Archive for February, 2015

Supreme Court Chief Justice John Roberts Could Again Swing Obamacare Case In Government’s Favor

Tuesday, February 24th, 2015


Feb. 24, 2015
By Lawrence Hurley

WASHINGTON, Feb 24 (Reuters) – Three years ago, Supreme Court Chief Justice John Roberts cast the tie-breaking vote in a ruling that saved President Barack Obama’s signature healthcare reform. As the high court prepares to weigh another challenge that could shatter Obamacare, a review of Roberts’ recent votes and opinions suggest he could again sway the case the government’s way.

The conservative challengers in the case aim to persuade Roberts and the other eight justices that the federal government has overreached by providing tax subsidies to millions of people in 34 states that didn’t create their own insurance exchanges.

Their argument will revolve around wording in the 2010 law that insurance would be provided through exchanges “established by the state,” which they argue rules out a federal role.

But in several key cases in recent years Roberts has voted in ways that could favor the government’s arguments. He has raised concerns about upsetting the balance between federal and state law, particularly when there is ambiguity in a law’s wording. He has also recognized the need to consider the overall context of a law, not just an isolated phrase.

The government says the Obamacare law, read as a whole, shows the subsidies were intended to be available nationwide.

Oral arguments are set for March 4, with the ruling expected by the end of June. If the challengers win, millions of people in states that do not have their own exchanges would lose the subsidies, dealing a potentially crippling blow to Obamacare.

Appointed by Republican President George W. Bush in 2005, former corporate lawyer Roberts joined the court’s liberal wing in the 2012 case, which ruled Obamacare was constitutional.

Roberts may be the most likely of the five conservative justices to side with the four liberals on the court, but Anthony Kennedy, often the swing vote in close cases, could also be in play for the government. It is, however, difficult to predict how any individual justice will vote, particularly before hearing his or her questions at oral arguments.

Although the recent cases testing the interpretation of statutes are on a range of subjects, they give an insight into the legal methodology that Roberts uses.


Last year, Roberts wrote an opinion in a criminal case in which he cited states’ rights in relation to Congress’ power to implement treaties the U.S. government has signed. Lawyers for a Pennsylvania woman accused of trying to poison her husband’s lover said Congress had overstepped in interpreting a treaty to cover crimes involving household chemicals.

In throwing out the woman’s federal conviction under a chemical weapons law, Roberts signaled his concerns about infringing on the rights of the states, which usually play the lead role in prosecuting such crimes. If there is ambiguity in a statute, he wrote, the court should attempt to interpret the law in a way that does not harm the states.

The government has cited that case in support of its Obamacare defense, arguing that a ruling against the law would similarly have an unintended negative impact on states. The healthcare law does not explicitly say that subsidies would be denied to people in states that did not set up exchanges.

Jonathan Adler, a professor at Case Western Reserve University School of Law and one of the architects of the challengers’ legal theory, conceded in an interview that the states’ rights question could appeal to Roberts and Kennedy.

“I think that’s a serious argument,” he said.

The government is also highlighting a case from 2014. Then, Roberts was in the majority in partially upholding the Obama administration’s first regulations to address climate change.

Roberts signed on to conservative colleague Antonin Scalia’s majority opinion, which stressed the notion that interpretation of statutory language concerns not just the specific phrase at issue but also the broader context. Along with Kennedy, Roberts has voted most often since 2005 to support a government agency’s interpretation of the law, according to a 2014 survey by Jack Beermann, a professor at Boston University School of Law.

Roberts has not always deferred to the government, even if warned of major consequences. In January, he rejected the government’s interpretation of a whistleblower law despite what he conceded were genuine security concerns about the disclosure of sensitive information. He threw the ball back to the Republican-controlled Congress, as he could do with Obamacare.

“Those concerns are legitimate. But they are concerns that must be addressed by Congress or the president, rather than by this court,” Roberts wrote. (Reporting by Lawrence Hurley; editing by Stuart Grudgings)

State Supreme Court Justice Warns He May Abolish Marriage Entirely If Same-Sex Weddings Are Allowed

Wednesday, February 18th, 2015




“State Supreme Court Justice Warns He May Abolish Marriage Entirely If Same-Sex Weddings Are Allowed”

If loving married couples like this one come to Alabama, Justice Glenn Murdock may try to destroy the institution of marriage

An obscure, two-page opinion by an Alabama Supreme Court justice contains an ominous warning. If marriage equality remains the law in Alabama, Justice Glenn Murdock may vote to abolish marriage in his state altogether.

Justice Murdock’s opinion is attached to a brief order from the state supreme court as a whole declining to offer further guidance to Alabama probate judges regarding whether they must comply with a federal court order holding that same-sex couples are entitled to the same marriage rights as straight couples. In a brief opinion concurring in that order, Murdock hints that, if this federal court order is permitted to stand, then his own court should strike down all marriages within the state of Alabama.

Murdock suggests that, had the state legislature known that its decision to exclude gay couples from the right to marry was unconstitutional, it might have preferred not to permit anyone to be married in the state of Alabama. This potential preference for no marriages over equality matters, according to Justice Murdock, because of a prior state supreme court decision holding that, when part of a state law is struck down, the law may be declared “wholly void” if “the invalid portion is so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional.”

Thus, according to Murdock, if gay couples and straight couples must enjoy the exact same marriage rights under the Constitution, the proper remedy might be to deny those rights to everyone, rather than extending them to same-sex and opposite-sex couples alike.

In the unlikely event that a majority of the state supreme court adopts this approach, that could cause a largely academic matter that has divided federal judges to suddenly become hugely important. Though the overwhelming majority of federal judges to consider the question after the Supreme Court’s most recent gay rights decision in 2013agree that the Constitution does not permit anti-gay marriage discrimination, these judges have split on rationale. Some judges have held that denying equal marriage rights to gay, lesbian and bisexual individuals deprives them of their right to equality under the law; while others have held that denying such rights to these individuals violates a “fundamental right” to marry. (Other judges have embraced both rationales in favor of marriage equality, or they’ve embraced a hybrid of the two rationales.)

Currently, this distinction between legal rationales has little practical impact on couples asserting their newly recognized right to marry. If Alabama attempted to abolish marriage altogether, however, the distinction could suddenly matter a great deal.

The Constitution’s promise of equality is just that — a promise of equality. In the gay rights context, a state complies with this constitutional requirement by treating people of all sexual orientations the same way. Thus, a state could potentially meet its obligation to treat all couples similarly by denying the same right to all of them.

If marriage is a fundamental right, on the other hand, that could lead federal courts to conclude that states have an obligation to provide marriage rights to their residents whether they want to or not (although they may need to overcome one Supreme Court decision to do so). Under this rationale, Justice Murdock and his court would be forbidden from destroying the institution of marriage.

The federal judge that ordered Alabama to provide equal rights to gay couples, for what it is worth, held that “the institution of marriage itself is a fundamental right protected by the Constitution,” although this rationale will not necessarily be adopted by either the federal appeals court that oversees Alabama or by the Supreme Court.


This Supreme Court Decision Could Encourage One Of The Worst Forms Of Racism

Tuesday, February 17th, 2015


Posted: 02/17/2015 9:26 am EST Updated: 25 minutes ago

For the larger part of the 20th century, housing discrimination in the United States was overt and unambiguous. Racial segregation was largely the norm, and those who worked to preserve it were under little obligation, legal or social, to hide their intentions. At least it was easy to spot:


Help came in 1968 with the federal Fair Housing Act, which prohibited racial discrimination in the sale, rental and financing of homes. The law explicitly barred practices with a discriminatory intent.

The country has progressed since the late ’60s, and blatant prejudice is now much less common. Yet housing discrimination persists, often due to bias built into the system. So over the years, the federal courts have expanded the Fair Housing Act to cover practices with a discriminatory outcome. Under this theory, known as “disparate impact,” a policy or practice can be illegal if it disproportionately affects minorities, regardless if that was its purpose. Disparate impact claims are crucial to fighting racial inequality today.

But this key weapon could soon be taken away. The Supreme Court will likely rule this summer in a case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, that may forbid disparate impact claims under the Fair Housing Act. Such a decision would effectively defang the law. It would also shed a disturbing light on how this court believes the law should react to entrenched discrimination.

The underlying reality of the Texas case is that certain housing policies disadvantage minorities more than whites, whether by hidden design, careless disregard or unfortunate coincidence. It’s this type of discrimination — in housing, but also employment, voting and education — that today produces some of the biggest barriers to bridging the racial divide. If the Supreme Court acknowledges this truth and believes justice is best served by fostering equality “in fact, and not simply in form” –to borrow a phrase from Justice Ruth Bader Ginsburg – its decision should be easy. That it probably won’t be helps explain why racial inequality remains such an unrelenting problem for the nation.

Here’s what you need to know about the case, its history and why it could be a landmark decision:

In the past, property owners and policymakers openly supported segregation.

During the first half of the 20th century, racially restrictive covenants were commonly used to keep minorities from moving into white neighborhoods. Under these private agreements, property owners would stipulate that their land could not be sold to or occupied by anyone who wasn’t white. Sometimes, a group of neighbors would sign a contract prohibiting all current and future owners of their properties from selling or leasing to African-Americans. Violating the contract could lead to forfeiture of the property.

Local authorities also played a role in maintaining segregated neighborhoods. Though the Supreme Court had ruled that explicit racial zoning was unconstitutional in 1917, exclusionary zoning to preserve the character of a community was — and is — allowed. Neighborhoods can be zoned to allow only more expensive, low-density housing while prohibiting smaller homes or affordably priced apartment buildings. Because of racial differences in household wealth, many minorities are priced out of the exclusive areas. This practice, which has repeatedly been upheld by courts, is still widely used around the nation.


A big part of the problem was how the federal government limited minority access to mortgages.

Established in 1934, the Federal Housing Administration enforced policies for decades that helped preserve segregation. Chief among these was “redlining,” under which it declined to back home loans to people living in certain often-minority neighborhoods. This discouraged mortgage lenders from extending financial services to those areas. The consequences of redlining on home ownership and economic development are still apparent today in many urban areas.

Housing speculators capitalized on the fact that most African-American homebuyers couldn’t access federally insured mortgages. In Chicago, for instance, mostly white speculators bought up cheap properties in black neighborhoods and marked up the prices, sometimes to twice what they had initially paid. These houses were sold under a contract that called for monthly payments until the entire price was paid — and only then would the buyer receive the deed to or gain any equity in the property. If the buyer managed to pay off the contract in full, he or she owned a house in a minority neighborhood that would likely not appreciate in value. If the buyer didn’t fulfill the terms of the contract, eviction with nothing to show for payments made was the usual response.

In the late 1960s, a group of black homeowners in Chicago began to fight this predatory system. A federal class-action lawsuit was filed in 1969 against speculators, contract sellers and financial institutions involved in the scheme. Activists also organized protests and holdouts, in which homeowners refused to make payments to the sellers. There were standoffs with police, arrests, negotiations, and in 1971, thanks to a policy change by regional banks and insurance companies, the homebuyers finally began converting their contracts into mortgages in large numbers.

Yet when the federal case finally went to trial in 1975, the black plaintiffs couldn’t convince the mostly white jury that they had been price-gouged because of their race. As one juror reportedly concluded, “It was economics, not civil rights, in play.”


Congress passed the Fair Housing Act in 1968.

Passed just a week after Martin Luther King Jr.’s assassination, the law made it illegal to discriminate in the sale, rental or financing of housing based on race, religion and national origin. It prohibited the sort of straight-up racist language and policies long used to maintain housing segregation. The more blatant forms of redlining, for example, were banned. (Gender, familial status and disability were later added to the list of protected classes.)

But as the Chicago case shows, it can be hard to prove that someone was motivated by racial animus. With the aid of the courts, the Fair Housing Act has also been used to target less explicit bias. Over the past 40 years, judges have repeatedly read the statute to forbid many policies and practices with a disparate impact on minorities, even where no racist intent can be shown.

In a rule issued in February 2013, the Department of Housing and Urban Development clarified the formula for deciding disparate-impact housing cases: If the plaintiff can demonstrate that a practice has a discriminatory effect, the burden shifts to the defendant to show that the practice serves a substantial, nondiscriminatory interest that can’t be served by a less discriminatory means. If the defendant meets that burden, the plaintiff can still win by showing that, in fact, there is a less discriminatory means that would serve the defendant’s needs.

Note this means that a policy with a disparate impact that also has a valid justification and no less-discriminatory alternative is legal. For that reason, there are plenty of legitimate housing restrictions and requirements that disproportionately affect minorities today — like occupancy limits, credit score standards and income verification.

Housing advocates and federal prosecutors still use the law to fight housing discrimination.


A number of high-profile disparate impact cases have been settled in the past few years alone. Many focused on financial institutions and lenders that were accused of offering less favorable rates and services, on average, to minority customers than to white customers.

In 2011, for example, mortgage giant Countrywide Financial reached a record $335 million settlement with the Department of Justice following allegations that it had charged higher fees and rates to hundreds of thousands of Hispanic and African-American customers than it had to white customers with similar financial standing. The Justice Department investigation also found that Countrywide, which was purchased by Bank of America after the alleged misconduct, had offered subprime mortgages to 10,000 minority borrowers while offering regular loans to white borrowers with similar credit profiles. Using a disparate impact argument, federal prosecutors didn’t need evidence that Countrywide’s practices were driven by discriminatory intent, only that they had discriminatory outcomes.

The National Fair Housing Alliance reported that 27,352 housing discrimination complaints were made nationwide in 2013. The organization estimates that at least 4 million violations actually occur each year.


It’s hard to overstate the ongoing importance of access to fair housing. Decades of segregation have helped to concentrate poverty in minority neighborhoods. Communities with large percentages of black and Hispanic residents tend to havefewer economic and employment opportunities; lower-quality education; less access to medical care, healthy food and public transportation; and lower levels of public safety.

While a number of studies released over the past few years have shown some progress in urban areas, fair housing advocates say the problem is far from solved.

“While recent modest declines in black segregation levels are welcome, the 2010 census shows that the average black resident still lives in a neighborhood that is 45 percent black and 36 percent white,” William Frey, chief demographer at the Brookings Institution, told The New York Times. “At the same time, the average white lives in a neighborhood that is 78 percent white and 7 percent black. Black segregation levels are even higher for children.”

For more on how ZIP codes correlate with opportunity, check out this tool created by Opportunity Nation and Measure of America.


Even with disparate impact claims, the government has often done a poor job fostering housing equality.

The persistence of segregated communities suggests, at least in part, a decades-long failure at the Department of Housing and Urban Development. A lengthy 2012 report by ProPublica reported that HUD had injected billions of dollars into communities without vigorously enforcing the Fair Housing Act:

HUD’s largest program of grants to states, cities and towns has delivered $137 billion to more than 1,200 communities since 1974. To receive the money, localities are supposed to identify obstacles to fair housing, keep records of their efforts to overcome them, and certify that they do not discriminate.

ProPublica could find only two occasions since [George] Romney’s tenure [as HUD secretary, ending in 1972,] in which the department withheld money from communities for violating the Fair Housing Act. In several instances, records show, HUD has sent grants to communities even after they’ve been found by courts to have promoted segregated housing or been sued by the U.S. Department of Justice. New Orleans, for example, has continued to receive grants after the Justice Department sued it for violating that Fair Housing Act by blocking a low-income housing project in a wealthy historic neighborhood.

The Supreme Court is now debating whether disparate impact claims can even be raised in housing cases.

On Jan. 21, the justices heard oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The Dallas-area nonprofit, which promotes racially and economically diverse communities, filed suit after finding that for the past few decades, the Texas housing department had allocated almost all affordable-housing tax credits to developments in minority neighborhoods, while denying credits to those in white neighborhoods. This effectively kept low-income residents from moving to white communities. The nonprofit is raising a disparate impact claim under the Fair Housing Act.

The Texas agency, unable to show there was no less-discriminatory alternative to its practice, lost the case in federal district court and in the U.S. Court of Appeals for the 5th Circuit. It petitioned the Supreme Court to rule for the first time on the overall permissibility of disparate impact claims under the Fair Housing Act. Court watchers suggest the decision may come down to Justice Antonin Scalia, who during oral arguments indicated sympathy with both sides.


Opponents argue that disparate impact claims are unfair to policymakers, financial institutions and property owners. If housing policies and practices are instituted for legitimate reasons based on race-neutral criteria, the basic argument goes, then they should be legal despite any unintended discriminatory effects — and the people who implement those policies and practices should not be blamed.

During oral arguments, Texas Solicitor General Scott Keller suggested another problem: that housing officials and developers wary of possible Fair Housing Act lawsuits might make race-conscious decisions in favor of minorities, creating “the functional equivalent of a quota system.” This would raise constitutional issues of its own.

Other critics have expressed concerns that the idea of disparate impact is too fluid — that just because a practice unevenly affects a minority group doesn’t mean that it harms the group or that it doesn’t help other minority groups.

Supporters of disparate impact think the law is on their side, if not necessarily the justices.

Since 1974, 11 federal circuit courts have upheld an interpretation of the Fair Housing Act that allows for disparate impact claims. Moreover, in 1988, when Congress amended the statute, it chose not to add language ruling out such claims, but it did include language that implied their use.

Amicus briefs have flooded in — from lawmakers, public interest advocates and business interests — seeking to sway the justices. There are 14 supporting the Texas agency and 23 backing the nonprofit. One brief in favor of the Inclusive Communities Project comes from the federal government, 17 states and an assortment of civil rights groups.

“This was really the last legislative victory of the civil rights movement, and it was Dr. King’s last victory, too,” Philip Tegeler, executive director of the Poverty & Race Research Action Council, told The Washington Post. “This is the message that Dr. King brought to Chicago in 1966, talking about de facto segregation in the North, segregation wherever it exists — that we need to address it. That’s in large part what the Fair Housing Act was trying to do.”

Fair housing advocates remain concerned — in part because this is the third time the Supreme Court has agreed to consider disparate impact claims under the Fair Housing Act in less than four years. The two earlier cases were each settled less than a month before they were heard by the justices. Civil rights groups, which pushed for those settlements, worry that the justices’ eagerness to rule on this issue could spell trouble.

“It is unusual for the court to agree to hear a case when the law is clearly settled. It’s even more unusual to agree to hear the issue three years in a row,” Ian Haney López, a law professor at the University of California, Berkeley, told ProPublica.


A Supreme Court ruling against disparate impact would cap a string of controversial civil rights decisions.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John Roberts wrote in a 2007 decision on school desegregation in Seattle. That sounds simple enough, but such a focus on explicit racial preferences overlooks the issues of structural discrimination — the kind found in housing and other areas today.

In 2009, the Supreme Court declared that New Haven, Connecticut, had violated the civil rights of white firefighters when it threw out a promotion exam that no black firefighter had passed. The city took the racial gap in exam results as a sign that the test itself might violate employment protections under the Civil Rights Act, but the court ruled against New Haven. In 2013, the Supreme Court gutted a key section of the Voting Rights Act that determined which states had to obtain pre-approval from the federal government before making changes to their voting systems. And last year, the justices upheld a Michigan ban on affirmative action, declaring that a state’s voters can prohibit the use of race as a factor in college admissions.

As ProPublica noted, a ruling against disparate impact claims this year would give the Roberts Court a dubious hat trick: It would have effectively undermined the three most substantial civil rights laws of the 1960s — the 1964 Civil Rights Act, the 1965 Voting Rights Act and the 1968 Fair Housing Act.

Whatever the Supreme Court decides in the current case, some of the justices are clearly unconvinced that discrimination not driven by overt bias is a problem, or at least one that the law should take a stand against.

Justice Sonia Sotomayor spoke to this troubling pattern last year in her dissent in the Michigan affirmative action case. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination,” she said, responding to Roberts’ quote from seven years earlier.

Sotomayor, one of only two racial minorities on the high court, chose to read aloudher dissent, something the justices do only when they feel particularly strongly.

A ruling in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project is expected sometime in June.



COAKY Holds Prejudgment Interest, Unlike Attorney’s Fees, Need Not Be Requested in a Pleading

Monday, February 16th, 2015

By David Kramer |

The Kentucky Court of Appeals recently held that a party making a claim for recovery of liquidated damages that would give rise to entitlement to prejudgment interest need not plead a claim for such interest, since prejudgment interest on liquidated damages is awarded as a matter of right under Kentucky law. Hall v. Rowe, 439 S.W.3d 183 (Ky. App. 2014).

This case should be distinguished from O’Rourke v. Lexington Real Estate Co., LLC, 365 S.W.3d 584 (Ky. App. 2012), in which the Court held that a party seeking attorney’s fees based on a statute or contract must specifically plead a claim for fees in the body of the pleading, and not merely ask for fees in the ad damnum clause of the complaint.

Note: The foregoing post includes commentary reprinted from the forthcoming 2015 supplement to 6 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2015 Thomson Reuters. For more information about this publication click here.

Obama Administration Is Quietly Racking Up Court Victories For Birth Control, Despite Hobby Lobby

Sunday, February 15th, 2015



“Obama Administration Is Quietly Racking Up Court Victories For Birth Control, Despite Hobby Lobby”

On Wednesday, a panel of the United States Court of Appeals for the Third Circuit upheld federal rules intended to ensure access to birth control, over a claim that employers who object to following those rules on religious groups should be exempt from them. With that, the Third Circuit became the fourth federal appeals court to reach a similar conclusion in a challenge brought by an employer who objects to some or all forms of birth control, despite concerns that the Supreme Court’s decision in Burwell v. Hobby Lobby would impede access to contraceptive care.

The Hobby Lobby opinion permitted an employer to ignore a version of the Obama Administration’s birth control rules, yet it also contained language suggesting that, with a slight tweak to those rules, access to contraceptive care could be restored. The rule inHobby Lobby required employers to cover contraception in their employer-provided health plan. The tweaked version of the rule only requires employers with religious objections to birth control to send a form or a letter to the federal government saying that they wish to invoke an exemption to the rule, and informing the government “which company administers their health-insurance plan.” Once this occurs, the employer is freed from its obligation to comply with the law, and the government works separately with the insurance administrator to ensure that the objecting employer’s workers receive contraceptive coverage.

In Geneva College v. Secretary of Health and Human Services, however, several employers objected even to the tweaked version of the rule, claiming that it still rendered them “complicit” in a woman’s use of contraception because their act of informing the government that they wished to be exempt “triggers” a series of events that lead to someone receiving birth control.

The Third Circuit disagreed. Quoting a decision by the Seventh Circuit that reached a similar conclusion in a similar case, the court explained that “[f]ederal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured plans, to cover contraceptive services.” According to the court, the plaintiffs “real objection” isn’t to sending a form or letter to the federal government, it is to “what happens after the form is provided—that is, to the actions of the insurance issuers and the third-party administrators, required by law, once the [plaintiffs] give notice of their objection.” Federal law, does not grant these plaintiffs “a religious veto against plan providers’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties.”

So this decision is good news for women whose employers seek to deny them access to birth control. Nevertheless, there are three reasons why the ultimate outcome of this dispute between religious employers and the women who work for them remains uncertain.

The first reason is that the Supreme Court appeared to speak with two voices in the week it handed down Hobby Lobby. As the D.C. Circuit explained in its opinion upholding the tweaked version of the rules, the Supreme Court “stressed” in Hobby Lobby that this version “alleviates the burden on the plaintiffs of having to provide contraceptive coverage and ‘serves HHS’s stated interests equally well.’” Indeed, Justice Samuel Alito’s majority opinion in Hobby Lobby went even further in suggesting that the just-fill-out-a-form option struck the right balance between protecting religious liberty while ensuring compliance with the law. Filling out a form, according to Alito, “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”

Only four days after Hobby Lobby, however, the Supreme Court granted temporary relief to a religious college that objected to filling out the form because it believed that doing so would make it “complicit in the provision of contraceptive coverage.” In dissent, Justice Sonia Sotomayor accused the Court of moving the goal posts when it granted this temporary relief. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”

The second caveat to the Third Circuit’s decision is that, while it accurately describes the purpose of the Religious Freedom Restoration Act (RFRA), the federal law that religious objectors rely upon in these cases, it misses a key line in the Hobby Lobby decision that attempts to rewrite much of RFRA’s history.

RFRA was enacted to restore American religious liberty law as it existed before Justice Antonin Scalia’s 1990 majority opinion in Employment Division v. Smith, which drastically cut back the scope of legal protections for people who raise religious objections to the law. As the Third Circuit notes, however, pre-Smith law did not give religious objectors unlimited license to ignore the law. Among other things, “[p]re-Smith free exercise cases, which RFRA was crafted to resurrect, have distinguished between what a challenged law requires the objecting parties to do, and what it permits another party—specifically, the government—to do.”

The problem with this portion of the Third Circuit’s analysis, however, is that, while it is an accurate description of what RFRA sought to accomplish and what the law said prior to Smith, it does not account for a line in Justice Alito’s Hobby Lobby opinion that undermines this analysis. In Hobby Lobby, Alito claims that an irrelevant 2000 amendment to RFRA was “an obvious effort to effect a complete separation from” pre-Smith law. Alito’s interpretation of that amendment is hard to square with the text of the law. Nevertheless, in a hierarchical judicial system, a false statement by the Supreme Court trumps a true statement by a federal appeals court.

Though this failure to account for a portion of Hobby Lobby is not fatal to the Third Circuit’s analysis, nor does it necessarily undercut decisions by other appeals courts that have ruled in favor of birth control, it does present a weak point in the opinion that other judges might cite to attack it.

The third caveat to the Third Circuit’s opinion — and probably the most significant one — is that it was decided by a panel made up entirely of Democratic appointees. The same istrue of the D.C. Circuit’s decision siding with birth control, although Republicans did join two pre-Hobby Lobby decisions upholding the just-fill-out-the-form option.

It remains to be seen whether more GOP-friendly courts of appeals continue to side with access to birth control over the objections of bosses who disapprove of contraception.

(HT: Jessica Mason Pieklo)




Editorial: Government should pay legal fees when it loses public records lawsuits

Sunday, February 15th, 2015


Friday, February 13, 2015 6:48pm

Florida’s open meetings and public records laws aren’t just under attack in the state Capitol. They also face a serious threat at the Florida Supreme Court.

Florida’s open meetings and public records laws aren’t just under attack in the state Capitol. They also face a serious threat at the Florida Supreme Court. The justices heard arguments this month in a case that could set a tougher standard for collecting legal fees in cases where courts rule that public agencies violated public records laws. That would make it next to impossible for Floridians to go to court when government blocks their access to public records, and the Supreme Court should not go down that road.

A Jacksonville resident, Curtis Lee, sought public records from the Jacksonville Police and Fire Pension Fund, which wanted to charge him hundreds of dollars in fees. A circuit court judge found that the pension fund violated public records laws by charging Lee excessive fees. But the judge declined to require the pension fund to pay Lee’s attorney’s fees, finding that the pension fund did not intentionally violate the law. The 1st District Court of Appeal overturned the trial judge and ruled the pension fund had to pay Lee’s legal fees, and the pension fund appealed to the Florida Supreme Court.

The public records law is an essential tool for Floridians to keep tabs on what government is doing, from city hall to the county courthouse to the state capital. When local governments and public agencies refuse to provide public records or impose unreasonable fees that block access, the only recourse for citizens is to go to court. That normally requires hiring a lawyer, and lawyers are unlikely to take on public records cases unless they are certain that if they win the government will have to pay their legal fees.

In Board of Trustees, Jacksonville Police and Fire Pension Fund vs. Curtis W. Lee, the pension fund would make it more difficult for the public to get access to public records that are denied to them. It would not be enough for a judge to find a public agency violated the public records law for a plaintiff to be awarded legal fees. The plaintiff also would have to prove that the agency did not act in good faith. “Oops” should not be a shield for government to avoid paying legal fees in public records cases that it loses.

Justices Charles Canady and Ricky Polston sounded sympathetic to the pension fund’s argument during oral arguments. Polston raised a hypothetical extreme where a judge could find a public records fee was $5 too much and have no choice but to award attorneys fees of thousands of dollars. There have been recent situations where the public records law has been abused by lawyers seeking to win legal fees in essentially nuisance lawsuits. But those are rare situations, and there are narrower remedies for dealing with rogue lawyers than making it more difficult for all citizens to obtain public records by effectively limiting their access to the courts.

A brief filed by the First Amendment Foundation and news organizations including Times Publishing Co., the publisher of the Tampa Bay Times, says the public records law does not leave it up to a court to decide whether to award legal fees in cases where a public agency unlawfully blocked access to public records. It argues that the pension fund’s effort to create a “good-faith” exception for public agencies to avoid paying legal fees when they violate the public records law would force plaintiffs to investigate the motives of every official involved in a decision not to produce public records.

The issue is not as complicated as some justices suggested. If public agencies are found by a court to have illegally denied access to public records, they should pay the plaintiff’s legal fees. The Florida Supreme Court should affirm that clear standard rather than create a new one that would let government off the hook.

Editorial: Government should pay legal fees when it loses public records lawsuits 02/13/15 [Last modified: Friday, February 13, 2015 6:47pm] 

Federal appeals court reverses birth control ruling

Thursday, February 12th, 2015

By Brian Bowling and Megha Satyanarayana

Wednesday, Feb. 11, 2015, 3:39 p.m.
Updated 11 hours ago

A federal appeals court ruled Wednesday the religious rights of the Catholic Church would not be violated if church officials are required to sign a paper certifying they morally object to providing health insurance coverage for contraceptives and medications that could terminate pregnancy.

The ruling lifts the injunctions the District Court handed down.

The Pittsburgh and Erie dioceses and a private Beaver Falls college sought to avoid signing the document, which would exempt them from providing contraceptive coverage under the Affordable Care Act but allow either the insurer itself or a third-party administrator of an insurance plan to offer contraceptive coverage directly to their employees.

Judge Marjorie O. Rendell, writing for a three-judge panel of the U.S. Court of Appeals for the Third Circuit in Philadelphia, said in her opinion that once an organization claims it will not pay for contraceptive coverage, it faces no additional burden on its religious freedom if the claim triggers third-party or insurer offerings of birth control.

Bishop David Zubik of the Pittsburgh Diocese said in a statement that the ruling was disappointing.

“Such a ruling should cause deep concern for anyone who cares about any First Amendment rights, especially the right to teach and practice a religious faith. This decision says that the church is no longer free to practice what we preach,” Zubik said.

The diocese is considering whether to petition the Supreme Court or seek another appeal hearing before a nine-judge panel of the Third Circuit. Geneva College is as well.

“All Americans should oppose unjust laws that force people — under threat of punishment — to give up their fundamental freedoms and act contrary to their beliefs,” said attorney Gregory S. Baylor in a statement for the college. “The administration has no business punishing people of faith for making decisions consistent with that faith.”

Geneva College is affiliated with the Reformed Presbyterian Church.

Religious organizations across the nation said the Affordable Care Act exemption for churches did not extend to the charities, schools or other services provided by churches. Because they did not want to provide contraception or possible abortifacient medications to their employees either, they sought another vehicle to exempt those agencies.

Federal authorities made an “accommodation” — a document for church officials to sign certifying that the church objects to the coverage.

The government would fine religious organizations that refused either to provide the services or sign the certification. During court hearings, diocese officials said those fines would drive their non-profits out of business.

The church, which funds its own health insurance plan and contracts administration to insurers such as Highmark and UPMC, refuses to sign the accommodation, which would set in motion a plan by which an insurer, or in the case of the Pittsburgh diocese, a third-party administrator, would be able to offer what could amount to a rider to coverage.

The college objects only to providing abortion-related services; the dioceses object to providing any of the contraceptive services required by the Affordable Care Act.

The lower court ruling said requiring the certification would violate the religious beliefs of the church groups.

“Because we disagree with the District Courts and conclude that the accommodation places no substantial burden on the appellees, we will reverse,” Rendell wrote in her opinion.

The reversal does not apply to the Greensburg diocese, said diocese spokesman Jerry Zufelt. Their hearing on the same matter has not been scheduled.

Brian Bowling and Megha Satyanarayan are Trib Total Media staff writers .

Read more:
Follow us: @triblive on Twitter | triblive on Facebook

Alabama Chief Justice Roy Moore: Tyrannical courts trample 10th Amendment

Thursday, February 12th, 2015


Roy S. Moore12:36 a.m. CST February 12, 2015



Under Article VI of the U.S. Constitution, the Constitution is “the supreme law of the land; and the judges in every state shall be bound thereby.”

Indeed, state courts have authority equal to that of federal trial and appellate courts to interpret the Constitution.

Decisions of such federal courts may be highly persuasive, but they are not binding upon state courts.

In a concurring opinion in 1993, Justice Clarence Thomas made that clear: “In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.”

The Constitution has not delegated to the federal government the power to redefine the institution of marriage. The 10th Amendment states that all power not delegated to the United States is “reserved to the states respectively, or to the people.” By redefining marriage, the federal courts — without any authority in the Constitution — upend the most hallowed institution in human history.

When the imaginative opinions of federal judges conflict with the plain language of the Constitution, utter chaos and disorder result in our society.

Federal judges are not infallible. Should state courts have obeyed the 1857 ruling of the Supreme Court in Dred Scott that black people were property? Absolutely not! When federal courts stray beyond the limits of their legitimate authority into realms of public policy, they become tyrants and violate the 10th Amendment.

As Justice Benjamin Curtis wrote in his dissent in Dred Scott, “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their own views of what it ought to mean.”

Roy S. Moore is chief justice of the Alabama Supreme Court.

Gay Marriage Opponents’ Love Affair with Dred Scott

Thursday, February 12th, 2015


by Evan McMurry | 11:00 am, February 12th, 2015159

Earlier this week Alabama Chief Justice Roy Moore instructed Alabama probate judges to ignore the Supreme Court’s ruling that Alabama had to begin issuing marriage licenses to same-sex couples, effectively legalizing gay marriage in the state. In an epic 25-minute battle on CNN this morning, Moore justified his dissension by repeated reference to the 1857 Dred Scott v Sanford decision — long considered the worst ruling in Supreme Court history — as a precedent for justices refusing to comply with a clear mistake of the high court’s.

Moore didn’t pull Dred Scott out of a hat. As court decisions continue to enervate their position, the comparison has become an increasingly common rhetorical maneuver by religious conservatives. During a speech last summer Faith and Freedom Coalition Chair Ralph Reed linked the state and federal rulings overturning same-sex marriage bans to Dred Scott as an example of “judicial overreach,” then compared his movement’s losses to those absorbed by the abolitionist cause following the Scott decision:

“The battle looked like it was lost, but it really wasn’t. And that’s kind of like where we are right now.”

As Mediaite’s Tina Nguyen pointed out at the time, Reed neglected to mention it took a near-biblical war and three constitutional amendments to actually defeat slavery and undo the Court’s ruling.

Then-American Family Association leader Bryan Fischer more emphatically compared the two after the Supreme Court declined to hear appeals in multiple same-sex marriage cases last October, effectively legalizing the practice in a number of states:

“The nearest parallel we can find to what happened yesterday is the Court’s 1857 decision legitimizing the institution of slavery. In the Dred Scott case, the Supreme Court put its stamp of approval on a pernicious, degrading, decivilizing institution and gave it the patina of constitutional authority.”

“The Court duplicated its wrongheaded and grossly immoral Dred Scott ruling yesterday by imposing same-sex marriage on the entire country,” Fischer concluded, incorrectly: the Court effectively legalized the practice in eleven states within those appellate courts’ jurisdictions.

Matthew J. Franck backed up Fischer in the National Review last October, calling the Court’s refusal to hear the appeals “a slow-motion Dred Scott for the twenty-first century”:

“Like Dred Scott, decisions for same-sex marriage rely on a false anthropology that drives a political decision made by judges. In Dred Scott it was the false idea that some human beings can own other human beings, and that a democratic people cannot say otherwise. In the same-sex marriage rulings it is the false idea that men can marry men, and women can marry women, and that democratic peoples cannot say otherwise.”

The comparisons appear mostly meant to attack some of slavery’s irrevocable, headline-grabbing immorality to the issue of same-sex marriage, on which the public is rapidly liberalizing. It also establishes a rhetorical framework should the Supreme Court, which has since taken up the issue, overturn states’ same-sex marriage bans later this spring.

But as a legal comparison it’s absurd. Dred Scott denied rights to African Americans and limited the scope of the federal government to establish law in free territories, while the right’s nightmare scenario in which SCOTUS rules in favor of same-sex marriage would be a case of granting rights by invalidating state law. Ironically, the right wants a ruling much closer to Dred Scott in legal content.

[Image via CNN/screengrab]

>> Follow Evan McMurry (@evanmcmurry) on Twitter

MN Supreme Court: Warrantless search OK in DUI cases

Wednesday, February 11th, 2015

Bob Collins February 11, 2015, 11:06 AM2

The Minnesota Supreme Court, in a series of decisions in recent years, has been on a likely collision course with the U.S. Supreme Court over your rights when stopped for driving under the influence, and a decision from the state court today may hasten that showdown.

The issue is the state’s implied consent law, which requires you to either submit to testing when stopped for a DUI or face criminal charges that might be more severe. Under Minnesota law, you grant that consent when you accept a driver’s license.

The court ruled in the case of William Bernard, who was stopped by police in South St. Paul after they received a tip that three drunk men had jumped in a pickup truck at the public boat launch on the Mississippi River. By the time they got there, Bernard was walking dazed in his underwear, his pickup truck hung up on the edge of the boat ramp. All smelled of alcohol.

Bernard admitted to drinking, but said he wasn’t driving the truck, and he refused to take a chemical test, which allowed police to charge him with DUI under the so-called “implied consent law,” giving police the right to search without a warrant because alcohol could dissipate by the time a search warrant was obtained.

While the district court tossed out the implied consent charges as unconstitutional, the Minnesota Court of Appeals overruled the court, and today the Minnesota Supreme Court agreed that the case does not violate a U.S. Supreme Court ruling.

“There is no question that the Court has required either a concern for officer safety or a concern over the preservation of evidence to support the constitutionality of a warrantless search of the area where the defendant was arrested or a search of items near the defendant,” Chief justice Lori Gildea wrote in today’s opinion (pdf). “But the Court has not applied these concerns as a limitation on the warrantless search of the body of a person validly arrested.”

“The breath test was a search of Bernard’s person that would have been no more intrusive than the myriad of other searches of the body that we and other courts have upheld as searches incident to a valid arrest,” she wrote.

Gildea said encouraging drivers to submit to such tests, through criminalizing their refusal, furthers the state’s interest in getting impaired drivers off the road. She says criminalizing a refusal to submit to testing is “rational.”

That drew a rebuke from both a conservative and liberal member of the court.

Justice Alan Page and Justice David Stras wrote in their dissent that Gildea and the court’s majority wish to live in a world without the U.S. Supreme Court’s ruling striking down the warrantless searches.

“The truth of the matter is that its decision is borne of obstinance, not law,” they wrote. “In the end, the court ultimately arrives at a decision that is as notable for its disregard of Supreme Court precedent as it is for its defective logic.”

The U.S. Supreme Court ruled in 2013 that police must generally get a warrant in order to test drivers for drugs or liquor.

The Kentucky Supreme Court held that the rule on separation of witnesses, KRE 615, applies to expert witnesses.

Tuesday, February 10th, 2015

By David Kramer |


In a recent opinion in a criminal case, Spears v. Commonwealth of KY, the Kentucky Supreme Court held that the rule on separation of witnesses, KRE 615, applies to expert witnesses, and that the party seeking an exemption from sequestration for an expert under KRE 615(3) bears the burden of making a showing that the expert’s presence is essential to furthering that party’s cause.


The Supreme Court’s decision, which is final and published at 448 S.W.3d 781 (Ky. 2014), appears to take a more restrictive view of the practice of allowing experts to sit in on the testimony of opposing experts than a decision of the Court of Appeals  issued in August 2014, McAbee v. Chapman, that is currently pending in the Supreme Court on a motion for discretionary review.


The decision whether to enforce the witness rule lies within the sound discretion of the trial court, but a party seeking an exception to the rule for an expert should be prepared to make a showing how the expert’s presence would be beneficial (if not essential).

letter from ACLU re: heroin legislation pending

Monday, February 9th, 2015

Dear Stan,

You may have heard that the Kentucky General Assembly is looking to address the heroin epidemic in the commonwealth. The headlines caught my eye because I have personal experience dealing with addiction.

Please join me in asking our legislators to focus on healthcare, not handcuffs, for Kentuckians struggling with addiction.

My problems started with prescription medications to address pain. When the physical pain subsided, my need for the medication had not. When access to my meds was cut off, I turned to the streets and ended up using heroin.

I lost everything – my job, my home and most importantly my relationships with loved ones. I found myself moving in and out of the criminal justice system. It wasn’t until my time at a homeless shelter and recovery center that I started my journey to recovery.

Now I’m four years sober. I’m completing an associate’s degree in political science, and giving back by leading a chapter of a recovery group.

My story highlights the need for our lawmakers to focus heroin reform policies on creating access to treatment, and not measures that will increase incarceration rates for Kentuckians with health disorders.


On behalf of the ACLU of Kentucky

Legislative action on eviction protections for mobile home owners may be limited to talk, backers say

Friday, February 6th, 2015



bmusgrave@herald-leader.comFebruary 6, 2015


Jessica Cruz has been unable to obtain the title to a mobile home her family owns at Imperial Mobile Home Park and worries that the landowners could force them from their home.

A bill that would give more protections to mobile home owners who rent land in mobile home parks could face an uphill battle this legislative session, supporters of the bill say.

Backers of the bill hope it will at least generate more discussion on the issue during the short 30-day legislative session.

“We are hoping that we can rekindle some interest in this issue,” said Rep. Jim Wayne, D-Louisville, who filed House Bill 327 on Thursday. “We are hoping to at least get a hearing in a committee and some debate.”

Among other things, House Bill 327 would establish good cause for evictions of mobile home residents and would require at least a 60-day notice before someone can be evicted from a mobile home park. Currently, people who own a mobile home and rent month to month with no lease, can be given notice of eviction without cause. They then have 30 days to remove their mobile homes from the park. A move can cost between $2,000 and $4,000. Many mobile home owners don’t have the money to move their mobile homes and instead abandon or sell the homes, advocates say.

Kentucky is one of only 14 states that has no specific protections for people who own their mobile homes but lease land in a mobile home park.

Wayne said the bill addresses loopholes in current landlord-tenant laws.

“It basically establishes legal protections for residents so there would be just cause for eviction and gives them time to move their mobile home,” Wayne said. “This gives them the same protections as renters.”

Rich Seckel, director of the nonprofit Kentucky Equal Justice, has pushed the legislature to pass more protections for mobile home owners. Wayne sponsored similar bills geared toward mobile home owner protections from 2004 to 2007. But those bills were opposed by the manufactured home industry. In 2005, a mobile home protection bill was heard in committee but never made it to the House floor for a vote.

“I think it’s going to take some movement on the part of (House) leadership and the manufactured home industry stakeholders,” Seckel said of getting the bill through the House.

Wayne said Friday that he hopes the bill will at least get a hearing so the issue can be discussed. Supporters may have to push the issue in the 2016 legislative session, which is a 60-day session.

Recent media attention on mobile home parks prompted him to file the bill again, Wayne said. The Herald-Leader wrote a story about the issue in December, and other media outlets in northern Kentucky and Louisville have highlighted issues with mobile home parks.

The manufactured home industry has said the bills would make it too difficult for landlords to evict bad tenants. The state already has sufficient protections for mobile home owners in its current landlord and tenant law, they argue. The industry has also argued that the bills would give too many protections to tenants and not enough protections to mobile home park owners.

Beth Musgrave: (859) 231-3205. Twitter: @HLCityhall.
Read more here:


entucky law on the issue of a litigant’s entitlement to attorney’s fees when it prevails on an issue that an opponent failed to admit in an answer to a CR 36 request for admission.

Friday, February 6th, 2015

By David Kramer |

A recent decision by the Kentucky Supreme Court clarified Kentucky law on the issue of a litigant’s entitlement to attorney’s fees when it prevails on an issue that an opponent failed to admit in an answer to a CR 36 request for admission. In Rumpel v. Rumpel, 438 S.W.3d 354 (Ky. 2014), the Court, in an opinion by Justice Abramson, held that attorney’s fees should not be awarded for a refusal to admit where the issue in question is a “matter of legitimate dispute that must be tried.” The Court’s holding relied on the exceptions contained in CR 37.03 that provide that fees should not be awarded for a failure to admit where the “party failing to admit had reasonable ground to believe that he might prevail on the matter” or “there was other good reason for the failure to admit.”

Considered in context with the Supreme Court’s recent decision in Bell v. Com., Cabinet for Health & Family Svcs., Dept. for Cmty. Based Svcs., 423 S.W.3d 742 (Ky. 2014), in which the Court narrowed the circumstances in which a trial court may make an award of attorney’s fees in equity or as a sanction, the Rumpel decision is a further signal that Kentucky trial courts should not deviate from the so-called “American rule,” under which each litigant is responsible for his or her own attorney’s fees, unless there is a clear factual and legal basis to do so.

Note: The foregoing post includes commentary reprinted from the forthcoming 2015 supplement to 6 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2015 Thomson Reuters. For more information about this publication click here.

Ruth Bader Ginsburg: I would overturn supreme court’s Citizens United ruling

Friday, February 6th, 2015


US supreme court justice speaks to Georgetown Law class and says 2010 decision on campaign finance would be the one case she’d pick to undo


Wednesday 4 February 2015 17.57 EST

If Ruth Bader Ginsburg could overturn any of the decisions made by America’s highest court in the past 10 years, it would be the sweeping 2010 decision that expanded corporate personhood.

While answering questions at Georgetown University Law Center in Washington, the supreme court justice said that if she had to pick one case to undo, it would be the Citizens United decision. “I think our system is being polluted by money,” Ginsburg said.

Ginsburg said she is optimistic that “sensible restrictions” on campaign financing will one day be in place, quoting her late husband Martin Ginsburg to explain why: “The true symbol of the United States is not the eagle, it’s the pendulum – when it swings too far in one direction, it will swing back.”

Georgetown Law dean William Treanor moderated the conversation, organized for the school’s graduating class.

Ginsburg’s long fight for gender equality may have led some to believe she would pick the Hobby Lobby ruling, which allows corporations to be exempt from providing healthcare that covers women’s reproductive services on religious grounds.

But she said the many recent and aggressive attempts to restrict women’s access to health services could be stopped.

“I think it will depend on women of your age, if you care about this,” Ginsburg said. “There will never be a time when women of means lack choice.”

The Brooklyn-born judge was appointed to the supreme court by Bill Clinton andtook her seat in August 1993.

She spoke about how she was passed over for law professor jobs at Harvard and Columbia, where she went to school, but instead was offered a recently vacated teaching position at Rutgers, in New Jersey. The position had been held by a black professor, which is why Ginsburg believes she was able to get a job at the school, where she worked from 1963 to 1972. “Rutgers tried to replace him with another African American man, but having failed in that quest, the next best thing was hiring a woman,” said Ginsburg.


Some are hoping that Ginsburg, 81, will resign before Obama’s term ends – fearing that a Republican will be president when Ginsburg dies. Her early resignation could ensure that the appointed-for-life position is filled by someone with a similarly progressive record. In classic Ginsburg fashion, however, she attacked those suggestions in a September 2014 Elle interview.

Throughout the conversation, Ginsburg reiterated comments that there will be enough women on the court when all nine justices are women. “There are some people who are taken aback, until they remember for most of our history, there were nine men,” Gindburg said.

People sitting in the front row wore T-shirts emblazoned with the notorious RBGmeme. . Ginsburg said her clerks had had to explain that it came from the rapper the Notorious BIG. “I no longer have any competition because the Notorious BIG is no longer part of this world,” said Ginsburg.

The person who developed the Notorious RGB meme, Shana Knizhhik and MSNBC’s Irin Carmon announced last month that they are co-authoring an “unobjective” biography on Ginsburg for HarperCollins’ pop culture imprint Dey Street Books. Meanwhile, two Georgetown professors are at work on her authorized biography.


New York Times: The Supreme Court is on ‘the front lines of a partisan war’

Friday, February 6th, 2015
But will they read the briefs?

Linda Greenhouse has been covering the Supreme Court for The New York Times since 1978, first as a reporter and now as an op-ed columnist who also happens to be a Senior Research Scholar in Law, the Knight Distinguished Journalist in Residence, and Joseph Goldstein Lecturer in Law at Yale Law School. Linda Greenhouse knows her Supreme Court, and what she sees now on the court deeply disturbs her. The court’s decision to take on the legally dubious King v. Burwell case, she writes, positions the court on “the front lines of a partisan war,” and puts “not only the Affordable Care Act, but the court itself” in peril.Greenhouse contrasts this case with the previous challenge the court took up to Obamacare, pointing out that this time what’s in question isn’t the constitutionality of the law, but its statutory interpretation—what did Congress intend and did the government interpret and implement the statute correctly.

It seems counterintuitive to describe a statutory case as having implications as profound as a constitutional one, but this one does. It hasn’t received the attention it deserves, probably because the dispute over phraseology that the case purports to present strikes many people as trivial or, at least, fixable if the court gives the wrong answer. Actually, it’s neither. (Has anyone noticed that the House of Representatives voted on Tuesday for the 56th time to repeal the law?)

She goes on to note that the whole text, structure, purpose, and legislative history of the law clearly negates the arguments made in the challenge to the case. Then she details what’s in the many briefs filed by supporters of the law, including the government’s, to show that the conservative Supreme Court justices themselves are on record again and again subscribing “to the notion that statutory language has to be understood in context.” Understood in the whole context of the statute, there just isn’t a way a principled justice could reverse himself on this one. There’s the rub, however.Greenhouse urges progressives who are pessimistic about the potential outcome in the case to read the briefs, as she has. Reading them, she says, has given her hope for the first time that the government could prevail here. But her hope seems to be slim, or she wouldn’t write this:

I said earlier that this case is as profound in its implications as the earlier constitutional one. The fate of the statute hung in the balance then and hangs in the balance today, but I mean more than that. This time, so does the honor of the Supreme Court. To reject the government’s defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the court’s docket were happy to help themselves to a second chance to do what they couldn’t quite pull off three years ago. To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do—not to me, but to history.

Unspoken is the concern Greenhouse clearly has that history matters much less to the five conservatives on the court than politics. Or at least to four of the five. Read this as another appeal to Chief Justice John Roberts to consider this case at least as closely as he did the original challenge. Does he want to be considered by history as a blind partisan or as a principled jurist?





Wednesday, February 4th, 2015


The Supreme Court Case That Could Decimate American Public Sector Unionism

Wednesday, February 4th, 2015
UESDAY, FEB 3, 2015, 4:02 PM


If the court chooses to hear the case, public sector unions could lose millions of dollars, untold thousands of members and a significant portion of their already diminished institutional power. (Mark Fischer / Flickr)

Last week, an appeal was sent to the U.S. Supreme Court for a case that could prove to be the most damaging case to labor in decades.

Friedrichs v. California Teachers Association aims to overturn a nearly 40-year precedent which allows the use of “fair share” fees for public sector unions, wherein all union members must pay for the costs associated with collective bargaining and contract administration. Since all workers in unionized workplaces share the benefits of unionization—and since unions are legally compelled to represent all of those workers, which requires use of unions’ financial resources—unions say that workers who choose not to become members of unions must at least pay these fees in order to not become “free riders,” gaining benefits from union representation without paying for them.

From its beginnings, the case has been specially crafted for the Supreme Court, and if successful would affect tens of thousands of union contracts and would force millions of public employees into a right-to-work model.

Justice Alito has been inviting a case like Friedrichs for several years, and anti-union groups have been paying attention. In the 2012 Knox v. SEIU decision, which changed the way in which public sector unions assess optional fees (those not associated with collective bargaining, such as political and public relations activities and other matters not related to collective bargaining)  from an opt-out to an opt-in procedure, Justice Alito, writing for the Court, said that “acceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly.”

At the time, many understood this statement to indicate that the free-rider and labor peace arguments propounded by previous Supreme Court decisions were no longer enough to convince the Court’s conservative majority of the justification for the allowance of fair share fees. Writing about the case for the New York Times, Linda Greenhouse recognized that “the issue in Knox seemed narrow, even arcane”; however, she explained, the decision set the stage for a full frontal assault on labor using the First Amendment.

In case his message in Knox wasn’t clear, Alito left no room for misinterpretation in his Harris v. Quinn decision last year.

In Harris, the Court held that home healthcare workers were not “full-fledged public employees,” and therefore the 1977 Abood case, which explicitly permitted fair-share fees for public sector workers, was inapplicable.

Alito could have stopped there, but instead he decided to thoroughly trash Abood and indicate that it is ripe for overturning. In paragraph after paragraph, Alito wrote that the Abood Court’s “analysis is questionable,” “seriously erred,” “fundamentally misunderstood,” “failed to appreciate,” “does not seem to have anticipated,” “did not foresee the practical problems,” and “a critical pillar of the Abood Court’s analysis rests on an unsupported empirical assumption.”

Alito was essentially begging for someone to petition the Court with a case that would allow the justices to address the First Amendment issues involved in fair share agreements.

In April 2013, the right-wing Center for Individual Rights (CIR), whose mission is to “aggressively litigate and publicize a handful of carefully selected cases that advance the right of individuals to govern themselves according to the natural exercise of their own reason,” filed such a suit on behalf of a handful of California teachers and a Christian educator organization. The case then began its race to the Supreme Court.

In federal district court, the CIR took the unusual step of filing a motion arguing that the court should rule in favor of the union. The group did this because they knew that the law is not on their side: Under current Supreme Court precedent, the CIR would lose in front of a California judge, since the district court must follow the law. But CIR is banking on the Supreme Court changing the law. The District Court obliged them by ruling for the union, which allowed the CIR to quickly appeal the case to the Ninth Circuit Court of Appeals. At the Ninth Circuit, the CIR took the same tack, asking the court to quickly rule in favor of the union so it could get the case before the Supreme Court.

This week, approximately a year and a half after the complaint was first filed in district court, the CIR filed its petition to the Supreme Court. Though the Court may decide not to accept Friedrichs if four justices do not vote to hear it, this case looks like exactly the sort that Justice Alito could use to finally usher in a national public right-to-work law from the bench.

In its petition to the Supreme Court, the CIR asks the Court to rule on two related First Amendment questions: (1) whether the agency shop (a workplace that permits fair-share fees) should be ruled unconstitutional under the First Amendment, and (2) whether it violates the First Amendment to require public employees who don’t want to join their unions to opt out rather than requiring everyone to opt in.

The petition then proceeded to rehash the old argument that all the bargaining issues for public sector unions are inherently political, and therefore all such workers should be under a right-to-work model. In essence, the CIR argues that any bargaining for increases in worker pay or benefits, or negotiations over work conditions, are inherently ideological issues that not all workers may agree on, and such negotiations are identical to lobbying.

Therefore, because money is equivalent to speech in the Supreme Court’s view, workers who have to pay a fair-share fee are being compelled to lobby the government on an issue they may disagree with.

Seattle University School of Law Professor Charlotte Garden told In These Times that although there are some superficial similarities between lobbying and public sector collective bargaining, there are critical differences.

“First—and most important to the Friedrichs case—unlike lobbyists, unions owe a duty of fair representation to all of the workers they represent, which means they (unlike lobbyists) have to spend money representing non-members,” Garden says.

“Second, the scope of bargaining is circumscribed by governments themselves—governments decide under what conditions they will bargain with unions, and unions are constrained by those restrictions. So, for example, a government might limit collective bargaining to the subject of wages, but of course government can’t limit the scope of what lobbyists can ask for.”

There is nothing new in the CIR’s argument, but it may succeed now because the Court’s views on the First Amendment and labor have changed dramatically over the years.

The Roberts Court has used the First Amendment in a manner that significantly advances corporate interests—from striking down campaign finance limits in Citizens United and related cases to striking down laws that limit pharmaceutical companies’ sale of doctors’ drug prescription data because they infringe upon corporate speech—and the Court’s decisions in Knox and Harris indicate that core union practices violate the First Amendment.

If the Supreme Court accepts this case, the decision could have enormous impacts on public sector workers by either allowing agency fees to remain but requiring all workers to opt in, or eliminating fair-share fees all together. That the agency fee in its current form could remain is possible, but unlikely—otherwise, the court would not have agreed to hear the case.

Professor Garden says that even the more limited opt-in ruling by the Court, which would require unions to obtain affirmative consent from non-member workers who are covered by the contract before charging them the optional portion of dues, could represent a significant drain on union resources. “This would mean that unions would have to go out and solicit workers to opt in—spending more organizing dollars on workers who are already covered by a union contract.”

If, on the other hand, the Court uses the First Amendment to declare all fair-share fees unconstitutional, it could represent the most radical shift in labor law in decades. Public sector unions, which represent one of the last bastions of strong unionism in the U.S., could lose millions of dollars through free riders, untold thousands of members and a significant portion of their already diminished institutional power.


Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Yes, the Government Can Make You Vaccinate Your ChildThe courts agree: It’s not a violation of your constitutional rights

Tuesday, February 3rd, 2015


New Jersey Governor Chris Christie’s comments on Monday—laterclarified—that the government has to find a “balance” between public health policy and giving parents “some measure of choice” has renewed the debate over vaccine laws. But it’s instructive to remember that the Supreme Court settled the question of compulsory vaccinations more than 100 years ago. And just last month, the U.S. Court of Appeals for the Second Circuit, which sits in Manhattan, cited that century-old precedent in rejecting a constitutional challenge to a New York law requiring that all kids attending public schools be vaccinated.

The case involved a group of parents who had religious objections to the law. Two of the parents, both of them Catholic, had obtained religious exemptions for their children, which the law permits so long as the parents “hold genuine and sincere religious beliefs” against vaccines; the law also contains a separate exemption for medical reasons. The parents balked, however, when their kids were excluded from school after a schoolmate contracted chicken pox. It turns out a separate New York regulation provides that children with immunization exemptions be excluded from attendance in the event of an outbreak.

Unhappy with both the law and the regulation, the parents sued in federal court. A third parent also sued, but on the grounds that she couldn’t obtain a religious exemption. At a hearing, the woman had testified that decisions about her child’s health were guided “strictly by the word of God.” But the judge, after hearing the woman testify that vaccination “could hurt my daughter. It could kill her…. It could cause any number of things,” found the woman’s religious beliefs to be neither genuine nor sincere, but merely health-related. The court denied her request.

That’s when the three parents joined forces and mounted a constitutional challenge to New York’s vaccination requirement. They threw the book at the state, arguing, among other things, violations of their rights under the First and Fourteenth Amendments, as well as under state and municipal law. The rub of their arguments: that the state was infringing on their liberty and religious interests. A federal judge in Brooklyn dismissed all their claims.

That’s when the Second Circuit court, as it’s wont to do on appeal, took up all of these grievances anew and rejected them one by one. Citing Jacobson v. Massachusetts, the 1905 case,a three-judge panel ruled in a short opinion that New York was well within its “police power” to mandate vaccinations for schoolchildren. Since immunizations are “in the interest of the population as a whole,” the court said they trump the parents’ individual wishes. The court brushed aside their claim that “a growing body of scientific evidence demonstrates that vaccines cause more harm to society than good,” noting that only the legislature—and not the parents or the court—could make the call on the alleged body of evidence.

Turning to the parents’ religious claims, the court relied on a 1944 case, Prince v. Massachusetts, where the Supreme Court stated that a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds.” The court went on to note that the First Amendment right to religious freedom “does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” And because the law compelling vaccinations is neutral—that is, it applies to everyone and doesn’t specifically target a particular religion—no constitutional violation occurred. Plus, two of the parents had received exemptions, so the court viewed New York’s limited exclusion during an outbreak as permissible.

Of course, the ruling is only binding within the context of public education; nothing prevents the parents from homeschooling their children and keeping them vaccination-free. And it remains to be seen whether these parents will be appealing to a higher court to review the case. But given that the Supreme Court has already spoken loudly on the matter, here’s hoping faith in the judgment of the courts and the rule of law will prevail.


Tuesday, February 3rd, 2015


fEB. 3, 2015


NEW YORK — To Kill a Mockingbird will not be Harper Lee’s only published book after all.

Publisher Harper announced Tuesday that Go Set a Watchman, a novel the Pulitzer Prize-winning author completed in the 1950s and put aside, will be released July 14. Rediscovered last fall, Go Set a Watchman is essentially a sequel to To Kill a Mockingbird, although it was finished earlier. The 304-page book will be Lee’s second, and the first new work in more than 50 years.

The publisher plans a first printing of 2 million copies.

“In the mid-1950s, I completed a novel calledGo Set a Watchman,” the 88-year-old Lee said in a statement issued by Harper. “It features the character known as Scout as an adult woman, and I thought it a pretty decent effort. My editor, who was taken by the flashbacks to Scout’s childhood, persuaded me to write a novel (what became To Kill a Mockingbird) from the point of view of the young Scout.

“I was a first-time writer, so I did as I was told. I hadn’t realized it (the original book) had survived, so was surprised and delighted when my dear friend and lawyer Tonja Carter discovered it. After much thought and hesitation, I shared it with a handful of people I trust and was pleased to hear that they considered it worthy of publication. I am humbled and amazed that this will now be published after all these years.”

Financial terms were not disclosed. The deal was negotiated between Carter and the head of Harper’s parent company, Michael Morrison of HarperCollins Publishers. Watchman will be published in the United Kingdom by William Heinemann, an imprint of Penguin Random House.

According to publisher Harper, Carter came upon the manuscript at a “secure location where it had been affixed to an original typescript of To Kill a Mockingbird.” The new book is set in Lee’s famed Maycomb, Ala., during the mid-1950s, 20 years after To Kill a Mockingbird and roughly contemporaneous with the time that Lee was writing the story. The civil rights movement was taking hold by the time she was working on Watchman. The Supreme Court had ruled unanimously in 1953 that segregated schools were unconstitutional, and the arrest of Rosa Parks in 1955 led to the yearlong Montgomery bus boycott.

“Scout (Jean Louise Finch) has returned to Maycomb from New York to visit her father, Atticus,” the publisher’s announcement reads. “She is forced to grapple with issues both personal and political as she tries to understand her father’s attitude toward society, and her own feelings about the place where she was born and spent her childhood.”

Lee herself is a Monroeville, Ala., native who lived in New York in the 1950s. She now lives in her hometown. According to the publisher, the book will be released as she first wrote it, with no revisions.

To Kill a Mockingbird is among the most beloved novels in history, with worldwide sales topping 40 million copies. It was released on July 11, 1960, won the Pulitzer Prize and was adapted into a 1962 movie of the same name, starring Gregory Peck in an Oscar-winning performance as the courageous attorney Atticus Finch. Although occasionally banned over the years because of its language and racial themes, the novel has become a standard for reading clubs and middle schools and high schools. The absence of a second book from Lee only seemed to enhance the appeal of Mockingbird.

Lee’s publisher said the author is unlikely to do any publicity for the book. She has rarely spoken to the media since the 1960s, when she told one reporter that she wanted to “to leave some record of small-town, middle-class Southern life.” Until now, To Kill a Mockingbird had been the sole fulfillment of that goal.

“This is a remarkable literary event,” Harper publisher Jonathan Burnham said in a statement. “The existence of Go Set a Watchman was unknown until recently, and its discovery is an extraordinary gift to the many readers and fans of To Kill a Mockingbird. Reading in many ways like a sequel to Harper Lee’s classic novel, it is a compelling and ultimately moving narrative about a father and a daughter’s relationship, and the life of a small Alabama town living through the racial tensions of the 1950s.”

The new book also will be available in an electronic edition. Lee has openly started her preference for paper, but she surprised fans last year by agreeing to allow Mockingbird to be released as an e-book.