeth v. Levine standard to these facts.

Justice Breyer wrote the majority opinion, joined by Justices Ginsburg, Sotomayor, Kagan, and Gorsuch.

Justice Thomas concurred, expressing his "skeptic[ism] that 'physical impossibility' is a proper test for deciding whether a direct conflict exists between federal and state law." Instead, he would look to a "logical contradiction" between the two.

Justice Alito, joined by Chief Justice Roberts and Justice Kavanaugh, concurred in the judgment only. He wrote to emphasize that Congress enacted legislation after Wyeth v. Levine that may bear on the preemption analysis, and to argue that the facts are somewhat more complicated than the majority opinion reflects. (Justice Alito dissented in Wyeth v. Levine. He was joined by Chief Justice Roberts and Justice Scalia.)

May 22, 2019 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Tuesday, May 21, 2019

Court Rules Native American Treaty Rights Didn't Expire when Wyoming Became a State

The Supreme Court ruled on Monday that Crow Tribe off-reservation hunting rights, established pursuant to a 1868 treaty with the United States, didn't expire when Wyoming became a state. The ruling affirms a more recent approach to determining when Native American treaty rights end (or not) upon a territory's statehood. It's also a victory for Tribe member Clayvin Herrera, who was charged and convicted by Wyoming state authorities for hunting in Bighorn National Forest (outside the Crow reservation) in the off-season and without a license.

The case, Herrera v. Wyoming, tested the durability of Crow Tribe members' off-reservation hunting rights (established pursuant to a 1868 treaty with the Untied States) in the wake of Wyoming's statehood. The state claimed that Tribe members no longer had off-reservation hunting rights (and therefore that it could prosecute Herrera for hunting in Bighorn, in Wyoming), because the treaty expired when Wyoming became a state. The Court disagreed.

Justice Sotomayor, joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch, held that the treaty did not expire upon Wyoming's statehood. The Court rejected its approach to the question in Ward v. Race Horse (1896) in favor of a later approach in Minnesota v. Mille Lacs Band of Chippewa Indians (1999). Race Horse held that treaty-based rights did not survive statehood, because (1) treaty-based hunting rights would mean that the state was not admitted on "equal footing" with existing states (because the state couldn't enforce hunting restrictions within its territory) and (2) there was no evidence in the treaty in that case that Congress intended the treaty right to continue in "perpetuity."

The Court said that Mille Lacs correctly determined that both of those reasons lacked merit. As to the first, "[l]ater decisions showed that States can impose reasonable and nondiscriminatory regulations on an Indian tribe's treaty-based hunting, fishing, and gathering rights on state land when necessary for conservation." Instead of drawing on equal footing, Mille Lacs said that Congress "must clearly express" its intent to abrogate Native American treaty rights. As to the second, Mille Lacs said that the Race Horse standard was too broad, "given that almost any treaty rights--which Congress may unilaterally repudiate--could be described in those terms." While Mille Lacs didn't overturn Race Horse, it severely undermined it.

In short, Mille Lacs

established that the crucial inquiry for treaty termination analysis is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied. Statehood is irrelevant to this analysis unless a statehood Act otherwise demonstrates Congress' clear intent to abrogate a treaty, or statehood appears as a termination point in the treaty.

Applying the Mille Lacs standard, the Court ruled that nothing in Wyoming's statehood act showed that Congress intended to end the treaty's hunting rights, or that the Crow Tribe would have understood it this way. The Court rejected Wyoming's argument that such intent was implied ("something that Mille Lacs forbids").

Finally, the Court ruled that Bighorn wasn't "occupied" for the purpose of the treaty (which allows off-reservation hunting only in "unoccupied" lands), because it's "free of residence or settlement by non-Indians." (According to the Court, this is how the Tribe would've understood "occupied" when it signed the treaty.)

The Court also rejected Wyoming's argument that Herrera was precluded from making this argument, because a Crow Tribe member made a similar argument, and lost, in an earlier Tenth Circuit case. The Court held that the law changed (because Mille Lacs came down since that Tenth Circuit ruling), and therefore Herrera's argument wasn't "issue precluded."

Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Kavanaugh, dissented. Justice Alito wrote that the Court's "interpretation of the treaty is debatable and is plainly contrary to [Race Horse], which construed identical language in a closely related treaty." He also argued that Herrera was issued-precluded from raising his argument, because the Tenth Circuit already ruled in the case referenced above.

May 21, 2019 in Federalism, News, Opinion Analysis | Permalink | Comments (0)

Monday, May 13, 2019

SCOTUS Holds States Immune from Private Suits in Other States' Courts

The Supreme Court ruled today in Franchise Tax Board v. Hyatt that states enjoy sovereign immunity from private suits in the courts of other states. The sharply divided ruling (5-4, along conventional ideological lines) overruled Nevada v. Hall and significantly extends state sovereign immunity.

The ruling means that states now cannot be sued by private parties in the courts of other states. It's a boon for the states--and a blow to anyone who wants to sue a state in another state's courts--although, as Justice Breyer noted in dissent, states routinely granted immunity to sister states, anyway--but as a matter of comity. Today's ruling constitutionalizes that practice.

The Court's opinion looks to "our constitutional structure" and the "historical evidence showing a widespread preratification understanding that States retained immunity from private suits, both in their own courts and in other courts." It is devoid of textual support--a curiosity, given the majority justices' otherwise focus on text and originalism as principal sources of constitutional construction.

Justice Thomas wrote for the Court, joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh. Justice Thomas wrote that "Hall's determination that the Constitution does not contemplate sovereign immunity for each State in a sister State's courts misreads the historical record and misapprehends the 'implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.'" He said that "[i]n short, at the time of the founding, it was well settled that States were immune under both the common law and the law of nations," and that "[t]he founding generation thus took as given that States could not be haled involuntarily before each other's courts." He wrote that the Eleventh Amendment (though not directly applicable to this issue) reaffirmed the earlier understanding that States enjoy immunity.

Justice Breyer dissented, joined by Justices Ginsburg, Kagan, and Sotomayor. Justice Breyer noted that preratification immunity of states was based on comity (that is, grace), not on legal obligation, and that states therefore could withdraw their recognition of another state's immunity "upon notice at any time, without just offense" (Quoting Justice Story in The Santissima Trinidad.) He wrote that Hall correctly concluded that ratification of the Constitution did not alter this comity-based immunity "in any relevant respect." Neither the Eleventh Amendment nor the Full Faith and Credit Clause (nor anything else in the text) required states to grant each other sovereign immunity, and "nothing 'implicit in the Constitution' treats States differently in respect to immunity than international law treats sovereign nations."

At any rate, I can find nothing in the 'plan of the Convention' or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority's arguments indicates that the Constitution accomplishes any such transformation.

Justice Breyer also argued that "stare decisis requires us to follow Hall, not overrule it."

May 13, 2019 in Cases and Case Materials, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Friday, April 26, 2019

Kansas Supreme Court Finds Fundamental Right to Abortion Under State Constitution

In its extensive opinion in Hodes & Nauser v. Schmidt, the Supreme Court of Kansas held that the right to abortion in protected under its state constitution and regulations of the fundamental right should be subject to strict scrutiny.

The per curiam opinion is exceedingly clear that the opinion rests on independent state constitutional grounds and that it is interpreting §1 of the Kansas state Constitution, adopted in 1859:  "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The court specifically finds that this provision creates judicially enforceable "natural rights" such as the right to "personal autonomy" to make decisions regarding our bodies, health care, family formation, and family life, including a woman's right to decide whether to continue a pregnancy.

Having held that the right to an abortion is encompassed within the fundamental right bodily autonomy, the Kansas Supreme Court held that strict scrutiny should apply, which the court articulated as prohibited the state from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.

At issue in the case is Kansas S.B. 95, passed in 2015, now K.S.A. 65-6741 through 65-6749, which prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."

The trial court had issued a preliminary injunction, which the Kansas Supreme Court upheld, but remanded the case for a fuller evidentiary hearing applying strict scrutiny.

Supreme-court

via & caption: Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall. 

In a concurring opinion, Justice Dan Biles argued that the majority should be more explicit in articulating how strict scrutiny should be applied in the abortion context, suggesting what "our state test should look like using an evidence-based analytical model taken from Whole Woman's Health v. Hellerstedt" (2016).  Justice Biles provided a very detailed roadmap that would be attractive to the trial court. Justice Biles also placed the decision within developments in state constitutional law on abortion:

It is also worth mentioning our court has not gone rogue today. By my count, appellate courts in 17 states have addressed whether their state constitutions independently protect a pregnant woman's decisions regarding her pregnancy from unjustifiable government interference. Of those, 13 have plainly held they do. [citations omitted].

The sole dissenting Justice of the seven Justices of the Kansas Supreme Court (pictured above) was Justice Caleb Stegall, who relied on numerous dissenting opinions in both the United States Supreme Court and Kansas Supreme Court. He began his opinion by stating "This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government." In essence, he considers the majority to be taking an activist stance. The majority opinion does devote more than a little attention to refuting and engaging with the dissent's arguments.

Because the case cannot be reviewed by the United States Supreme Court (given that the state's highest court decided it on the independent ground of its state constitution, unless it is argued it infringes on another constitutional right), subsequent constitutional law issues will be concentrated on what happens in the trial court and what might happen in other states. 

April 26, 2019 in Abortion, Courts and Judging, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)

Federal Judge Enjoins Texas anti-BDS Statute as Violative of First Amendment

In an opinion in Amawi v. Pflugerville Independent School District, United States District Judge for the Western District of Texas, Judge Robert Pittman, issued a temporary injunction against Texas Gov. Code § 2270.001 et seq., also known as Texas H.B. 89, passed in 2017.

HB 89 prohibits governmental entities from entering into contracts for goods or services unless the contract contains a written verification that the contractor does not and will not "boycott Israel." Texas essentially admitted HB 89 is targeted at participants in the BDS (boycott, divest, and sanction) movement which protests Israel's "occupation of Palestinian territory and its treatment of Palestinian citizens and refugees." The five plaintiffs —a speech pathologist contracting with a school district; a freelance writer, artist, interpreter, and translator contracting with a university; and three university students who would contract with high schools as debate tournament judges — refused to sign the required statement that they did not and would not boycott Israel.

Judge Pittman easily found that the plaintiffs had standing, that their claims were ripe, and that the action was not barred by Eleventh Amendment immunity.

On the merits of the First Amendment claims, Judge Pittman's careful and well reasoned opinion first concluded that the prohibition of a boycott was inherently expressive activity protected by the First Amendment. The parties had raised what Judge Pittman called "dueling precedents": NAACP v. Claiborne Hardware Co. (1992) and Rumsfeld v. FAIR (2006).  He concluded:

Claiborne, not FAIR, governs this case. Texas does not dispute that Plaintiffs’ boycotts are political; they support the BDS movement’s “dispute with the Israeli government’s policies.”  Claiborne deals with political boycotts; FAIR, in contrast, is not about boycotts at all. The Supreme Court did not treat the FAIR plaintiffs’ conduct as a boycott: the word “boycott” appears nowhere in the opinion, the decision to withhold patronage is not implicated, and Claiborne, the key decision recognizing that the First Amendment protects political boycotts, is not discussed.

Moreover, Judge Pittman stated, even if "it were generally true that boycotts are not inherently expressive, H.B. 89, by its terms, applies only to expressive boycotts," given the statutory definitions. Judge Pittman then rejected the arguments of Texas that exceptions to Claiborne were applicable.

Judge Pittman then found that the H.B. 89 was viewpoint and content discrimination, and was not government speech under Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015).  Applying the applicable standard of strict scrutiny, Judge Walker found that the asserted compelling governmental interests failed. Judge Pittman found two of the interests — prohibiting national-origin discrimination, and prohibiting state contractors from violating anti-discrimination principles — to essentially be not the actual interests underlying H.B. 89. Judge Pittman noted the statute does not refer to the "national origin" or "nationality" of individuals but to "the nation of Israel." Judge Pittman described the statute as being "underinclusive" in this way, providing examples of who would and would not be covered by the statute.  As to the third interest asserted by Texas — aligning the state's commercial interests with Israel because it is “one of the few democracies in the Middle East and an ally of the United States and this State" — Judge Pittman essentially found this was not compelling. Texas had argued that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” but Judge Pittman found that this was not an "incidental burden" on speech, but targeted specific speech directly.

Judge Pittman then proceeded to an analysis of the means chosen, although clearly stated that because "H.B. 89 is not justified by any compelling state interest, no amount of narrowing application will preserve it from constitutional attack. But even if Texas’s stated interests were the actual interests advanced by the statute—and even if they were compelling—the Court finds that H.B. 89 still sweeps too broadly."

Judge Pittman's extensive and detailed opinion then found that plaintiffs' additional First Amendment arguments — that the statute is an unconstitutional condition, that it was compelled speech, and that it was unconstitutionally vague — all had merit.

The constitutionality of anti-BDS statutes is being vigorously litigated and Judge Pittman's decision is sure to be appealed. The opinion's perspective on the popularity of anti-BDS statutes is quite interesting:

Twenty five states have enacted similar legislation or issued executive orders restricting boycotts of Israel, and Congress has declared its opposition to the BDS movement, see 19 U.S.C. § 4452. In Texas, only five legislators voted against H.B. 89.  Texas touts these numbers as the statute’s strength. They are, rather, its weakness. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette (1943).

[some citations omitted].

 

 

April 26, 2019 in Eleventh Amendment, Federalism, First Amendment, Opinion Analysis, Race, Speech, Standing | Permalink | Comments (0)

Tuesday, April 23, 2019

Third Circuit Upholds Philadelphia's Refusal to Refer Foster Children to Organizations that Discriminates on Basis of Sexual Orientation

In its opinion in Fulton v. City of Philadelphia, a unanimous panel of the Third Circuit affirmed the district court's denial of a preliminary injunction against Philadelphia for stopping its referral of foster children to organizations that discriminate on the basis of sexual orientation in their certification of foster parents.

Much of the litigation centers on Catholic Social Services (CSS) which will not certify same-sex couples, even those who are legally married to each other, as foster parents.  Once Philadelphia became aware of the CSS policy, through investigative reporting, the city eventually suspended foster care referrals to CSS in accordance with the city's nondiscrimination policy which includes sexual orientation.  The plaintiffs, including individuals about whom the Third Circuit had standing doubts, sued for a preliminary injunction, which the district judge denied after a three day hearing.  On appeal, the Third Circuit agreed that the plaintiffs had not demonstrated a likelihood of success on their First Amendment claims under the Free Exercise Clause, as well as the Establishment Clause and the Speech Clause.

Writing for the panel, Judge Thomas Ambro wrote that the Free Exercise Clause does not relieve one from compliance with a neutral law of general applicability, which the court found the nondiscrimination law to be.  Unlike Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission  and Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), there was no hostility towards religion evinced in the case.  As the court stated:

CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of  [Employment Division v. ] Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well. As the Intervenors rightly state, the “fact that CSS’s non- compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.”

On the Establishment Clause, Judge Ambro briefly concluded that there was no evidence that Philadelphia was attempting to impose its preferred version of Catholic teaching on CSS.

And in a similarly brief discussion of the free speech claim, Judge Ambro's opinion found there was no viable compelled speech claim or retaliation claim.

Finally, the Third Circuit opinion considered whether there was a possibly successful claim under Pennsylvania's RFRA statute and found that there was little chance of success on the merits, even given the higher standard of review.

This litigation has attracted much interest, with intervenors and amici, and the plaintiffs filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari in 2018, which was denied.  Another certiorari petition is almost sure to follow the Third Circuit's decision.

 

 

April 23, 2019 in Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0)

Friday, April 19, 2019

Ninth Circuit Rebuffs Government's Challenge to California's Sanctuary Laws

The Ninth Circuit ruled yesterday that the federal government was unlikely to succeed in its challenge to certain California "sanctuary" laws that protect undocumented immigrants from federal immigration enforcement. The ruling denies the government's motion for a preliminary injunction against these laws. At the same time, the court remanded one particular provision to the lower court for further consideration.

The ruling, while preliminary, is yet another blow to the federal government's efforts to clamp down on sanctuary jurisdictions.

The case, United States v. California, tested three of California's "sanctuary" provisions. The federal government argued that they violated the doctrine of intergovernmental immunity (which prohibits state governments from regulating the federal government) and that federal law preempted them. 

The first, AB 450, prohibits public and private employers in the state from providing consent to an immigration enforcement agent to enter any nonpublic area of their property and to review their employment records without a subpoena or warrant. It also requires employers to provide employees with a notice of inspection by an immigration agency within 72 hours of receiving the notice. The court rejected the government's intergovernmental immunity claim, because "AB 450 is directed at the conduct of employers, not the United States or its agents, and no federal activity is regulated." It rejected the obstacle-preemption argument, because the provision regulates the relationship between employers and their employees, not between federal immigration authorities and the employees they regulate, and therefore it "imposes no additional or contrary obligations that undermine or disrupt the activities of federal immigration authorities." 

The second, AB 103, requires the California attorney general to inspect "county, local, or private" detention facilities where immigrants are housed and to review the conditions of confinement, including the "standard of care and due process provided to" detainees, and "the circumstances around their apprehension and transfer to the facility." The court ruled that the government was unlikely to succeed on its intergovernmental immunity argument as to the provision's burdens that duplicated preexisting inspection requirements, including the due process provision. But it ruled that the government was likely to succeed as to the provision's excessive burdens that fell uniquely on the federal government (the requirement that the state ag examine the circumstances surrounding the apprehension and transfer of immigration detainees). The court ruled that the government was not likely to succeed on the merits of its preemption claim, because "California possesses the general authority to ensure the health and welfare of inmates and detainees in facilities within its borders," and the government failed to show that Congress intended to supersede this authority.

The final provision, SB 54, restricts law enforcement from cooperating with federal immigration authorities in immigration enforcement. The court held that the federal government's preemption claim runs headlong into the Tenth Amendment's anti-commandeering principle. That's because the federal government can't force the state or its officers into participating in federal immigration enforcement, even if "SB 54 may well frustrate the federal government's enforcement efforts." The court rejected the federal government's intergovernmental immunity argument, because accepting that claim "would imply that California cannot choose to discriminate against federal immigration authorities by refusing to assist their enforcement efforts--a result that would be inconsistent with the Tenth Amendment and the anticommandeering rule." Finally, the court ruled that SB 54 does not directly conflict with 8 U.S.C. Sec. 1373, which prohibits state and local governments from prohibiting their officers from communicating with federal immigration officials about the immigration status of any person.

April 19, 2019 in Courts and Judging, Federalism, News, Opinion Analysis, Preemption, Tenth Amendment | Permalink | Comments (0)

Tuesday, March 19, 2019

High Court Says Tribal Treaty Preempts State Fuel-Transportation Tax

The Supreme Court ruled today that a treaty between the United States and the Yakama Nation preempts Washington's tax on "motor vehicle fuel importer[s]" who bring fuel into the state by "ground transportation." The ruling in Washington State Dept. of Licensing v. Cougar Den, Inc. means that Washington can't apply its tax to Yakama Nation members who import fuel. 

The case pits a provision of the treaty against the state tax. The treaty provision reserves Yakamas' "right, in common with citizens of the United States, to travel upon all public highways," while Washington taxes "the importation of fuel, which is the transportation of fuel." The Court held, 5-4, that the treaty provision preempts the state tax. (Justice Gorsuch joined the progressives; the other four conservatives dissented.)

Justice Breyer wrote for a plurality that included Justices Sotomayor and Kagan. As to the tax, he wrote that it applies to transportation of fuel, and not just the possession of fuel, and thus implicated the treaty's right to travel. As to the treaty, he said that the the language "in common with citizens of the United States" was more than just an equality clause. (Mere equality would have meant only that Yakamas enjoyed the same right to travel as U.S. citizens, and not an especial right to travel to trade goods.) Justice Breyer wrote that prior Court decisions interpreting similar clauses in the treaty gave it broader sweep, and that this was based on the Yakamas' understanding of the treaty when it was signed. Moreover, he said that "the historical record adopted by the agency and the courts below indicates that the right to travel includes a right to travel with goods for sale or distribution." Finally, he wrote that imposing a tax on "traveling with certain goods burdens that travel." Putting the these points together, he concluded that the treaty provision preempts the state tax.

Justice Gorsuch wrote separately, joined by Justice Ginsburg, in a somewhat more muscular opinion--and one even more overtly favoring the Yakamas. In addition to making points similar to Justice Breyer's, he pointed out that the state court relied on factual findings from an earlier case as to the Yakamas' understanding of the treaty (which was broader than mere equality), and ruled that Washington was estopped from challenging those findings. He said that the findings were binding on the Court as well. Justice Gorsuch ended with this:

Really, this case just tells an old and familiar story. The State of Washington included millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.

Chief Justice Roberts, joined by Justices Thomas, Alito, and Kavanaugh, dissented. He argued that the state tax applied to possession of fuel, not to transportation, and therefore didn't implicate the treaty's right to travel at all. Justice Kavanaugh separately dissented, joined by Justice Thomas. He argued that the treaty's plain language only protected an equal right to travel, not an especial right to travel.

March 19, 2019 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Monday, March 18, 2019

SCOTUS Agrees to Hear Unanimous Jury Incorporation Challenge

The United States Supreme Court granted the petition for certiorari in Ramos v. Louisiana posing the question whether the right to a unanimous jury verdict is incorporated as against the states through the Fourteenth Amendment.

Recall that in McDonald v. City of Chicago (2010), in which a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause), Justice Alito writing for the plurality discussed the state of incorporation doctrine in some detail.  In footnote 12, Alito's opinion discussed the provisions of the amendments in the Bill of Rights that had been incorporated, providing citations, and in footnote 13, the opinion discussed the provisions that had not yet been incorporated, other than the Second Amendment then under consideration:

  • the Third Amendment’s protection against quartering of soldiers;
  • the Fifth Amendment’s grand jury indictment requirement;
  • the Seventh Amendment right to a jury trial in civil cases; and
  • the Eighth Amendment’s prohibition on excessive fines.

Just this term in February, the Court whittled this small list down to three, deciding unanimously in Timbs v. Indiana that the Eighth Amendment's prohibition on excessive fines is incorporated through the Fourteenth Amendment, following an oral argument in which some Justices expressed wonderment that the issue of incorporation was even arguable in 2018.

But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address.  That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict.  Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both theFederal Government and the States. See Johnson, supra, at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissenting); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trialguarantee, however it is to be construed, has identical application against both State and Federal governments.")

Thus, in Ramos v. Louisiana, the Court is set to address this "exception to the general rule" and decide whether jury unanimity is required in a criminal case in state court to the same extent as in federal court pursuant to the Fourteenth Amendment.

Lady-justice-jury[image via]

March 18, 2019 in Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Fundamental Rights, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Friday, March 15, 2019

Federal District Judge Dismisses Claims Against Trump Campaign for Disclosure of Information

In his opinion in Cockrum v. Donald J. Trump for President, Inc.,  Senior United States District Judge Henry Hudson of the Eastern District of Virginia dismissed the complaint by two contributors and a staffer of the democratic National Committee against the Trump Campaign.  The plaintiffs alleged that their personal information was "illegally obtained Russian intelligence operatives during the Russian hack of computer servers" belonging to the DNC, and then in a conspiracy with the Campaign and with WikiLeaks, emails with their personal information was released.

Judge Hudson's 35 page opinion first considered whether the plaintiffs claims were barred by the First Amendment as the Campaign argued, relying on Bartnicki v. Vopper (2001). Under Bartnicki, if a person lawfully obtains truthful information about a matter of public concern, the publication cannot be constitutionally punished. Judge Hudson distinguished Bartinicki because the complaint alleged that the information was not obtained legally but through a conspiracy with the Kremlin and WikiLeaks. Additionally, the private facts disclosed by the emails did not themselves have a public concern. Judge Hudson therefore concluded that, taking the allegations of the complaint as true, at this point the Campaign had no First Amendment protection.

However, Judge Hudson also ruled that the complaint failed to state a claim for relief in any of its counts.

For Count I, a claim that the Campaign violated 42 U.S.C. §1985(3), first enacted in 1871 and known as the Ku Klux Klan Act, Judge Hudson found that it was insufficient to allege that there was a "conspiracy to intimidate lawful voters from giving support or advocacy to electors for President and to injure citizens in person or property on account of such support or advocacy." The statute, Judge Hudson ruled, is remedial only and there must therefore be an allegation of a violation of a pre-existing constitutional right.  This right, Judge Hudson ruled, could only be a First Amendment right, which would therefore require state action.  The complaint did not contain sufficient allegations of state action, but instead stated that the Trump Campaign was a Virginia corporation. "Taking this fact to its logical conclusion, the Campaign is incapable of state action because it is a private entity," Judge Hudson wrote. Interestingly, this would similarly vitiate any action against the Ku Klux Klan as the Act originally intended to address.

Red_computer_mouseCounts II-IV sounded in tort, three for the tort of public disclosure or private facts and one for intentional infliction of emotional distress. On the state tort claims involving publication of private facts, Judge Hudson provided a detailed lex loci analysis to determine the "place of the wrong" and thus which state law should apply, an important point because many states do not recognize the tort of private disclosure of public facts. Ultimately, the court determined that the act of publication could not be determined and thus the law of the forum state should apply; but given that Virginia did not recognize a common law right to privacy, there was no claim stated. As to the claim for intentional infliction of emotional distress, Judge Hudson found that the allegations did not rise to the level of extreme and outrageous required by the tort.  The court dismissed the state tort law claims without prejudice.

The dismissal is a final order and it will be interesting to see if the plaintiffs appeal, especially on the §1985 claim.

March 15, 2019 in Elections and Voting, Federalism, First Amendment, Opinion Analysis, Speech, State Action Doctrine, Web/Tech | Permalink | Comments (0)

Thursday, March 14, 2019

New York Appellate Court Upholds Jurisdiction Over President in Zervos's Defamation Lawsuit

In its opinion in Zervos v. Trump, the Appellate Division, First Department of the New York State courts held that the lawsuit for defamation could proceed against the President while he is in office.

Recall that in March 2018, the New York state trial judge ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status. The trial judge decided that the holding of  the United States Supreme Court in its unanimous 1997 decision of Clinton v. Jones that then-President Clinton was subject to suit in federal court extended to state court.  Recall also that soon thereafter, the appellate division in New York denied President Trump's motion for a stay, in a summary decision, and likewise soon thereafter, the New York Court of Appeals (NY's highest court) dismissed the appeal by Trump on the ground that the order appealed from does not finally determine the action.

In today's divided decision, the appellate division reached the merits of the trial judge's opinion with the majority affirming the decision regarding the President's amenability to suit, and all five judges agreeing that there was a claim for defamation.

Writing for the majority of three judges, Judge Dianne Renwick concluded that the Supremacy Clause, Article VI, does not bar a state court from exercising jurisdiction. She rejected Trump's argument that because he is the "ultimate repository of the Executive Branch's powers and is required by the Constitution to always be in function" as being without support in the constitutional text or case law and conflicting with the fundamental principle that the United States is a "government of laws and not of men." After a detailed discussion of Clinton v. Jones, she stated that in short, the decision "clearly and unequivocably demonstrates that the Presidency and the President are indeed separable." She continued that "aside from the forum, plaintiff's case is materially indistinguishable from Clinton v. Jones," and noted that Congress had not acted to afford the President more protection, interestingly citing and quoting an article by the most recent Supreme Court Justice, Brett Kavanaugh.

The difference between the majority and the dissent is centered on footnote 13 of Clinton v. Jones:

Because the Supremacy Clause makes federal law "the supreme Law of the Land," Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are "faithfully executed," Art. II, § 3, may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here. Cf., e.g., Hancock v. Train, 426 U.S. 167, 178—179 (1976); Mayo v. United States, 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed.1988) ("[A]bsent explicit congressional consent no state may command federal officials ... to take action in derogation of their ... federal responsibilities")."

But as the majority opinion explains,

the cases cited in the footnote above suggest only that the Supreme Court was concerned with a state's exercise of control over the President in a way that would interfere with his execution of federal law (Hancock, 426 US at 167 [holding that the State of Kentucky could not force federal facilities in the State to obtain state permits to operate]; Mayo, 319 US at 441 [holding that a Florida state official could not order the cessation of a federal fertilizer distribution program]; but see Alabama v King & Boozer, 314 US 1 [1941] [holding that the State of Alabama could charge a tax on lumber that a federal government contractor purchased within the state for construction of an army base, where the federal government would ultimately pay the tax]).

The_Sword_of_Damocles _1812The difference between the majority and dissent centers on the possibility that a state court could hold the President in contempt.  For the majority, this is a "hypothetical concern" that is not presently before the court, noting also that contempt is unusual in all circumstances and state courts would be aware of the issue. For the dissent, on the other hand, although there is no reason to believe the President Defendant "would not cooperate in the litigation, there is no way to be absolutely certain that the court would not at some point have to take steps to protect its own legitimacy;" the contempt power would be a "sword of Damocles hanging over the President's head."

All judges agreed that Zervos stated a claim for defamation, rejecting Trump's claim that the statements were mere hyperbole and not pertaining to the plaintiff. Instead, he was clearly including Zervos in statements and his "flat-out denial of a provable, specific allegation against him concerning his own conduct, accompanied by a claim that the accuser was lying" is not rhetorical or a statement of opinion.

Presumably, the case will be heard on appeal by New York's highest court.

[image: Richard Westall, Sword of Damocles, 1812 via]

 

March 14, 2019 in Courts and Judging, Executive Authority, Executive Privilege, Federalism, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Upholds Santa Monica's Regulation on Home Rental Sites

The Ninth Circuit rebuffed federal preemption and First Amendment challenges by Airbnb and HomeAway.com to Santa Monica's regulations on vacation home rentals. The ruling means that Santa Monica's regs can stay in place, and gives a green light to other jurisdictions that similarly seek to regulate these services.

The case, HomeAway.com v. City of Santa Monica, involves Santa Monica's efforts to regulate the Internet vacation home-rental market. The city first prohibited all short-term home rentals of 30 consecutive days or less, except licensed "home-sharing" (rentals where residents remain on-site with guests). It later added four requirements for Internet hosting platforms for vacation rentals: (1) collecting and remitting "Transient Occupancy Taxes," (2) disclosing certain listing and booking information regularly, (3) refraining from completing any booking transaction for properties not licensed and listed on the City's registry, and (4) refraining from collecting or receiving a fee for "facilitating or providing services ancillary to a vacation rental or unregistered home-share." Under the ordinance, if a platform complies with these requirements, it's presumed to be in compliance with the law. Otherwise, violations carry a fine up to $500 or imprisonment for up to six months.

Airbnb and HomeAway.com sued, arguing that the requirements were preempted by the federal Communications Decency Act and violated free speech. The Ninth Circuit rejected these claims.

As to the CDA, the Ninth Circuit ruled that the regs didn't require the plaintiffs to act as a "publisher or speaker," which would have brought them within the CDA's immunity provision. (The CDA provides Internet companies immunity from certain claims and liability in order "to promote the continued development of the Internet and other interactive computer services.") The court said that Santa Monica's regs only prohibited the plaintiffs from processing transactions for unregistered parties, not to monitor third-party content. Moreover, it held that the regs didn't require the plaintiffs to remove third-party content (even if in practice the plaintiffs would). Finally, the court ruled that the regs "would not pose an obstacle to Congress's aim to encourage self-monitoring of third-party content," so wouldn't post an obstacle to congressional purposes under the Act.

As to the First Amendment, the court said that the ordinance doesn't regulate speech (it regulates conduct, a commercial exchange), it doesn't "singl[e] out those engaged in expressive activity," and "the incidental impacts on speech . . . raise minimal concerns."

March 14, 2019 in Cases and Case Materials, Federalism, First Amendment, News, Opinion Analysis, Preemption, Speech | Permalink | Comments (0)

Wednesday, February 20, 2019

SCOTUS Declares Excessive Fines Prohibition Incorporated As Against the States

In its unanimous opinion in Timbs v. Indiana, the United States Supreme Court held that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment. 

Recall that the oral argument heavily pointed toward this outcome. While there was some discussion during oral argument about the relationship between excessive fines and civil in rem forfeiture, the Court's opinion, authored by Justice Ginsburg, rejected Indiana's attempt to  "reformulate the question" to one focused on civil asset forfeitures. This was not the argument that the Indiana Supreme Court ruled upon. Moreover, the question of incorporation is not dependent on whether "each and every particular application" of a right passes the incorporation test, using as an example the Court's unanimous opinion in Packingham v. North Carolina (2017), in which the Court did not ask whether the First Amendment's "application to social media websites was fundamental or deeply rooted."

Magna_Carta_StampInstead, the Court clearly held that the "safeguard" of the Excessive Fines Clause of the Eighth Amendment is "fundamental to our scheme of ordered liberty" with "deep roots in [our] history and tradition," citing McDonald v. Chicago (2010), the Court's most recent incorporation case.  In an opinion of less that ten pages, Ginsburg discusses the Magna Carta, the English Bill of Rights after the Glorious Revolution, the inclusion of the Clause in colonial constitutions and in state constitutions at the time of the Fourteenth Amendment, the misuse of excessive fines in Black Codes, and the current inclusion of the provision in the constitutions of all 50 states.

Justice Thomas, in a concurring opinion longer than the Court's opinion, reiterates the position he articulated in McDonald v. Chicago that it should not be the Due Process Clause of the Fourteenth Amendment that is the vehicle for incorporation but the Privileges or Immunities Clause.  Justice Gorsuch writes a separate and very brief concurring opinion acknowledging that the appropriate vehicle for incorporation "may well be" the Fourteenth Amendment's Privileges or Immunities Clause, but "nothing in this case turns on that question." 

Given that this is a unanimous opinion, unlike McDonald in which Justice Thomas was necessary to the five Justice majority regarding the incorporation of the Second Amendment, the attempt to resurrect the Privileges or Immunities Clause carries little precedential weight.

Thus, now the only rights enumerated in the Bill of Rights that are not incorporated through the Fourteenth Amendment to the states are: the Third Amendment prohibiting quartering of soldiers, Fifth Amendment right to a grand jury indictment in a criminal case; and the Seventh Amendment right to a jury trial in civil cases.

February 20, 2019 in Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Thursday, February 14, 2019

Third Circuit Says State Liquor Control Board Gets Eleventh Amendment Immunity

The Third Circuit ruled that the Pennsylvania Liquor Control Board is entitled to Eleventh Amendment immunity from a suit for monetary damages by an employee who alleged that the PLCB discriminated against him in violation of the Equal Protection Clause. The ruling ends the case.

The case, Patterson v. PLCB, arose when a PLCB employee accused the Board of discriminating against him because of his race. The employee sued for monetary damages; the PLCB moved to dismiss under Eleventh Amendment immunity; and the district court dismissed the case.

The Third Circuit affirmed. The court ruled that the PLCB, an "independent" state agency, is entitled to Eleventh Amendment immunity under the circuit's three-part balancing test. The court said first that "the state is not legally responsible for adverse judgments, the PLCB can satisfy a judgment using revenue obtained from liquor sales, and the PLCB is responsible for its own debts"--weighing against immunity. Second, the court said that the state treats the Board as an arm of the state--the Board is separately incorporated, it has its own power to sue and be sued, it's immune from state taxes, and state law considers the Board an arm of the state--weighing in favor of immunity. Finally, the court said that the Board's governing structure and oversight by the state weigh in favor of immunity. On balance, the court held that the Board gets immunity.

February 14, 2019 in Cases and Case Materials, Courts and Judging, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)