On June 13, 2016, in Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, 136 S. Ct. 1938 (2016), the United States Supreme Court was asked to decide whether the Commonwealth of Puerto Rico should remain a "state" for purposes of 11 U.S.C. § 903(a), the subsection of Chapter 9 of the United States Bankruptcy Code that states that "a State law prescribing a method of composition of indebtedness of such municipality may not bind any creditor that does not consent to such composition." This issue came to the Court on an injunction proceeding by bondholders suing the Puerto Rico government to enjoin the application of the Puerto Rico Corporation Debt Enforcement and Recovery Act (the "Puerto Rico Act"). Enacted by Puerto Rico in an effort to deal with its extraordinary financial crisis and, specifically, to create its own bankruptcy scheme to restructure the debt of its insolvent public utilities. The bondholder's issue was presented in federal court notwithstanding an amendment to the Code to exclude Puerto Rico from the definition of a "state." See 11 U.S.C. § 101(52).Read More
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The federal Gun Control Act (18 U.S.C. § 922(g)) prevents gun ownership by individuals who HAVE BEEN involuntarily committed to a mental institution. There is a process for having rights restored; currently 31 states participate in a program which permits a state court, board, or commission to create a relief program. Clifford Charles Tyler lives in Michigan, which does not participate in the relief program. Tyler was committed in 1986 for several weeks for a depressive episode. In 2011, Tyler attempted to purchase a gun and was denied. He appealed to the FBI and was told that he had no recourse unless Michigan began participating in the relief program. In 2012, Tyler filed a lawsuit against county, state, and federal defendants, alleging that because Michigan has no relief program, federal law creates a permanent ban on his Second Amendment rights. He also alleged Equal Protection and Due Process violations. The district court dismissed his case for failure to state a claim, but the Sixth Circuit reversed and remanded to the district court, instructing it to analyze Tyler’s claims using an intermediate scrutiny standard to determine the constitutionality of the federal statute. Tyler v. Hillsdale Cty. Sheriff's Dep't, No. 13-1876, 2016 WL 4916936 (6th Cir. Sept. 15, 2016).Read More
The Lawletter Vol 41, No 3
A federal civil rights statute, 42 U.S.C. § 1983, is most closely associated with providing a remedy for individuals whose federal constitutional rights have been violated by persons acting under color of state law. However, although they comprise a relatively small subset of § 1983 cases, claims under § 1983 can, under certain circumstances, be based upon violations of federal rights derived from federal statutes, not from the U.S. Constitution.
In a recent example of such a claim, a voter in Puerto Rico brought an action challenging a Puerto Rico statute that struck her and more than 300,000 other voters from a voter-registration roll because they did not vote in the prior general election. The U.S. District Court for the District of Puerto Rico issued injunctive and declaratory relief barring the Puerto Rico State Elections Commission ("SEC") from removing otherwise eligible voters from an active election registry unless the requirements of the federal Help America Vote Act ("HAVA") were met. Colón-Marrero v. Conty-Perez, No. CIV. 12-1749CCC, 2015 WL 3508142 (D.P.R. signed June 4, 2015). The President of the SEC appealed, and the First Circuit Court of Appeals affirmed the lower court. Colón-Marrero v. Velez, No. 15-1356, 2016 WL 386428 (1st Cir. Feb. 1, 2016).Read More
The Lawletter Vol 41, No 3
In order to keep cases from ping-ponging between state and federal court, the federal removal statutes prohibit appellate review of remand orders. See In re La Providencia Dev. Corp., 406 F.2d 251, 252 (1st Cir. 1969) ("The action must not ricochet back and forth depending upon the most recent determination of a federal court."). In particular, 28 U.S.C. § 1447(d) provides that, with the exception of certain cases involving federal officers or civil rights, "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d) (emphasis added). Does the "or otherwise" language prevent review by a district court of its own remand order under Rule 60(b)(3)? That was the question addressed by the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, in Barlow v. Colgate Palmolive Co., 772 F.3d 1001 (4th Cir. 2014) (en banc).
In Barlow, two individuals separately sued Colgate-Palmolive Company and other companies in Maryland state court, alleging that each of the defendants' products had exposed them to asbestos. Even though the plaintiffs joined in-state defendants, Colgate removed the two cases to federal court on the basis of diversity of citizenship. Colgate asserted that the in-state defendants had been fraudulently joined, pointing to discovery responses indicating that the plaintiffs did not intend to pursue a claim against any defendant other than Colgate. The plaintiffs then moved to remand the cases to state court. In their motions, the plaintiffs' counsel represented that there was some circumstantial evidence to suggest exposure to asbestos at the hands of the nondiverse defendants. Based on counsel's representations, the district court judges (Judges Nickerson and Quarles) remanded the cases to state court.Read More
The Lawletter Vol 40 No 12
In a recent case involving the Kansas University and City of Lawrence ticket-fixing scandal, wherein traffic tickets were allegedly dismissed in exchange for tickets to university athletic events, a city employee, an African-American, who had been terminated as a result of the investigation into the scandal, brought claims for race discrimination and the violation of his due process liberty interests. Monroe v. City of Lawrence, Kan., Case No. 13-2086-EFM, 2015 WL 5006081 (D. Kan. signed Aug. 20, 2015). The court engaged in the usual burden-shifting analysis on the race discrimination claim, concluding that although the employee had clearly shown that he had been treated differently from a similarly situated white employee, he had failed to raise a disputed question of fact on the issue of motive, because he had not shown that the City's reasons were pretextual.
The court then went on to the interesting due process question raised by the employee's claim, that the "termination report" filed by the City violated his liberty interest by foreclosing employment opportunities in his field. The court concluded that the viability of the claim rested on whether the report constituted "publication." First the court noted that the City was required by statute to submit the report to the Kansas Commission of Peace Officers' Standards and Training. It then noted that although the statute purports to provide absolute immunity for reporting, the City had abandoned that argument in light of Supreme Court precedent stating that state law cannot immunize conduct that is wrongful under federal law. The question therefore came down to whether the report constituted publication, as required to make out a claim, or merely intragovernmental dissemination, which falls short of publication.
The employee argued that the report constituted publication because it was available to prospective employers, but the court found the legal character of the report to be unsettled. It explained that the Tenth Circuit had not yet considered whether public dissemination, that is, publication, occurs when a mandatory report to another governmental agency is made and that the authority in the circuit on intragovernmental dissemination was underdeveloped. It further noted that the district court itself had reached conflicting conclusions on the issue of obligatory termination reports.
In the end, the court failed to address the conflict, because, even assuming publication, the employee could not support his liberty interest claim. He had clearly received an adequate name-clearing hearing, and nothing more was required by due process.Read More
The Lawletter Vol 40 No 12
Setting aside the cases involving criminal misconduct by priests and others affiliated with certain Roman Catholic Church dioceses, the First Amendment precludes courts from interfering with the internal operations and activities of churches. Few principles are more firmly enshrined in our body of constitutional law than that government, including the courts, should not become entangled in the internal or doctrinal affairs of churches. To do so would offend the First Amendment's Free Exercise Clause. For over a century, the Supreme Court has directed that courts may not entangle themselves in the internal functions of churches. Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29 (1871).
Churches are at liberty to make employment decisions that are arbitrary, even capricious, and those decisions are immune from judicial scrutiny. Young v. N. Ill. Conference of United Methodist Church, 21 F.3d 184, 187 (7th Cir. 1994). To permit courts to review decisions that are alleged to be arbitrary or unreasonable would be to allow courts to inquire into internal doctrinal matters, and the courts may not do that. There are circumstances where a court may inquire into an action taken by a church, but those circumstances are rare and typically involve, for example, the contractual obligations between the church and an unaffiliated third party, such as a contractor repairing the roof of the church building. Those decisions, however, implicate no doctrinal issues, unlike the employment of a pastor, which is intimately bound up with a church's doctrinal principles. Thus, civil courts, as a general proposition, are not a constitutionally permissible forum for a review of ecclesiastical disputes. Serb. E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976).Read More
The Lawletter Vol 40 No 11Read More
The Lawletter Vol 40 No 11Read More
The Lawletter Vol 40 No 10
The intracorporate conspiracy doctrine was created to shield corporations and their employees from liability for routine, collaborative business decisions that are later alleged to be discriminatory. E.g., Tabb v. District of Columbia, 477 F. Supp. 2d 185 (D.D.C. 2007). Although the doctrine was initially crafted in the context of the Sherman Act, the courts have extended its reach to many other contexts, including claims brought under civil rights and other antidiscrimination laws. See, e.g., Blades v. Countrywide Home Loans, Inc., No. CIVA1:06CV1000LG-JMR, 2007 WL 2746678 (S.D. Miss. Sept. 18, 2007) (available on WL and Pacer). The courts have not necessarily agreed on just how far the doctrine should be extended, however. See id. (and cases cited).
In a recent case, for example, the federal district court noted that while the doctrine applies in the Sixth Circuit to conspiracy claims under 42 U.S.C. § 1985, it is unclear whether it also applies to claims under 42 U.S.C. § 1983. See Engle v. City of Cuyahoga Falls, No. 5:14-CV-1161, 2015 WL 3852143 (N.D. Ohio June 22, 2015). In fact, it appears that the district courts within the Sixth Circuit continue to disagree on whether the doctrine should apply to § 1983 cases. Id.Read More
The Lawletter Vol 40 No 9
One of the bedrock principles of American jurisprudence is the freedom of religion guaranteed by the First Amendment. See U.S. Const. amend. I. More recently, the law had mandated that disabled students are to receive certain minimum educational benefits at public expense. See 20 U.S.C. §§ 1400–1491o (Individuals with Disabilities Education Act ("IDEA")); 29 U.S.C. § 794 (Rehabilitation Act of 1973 ("RA")). At times, these two distinct rights may overlap and conflict with one another. As illustrated by two fairly recent cases, however, public schools need not accommodate the student's (or the parents') religious beliefs in providing a free appropriate public education ("FAPE") as required by the IDEA and the RA.
In M.L. ex rel. Leiman v. Starr, No. PWG-14-1679, 2015 WL 4639569 (D. Md. filed Aug. 3, 2015), appeal filed, No. 15-1977 (4th Cir. Aug. 27, 2015), the parents of a child with an intellectual disability brought suit against Maryland's Montgomery County Board of Education, alleging that the Board had failed to provide the student with a FAPE as required by the IDEA. The student is part of the Orthodox Jewish community, and, thus, it is very important to his parents that he learn the rules and customs of Orthodox Jewish life. Consequently, the parents sought an individualized education program ("IEP") that placed the student at a private school where the basics of Orthodox Jewish life are a part of the curriculum. Instead, the school district proposed an IEP that placed the student at a public school that did not include instruction on Orthodox Jewish life.Read More