Thursday, August 15, 2019
Theatrical Performance featuring readings from
Thursday, June 27, 2019
In its highly anticipated opinion in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful, the Court held that given the "unusual circumstances" of the case, the matter should be remanded to the agency to provide a "reasoned explanation" for its decision pursuant to the Administrative Procedure Act (APA), thus affirming the district court on this point.
Chief Justice Roberts's opinion for the Court is relatively brief — 29 pages — but the brevity is undercut by the shifting alliances within the opinion's sections and the additional 58 pages of opinions concurring in part and dissenting in part.
Recall the basic issue from oral argument: whether the challengers had standing, the actual enumeration requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, and the nonconstitutional issues centering on the Administrative Procedure Act. The equal protection argument receded into the background on appeal, but has re-emerged in other proceedings.
After explaining the facts and procedural history, including the rather unusual question of whether the Secretary of Commerce, Wilbur Ross, should be deposed, the Court unanimously held the challengers had standing, rejecting the government's contrary contention: "we are satisfied that, in these circumstances, respondents have met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential."
A majority of the Court, Roberts joined by Thomas, Alito, Gorsuch, and Kavanaugh — held that the Enumeration Clause did not provide a basis to set aside the determination of Wilbur Ross. The majority held that the Constitution vests Congress with virtually unlimited discretion to conduct the census, and that Congress has delegated this broad authority to the Secretary of Commerce. The majority stated that "history matters" so that "early understanding and long practice" of inquiring about citizenship on the census should control.
A notably different but numerically larger — 7 Justices — rejected the government's contention that the discretion given by Congress to the Secretary of Commerce is so broad as to be unreviewable. There is "law to apply" and the statute provides criteria for meaningful review. Only Justices Alito and Gorsuch disagreed with this conclusion.
And yet another majority, the same majority as the holding for no claim under the Enumeration Clause — Roberts was joined by Thomas, Alito, Gorsuch, and Kavanaugh — rejected the claim "at the heart of this suit" that Secretary Ross "abused his discretion in deciding to reinstate the citizenship question." Essentially, this majority held that because the statute gives the Secretary to make policy choices and "the evidence before the Secretary hardly led ineluctably to just one reasonable course of action."
That same majority rejected the claim of violations of the APA by Secretary Ross in the collection of information and data, and even if he did so, it was harmless.
Finally, the Chief Justice's opinion for the Court — this time with a majority of Justices Ginsburg, Breyer, Sotomayor, and Kagan, considered the district judge's conclusion that the decision of the Secretary of Commerce, Wilbur Ross, rested on a pretextual basis. The Court's opinion reviewed the evidence presented to the district court:
That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.
After considering other evidence, the Court concluded:
Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.
We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.
In these unusual circumstances, the District Court was warranted in remanding to the agency . . . .
Thus the Court remanded the decision to the agency for further explanation. To be sure, this conclusion and section seems inconsistent with the "abuse of discretion" section finding no "abuse of discretion." And notably, Chief Justice Roberts is the only Justice supporting both of those conclusions.
Also notably, the Court's opinion does not comment on any of the recently revealed evidence or new proceedings - updates shortly.
In its opinion in Rucho v. Common Cause, consolidated with Lamone v. Benisek, a sharply divided United States Supreme Court decided that the judicial branch has no role to play in challenges to redistricting based upon partisan gerrymandering.
Recall that Rucho involved the constitutionality of partisan gerrymandering in North Carolina. The major question raised by the arguments was whether the courts have any role in protecting voters from partisan gerrymandering; Recall also that in an almost 200 page opinion, the three judge court resolved the issues of justiciability and standing in favor of the plaintiffs and held that the redistricting violated equal protection.
Recall that Lamone involved the constitutionality of partisan gerrymandering in Maryland. The oral argument centered the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause.
And also recall that while the Court had previously taken on the issue of partisan gerrymandering, it dodged answering the ultimate question. Today, the Court's 5-4 decision makes that dodge permanent for all federal courts by holding that the questions is a nonjusticiable political question.
Writing for the Court, Chief Justice Roberts — joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh — held that challenges to partisan gerrymandering involve a political question because they lack “judicially discoverable and manageable standards for resolving them, citing Baker v. Carr (1962). The majority then rejects all the "tests" (quotation marks in original) for resolving the issue. (Recall that Chief Justice Roberts's expressed skepticism about developing standards in the oral arguments on an earlier partisan redistricting case, Gill v. Whitford, calling the political science of redistricting "gobbledygook"). It is not that there is no relief, the majority concludes. While partisan gerrymandering is "incompatible with democratic principles," as the Court had previously stated in Arizona State Legislature v. Arizona Independent Redistricting Comm’n (2015), and the majority opinion "does not condone excessive partisan gerrymandering," the remedy is in the state courts. Or Congress might pass a law to address the matter, citing as an example the Fairness and Independence in Redistricting Act Bill, although the Court does not express a view on this or other pending proposals.
In dissent, Justice Kagan — joined by Justices Ginsburg, Breyer, and Sotomayor — begins by stating "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks it is beyond its judicial capabilities." Kagan's impassioned dissent, as long as the majority opinion, and parts of which she read from the bench (a rare practice for her), explains that democracy is at stake and if "left unchecked, gerrymanders like the ones here may irreparably damage our system of government. The dissenting opinion suggests that the majority has not paid sufficient attention to the constitutional harms at the core of these cases, and discusses the cases, concluding that no one thinks this is how democracy should work, and that in the past the Court has recognized the infringement to individual rights partisan gerrymandering inflicts. As for standards, the four dissenters argue that courts have developed a framework for analyzing claims of partisan gerrymandering, including the workable standard the three judge courts in Rucho and Lamone used. As for state courts, Kagan's opinion asks "what do those courts know that this Court cannot? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn't we?"
Given that former-Justice Kennedy had a central role in arguing for a First Amendment right to challenge partisan gerrymandering, his retirement and replacement by Justice Kavanaugh made the majority for an opinion that Chief Justice Roberts had seemingly long wanted.
Monday, June 24, 2019
SCOTUS Declares Lanham Act Provision Barring "Immoral" or "Scandulous" Trademarks Violates First Amendment
In its opinion in Iancu v. Brunetti the United States Supreme Court held that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the Patent and Trademark Office from registering “immoral” or “scandalous” trademarks, violates the First Amendment.
Recall from the oral argument its centerpiece was the applicability of the Court's recent decision in Matal v. Tam (2017) which held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment. Justice Kagan's relatively brief — 11 pages — opinion for the Court begins with a citation to Tam and then states, "We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas."
At issue in Brunetti was a fashion line, which as Kagan explains:
uses the trademark FUCT. According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T. But you might read it differently and, if so, you would hardly be alone. See Tr. of Oral Arg. 5 (describing the brand name as “the equivalent of [the] past participle form of a well-known word of profanity”). That common perception caused difficulties for Brunetti when he tried to register his mark with the U. S. Patent and Trademark Office (PTO).
Justice Kagan's opinion for the Court found the "immoral or scandalous" ban to be viewpoint-based with a viewpoint-discriminatory application. Kagan provides some examples of the inconsistencies, including the PTO refusing to register a trademark "Madonna" for wine while allowing "Praise the Lord" for a game. Further, the Court stated, the "immoral or scandalous" bar is "overly broad."
Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh joined in Kagan's opinion. But Alito wrote very briefly separately, disavowing the label of "moral relativism" that might be applied to the Court's opinion and making clear that Congress could adopt a more narrow statute. The other Justices wrote separate opinions concurring in part and dissenting in part.
The major dissenting opinion, by Justice Sotomayor concurring in part and dissenting in part, focuses on the "scandalous" provision, arguing that the Court's opinion means that the United States will have no choice but to begin registering marks "containing the most vulgar, profane, or obscene words and images imaginable." Sotomayor's opinion, joined by Breyer, and echoed in Chief Justice Roberts's opinion also dissenting in part, is longer than the Court's opinion, and argues that the Court should have accepted the narrowing construction of "scandalous" — "interpreting it to regulate only obscenity, vulgarity, and profanity" — which would save it from unconstitutionality. Sotomayor also discusses the special context of trademarks, which while not government speech, do have a type of governmental involvement. It is not that the speech is being prohibited, but only that the Lanham Act prohibited registration of the trademark.
[image: Kagan and Sotomayor, via]
Friday, June 21, 2019
In its opinion in Knick v. Township of Scott, Pennsylvania, a closely divided United States Supreme Court held that a person alleging that their property has been taken by state or local governments may sue in federal court without seeking compensation from state courts, overruling Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City (1985).
The case was reargued in February 2019 after Justice Kavanaugh joined the Court and his vote made a difference: the majority opinion by Chief Justice Roberts is joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Kagan wrote the dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor.
The facts involve a regulatory taking challenge by the owner of land in rural Pennsylvania which includes a "family cemetery" in the Township of Scott, which had passed an ordinance requiring cemeteries be kept open to the public in daylight hours. The land owner Rose Mary Knick challenged the ordinance as a taking in state court seeking only declarative and injunctive relief, but not "just compensation." She thereafter went to federal court, which dismissed her action under the doctrine of Williamson County, which required seeking "inverse condemnation" (and thus "just compensation") in state court, and the Third Circuit affirmed.
Writing for the five Justice majority, Chief Justice Roberts holds that the Fifth Amendment's Taking Clause is violated when the taking occurs and the property owner must be able to bring an action in federal court at that time. The effective establishment of an "exhaustion requirement" in Williamson County relegates the Takings Clause to a "poor relation" among the Bill of Rights protections, which the majority finds must be remedied by eliminating the requirement to go to state court and therefore "restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among other protections in the Bill of Rights." Chief Justice Roberts's majority opinion explains the bad precedent of Williamson County as resulting from the particular procedural facts under which the "Court may not have adequately tested the logic" of the state-litigation requirement and did not anticipate the "preclusion trap" which later resulted (in which the state court findings would be given preclusive effect by the federal court). The Court's opinion concludes that Williamson County should be overruled despite stare decisis given these "shaky foundations," adding that the state-litigation requirement has been subject to criticism and has "proved to be unworkable in practice."
Writing the dissenting opinion for four Justices, Justice Kagan argues that it is not simply Williamson County that is being overruled, but rejects longstanding understandings of the Takings Clause. For the dissenters, the text of the Takings Clause is vital: the Clause states that private property shall not be taken for public use without just compensation. Thus, unlike other constitutional rights which the majority also discusses, Kagan argues that a Takings Clause violation has two necessary elements: "First, the government must take the property. Second, it must deny the property owner just compensation." The failure of the majority to recognize the distinctive aspects of the Takings Clause is is the basis of two of Kagan's four critiques of the Court's opinion. The third critique is based on the Court's reinterpretation of precedent, including under the Williamson County rule, which Justice Kagan states is "with a theory so, well, inventive that it appears in neither the petitioner’s nor her 15-plus amici’s briefs." This is an interesting nod to the amicus briefs filed on behalf of Knick which include briefs from Washington Legal Foundation and Congressman Steve King. Lastly, under the federal Tucker Act, involving claims against the federal government seeking just compensation for a taking.
Perhaps most importantly, Justice Kagan's dissent argues that the consequence of the majority's decision will be to "channel a mass of quintessentially local cases involving complex state-law issues into federal courts." Kagan's opinion highlights the regulatory takings problems (as opposed to the less complex actual taking of property):
This case highlights the difficulty. The ultimate constitutional question here is: Did Scott Township’s cemetery ordinance “go[ ] too far” (in Justice Holmes’s phrase), so as to effect a taking of Rose Mary Knick’s property? Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). But to answer that question, it is first necessary to address an issue about background state law. In the Township’s view, the ordinance did little more than codify Pennsylvania common law, which (the Township says) has long required property owners to make land containing human remains open to the public. See Brief for Respondents 48; Brief for Cemetery Law Scholars as Amici Curiae 6–26. If the Township is right on that state-law question, Knick’s constitutional claim will fail: The ordinance, on that ac- count, didn’t go far at all. But Knick contends that no common law rule of that kind exists in Pennsylvania. See Reply Brief 22. And if she is right, her takings claim may yet have legs. But is she? Or is the Township? I confess: I don’t know. Nor, I would venture, do my colleagues on the federal bench. But under today’s decision, it will be the Federal District Court for the Middle District of Pennsylvania that will have to resolve this question of local cemetery law.
Justice Kagan also points out that this is the second time in a month that a five member majority [and indeed, the same five member majority] of the Court has overruled "longstanding precedent," quoting from Justice Breyer's dissent in Franchise Tax Bd. of California v. Hyatt. She writes that "the entire idea of stare decisis is that judges do not get to reverse a decision simply because they never liked it in the first place."
In its opinion in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust the United States Supreme Court unanimously held that a state's taxation of a trust based solely on the residence of a beneficiary — even where the beneficiary did not receive any income — violates due process.
Recall our discussion of the view from Professors Bridget Crawford and Michelle Simon that "Kaestner Trust is the most important due process case involving trusts that the Court has decided in over sixty years; it bears directly on the fundamental meaning of due process," and their discussion of the facts and merits of the case. They urged the Supreme Court to affirm the conclusion of the North Carolina Supreme Court that the state lacked the power to tax consistent with due process and that's what the Court did.
Justice Sotomayor's succinct 16 page opinion is a model of clarity and analysis. The Court's conclusion clearly rests on the fact that there was no actual income or entitlement to distribution of any income from the trust managed by an out-of-state trustee:
We hold that the presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain ever to receive it. In limiting our holding to the specific facts presented, we do not imply approval or disapproval of trust taxes that are premised on the residence of beneficiaries whose relationship to trust assets differs from that of the beneficiaries here.
The opinion sets out the doctrine:
The Due Process Clause provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The Clause “centrally concerns the fundamental fairness of governmental activity.”
In the context of state taxation, the Due Process Clause limits States to imposing only taxes that “bea[r] fiscal relation to protection, opportunities and benefits given by the state.” The power to tax is, of course, “essential to the very existence of government,” but the legitimacy of that power requires drawing a line between taxation and mere unjustified “confiscation.” That boundary turns on the “[t]he simple but controlling question . . . whether the state has given anything for which it can ask return.”
The Court applies a two-step analysis to decide if a state tax abides by the Due Process Clause. First, and most relevant here, there must be “‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” Second, “the ‘income attributed to the State for tax purposes must be rationally related to “values connected with the taxing State.”’”
To determine whether a State has the requisite “minimum connection” with the object of its tax, this Court borrows from the familiar test of International Shoe Co. v. Washington (1945). A State has the power to impose a tax only when the taxed entity has “certain minimum contacts” with the State such that the tax “does not offend ‘traditional notions of fair play and substantial justice.’” The “minimum contacts” inquiry is “flexible” and focuses on the reasonableness of the government’s action. Ultimately, only those who derive “benefits and protection” from associating with a State should have obligations to the State in question.
Applying this doctrine to a trust involving an instate resident — whether beneficiary, settlor, or trustee—the Court stated that the
Due Process Clause demands attention to the particular relationship between the resident and the trust assets that the State seeks to tax. Because each individual fulfills different functions in the creation and continuation of the trust, the specific features of that relationship sufficient to sustain a tax may vary depending on whether the resident is a settlor, beneficiary, or trustee. When a tax is premised on the in- state residence of a beneficiary, the Constitution requires that the resident have some degree of possession, control, or enjoyment of the trust property or a right to receive that property before the State can tax the asset. Otherwise, the State’s relationship to the object of its tax is too attenuated to create the “minimum connection” that the Constitution requires.
Here, where the only instate resident was a beneficiary who did not receive any income and did not have a right to demand any distribution, the "minimum connection" was not sufficient.
Justice Alito wrote a brief concurring opinion, joined by Chief Justice Roberts and Justice Gorsuch, to stress that "the opinion of the Court merely applies our existing precedent and that its decision not to answer questions not presented by the facts of this case does not open for reconsideration any points resolved by our prior decisions" and the "Court's discussion of the peculiarities of this trust does not change the governing standard, nor does it alter the reasoning applied in our earlier cases."
In its opinion in Flowers v. Mississippi, the Court reversed the decision of a divided Mississippi Supreme Court that there was not a violation of the Equal Protection Clause in the selection of jurors under Batson v. Kentucky (1986).
The Court's opinion by Justice Kavanaugh, and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan, stressed the "extraordinary facts" of Flowers and stated the decision sought to simply "enforce and reinforce Batson by applying it" here. Indeed, the jury selection at issue was in the sixth trial of Flowers all prosecuted by the same lead prosecutor. The Mississippi Supreme Court had reversed one conviction for prosecutorial misconduct, had reversed two other convictions for Batson violations, and two other trials had resulted in "hung juries." The Court concluded that four "critical facts, taken together" led to the conclusion:
- First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court.
- Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors.
- Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors.
- Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.
The Court's opinion rehearsed the Equal Protection Clause doctrine that led to Batson, starting as far back as Strauder v. West Virginia (1880). The Court relied on its most recent Batson case, also a capital case, Foster v. Chatman (2016), and outlined the types of evidence relevant in a Batson challenge. It then discussed the evidence in detail as guided by the "critical facts" above. While the Court's opinion repeated that the case was "extraordinary" and that it was the combination of facts, Justice Alito wrote separately to stress the "unique combinations of circumstances present" as his reason for joining the Court's opinion.
Justice Thomas dissented in an opinion joined in large part by Justice Gorsuch. In Parts I-III of Thomas's dissenting opinion, joined by Gorsuch, Thomas starts by recounting the crime alleged and then argues that there was "no evidence whatsoever of purposeful race discrimination by the State in selecting the jury during the trial below." Further: "Each of the five challenged strikes was amply justified on race- neutral grounds timely offered by the State at the Batson hearing. None of the struck black jurors was remotely comparable to the seated white jurors. And nothing else about the State’s conduct at jury selection—whether trivial mistakes of fact or supposed disparate questioning— provides any evidence of purposeful discrimination based on race." As in the Court's opinion, the dissenting opinion then discusses the facts, drawing different conclusion. Yet these conclusions exist in the shade of Part IV of Thomas's dissenting opinion — the portion Gorusch did not join — criticizing Batson as disregarding limitations on standing and "giving a windfall to a convicted criminal" who "suffered no injury." Thomas concludes by stating that the "State is perfectly free to convict Curtis Flowers again" and that while the "Court's opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families." As the only Black Justice on the Court, Thomas's rejection of Batson is sure to prompt discussion.
Monday, June 17, 2019
In its divided opinion in Virginia House of Delegates v. Bethune-Hill, the Court concluded that the Virginia House of Delegates, one of two chambers in the state legislature, did not have standing to appeal the judgment of the three judge district court that eleven districts in its 2011 redistricting plan were racially gerrymandered and violated the Equal Protection Clause.
Recall that in its previous appearance before the United States Supreme Court, Virginia's 2011 redistricting plan caused the Court to clarify the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. In Bethune-Hill v. Virginia State Board of Elections (2017), the Court affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts. It was on this remand that the three-judge court found that these other eleven districts also violated the Equal Protection Clause.
Recall also that at oral argument, the questions of standing to appeal were intermixed with the factually-intense merits, so that details about the processes leading to the actual redistricting map and its impacts complexified the arguments.
The Court did not reach the merits, but decided the case on lack of standing to appeal. As Justice Ginsburg, writing for the majority, phrased it, after the 2018 three-judge court decision, Virginia decided it "would rather stop than fight on," and Virginia did not appeal. However, the Virginia House of Delegates did pursue an appeal. Ginsburg — joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch — held that the House of Delegates did not have standing to appeal.
The majority held that the House of Delegates had no standing to represent the interests of the State of Virginia. A State has the authority to designate the entities to represent it and in the case of Virginia it has given this authority exclusively to the state Attorney General.
Further, the majority held that the Virginia House of Delegates did not have standing in its own right, as it did not have a distinct injury. "Just as individual members of Congress do not have standing to assert the institutional interests of the legislature, "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole." The Court also rejected specific injury to the House of Delegates because redrawing district lines would harm it.
Justice Alito, writing the dissenting opinion joined by Chief Justice Roberts, and Justices Breyer and Kavanaugh, argued that the House of delegates did experience specific injury in fact, given that a representative represents a specific set of constituents with specific interests and this would be changed by redistricting.
The contentious redistricting in Virginia (as well as other states) is not brought any closer to resolution by the Court's decision, but it does mean that Virginia's choice to end this round of the litigation must be a unitary one.
image: map of Virginia circa 1612 via
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.
Friday, June 7, 2019
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.
The 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)
Friday, May 31, 2019
Responding to Justice Thomas's concurring opinion from a denial of certiorari in Box v. Planned Parenthood of Indiana, legal commentator Imani Gandy (pictured) writes When It Comes to Birth Control and Eugenics, Clarence Thomas Gets It All Wrong.
Specifically, Gandy takes on the history of Margaret Sanger (1879-1966), who she states is not necessarily a present-day "infallible feminist hero" and certainly had the same abelist views that the Court credited in Buck v. Bell.
But, on the subject of race, Gandy writes:
The framing of Thomas’ concurrence, however, suggests that she [Sanger] did want to reduce the Black population. This framing extends to his description of the Negro Project, which Sanger created in conjunction with some of the most prominent Black civil rights leaders of the time—Franklin Frazier, Walter White, Rev. Adam Clayton Powell, Mary McLeod Bethune, and W.E.B DuBois—in order to bring birth control to the South. Thomas writes as if her mere advocacy for birth control was in and of itself racial eugenics. And he virtually ignores that Black women in the South wanted birth control and had taken their reproduction into their own hands since the days of enslavement, when women would self-induce abortions or even kill their newborns in order to save them from a life of slavery.
Gandy's commentary also provides an interesting critique of Thomas's use of a Sanger quotation by providing larger context. Gandy writes: "What Thomas leaves out is the very next sentence that Sanger wrote . . ." and thus invites the reader to think more deeply about the history of birth control.
Predictably, Thomas's concurring opinion is provoking other commentaries, but Gandy's piece is among the most insightful.
Wednesday, May 29, 2019
In its brief opinion in Box v. Planned Parenthood of Indiana, the United States Supreme Court reversed the Seventh Circuit's conclusion that Indiana's "fetal remains" statute was unconstitutional and denied certiorari to the question of the whether the Seventh Circuit correctly found unconstitutional the limitation on abortion based on sex, race, or disability.
On the "fetal remains" issue, the Court's opinion stated that the Seventh Circuit's conclusion that a rational basis test was satisfied was incorrect. The Court stressed:
in challenging this provision, respondents have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion. This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations.
Justice Ginsburg, in a brief opinion, dissented on this issue, stating that the judgment should not be summarily reversed when "application of the proper standard would likely yield restoration of the judgment." Thus, it can be expected that the statute will be quickly challenged on this basis.
On the denial of certiorari to the second issue, Justice Thomas's concurring opinion is notable. Thomas concludes that the Court's decision to allow the issue to "percolate" should not be mistaken for acceptance:
Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination.
Thomas devotes most of his 20 page concurring opinion to discussing eugenics, singling out for analysis not only the Supreme Court's 1927 opinion in Buck v. Bell but also birth control advocate Margaret Sanger. Thomas's concurrence focuses on abortion but certainly implicates birth control more broadly, and is sure to provoke commentary.
Monday, May 13, 2019
The Court denied certiorari to the Ninth Circuit in Dahne v. Richey with a dissenting opinion by Justice Alito, joined by Justices Thomas and Kavanaugh. For the dissenters, the question was whether the First Amendment requires a "prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard?"
The Ninth Circuit's Memorandum Opinion did not characterize the prisoner's grievance as threatening, but instead stated that it included "rude comments about the guard’s weight, including describing her as “extremely obese." The dissenting opinion from certiorari and the Ninth Circuit opinion both agree that the prison official told the prisoner to rewrite the grievance, which the prisoner did, but did not cure the defects. For the Ninth Circuit, there was a First Amendment violation when the prison official refused to allow the grievance to proceed through the administrative process after the rewrite did not satisfy the official's "sense of propriety." For the Ninth Circuit, this meant that functionally only a grievance that conformed to an official's "personal conception of acceptable content could get meaningful review," which is "the sort of content-based discrimination that runs contrary to First Amendment protections."
But for Alito and his fellow dissenting Justices, the defects in the grievance offended more than a personal sense of propriety. Instead, the dissenters stated the grievance
contained language that may reasonably be construed as a threat. Specifically, the grievance stated: “It is no wonder [why] guards are assaulted and even killed by some prisoners. When guards like this fat Hispanic female guard abuse their position . . . it can make prisoners less civilized than myself to resort to violent behavior in retaliation.”
For the dissenters, even if "a prison must accept grievances containing personal insults of guards, a proposition that is not self-evident, does it follow that prisons must tolerate veiled threats? I doubt it, but if the Court is uncertain, we should grant review in this case."
Perhaps importantly, the Ninth Circuit in this Memorandum Opinion held there was qualified immunity, which could make the grant of review seem less vital. And while it is always precarious to extrapolate from any opinion to others, the dissent her does bring to mind the issues regarding the boundaries of First Amendment protection before the Court in the trademark case of Iancu v. Brunetti argued in April.
Friday, April 26, 2019
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.
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)
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)
The United States Supreme Court heard oral arguments in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful. The constitutional issues in the case include the standing of the challengers and the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2. The equal protection argument has seemingly receded into the background. Taking center stage are the nonconstitutional issues centering on the Administrative Procedure Act.
Recall that the case was originally before the Court on an order requiring Secretary Wilbur Ross to submit to a deposition. However, Recall that in January in New York v. United States Department of Commerce, United States District Judge Jesse Furman decided the case without the Secretary's evidence, finding that without it there was no proof of discriminatory intent sufficient for an equal protection challenge. Nevertheless, Judge Furman vacated and enjoined the implementation of the decision of Department of Commerce Secretary Wilbur Ross adding a citizenship question to the 2020 census questionnaire, holding that the Secretary's decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.
Recall also that in March California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.
Arguing for the United States Department of Commerce, Solicitor General Noel Francisco was quickly interrupted by Justice Sotomayor in his very first description of the facts — that "Secretary Ross reinstated a citizenship question that has been asked as part of the census in one form or another for nearly 200 years" — when she noted that the citizenship question was not part of the short survey that is at issue in the present case. In short, Solicitor General Francisco's argument was that the Secretary has wide discretion to put whatever questions he'd like on the census for whatever reason. While Justices Kavanaugh, Gorsuch, Alito, and Chief Justice Roberts seemed sympathetic to this wide discretion, especially in their subsequent questioning, Justices Sotomayor and Kagan characterized the Secretary's decision as a "solution in search of a problem."
Justice Kagan: . . . [as] Justice Sotomayor was talking about was that it did really seem like the Secretary was shopping for a need. Goes to the Justice Department. Justice Department says we don't need anything. Goes to DHS. DHS says they don't need anything. Goes back to the Justice Department. Makes it clear that he's going to put in a call to the Attorney General. Finally, the Justice Department comes back to him and says: Okay, we can give you what you want.
So you can't read this record without sensing that this -- this need is a contrived one. Nobody had -- there have been lots of assistant attorney general in the Civil Rights Division that have never made a plea for this kind of data.
The Solicitor General of New York (and former Attorney General of New York) Barbara Underwood argued that there was nothing before the Secretary to support the notion that this would assist in making determinations under the Voting Rights Act. Justice Kavanaugh interestingly asked Underwood about United Nations recommendations for citizenship questions, a topic which Douglas Letter came back to during his argument, representing the United States House of Representatives as amicus curiae in support of New York and the other respondents, stating that other nations may not have an "actual enumeration" Clause in their constitutions, and stressing the importance of accurate census data to the House of Representatives given its purpose in representation.
Dale Ho, arguing for New York Immigration Coalition, discussed the intersection between the Voting Rights Act (VRA) and the census, explaining how the Census Bureau alters and approximates information.
Assuming the Court does not reach the constitutional issues, the heart of the case under the APA will be how much deference the Court is willing to afford to the Secretary. This deference to the Secretary's discretion was interestingly implicated in the argument concerning the question of the Congressional role, with Douglas Letter pointing out that
The Secretary of Commerce has been called before Congress to explain what he did here, and Assistant Attorney General Gore . . . They have been declining to answer. They're not giving Congress the information it requests because they say there's litigation going on. And, I repeat, this is a matter of public record.
Given recent other matters of public record in which government officials are refusing to come before Congress, more may be at stake in this case than the APA, including separation of powers issues.
Tuesday, April 16, 2019
The United States Supreme Court heard oral arguments in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust posing the question of whether a state's taxation of a trust based solely on the residence of a beneficiary violates due process.
Professors Bridget Crawford (pictured left) and Michelle Simon (pictured below) in their article in UCLA Law Review Discourse compellingly argue that the Court should hold that a state has no constitutional authority to impose a tax on trust income where the trust’s only connection with the forum state is the residence of a contingent beneficiary. In The Supreme Court, Due Process and State Income Taxation of Trusts they contend that "Kaestner Trust is the most important due process case involving trusts that the Court has decided in over sixty years; it bears directly on the fundamental meaning of due process."
Crawford and Simon also provide a useful primer on the law and facts relevant to the issues of due process. They state that for some "lawyers and lucky individuals," a "list of common verbal triads includes the words 'grantor, trustee, and beneficiary,'" which will be just as familiar as other words that "seem to roll off the tongue naturally in threes" such as tic-tac-toe, snap, crackle, pop; Larry, Curly, and Moe; and peas porridge hot. However, if one is not one of those "lucky individuals" and perhaps is even a bit shy of trusts and taxation, the article proves itself a patient and trustworthy guide.
The article's well-earned conclusion states:
Justice Harry Blackmun famously said that he knew he was “in the doghouse” with the Chief Justice if he received an assignment to write the opinion in a tax case. But Kaestner Trust is no dog of a case. It broadly implicates basic principles of due process. There are many reasons to allow each state to implement its own tax (and strong arguments in favor of a more uniform approach), but it would be fundamentally unfair to require a trust to pay income tax to a jurisdiction solely on the basis of the residence of a discretionary trust beneficiary who does not actually receive any trust distributions. Once the beneficiary receives trust income, it is reasonable in all respects to subject that income to taxation. The Court’s decision in Kaestner Trust will have lasting impact on the future of due process jurisprudence.
Ultimately, trusts are creatures of legal fiction. They exist because the law tolerates the idea that it is possible to split legal and equitable title to property. Trusts are not the inevitable consequence of some right to control property; their existence reflects the acceptance of the story of split ownership. In the case of trust law, fiction is already strange enough. State income taxation should hew close enough to material reality that a trust is taxed only when the trust has some meaningful connection with the jurisdiction. An accident of fate—such as where a wholly discretionary beneficiary decides to live—should not trigger income taxation.
A must-read for ConLawProfs seeking to understand Kaestner Trust and for whichever Justice (and clerks) assigned to write the opinion.
Monday, April 15, 2019
The United States Supreme Court hear oral arguments in Iancu v. Brunetti, a First Amendment facial challenge to Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the Patent and Trademark Office from registering “immoral” or “scandalous” trademarks.
Recall that Brunetti's apparel line, named "fuct," was denied a trademark and a divided Federal Circuit Court panel held the provision unconstitutional. Recall also that the United States Supreme Court in Matal v. Tam (2017) held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment, but despite the unanimous conclusion there were fractured rationales.
Indeed, whether or not Tam resolved the issue in Brunetti was a centerpiece of the oral argument, with Justice Sotomayor essentially asking the Deputy Solicitor General, Malcolm Stewart, to distinguish Tam within the first few minutes. Moreover, some of the unresolved issues in Tam — including the actual role of trademark registration, how trademark registration differs from direct prohibition, whether there could be any content (or viewpoint) basis on which to deny a trademark, and how the trademark program differs from other programs such as municipal advertising or government grants — reappeared in the Brunetti argument.
The Justices seemed troubled by any argument that the Patent and Trademark Office (PTO) could reject a trademark on the basis that a majority or "substantial segment" of people might find it objectionable, especially given changing morals and issues about which segments of the population (as Justice Ginsburg asked, would this include a composite of 20 year olds).
Justice Breyer was particularly interested in whether the PTO could reject racist trademarks. For Breyer, certain racial slurs are "stored in a different place in the brain. It leads to retention of the word. There are lots of physiological effect with very few words." While Malcolm Stewart stated that he thought racial slurs were taken off the table by Tam, in his rebuttal he stated that " with respect to the single-most offensive racial slur, the PTO is currently holding in abeyance applications that incorporate that word" pending the possibility that the present decision could leave open the possibility that that word might be viewed as scandalous.
While many of the other hypotheticals involved profanity, obscenity, or "dirty words" (FCC v. Pacifica), Justice Breyer's concern will surely be addressed by at least one opinion when the decision is rendered in Brunetti.
Tuesday, March 26, 2019
The Court heard oral arguments in Rucho v. Common Cause (& League of Women Voters) regarding the constitutionality of partisan gerrymandering in North Carolina. The major question raised by the arguments was whether the courts have any role in protecting voters from partisan gerrymandering.
Recall that in an almost 200 page opinion, the three judge court resolved the issues of justiciability and standing in favor of the plaintiffs and held that the redistricting violated equal protection. The United States Supreme Court stayed that judgment.
Recall also that last term the Court essentially dodged the issue of the constitutionality of partisan gerrymandering, finding in Gill v. Whitford involving a challenge to Wisconsin's alleged partisan gerrymandering the Court found that the plaintiffs did not prove sufficient Article III standing to sustain the relief granted by the three judge court and in Benisek v. Lamone, involving a challenge to alleged political gerrymandering in Maryland, declining to to disturb the three judge court's decision not to grant a preliminary injunction.
The question of the standard by which to judge partisan gerrymandering preoccupied the arguments with the inevitable slippery slope of having the courts guarantee proportional representation being invoked. Additionally, the question of whether the federal courts should defer was raised repeatedly, with the solution being a state referendum, or even Congressional action, with Paul Clement representing the republican state legislators arguing that
And if you look at HR-1, the very first bill that the new Congress put on their agenda, it was an effort to essentially force states to have bipartisan commissions, now query whether that's constitutional, but it certainly shows that Congress is able to take action in this particular area.
Clement argued vigorously that the federal courts should have no power to act to prevent partisan gerrymandering, however extreme, with Justice Sotomayor stating that such an argument's "ship has sailed in Baker v. Carr" (1962), but Clement concluding with the point in his rebuttal referencing the authors of the Federalist Papers as accepting the political realities of partisan gerrymandering.
Monday, March 18, 2019
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.
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)