Saturday, June 16, 2018
Maine became the first state this week to use ranked-choice-voting in a state-wide election. In addition to electing candidates in the primaries, Maine voters also voted in favor of a referendum favoring ranked-choice.
It may seem odd that voters both used ranked-choice and voted for it in the same election. (Wouldn't a vote for it usually precede a vote using it?) Here's why: The referendum was designed to undo legislation that postponed and repealed ranked-choice voting unless a constitutional amendment (allowing it) passed before December 1, 2021. The legislation, in turn, was enacted by legislative opponents of ranked-choice, who argued, among other things, that ranked-choice violated the state constitution.
That argument didn't come out of the blue. The state supreme court issued a non-binding advisory opinion earlier this year concluding that ranked-choice did, indeed, violate the state constitution. In short, the court said ranked-choice, with its multiple-rounds that might result in a candidate with a first-round plurality from losing the election (when there are three or more candidates), violated the state constitutional provisions that say that the winning candidate in an election is the person who receives a "plurality" of the vote. The court explained:
The Act, in contrast, provides for the tabulation of votes in rounds. Thus, the Act prevents the recognition of the winning candidate when the first plurality is identified. According to the terms of the Constitution, a candidate who receives a plurality of the votes would be declared the winner in that election. The Act, in contrast, would not declare the plurality candidate the winner of the election, but would require continued tabulation until a majority is achieved or all votes are exhausted. Accordingly, the Act is not simply another method of carrying out the Constitution's requirement of a plurality. In essence, the Act is inapplicable if there are only two candidates, and it is in direct conflict with the Constitution if there are more than two candidates.
The discrepancy between the Act and the Constitution is easily illustrated by the simplest of scenarios. If, after one round of counting, a candidate obtained a plurality of the votes but not a majority, that candidate would be declared the winner according to the Maine Constitution as it currently exists. According to the Act, however, that same candidate would not then be declared the winner.
Instead, the candidate, though already having obtained a plurality of the votes, would be subject to additional rounds of counting in which second, third, and fourth choices are accounted for and the lowest vote-garnering candidates are successively eliminated. Once those additional rounds are completed, a different candidate may be declared the winner--not because that second candidate obtained a plurality of the votes (which the first candidate had already obtained), but because that candidate obtained a majority of the votes after eliminating the other candidates by taking into account the second, third, and fourth place preferences, or because the ballots have been exhausted. In this way, the Act prevents the candidate obtaining a "plurality" from being named the winner unless and until multiple rounds of vote-counting have occurred.
(NB: The ruling is as interesting, or more, for its analysis of the court's power to issue advisory opinions in the context of Maine constitutional separation of powers.)
The ruling is merely advisory, however, and not binding. So there's no definitive say-so as to the constitutionality of ranked-choice voting in the state. Because the referendum removes the legislative barrier to ranked-choice in the absence of a constitutional amendment by December 2021, unless there's an actual and adversarial court case challenging ranked choice (and winning), we'll see it again in the next election, constitutional amendment or not.
Thursday, June 14, 2018
On its own motion, the New York Court of Appeals (NY's highest court) dismissed the appeal by Donald Trump in Trump v. Zervos.
From its decision list, the court's entire "opinion" reads:
On the Court's own motion, appeal dismissed,without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.
Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.
Motion for a stay dismissed as academic.
Recall that in May, the appellate division in New York denied President Trump's motion for a stay, in a summary decision. Recall that in March, the 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.
Petitioning the United States Supreme Court for a stay would be the next step if the president wants to halt the defamation lawsuit against him for as long as he is president. Otherwise, the case will proceed including presumably discovery which would mean a deposition of the president.
Monday, March 26, 2018
The Sixth Circuit ruled last week that Ohio's single-subject rule for ballot initiatives doesn't violate the First Amendment. The ruling upholds a state Ballot Board order requiring the plaintiffs to split their initiative--which includes one question on term limits for state supreme court justices and another to apply all laws "that apply to the people" of the state "equally to the members and employees of the General Assembly"--into two.
The case, Committee to Impose Term Limits v. Ohio Ballot Board, arose when the state Ballot Board rejected the plaintiffs' request to include a ballot question with two parts--one to impose term limits on Ohio supreme court justices, and the other to apply laws equally to members of the General Assembly. The Board ruled that state single-subject rule for ballot initiatives required the plaintiffs to split the questions. The plaintiffs sued, arguing that the Board's ruling violated the First Amendment.
The Sixth Circuit disagreed. The court rejected the plaintiffs' argument that the single-subject rule was a content-based restriction on speech and instead applied the Anderson-Burdick balancing test for "minimally burdensome and nondiscriminatory regulations." Under the balancing test, the court said that the single-subject rule amounted to only a minimal burden on the plaintiffs, but that it was justified by multiple state interests (avoiding confusion at the ballot box, promoting informed decision-making, preventing logrolling).
The ruling aligns with every other circuit that addressed the question post-Buckley v. Valeo.
Wednesday, March 14, 2018
The Supreme Judicial Court of Massachusetts ruled last week on the constitutionality of local grants going to church improvements under the state Anti-Aid Amendment. The ruling balances the interests behind the Anti-Aid Amendment, on the one hand, and the Free Exercise Clause under Trinity Lutheran, on the other, and comes out with a cautious thumb on the scale in favor of anti-aid.
The case, Caplan v. Town of Acton, arose when a local church applied for and received two grants of public funds for church improvements--one for a "Master Plan for Historic Preservation," covering several renovation and preservation projects on the facilities, and one for restoration and preservation of the church's religious-themed stained-glass windows. Taxpayers sued under the state private-attorney-general provision, arguing that the grants violated the state constitutional Anti-Aid Amendment. That Amendment prohibits the "grant, appropriation or use of public money . . . for the purpose of founding, maintaining or aiding any church, religious denomination or society."
Two questions came to the court. First, does the Anti-Aid Amendment categorically bar the grants, or are the grants subject to a three-factor test that the state uses for a companion provision in the Amendment? (A categorical bar would prohibit the grants without further inquiry, whereas the three-factor test could permit the grants if they met certain factors.) Next, if the three-factor test applies, do the grants satisfy it?
The court ruled that the Anti-Aid Amendment isn't categorical, and is instead subject to its three-factor test. (That test looks to whether a motivating purpose of each grant was to aid the church; whether the grant would have the effect of substantially aiding the church; and whether the grant avoid the risks of the political and economic abuses that prompted the passage of the Amendment.) The court gave three reasons: (1) because the three-factor test applies to a companion provision in the Amendment, it made sense to apply it to this provision, too; (2) the Amendment by its own terms requires a case-by-case analysis, which is consistent with a three-factor test (but not a categorical approach); and (3) a categorical approach "invites the risk of infringing on the free exercise of religion" under Trinity Lutheran. As to that last reason, the court said that the three-factor test allowed it to account for the Amendment without violating free exercise, Trinity Lutheran style.
As to the application of the test, the court ruled that the plaintiffs were likely to succeed in their challenge to the stained-glass window grant, but remanded the case on the "Master Plan" grant.
Two justices concurred, and one dissented, arguing in different ways how the Amendment and the grants stacked up against Trinity Lutheran.
Tuesday, January 9, 2018
The Sixth Circuit ruled today that voting rules on a proposed state constitutional amendment providing that the state constitution is not to be construed as protecting the right to abortion did not violate due process and equal protection. The ruling means that the state constitutional amendment can go into effect (although, given the federal right to abortion, it'll have no practical impact).
The case, George v. Hargett, arose when Tennessee voters approved an amendment to the Tennessee Constitution prohibiting construction of the state constitution to secure or protect the right to abortion or to require funding for abortion. Opponents of the measure sued, arguing that the voting rules for state constitutional amendments, found in Article XI, Section 3, of the state constitution, violated due process and equal protection.
Article XI, Section 3, provides:
if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.
The language is vague as to whether a vote must vote in both the gubernatorial election and on the amendment, or whether a voter could vote on the amendment without also voting in the gubernatorial election. (State practice said the latter.) So during the campaign, amendment supporters urged voters to vote for the proposed amendment, but not to vote in the gubernatorial election, in order to gain a numerical advantage. In contrast, amendment opponents urged voters to vote in both the gubernatorial election and on the amendment, in order to gain their own numerical advantage.
Tennessee voters voted in favor of the amendment. And for the first time in the state's history, the number of ballots cast on the amendment question exceeded the number of ballots in the gubernatorial election (reflecting the strength of the political campaign in favor of the amendment). This made the math easy: under Article XI, Section 3, the number of votes in favor of the amendment clearly exceeded half the number of total votes in the gubernatorial election.
Amendment opponents sued, arguing that Article XI, Section 3, under the prevailing interpretation, violated due process and equal protection. (They also argued for a different interpretation of Article XI, Section 3--that only those voters who also voted for governor could vote for the amendment--but the Sixth Circuit deferred to a final state court ruling that voters could vote on an amendment without also voting for governor.)
The Sixth Circuit rejected those claims. The court said that there was no due process violation, because no "voter's right to vote was burdened by government action." In short, the voting rules (set by the state court) allowed everyone to vote on the amendment, and counted all the votes on the amendment. The court said that there was no equal protection violation, because "[e]very vote cast--on the amendment and in the governor's race--was accorded the same weight."
The ruling ends the challenge and means that Tennessee's Constitution now contains a provision that prohibits an interpretation to secure or protect the right to abortion. But again: This'll have no practical effect on the right to abortion in the state, given the federal constitutional right to abortion.
Thursday, October 5, 2017
Check out the latest American Constitution Society Issue Brief, The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond, by Richard Briffault, Nestor Davidson, Paul A. Diller, Olatunde Johnson, and Richard C. Schragger. From the intro:
This Issue Brief canvasses the current wave of preemption and the primary legal theories that these state-local conflicts present, as well as claims that might arise as these battles continue. The Brief also explores other possibilities for strengthening home rule to advance progressive local policymaking at a moment when cities increasingly stand on the front lines of economic justice, civil rights, sustainable development, and so many other critical policy domains.
Thursday, September 21, 2017
The Seventh Circuit upheld Chicago's "puppy mill" ordinance, which limits the sources from which city-licensed pet stores may obtain certain pets for resale, against a challenge under the Illinois Constitution's home-rule provision and the federal dormant Commerce Clause. The ruling leaves the ordinance in place.
Chicago's ordinance says that pet retailers in the city "may offer for sale only those dogs, cats, or rabbits" obtained from an animal control or care center, pound, or kennel operated by local, state, or federal government or "a humane society or rescue organization." The ordinance means that pet stores can't get their animals from large, mill-style breeders. Chicago adopted the law in order to protect against the "economic and emotional burdens for pet owners and [the] financial costs on the City as owners abandon their physically or emotionally challenged pets or surrender them to the [city shelter]."
Two Chicago pet stores and a Missouri dog breeder sued, arguing that the ordinance exceeded Chicago's authority under the Illinois Constitution's home-rule provision and violated the federal dormant Commerce Clause.
The Seventh Circuit disagreed. As to the home-rule argument, the court said that the Illinois Constitution permits Chicago to regulate in an area, concurrently with the state, so long as the General Assembly doesn't "specifically limit" it or "specifically declare the State's exercise to be exclusive." Because state law doesn't restrict, but actually preserves, municipal power to regulate animal care and welfare, the court said that Chicago's ordinance doesn't exceed its home-rule authority.
As to the dormant Commerce Clause, the court said that it didn't even apply, because Chicago's ordinance doesn't discriminate against interstate commerce. The court ruled that circuit law said that a state or local law that doesn't discriminate on its face or in effect doesn't even implicate the dormant Commerce Clause. "No disparate treatment, no disparate impact, no problem under the dormant commerce clause." The court therefore declined to apply Pike balancing, and ruled that the ordinance easily satisfied the default rationality review.
Judge Hamilton dissented in part, arguing that the court should have applied Pike balancing, because Dep't of Revenue of Kentucky v. Davis and United Haulers Ass'n v. Oneida-Herkimer Solid Waste clarified that "even nondiscriminatory burdens on commerce" are subject to Pike balancing and "may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice." Judge Hamilton also argued that the majority applied an overly rigid pleading standard by not crediting the plaintiffs' allegations in the complaint that Chicago's ordinance would disparately impact out-of-staters.
Wednesday, April 12, 2017
Aramis Ayala, the State Attorney for Florida's Ninth Judicial Circuit, filed suit yesterday against Governor Rick Scott over Scott's effort to remove Ayala from 23 pending homicide cases. Scott issued a series of executive orders purporting to transfer the cases to a neighboring state attorney after Ayala announced that she would not seek the death penalty in some of those cases.
Ayala's lawsuit raises state constitutional separation-of-powers issues, pitting the independently-elected State Attorney's authority to prosecute cases within her jurisdiction against the Governor's authority to execute the law.
In particular, Ayala argues in her state supreme court writ of quo warranto that Scott's executive orders violate the state attorney's power to prosecute all cases in that circuit. Article V, Section 17 of the Florida Constitution provides that the state attorney for each judicial circuit "shall be the prosecuting officer in all trial courts in that circuit." The constitution contains two exceptions, but neither applies. Ayala argues that Scott's executive orders violate the provision vesting her office alone with prosecutorial authority within her district.
Ayala also claims that the governor's constitutional powers to "take care that the laws be faithfully executed" and "supreme executive power" don't authorize his actions, because the Florida Constitution specifically allotted her powers in Article V, Section 17.
Finally, Ayala contends that Scott's moves violate functional separation of powers. Drawing on Florida's strict separation clause ("No person belonging to one branch of government shall exercise any powers appertaining to either of the other branches unless expressly provided herein."), Ayala says that Scott's executive orders infringe on her role as a quasi-judicial officer and on the state judiciary itself:
Here, Scott has purported to remove Ayala entirely from the cases that his orders apply to. So under the Governor's orders, not only would Ayala not decide whether to seek the death penalty here, she also would not participate in other crucial aspects of the case, including ensuring compliance with Brady v. Maryland, safeguarding a fair trial, and considering the interests of the victims and the public. Those latter functions are precisely those that an independent judiciary protects and that the executive may not meddle in.
Thursday, February 16, 2017
In its unanimous opinion in State v. Arlene's Flowers, the Supreme Court of Washington upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding.
The owner of Arlene's Flowers argued that the anti-discrimination statute was not applicable to her and if it did, it violated her constitutional rights of free speech, free exercise, and free association under the First Amendment as well as under the Washington state constitution.
On the First Amendment claims, the court found that Arlene's Flowers argument regarding compelled speech failed because the owner's flower arranging did not meet the threshold of expression. The court relied on Rumsfeld v. FAIR to hold that the owner's
decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As [she] acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. [She] also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need." Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock.
The court rejected the applicability of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1985), as well as a litany of other United States Supreme Court cases regarding this threshold of expression. In essence, the court emphasized that it was the sale of all flowers from her shop rather than any particular floral arrangement that was at issue in the case.
On the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
However, the analysis of free exercise under the Washington state constitution, article I §11 was not so simple because Washington has not always adopted the Smith standard when reviewing claims under its state constitution. Nevertheless, the court found that even subjecting the Washington anti-discrimination law to strict scrutiny, the statute survives. The court "emphatically" rejected the claim that there was no compelling interest of the state in flowers for weddings: the "case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."
Finally, the court rejected Arlene's Flowers' argument regarding free association, noting that all of the cases upon which she relied were not businesses. As to the business itself, the court also upheld a finding of personal liability of the owner, the person who had refused service.
The United States Supreme Court has denied petitions for writ of certiorari in similar cases, but it is highly likely that a petition for certiorari will follow, especially given the nomination of Neil Gorsuch to the Court.
February 16, 2017 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Speech, State Constitutional Law | Permalink | Comments (0)
Wednesday, December 21, 2016
In its unanimous opinion in Burns v. Cline, the Oklahoma Supreme Court held state SB 1848, a law restricting abortion, unconstitutional.
SB 1848 had similar requirements as the challenged Texas bill HB2, which the United States Supreme Court ruled unconstitutional in Whole Woman's Health v. Hellerstedt in June. Oklahoma’s bill, like Texas’ HB2, had an admitting privileges provision that required all abortion facilities, on any day an abortion was being administered, to have a doctor at the facility equipped with admitting privileges at a hospital within 30 miles. Additionally, the bill had twelve other regulations on abortions providers, including standards for supplies, equipment, training, screenings, procedures (both pre and post op), and record keeping. Certain violations of these standards implicated felony and civil penalties.
The Oklahoma Supreme Court cited Whole Woman’s Health v. Hellerstedt extensively, explaining that every woman has a constitutionally protected right to terminate a pregnancy pre-viability, and that laws that impose an undue burden on that right are unconstitutional. The court also elucidated that a law seeking to protect women’s health while actually impeding on the right cannot withstand constitutional review.
The court relied on the plaintiff doctor, outlining Burns’ 41 years of private practice experience and the singular time he had to call an ambulance for a patient over the course of that tenure. The court also considered Burns’ application to 16 different hospitals for admitting privileges. Burns was either rejected because his medical specialty does not have recognized board certification, or because he was unable to meet a requirement of admitting at least 6 patients per year. The court noted that his exemplary record was the blockade to his access to the 6 in-patient requirement.
SB 1848 would have closed Burns’ clinic or subject him to civil penalties if it remained open. SB 1848 would have rendered Oklahoma with only one operable abortion provider for the entirety of the state. Because of this, the Oklahoma Supreme Court found this an unconstitutional undue burden under both Hellerstedt and Casey. The court rejected the state’s argument that this bill advanced women’s health under the reasoning from Hellerstedt. Of note was the court’s reference to the Oklahoma State Medical Association, as well as various expert testimony and data points laid out in Hellerstedt, that explained both the safety of an abortion and the lack of safety for patients should these bills withstand constitutional review.
The Oklahoma Supreme Court also rejected the bill under the Oklahoma Constitution single subject rule. SB 1848 created 12 unrelated provisions against abortion providers, imposing major penalties on providers should the regulation be unheeded. The state argued that because all of the regulations were in some way related to abortion, they were not averse to the single subject rule. The Supreme Court of Oklahoma rejected this reasoning, stating that the legislation’s multiple sections were not “germane, relative and cognate” to a common purpose.
The most obvious importance of this case is its strict adherence to the undue burden standard outlined in Hellerstedt. But importantly, the court's rationale regarding the state constitutional standards for omnibus bills is likely to have a heavy impact.
[with assistance from Juliet Critsimillos, CUNY School of Law]
Friday, July 22, 2016
Alaska Supreme Court Holds Parental Notification Law Violates State Constitution's Equal Protection Clause
In its opinion in Planned Parenthood of the Great Northwest v. State of Alaska, the Alaska Supreme Court held unconstitutional the 2010 voter-enacted Parental Notification Law which required 48-hour advance parental notice before a physician may terminate a minor’s pregnancy, but importantly not before a physician could provide other care. The court's majority opinion, authored by Justice Daniel Winfree, found that the Parental Notification Law violates the Alaska Constitution’s equal protection guarantee by unjustifiably burdening the fundamental privacy rights only of minors seeking pregnancy termination, rather than applying equally to all pregnant minors.
Although explicitly under the state constitution, the court's equal protection analysis is a familiar one and executed with great precision. The court first identifies the classification - - - pregnant minors seeking termination and pregnant minors seeking to carry to term - - - and then identifies the level of scrutiny; because the right at stake is the fundamental one of reproductive choice is strict scrutiny. Applying the level of scrutiny, the court then examined the state's interests and the means chosen to effectuate those interests.
The court noted that to "justify differently burdening fundamental privacy rights, the State’s interests in doing so must be compelling," and that the State asserts two main interests as justifying the Notification Law’s disparate treatment of pregnant minors: (1) “aiding parents to fulfill their parental responsibilities” and (2) “protecting minors from their immaturity.” The court accepted that these were compelling interests, even as it refined the immaturity interest because "immaturity in and of itself is not a harm." Instead, the court defined the interest in “protecting minors from their immaturity” as "protecting minors from specific pitfalls and dangers to which their immaturity makes them especially susceptible" which in this case would be risks to mental and physical health and from sexual abuse.
The problem arose - - - as it so often does in equal protection - - - with the "fit" between the state's chosen means to effectuate its interests. As to the parental responsibility interest:
We conclude that vindicating the State’s compelling interest in encouraging parental involvement in minors’ pregnancy-related decisions does not support the Notification Law’s disparate treatment of the two classes of pregnant minors. Parents do have an “important ‘guiding role’ to play in the upbringing of their children.” We have said that “it is the right and duty, privilege and burden, of all parents to involve themselves in their children’s lives; to provide their children with emotional, physical, and material support; and to instill in their children ‘moral standards, religious beliefs, and elements of good citizenship.’ ” But as the State acknowledged at oral argument, this must be true for all pregnant minors’ parents, not just those whose daughters are considering termination.
[footnotes omitted; emphasis added]. Similarly, regarding the minor's immaturity, the court concluded that the statute suffered from being
under-inclusive because the governmental interests asserted in this case are implicated for all pregnant minors — as they face reproductive choices and as they live with their decisions — and the asserted justifications for disparate treatment based upon a minor’s actual reproductive choice are unconvincing.
One of the complicating legal issues of the case was the effect of a previous decision regarding a parental consent law, which the concurring opinion argued precluded an equal protection analysis. Instead, the concurring opinion argued that the 2010 statute was unconstitutional under the state constitution's privacy provision.
One of the five Justices of the Alaska Supreme Court dissented, arguing that the 2010 Parental Notification law violated neither equal protection nor privacy and was thus constitutional.
As the majority opinion notes, other states have similarly found state constitutional infirmities with parental notification laws. The Alaska opinion, however, is particularly well-reasoned and applicable to many state constitutions.
July 22, 2016 in Abortion, Cases and Case Materials, Due Process (Substantive), Equal Protection, Family, Gender, Medical Decisions, Privacy, Sexuality, State Constitutional Law | Permalink | Comments (5)
Saturday, May 7, 2016
The continuing saga of the controversial Chief Justice of the Alabama Supreme Court, Justice Roy S. Moore, has taken another turn with a complaint against him filed by the Judicial Inquiry Commission of the State of Alabama, in the special Court of the Judiciary. [While the entire complaint is almost 300 pages, more than 250 pages are devoted to the 17 appendixes of supporting documents including opinions and letters].
As the complaint notes, this is not the first time that Justice Roy Moore has been before the Court of the Judiciary: the court removed him from office in 2003 for violation of the Alabama Canons of Judicial Ethics for failure to obey an injunction from a federal district court. (He was re-elected in 2013.) While that earlier controversy revolved around the placement of the Ten Commandments in the courthouse, the present one concerns Justice Moore's actions on same-sex marriage. As the complaint summarizes it, Chief Justice Moore's pertinent conduct "involves the interplay of four cases":
- Searcy v. Strange, before the federal district court, finding Alabama's same-sex marriage ban unconstitutional in January 2015;
- Strawser v. Strange, before the federal district court, reiterating the previous finding and making a direct order in February 2015, after the United States Supreme Court had refused to grant a stay of the earlier Order.
- Obergefell v. Hodges, decided by the United States Supreme Court and requiring states to grant same-sex marriages;
- Ex parte State ex rel Alabama Policy Institute (API) (March 2015), and the certificate of judgment and dismissal of petitions on March 4, 2016.
The complaint gives a good chronology of the various events which have been contentious. As we previously noted, the Southern Poverty Law Center filed a judicial ethics complaint after Chief Justice Moore penned a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order on same-sex marriage.
One of the more interesting aspects of the ethics charges is this:
On January 6, 2016—despite the United States Supreme Court's ruling in Obergefell, despite the United States District Court's injunction against all Alabama probate judges that specifically enjoined them from obeying any contrary order of the Alabama Supreme Court, and despite the Eleventh Circuit's October 20, 2015 order recognizing the abrogation of API by Obergefell—Chief Justice Moore, under the guise of his administrative authority as Chief Justice, unilaterally issued an Administrative Order to all probate judges that they continue to have a ministerial duty under API to enforce the Alabama marriage laws against same-sex couples. His Administrative Order states in part:
IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.
[paragraph 38]. In paragraph 3, the complaint stated "Significant to the context of this matter is that the vast majority of probate judges in this state are not licensed to practice law." However, the probate judges would be bound by the Canons of Judicial Ethics; the complaint alleges that Moore "flagrantly disregarded and abused his authority as chief administrative officer of Alabama's judicial branch by "ordering or appearing to order" the probate judges not to obey the federal district court's injunction and thus ordering the probate judges to commit violations of the Canons of Judicial Ethics "knowingly subjecting them to potential prosecution and removal from office."
Thus, it is not only Moore's own refusal to abide by federal interpretations of the United States Constitution, but his ordering of subordinates to do so that are included in the six specific charges against him, all of which involve alleged violations of Canons 1, 2, and 3 of the Alabama Canons of Judicial Ethics, which, broadly stated are:
- Canon 1. A judge should uphold the integrity and independence of the judiciary.
- Canon 2. A judge should avoid impropriety and the appearance of impropriety in all his activities.
- Canon 3. A judge should perform the duties of his office impartially and diligently.
Chief Justice Moore has reportedly been suspended, pending the decision of the Alabama Court of the Judiciary, which is composed of judges, lawyers, and lay persons, and has the power to remove the Justice. Interestingly, appeal from the Alabama Court of the Judiciary is to Supreme Court of Alabama.
May 7, 2016 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, State Constitutional Law, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Thursday, April 14, 2016
In its opinion in Vergara v. California today, the Court of Appeal for the Second Appellate District of California reversed the conclusion of Los Angeles Superior Court Judge Rolf Treu that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education. California's so-called teacher tenure statutes challenged in the action are provisions of California's Education Code governing teacher employment, including the permanent employment statute (§44929.21(b)); dismissal statutes (§§ 44934; 44938(b)(l) and (2) and 44944); and a seniority statute, "Last In First Out" or "LIFO" statute (§44955).
In a nutshell, the appellate court found:
Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.
The appellate court implied that the trial judge had misconstrued his constitutional task:
With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.” (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 388.) Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts. Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.
The appellate court's 36 page opinion contains a careful rehearsal of the evidence before the trial judge as well as a discussion of his opinion. In its own analysis, the appellate court considered the plaintiffs' original contentions that:
the challenged statutes create an oversupply of grossly ineffective teachers because (i) the tenure statute’s probationary period is too short, preventing the identification of grossly ineffective teachers before the mandated deadline for reelection; (ii) when grossly ineffective tenured teachers are identified, it is functionally impossible to terminate them under the overly burdensome and complicated dismissal statutes; and (iii) when reductions-in-force are required, the statute requires the termination of junior, competent teachers while more senior, grossly ineffective teachers keep their jobs only because they have seniority. Plaintiffs argued, and the trial court agreed, that two distinct classes of students—Group 1 (an “unlucky subset” of students within the population of students at large) and Group 2 (poor and minority students)—were denied equal protection because the challenged statutes led members of these groups to be assigned to grossly ineffective teachers.
The unanimous panel found that there was no "identifiable class" for equal protection purposes: the group of "unlucky students" who are allegedly harmed by being assigned to grossly ineffective teachers have only one defining characteristic - - - they are assigned to grossly ineffective teachers. As for the second group - - - identified as poor and minority students - - - the appellate court found that there was insufficient causation for a facial constitutional violation: "the statutes do not differentiate by any distinguishing characteristic, including race or wealth." While it is possible, the appellate court noted, that the plaintiffs could have shown that the implementation of the statutes inevitably resulted in "consequential assignment of disproportionately high numbers of grossly inefficient teachers to schools predominantly serving low-income and minority students," the plaintiffs here did not make such a showing.
While the appellate court recognized there were "deplorable staffing decisions made by some local administrators," this was not sufficient to support a facial challenge to teacher tenure statutes.
The appellate decision is much better reasoned than the trial judge's opinion, which derided the "uber due process" provided by the statutes and did not elaborate on the facts and evidence. It is likely to stand.
Thursday, March 24, 2016
The Illinois Supreme Court today issued two opinions on state constitutional provisions as they relate to public employees' compensation. One went for the employees; the other went for the state.
In the first, Jones v. Municipal Employees' Annuity and Benefit Fund of Chicago, the court ruled that the state's effort to cut back on promised annuity payment increases under public-sector union contracts violated the state constitutional Pension Protection Clause. The case involved Public Act 98-641, which would have, among other things, cut the flat annual annuity increases under the contract in order to bring the funds back to solvency. Union members sued, arguing that the provision violated the state constitution's Pension Protection Clause, which says: "Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired."
The court agreed. It said that the Clause means what it says--"shall not be diminished" really means "shall not be diminished"--and that Public Act 98-641 therefore violates it. The court rejected the state's arguments that the Act, when read as a whole, actually provides a net benefit to members and that the Act was part of a bargained-for exchange supported by consideration.
While Jones is a win for public employees, the other case, State of Illinois v. AFSCME, most certainly is not. In AFSCME, the state legislature failed to fund a promised 2-percent raise for certain government employees, even though that raise itself was a concession by those employees, who were entitled to a 4-percent raise under their contract. (In order to meet the state's fiscal crisis, the union and state agreed to a 2-percent raise on schedule, and a later, additional 2-percent raise, for a total of 4 percent--the contractual amount.) AFSCME took the case to an arbitrator and won, but the court reversed. The court said that the state constitutional Appropriations Clause overrode the agreement. That Clause reads: "The General Assembly by law shall make appropriations for all expenditures of public funds by the State." Moreover, an Illinois statute qualifies all public-sector collective bargaining with this language: "Subject to the appropriation power of [the legislature] . . . ." The court said that the Appropriations Clause and Illinois law together mean that the legislature can effectively override a promised contractual raise by failing to fund it.
Justice Kilbride dissented on this point. He argued that the legislature's failure to fund the 2-percent raise constituted a violation of the state constitution's Contract Clause.
Friday, January 22, 2016
Kansas Appellate Court Affirms Finding That Kansas's "Dismemberment Abortion Act" is Unconstitutional under State Constitution
The Kansas Court of Appeals, the intermediate appellate court, has found that the Kansas Constitution includes a due process right applicable to abortion and that the Kansas Unborn Child Protection from Dismemberment Abortion Act (SB95) violates that right in its opinion by Judge Steve Leben in Hodes & Nauser v. Schmidt.
Before the discussion of the constitutionality of the Act, there were some preliminary - - - and unusual - - - issues, including some noteworthy matters of procedure. Unusually, the Court of Appeals heard the case en banc rather in a panel of three. And presumably also unusual, the judges were "equally divided, seven voting to affirm the district court and seven voting to reverse." Thus, the trial court's ruling granting a preliminary injunction against the Act was affirmed.
Additionally, there were some state constitutional law issues. Importantly, the plaintiffs' argument that the Act is unconstitutional rests solely on the state constitution. As the Leben opinion stated, this was a case of first impression and a "plaintiff has the procedural right to choose the legal theories he or she will pursue; we cannot force the plaintiffs here to choose another legal avenue.") But the Kansas State Constitution does not include a due process clause - - - or even the words "due process" - - - unlike the United States Constitution's Fifth and Fourteenth Amendments, in which the right to an abortion has been anchored. Instead, plaintiffs argued, and the court found, that §1 and §2 of the Kansas Constitution Bill of Rights include a due process right despite their explicit language:
§ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.
§ 2. Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.
Judge Leben's finding was based in large part on previous decisions of the Kansas Supreme Court. Where the dissent differed was not on the matter of due process as a general matter but on the specific inclusion of "abortion." Indeed, as Judge Leben's opinion admitted "What the Kansas Supreme Court has not yet done is apply substantive-due-process principles in a case involving personal or fundamental rights, like the right to contraception, the right to marry, or the right to abortion." But as Judge Leben's opinion noted, "the Kansas Supreme Court has explicitly recognized a substantive-due- process right under the Kansas Constitution and has applied a substantive-due-process legal standard equivalent to the one applicable under the Fourteenth Amendment at the time of these Kansas decisions." This past practice was an embrace of the present, and Judge Leben's opinion interestingly quotes the Court's recent opinion by Justice Kennedy Obergefell as well as opinions from the Kansas Supreme Court. Judge Leben nicely sums up the position:
The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state's constitution in 1859.
Having decided that the Kansas constitutional text merits a co-extensive interpretation with the federal constitution, Judge Leben's opinion for the Kansas Court of Appeal does not rest on "adequate and independent state grounds" under Michigan v. Long. Judge Gordon Atcheson's extensive and scholarly concurring opinion makes the case that §1 of the Kansas Bill of Rights provides "entirely separate constitutional protection without direct federal counterpart" for abortion and that such protection is greater under the Kansas state constitution than under the Fourteenth Amendment.
Under the co-extensive interpretation, Judge Leben's opinion thus confronted the constitutionality of the Kansas Act under the substantive due process "undue burden" standard. This entailed an application of the disparate Carhart cases: Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007). In Stenberg, the Court concluded Nebraska's so-called "partial-birth abortion" statute was unconstitutional; in Gonzales, the Court concluded that the federal so-called "partial-birth abortion" statute was constitutional.
The Judge Leben opinion distinguished Gonzales:
But the circumstances here are quite unlike Gonzales. There, the Court considered a ban on an uncommon procedure and noted that the most common and generally safest abortion method remained available. Here, the State has done the opposite, banning the most common, safest procedure and leaving only uncommon and often unstudied options available.
Interestingly, Judge Atcheson's concurring opinion responded to the Justice Kennedy's language in Gonzales and the language of the Kansas Act:
The State's remaining argument rests on the unaesthetic description of a D &E abortion contained in Senate Bill 95 and in Gonzales v. Carhart (2007). But aesthetics really cannot justify legislative limitations on safe medical procedures. The lack of justification is even more pronounced when the procedure is integral to a woman's constitutional right to self-determination and reproductive freedom. The government cannot impose upon an essential right because some exercise of the right may be unaesthetic or even repulsive to some people. That's all the more true when those people needn't see or participate in the protected activity.
The dissenting opinion concludes that there is "nothing in the text or history of §§1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion."
This matter is surely going to the Kansas Supreme Court, as Judge Leben's opinion for the Kansas Court of Appeals acknowledged. Rendered on the 43rd anniversary of the United States Supreme Court's decision in Roe v. Wade and as the Court prepares to consider its first abortion case in 8 years, Whole Woman's Health v. Cole, the Kansas Court of Appeals evenly split decision exemplifies how divided opinion on this issue can be.
January 22, 2016 in Abortion, Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Gender, International, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)
Monday, January 18, 2016
On this Martin Luther King Day, the 2016 Presidential Proclamation includes attention to the continuing quest for educational equality:
Today, we celebrate the long arc of progress for which Dr. King and so many other leaders fought to bend toward a brighter day. It is our mission to fulfill his vision of a Nation devoted to rejecting bigotry in all its forms; to rising above cynicism and the belief that we cannot change; and to cherishing dignity and opportunity not only for our own daughters and sons, but also for our neighbors' children.
We have made great advances since Dr. King's time, yet injustice remains in many corners of our country. In too many communities, the cycle of poverty persists and students attend schools without adequate resources -- some that serve as a pipeline to prison for young people of color. Children still go to bed hungry, and the sick go without sufficient treatment in neighborhoods across America. To put up blinders to these realities or to intimate that they are inherent to a Nation as large and diverse as ours would do a disservice to those who fought so hard to ensure ours was a country dedicated to the proposition that all people are created equal.
It's worth (re)reading Professor Taunya Lovell Banks' 2013 article, The Unfinished Journey - Education, Equality and Martin Luther King, Jr. Revisited, 58 Villanova Law Review 471, available on ssrn, arguing that educational equality includes economic equality.
Delivered as a MLK Day Lecture at Villanova, Professor Banks remarks have continued resonance as the United States Supreme Court deliberates Fisher II regarding affirmative action in higher education:
As our experience with Brown [v. Board of Education] has taught us, law is an imperfect vehicle for bringing about massive social change. In 1963, Dr. King, in his often quoted Letter from a Birmingham Jail, wrote about the “interrelatedness of all communities and states.” The same year he wrote in his book Strength to Love that: “True integration will be achieved by true neighbors who are willingly obedient to unenforceable obligations.” I contend that we as Americans have an unenforceable obligation to provide quality education for all of our children and not handicap some children so that others can become more competitive. We must do this by public will, not solely through law.
As I said earlier, our efforts to bring about educational equality should be multi-directional, and lawyers have a role to play. As part of this battle some lawyers and academics must recommit to convincing state courts to define more broadly their guarantees of a free public education. We must convince state courts that education is a fundamental right. Others must work with state legislatures to get them to commit, in words and funds, to the achievement of a twenty-first century notion of educational equality. More importantly, we all must work to get Americans throughout the nation to recommit to a strong public education system throughout the country.
[footnotes omitted; emphasis added].
Friday, January 15, 2016
New York State Appellate Court Rejects First Amendment Claim in Same-Sex Wedding Discrimination Case
In its opinion in Gifford v. McCarthy, an appellate court in New York upheld the decision of the State Division of Human Rights that the owners of Liberty Ridge Farm, a wedding venue, were guilty of an unlawful discriminatory practice based upon sexual orientation when they refused to provide services for a same-sex wedding. Writing for the unanimous five judge panel, Presiding Justice Karen Peters concluded that the venue was clearly a place of public accommodation within the anti-discrimination law and that discrimination based upon sexual orientation clearly occurred.
On the constitutional issues, Justice Peters found the arguments under both the First Amendment and New York's similar provisions without merit. Regarding the First Amendment Free Exercise of religion claim, Justice Peters concluded that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes)," citing Employment Div., Dept. of Human Resources of Ore. v Smith (1990). She noted that the "fact that some religious organizations and educational facilities are exempt from the [state] statute's public accommodation provision does not, as petitioners claim, demonstrate that it is not neutral or generally applicable."
Applying New York's Free Exercise provision under which the infringement is balanced against the state interests, and Justice Peters wrote:
While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination."
Thus the court rejected the free exercise claims. Similarly, the court rejected the free speech claims of compelled speech and free association. On compelled speech, Justice Peters' opinion for the court concluded that the provision of a wedding venue was not expressive:
Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage. Like all other owners of public accommodations who provide services to the general public, the Giffords must comply with the statutory mandate prohibiting discrimination against customers on the basis of sexual orientation or any other protected characteristic. Under such circumstances, there is no real likelihood that the Giffords would be perceived as endorsing the values or lifestyle of the individuals renting their facilities as opposed to merely complying with anti-discrimination laws.
The court also held that Liberty Farms was not an "expressive association" but a business with the "purpose of making a profit through service contracts with customers." However, the court added that even if Liberty Ridge were to be deemed an expressive enterprise, "a customer's association with a business for the limited purposes of obtaining goods and services – as opposed to becoming part of the business itself – does not trigger" expressive association.
In upholding the application of the anti-discrimination law against First Amendment challenges, the New York appellate opinion joins other courts that have reached the same conclusion: the New Mexico courts in Elane Photography to which the United States Supreme Court denied certiorar and the Colorado courts in Masterpiece Cakeshop. The UK Supreme Court's decision in Bull v. Hall is also consistent with this trend. Nevertheless, the issue is far from settled and more decisions likely.
UPDATE: The owners of Liberty Ridge will reportedly not appeal.
January 15, 2016 in Association, Cases and Case Materials, Current Affairs, Family, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Religion, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)
Wednesday, January 6, 2016
The California Supreme Court ruled earlier this week that the California legislature had authority to put on the general election ballot the nonbinding, advisory question whether Congress should propose, and the legislature ratify, a federal constitutional amendment overturning Citizens United.
The court said that the measure fell within the state legislative authority:
We conclude: (1) as a matter of state law, the Legislature has authority to conduct investigations by reasonable means to inform the exercise of its other powers; (2) among those other powers are the power to petition for national constitutional conventions, ratify federal constitutional amendments, and call on Congress and other states to exercise their own federal article V powers; (3) although neither constitutional text nor judicial precedent provide definitive answers to the question, long-standing historical practice among the states demonstrates a common understanding that legislatures may formally consult with and seek nonbinding input from their constituents on matters relevant to the federal constitutional amendment process; (4) nothing in the state Constitution prohibits the use of advisory questions to inform the Legislature's exercise of its article V-related powers; and (5) applying deferential review, Proposition 49 is reasonably related to the exercise of those powers and thus constitutional.
Still, there are no actual plans to put the measure on the 2016 ballot--at least not yet. The legislature previously directed that the measure go on the 2014 ballot; that decision was before the court. Now that 2014 is over, you might think the case was moot. But if so, you'd be wrong: the court said it should address the question, notwithstanding the lack of plans to put the measure on the ballot, because the legislature might direct that the measure go on a future ballot (apparently in the spirit of capable-of-repetition-but-evading-review).
Monday, September 28, 2015
Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage. Recall that the complaint challenged the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.
The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine. The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce." Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:
We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.
The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause. The Ninth Circuit panel concluded:
[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.
The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously. The Ninth Circuit applied the lowest form of rational basis scrutiny - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.
The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech" was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."
Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.
The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors. But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.
Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility. Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.
September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)
Friday, September 11, 2015
The Connecticut Supreme Court ruled that state regulation of attorneys who offer certain debt-relief services to clients violates state constitutional separation of powers principles. The ruling is quite limited, however, and does not extend to attorneys who set up a sham shop as a cover for a distinct debt-relief operation. (The ruling keeps the regulatory scheme on the books; it simply says that it can't apply to certain actual attorneys doing actual legal work.)
The ruling means that Connecticut attorneys who are really practicing law (but also providing debt-relief services) cannot be regulated outside the judiciary, but attorneys who are simply providing cover for debt-relief operations (without really practicing law) can be.
The case tested a Connecticut law that authorizes the state Banking Commissioner to license and regulate persons engaged in the debt negotiation business. Attorneys in this line of work are not exempt, except those who are "admitted to the practice of law in [Connecticut] who [engage] or [offer] to engage in debt negotiation as an ancillary matter to such [attorneys'] representation of a client . . . ."
A Connecticut law firm that enters into retainer agreements for legal services and an attorney-client relationship with clients, but also provides debt-relief counseling, challenged the licensing and regulation scheme on the ground that it's the courts, not the legislature, that regulate an attorney's law practice in Connecticut. The firm claimed that the Commissioner's attempts to regulate it intruded into the role of the judiciary and thus violated state constitutional separation of powers.
The court agreed. (Like many states, Connecticut has an explicit clause on separation of powers. Connecticut's says, "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. . . .")
The court also emphasized, however, that a presumption that an attorney is practicing law (and not subject to Commissioner regulation) can be overcome where "the Connecticut attorney has failed to (1) exercise meaningful oversight over debt negotiation staff, (2) provide any genuine legal advice or other legal services, and/or (3) maintain a bona fide attorney-client relationship with the client." The court also reminded the Office of Chief Disciplinary Counsel of its "duty to regulate lawyers when they are acting as debt negotiators," and urged it "to monitor vigilantly their activities and fees in this area of practice."