Menu of today’s content

SCOTUS Blog - 3 hours 5 min ago

Here is an overview of today’s case coverage:

6:24 a.m.: Howard Wasserman analyzed the court’s opinion in Perry v. Merit Systems Protection Board.

11:51 a.m.: Amy Howe covered the court’s opinion in Trump v. International Refugee Assistance Project and Trump v. Hawaii.

1:37 p.m.: Amy Howe analyzed the court’s opinion in Trinity Lutheran Church of Columbia v. Comer.

2:52 p.m.: John Elwood reviewed relists for today’s final conference of the term.

3:51 p.m.: Mark Walsh provided a “view” from the courtroom for today’s orders and opinions.

4:02 p.m.: Kevin Johnson covered the court’s ordered reargument in Sessions v. Dimaya and Jennings v. Rodriguez.

4:23 p.m.: Amy Howe analyzed the court’s opinion in Hernández v. Mesa.

7:17 p.m.: Amy Howe covered today’s order list.

8:21 p.m.: Ronald Mann analyzed the court’s opinion in California Public Employees’ Retirement System v. ANZ Securities.

Molly Runkle also rounded up early outside coverage and commentary on today’s orders and opinions.

We are also hosting a symposium on the court’s ruling in Trinity Lutheran v. Comer. Our first contributions come from Erin Morrow Hawley, Leslie Griffin and Nathan Diament.

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Categories: Research

Opinion analysis: Divided court holds firm on deadlines for investors opting out of securities class actions

SCOTUS Blog - 3 hours 7 min ago

Involving as it does a relatively technical question about class action procedures, California Public Employees’ Retirement System v. ANZ Securities did not look like a probable candidate for the final day of the term. But it was not until the last Monday in June that we finally received a 5-4 decision, with Justice Anthony Kennedy writing for the narrow majority.

The issue in the case involves the right to opt out of a class action: When representatives file a class-action proceeding, any of the members of the class are entitled to “opt out” and represent themselves. The question in this case is how statutes of limitations work in that situation. Does the filing of the main class action count as the filing for the individual that opts out or does the party that wants to opt out have to file its own complaint before the deadline? The Supreme Court has addressed a similar question before, in its 1974 decision in American Pipe & Construction v. Utah. The court held in that case that the class complaint did count as the claim of the individual claimants for purposes of statutes of limitation; specifically, it held that the class complaint “tolled,” or suspended, the statute of limitations so that the individual’s later complaint was timely.

The securities laws include two different kinds of filing deadlines. Specifically, for claims about misrepresentations in connection with the issuance of securities (under Section 11 of the Securities Act), Section 13 establishes two distinct deadlines: a one-year deadline running from the “discovery of the untrue statement” and an outside three-year deadline running from the date on which the statement was made. The U.S. Court of Appeals for the 2nd Circuit consistently has held that tolling under American Pipe applies only to the one-year deadline, not the three-year deadline. Applying that rule, it barred the action brought in this case by CalPERS – which opted out of a large class action brought against Lehman Brothers. The original action was brought in a timely manner, but CalPERS did not opt out of that action until more than three years after the challenged statements.

Kennedy’s opinion for the court affirms the 2nd Circuit’s decision, treating the case as directly governed by Kennedy’s 2014 opinion for the court in CTS Corp. v. Waldburger, which outlined a firmly bounded framework for analyzing statutes of limitation and statutes of repose. Repeatedly quoting from Waldburger, Kennedy explains:

Statutes of limitation are designed to encourage plaintiffs “to pursue diligent prosecution of known claims.” … In contrast, statutes of repose are enacted to give more explicit and certain protection to defendants. … For this reason, statutes of repose begin to run on “the date of the last culpable act or omission of the defendant.”

In this case, the opinion explains, the statute “in clear terms” bars any action more than three years after the offering, “admits of no exception[,] and on its face creates a fixed bar against future liability.” For the majority, then, the statute’s tie to “the defendant’s last culpable act [rather than] the accrual of the claim … is close to a dispositive indication that the statute is one of repose.”

Once the opinion has adopted the Waldburger framework and concluded that the three-year deadline is a statute of repose, the idea that tolling should extend the deadline has little chance of success. As Kennedy sees it, equitable tolling of a statute of repose is almost nonsensical: “In light of the purpose of a statute of repose, the provision is in general not subject to tolling,” especially “customary tolling rules arising from the equitable powers of courts. … The unqualified nature of [a statute of repose] supersedes the court’s residual authority and forecloses the extension of the statutory period based on equitable principles.” Turning to the specific tolling rule before the court, Kennedy notes that because the “tolling rule applied in American Pipe … was grounded in the traditional equitable powers of the judiciary,” it “does not apply to the 3-year bar mandated in § 13.” “[T]he object of a statute of repose, to grant complete peace to defendants, supersedes the application of a tolling rule based in equity.”

The opinion acknowledges the practical concerns that CalPERS emphasized in its briefing – that a rule that bars tolling will force sophisticated litigants to file large numbers of separate protective complaints even before they decide to opt out – but takes the position that those concerns “likely are overstated,” pointing to the absence of “any recent influx of protective filings in the Second Circuit, where the rule affirmed here has been the law since 2013.”

The opinion closes with a coda offering a page of classic Kennedy prose, noting the strong interests on both sides of the case:

Tolling may be of great value to allow injured persons to recover for injuries that, through no fault of their own, they did not discover because the injury or the perpetrator was not evident until the limitations period otherwise would have expired. This is of obvious utility in the securities market, where complex transactions and events can be obscure and difficult for a market participant to analyze or apprehend. …

The purpose of a statute of repose, on the other hand, is to allow more certainty and reliability. These ends, too, are a necessity in a marketplace where stability and reliance are essential components of valuation and expectation for financial actors.

Having made it clear to the reader that the court has taken note of those interests, the opinion closes by distancing itself from any obligation to resolve the tension between them. Thus, reiterating what the early pages had made clear, the majority describes the appropriate analysis as a “straightforward” application of a statute that “displaces the traditional power of courts to modify statutory time limits in the name of equity.” If anybody is going to take action to lessen the practical obstacles of class actions, it will have to be Congress.

The most obvious take on CalPERS is to file it as another in the continuing line of cases reflecting a general skepticism about the social value of large-scale class-action litigation. In case of doubt, the “tie” in those cases seems always to go to the class-action defendants. There surely is a bit of truth in that view, but on a broader jurisprudential front I would add just a note about the parallelism between the decision here and the recent decisions in Petrella v. Metro-Goldwyn-Mayer and SCA Hygiene Products v. First Quality Baby Products. The two earlier cases involved the statutes of limitations in intellectual property cases – Petrella under the Copyright Act and SCA Hygiene under the Patent Act. In both cases, the court rejected the use of laches to bar cases filed before the expiration of a statute of limitations in a federal statute. Although the earlier cases gave plaintiffs longer to sue (ensuring that they got the entire statutory limit) and this one makes it harder to sue (firmly holding plaintiffs to the statutory limit), all three of the cases show a court receding from the business of case-by-case equitable decisions about the timeliness of litigation. I will not be at all surprised to see more of these kinds of cases rising to the top of the court’s docket in the next few years.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. The author of this post, however, is not affiliated with the firm.]

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Categories: Research

Today’s orders (part 1)

SCOTUS Blog - 4 hours 11 min ago

It was a busy day at the Supreme Court today, with the justices’ release of decisions in argued cases and their order allowing at least part of the so-called “travel ban” to go into effect. But even before the justices acted on the travel ban and issued their opinions, they also released orders from last week’s private conference, and the list included some orders that would likely be front-page news on any other day. After a whopping 14 relists, the Supreme Court announced that it will review the case of a Colorado man who contends that requiring him to make wedding cakes for same-sex marriage celebrations would violate his religious beliefs. The court declined, however, to take up an important California gun rights case, over a dissent from Justice Clarence Thomas that was joined by Justice Neil Gorsuch.

One of today’s two grants came in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the justices will consider the collision between religious beliefs and laws barring discrimination against LGBTQ people. Masterpiece Cakeshop is a custom-cake business owned by Jack Phillips, who describes himself as a “cake artist.” Phillips argues that Colorado’s public accommodations law violates the First Amendment by requiring him to create custom wedding cakes for same-sex weddings, in violation of his religious beliefs. The business had filed its petition for review nearly a year ago, in July 2016, but a series of delays – ranging from efforts by the commission to waive its right to respond to a request for the lower-court record – meant that the justices did not actually consider the petition at their private conference until February 24. The justices didn’t act on the petition after that conference, nor after the 13 that followed. Because the court had denied a similar petition three years ago, many court watchers attributed the delay to the possibility that one or more of the justices was writing a dissent from the denial of review. But that conventional wisdom proved to be wrong today; the case is likely to be argued in the fall, with a decision on the merits sometime next year.

In addition to the government’s petitions for review of the lower-court rulings blocking the implementation of President Donald Trump’s travel ban, the justices today added a third case to their docket for next term: Digital Realty Trust v. Somers. The case centers on a provision of the Dodd-Frank Act that bars retaliation against whistleblowers who make disclosures that “are required or protected under the Sarbanes-Oxley Act.” The respondent in the case, Paul Somers, worked for Digital Realty Trust, a real estate investment trust specializing in properties for data centers, until he was fired; he filed a lawsuit under the anti-retaliation provision, arguing that he was terminated for making internal complaints protected by the Sarbanes-Oxley Act. The company argued that his claims could not go forward because he had not complained to the Securities and Exchange Commission, as the Dodd-Frank Act’s definition of “whistleblower” requires. A federal district court denied the company’s motion to dismiss, and the U.S. Court of Appeals for the 9th Circuit affirmed.

The justices declined to take up the case of Peruta v. California, in which they had been asked to decide whether the Second Amendment protects the right to carry a handgun outside the home for self-defense. Nine years ago, a divided Supreme Court ruled that the Second Amendment guarantees an individual’s right to have a gun, at least in one’s home. Two years later, the court – once again by a vote of 5-4 – confirmed that the Second Amendment right to bear arms applies fully to the states as well as the federal government. Since then, however, the court has been reluctant to take on other gun rights cases, and it had denied other cases presenting very similar issues. So it was not entirely a surprise when, after relisting the case seven times, the court announced that it had denied review.

Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from the denial of review and would have granted the petition. Thomas complained that, even if other justices “do not agree that the Second Amendment likely protects a right” to carry a gun in public, “the time has come for the Court to answer this important question definitively.” Moreover, he added, the denial of review “reflects a distressing trend: the treatment of the Second Amendment as a disfavored right.” “For those of us who work in marbled halls,” he concluded, “guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous.” But, he continued, “the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand idly by while a State denies its citizens that right, particularly when their very lives may depend on it.”

The justices also summarily reversed a decision by the Arkansas Supreme Court on the rights of same-sex parents to be listed on their children’s birth certificates. The case arose when two married same-sex couples had daughters in the state in 2015 using anonymous sperm donors. The couples asked to have both women’s names on the birth certificate when the children were born, but only the birth mothers were listed. By contrast, state law requires a married woman’s husband to be listed as the second parent on the child’s birth certificate, even if he is not the child’s biological parent.

Today the Supreme Court, in an unsigned opinion issued without briefing on the merits or oral argument, ruled that the different treatment of married same-sex and opposite-sex couples violates the Constitution by denying same-sex couples “the constellation of benefits that the State has linked to marriage.” The court rejected the state’s argument that which parents are listed on a child’s birth certificate doesn’t have anything to do with marriage but is instead just a way to memorialize a child’s parentage. “Arkansas law,” the court explained, “makes birth certificates about more than just genetics” – particularly when married men must be listed on their child’s birth certificate even if they are not their child’s biological father.

Gorsuch dissented from today’s summary ruling, in an opinion joined by Thomas and Justice Samuel Alito. In his view, the court should overturn a lower court’s ruling without briefing and oral argument only when “the law is settled and stable, the facts are not dispute, and the decision below is clearly in error” – criteria that this case cannot meet. Gorsuch acknowledged that the court’s 2015 decision in Obergefell v. Hodges “addressed the question whether a State must recognize same-sex marriages.” But, he continued, that ruling did not say anything about birth certificates for the children of same-sex couples.


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Categories: Research

Symposium: Court ruling bolsters religious liberty… beyond the playground

SCOTUS Blog - 5 hours 15 min ago

Nathan J. Diament is the Executive Director for Public Policy of the Union of Orthodox Jewish Congregations of America. He filed an amicus brief on behalf of the union in support of the church in Trinity Lutheran v. Comer.

Seventy years ago, in Everson v. Board of Education, the U.S. Supreme Court rejected an establishment clause challenge to the state of New Jersey spending tax dollars to support schoolchildren traveling safely to and from schools – including Catholic parochial schools. Justice Hugo Black famously wrote for the court that the establishment clause “requires the state to be neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary.”

Today’s ruling in Trinity Lutheran v. Comer reaffirms this fundamental principle and repudiates the argument of those who have invoked the “separation of church and state” to discriminate unfairly against houses of worship and other religious institutions in government funding programs. (Only Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented to assert that view.)

Moreover, today’s ruling ensures that decisions that have been made by legislators in Congress and state capitals in recent years – to provide houses of worship and parochial schools with an equitable share of public funds for security, health and other safety programs – are on solid constitutional footing and other states can follow their lead.

As my organization presented in our amicus brief to the court, Congress has enacted several measures over the years to provide funds for the improvement or support of religious facilities – both houses of worship and parochial schools. These include the Department of Homeland Security’s Nonprofit Security Grant Program, federal grants for asbestos removal in schools and the Interior Department’s Save Our Treasures grant program (which awarded funds to assist the Old North Church and Touro Synagogue in building repairs).

At the state level, legislators and governors in New York, Florida, Maryland and Pennsylvania have all recently allocated millions of dollars in security-grant funding to parochial schools as well as houses of worship. These and other states also provide schools (including parochial schools) with funds to hire nurses, purchase first aid supplies and administer vaccinations.

Although no lawsuits have been brought challenging these programs, some liberal advocacy groups have lobbied against them, asserting they would violate the “separation of church and state.” They typically cite the Supreme Court’s rulings in Tilton v. Richardson and Committee for Public Education v. Nyquist as their basis.

Indeed, Tilton and Nyquist put limitations on government funds going directly to religious institutions if those funds were not somehow limited to supporting secular activities. But those opinions were rendered in the early 1970s – the apex of the court’s era of strict separationism. Since the mid-1980s, the principle of neutrality – first articulated in Everson – has ascended in the court’s decisions in state aid cases. Neutrality toward religion was an animating principle in Mitchell v. Helms, Zobrest v. Catalina Foothills, Agostini v. Felton and more. Those cases used the neutrality principle to place boundaries upon the establishment clause. Today’s ruling in Trinity Lutheran deploys (Chief Justice John Roberts would contend – reaffirms) neutrality as an animating principle for free exercise clause challenges to states’ exclusions of religious entities from aid programs.

As the chief justice wrote for the court:

…[Missouri’s] policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. Of course, Trinity Lutheran is free to continue operating as a church, just as McDaniel was free to continue being a minister. But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way, McDaniel says plainly that the State has punished the free exercise of religion: “To condition the availability of benefits . . . upon [a recipient’s] willingness to . . . surrender[] his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties.”

Most would view this statement as constitutional common sense, and the fact that it commands seven votes today would seem to make it so – but it took four decades to get here in the context of government funding and free exercise.

Of course, the champions of 1970s-style strict separationism will try to limit today’s ruling by pointing to the chief justice’s footnote 3 and assert this ruling is limited only to playground resurfacing grants. But a careful reading reveals that is not what the footnote stands for. Footnote 3 reads:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

For purposes of this discussion, the key phrase here is “religious uses of funding.” What the chief justice says the decision does not reach are state grants to houses of worship that might be channeled to supporting explicitly religious activities – such as prayer, theological instruction and similar “religious uses.” Justice Neil Gorsuch’s dissent (joined by Justice Clarence Thomas) would permit state funds to subsidize such religious activities if they were awarded on the basis of religion-neutral criteria. It seems obvious that Justices Elena Kagan and Stephen Breyer (at least) would not go along with that approach. But we have at least three (if not five, if we count Roberts and Justice Anthony Kennedy) justices who would allow state funds to support explicitly religious activity if awarded on the basis of religion-neutral criteria. Thus, reading footnote 3 together with Breyer’s concurrence, we have seven justices who clearly support state funds flowing to houses of worship and other religious entities on the basis of neutral criteria for security, health, safety and similar needs.

Today’s explicit endorsement by the court of the neutrality principle in government aid programs will enable those of us who advocate for new initiatives to aid the nonprofit sector in general – and religious nonprofits in particular – additional strength and a proven foundation for doing so.

One such initiative currently pending in Congress is legislation to overturn a policy (not mandated by federal statute) of the Federal Emergency Management Agency that denies federal disaster aid to houses of worship on the same, neutral terms as any other nonprofit. This equal-treatment legislation is bipartisan and should be passed quickly in the wake of today’s ruling. If the federal government has a public benefit program to assist communities in rebuilding unsafe, disaster-damaged buildings – including nonprofit facilities – surely they can no longer exclude houses of worship as a category.

There are measures pending in several state houses as well – from California to New Jersey – to provide funds to Jewish (and other) parochial schools to assist in their security needs. Such grants – modeled on the federal Nonprofit Security Grant Program – are clearly for the safety of children and cannot be diverted to “religious use” because they are for specific purposes such as purchasing fencing and bollards, installing surveillance cameras or hiring security guards. They too are clearly constitutional under Trinity Lutheran.

The free exercise and establishment clauses of the First Amendment were wisely crafted to ensure maximal religious freedom in the United States of America. Interpretations that functionally infringe upon religious exercise run counter to this foundational principle. Today’s ruling by the Supreme Court in Trinity Lutheran v. Comer affirms the founding principle in a commonsensical way – and charts a path toward appropriate state support for religious institutions by their advocates.

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Categories: Research

Symposium: Bad news from Trinity Lutheran – Only two justices support the establishment clause

SCOTUS Blog - 5 hours 44 min ago

Leslie C. Griffin is William S. Boyd Professor of Law at the UNLV Boyd School of Law.

Seven of nine Supreme Court justices voted for Trinity Lutheran Church today, in Trinity Lutheran Church of Columbia v. Comer. The court ruled that Missouri’s decision to deny TLC state funding for its church playground violated the free exercise clause.

The seven justices oversimplified the case. Chief Justice John Roberts’ opinion for the court stated quite straightforwardly that to deny funding simply because an institution is a church violates free exercise and is “odious to our Constitution.” The state’s rule was simple, he wrote, “No churches need apply.” And that rule was unconstitutional.

Justices Clarence Thomas and Neil Gorsuch concurred separately. Gorsuch described the case simply as “discrimination against religious exercise.” Both men distanced themselves from Roberts’ footnote 3, which offered a possible although unlikely limit on the extent of the opinion. According to this note, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Apparently the two justices were avoiding any limits on the future power of free exercise to help religion.

Justice Stephen Breyer also wrote a concurrence to the judgment. For some uncertain reason, he compared this case to an older case about police and fire protection. He concluded that property aid and police protection are the same, even when they are not.

Not a word from Justices Anthony Kennedy or Elena Kagan, who should have known better.

Justice Sonia Sotomayor’s dissent, joined only by Justice Ruth Bader Ginsburg, was much more complicated, detailed, historical and correct. She repeatedly used piercing language to identify the dangerous simplicities of the majority’s opinion. Even in her opening paragraph, she insisted that the decision “slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

Only the two dissenting justices recognized that establishment separation protects religious liberty by blocking the government from just funding any religion that desires money. Sotomayor is correct that the majority’s establishment-free reasoning is a “startling departure from our precedents.” Instead of the dissenters’ goal of an establishment-clause-based religious liberty, this court lets religions win without any establishment penalties. Ministerial exception (Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission). RFRA (Sebelius v. Hobby Lobby Stores, Inc.). Government prayer (Town of Greece v. Galloway). Religion keeps winning, setting up precedents that allow individual members to lose.

Sotomayor and Ginsburg, bemoaning the “lopsided outcome,” urged their colleagues to remember why and how the establishment clause protects religious liberty. The government should not fund religion. Period. Unfortunately, not even Kagan understood that funding religion can pay for religious discrimination, violation of human rights and lack of equality. Sotomayor and Ginsburg’s footnote 14 worried about what the decision “might enable tomorrow.” We have to wonder if Thomas and Gorsuch will ever get the complete victory for religion that their hearts desire.

Seven justices gave a victory to TLC. The last pages of the dissent are full of concerns about how the court has undermined secular government; dismantled, not strengthened, religious freedom; and led “to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

If a majority of the court ignores these lessons, who knows what the court might do next.

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Categories: Research

Symposium: Putting some limits on the “play in the joints”

SCOTUS Blog - 6 hours 31 sec ago

Erin Morrow Hawley is Associate Professor of Law and the University of Missouri School of Law. She filed an amicus brief for the General Council of the Assemblies of God in support of the church in Trinity Lutheran v. Comer.

Although somewhat controversial, today’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer was far from unexpected. The case languished on the docket for over a year – under the common assumption that the justices were split 4-4 and were therefore awaiting a new member of the court. But oral argument revealed a Supreme Court that was surprisingly hostile to the idea that a state can refuse to allow a church to participate in a public program simply because it is a church.

Today, the Supreme Court resolved any remaining doubt about its views on that question, holding firmly that a state may not deny an otherwise publicly available benefit to a church or religious nonprofit because of its faith.

The facts were clearly on the side of the church. In an effort to prevent schoolyard injuries, Trinity Lutheran applied for a grant to purchase recycled tire scraps for its playground. Despite Trinity Lutheran’s strong application, Missouri’s Department of Natural Resources denied the grant for one reason only: Trinity Lutheran was a church. In the director’s view, to award public funding would violate Missouri’s Blaine Amendment, which provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.”

By a 7-2 margin, the Supreme Court found that such an application of Missouri’s Blaine Amendment was unconstitutional. The court was clear that the free exercise clause “protect[s] religious observers against unequal treatment.” Thus, any effort to deny a generally available benefit on religious grounds is subject to strict scrutiny. The court went on to find that Missouri had no compelling interest in discriminating against religious organizations in its effort to make playgrounds safer. Missouri’s application of its Blaine Amendment violated the free exercise clause because it put Trinity Lutheran to the choice of remaining a church or participating in a generally available public program.

But truth be told, today’s case was easy. To discriminate against a church in its application for public benefits, simply because it is religious, runs headlong into the free exercise clause – which explains the lopsided nature of the decision. It is not hard to see that the Constitution protects the right of a religious nonprofit to apply to participate in a public program without disavowing its religious character.

The Supreme Court’s opinion leaves to another day the more difficult question about whether state Blaine Amendments may be used to discriminate against private religious schools in the award of grants and scholarships. This question is critical for giving states the flexibility to provide quality education to low-income students in Missouri and other states. Indeed, a whopping 35 states have Blaine Amendments – century-old laws that have been interpreted to prohibit state scholarship recipients from choosing parochial schools.

We know from the 2002 case Zelman v. Simmons-Harris, however, that the federal Constitution does not require such a high wall of separation. Since the 1940s, it has been the law that a state may reimburse parents for the costs of transportation to both public and parochial schools. And Zelman held that the establishment clause is not violated when states provide funding to religious schools. In that case, Ohio sought to improve educational quality in Cleveland (where more than two-thirds of public school students either dropped out or failed prior to graduation), by providing families with educational options. Parents could choose to send their children to public or private schools (including religious schools), and tuition scholarships would follow the children.

The Supreme Court had little trouble blessing the scholarship program at issue in Zelman under the First Amendment. The court first found that the program was enacted for the valid secular purpose of improving the educational opportunities of the state’s poorest students. Further, there was no establishment clause violation because the aid program was neutral with respect to religion and left to the parents the choice as to how to direct that aid. The neutral program did not suggest government endorsement. And because parents chose the schools, any incidental advancement of a religious message was attributable to that individual choice, not the government.

The battle over state assistance to parochial education then turned to the states. In 2004, the Supreme Court held in Locke v. Davey that Washington state could (but need not, per Zelman) refuse under its Blaine Amendment to fund religious instruction that would prepare students for ministry.

Locke v. Davey involved difficult questions regarding what the court called the “play in the joints” between the establishment clause – “Congress shall make no law respecting an establishment of religion,” and the free exercise clause – “or prohibiting the free exercise thereof.” In Locke, the court described this “play in the joints” as the idea that there are “some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” In that case, there was no question that under the establishment clause, Washington could have allowed scholarship recipients to pursue devotional theology degrees. Yet the “play in the joints,” in the court’s view, meant that the state could refuse to fund such degrees without violating the free exercise clause.

Trinity Lutheran fleshes out the relationship between the First Amendment’s dual prohibitions – the “play in the joints.” Importantly, the court had no patience for Missouri’s argument that an infringement of the free exercise clause could be sustained because of a compelling interest in prohibiting establishment clause concerns. The court suggested that such an interest was neither compelling nor sufficient: “[T]he state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause.”

After Trinity Lutheran, then, discrimination against a religious nonprofit in the award of a public benefit cannot be justified on establishment grounds. And any argument that a burden on religion is justified by a state interest in establishing greater separation of church and state will similarly be suspect. The Supreme Court’s reasoning suggests that many applications of state Blaine Amendments are on shaky footing.

The court foresaw this possibility, and most likely to achieve greater consensus, sought to limit its opinion to playgrounds. In footnote 3, the court says: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

But of course Supreme Court opinions are not like a “restricted railroad ticket, good for this day and train only.” Neither the reasoning in Trinity Lutheran nor the free exercise clause contains any inherent playground restriction.

Indeed, the court’s reasoning today extends far beyond playgrounds. It suggests that Locke v. Davey may stand simply for the proposition that the training of clergy is different. Trinity Lutheran acknowledged that Washington was permitted to deny scholarships to individuals who chose to pursue “religious endeavors” – endeavors akin to supporting church ministers. But the court’s opinion suggests that a state may not prevent private individuals from choosing a religious education under a generally available scholarship or tuition grant program.

Indeed, the program at issue in Locke allowed scholarship students to attend “pervasively religious schools.” The college at issue in that case, Northwest College, promoted its educational pedagogy as being “distinctly Christian.” Every student was taught to use the “the Bible as their guide, as the truth,” no matter their field of study. And every student was required to take at least four devotional courses, “Exploring the Bible,” “Principles of Spiritual Development,” “Evangelism in the Christian Life,” and “Christian Doctrine.”

In Trinity Lutheran today, we see where the play in the joints stops. A state must be neutral as to religion. And when it instead chooses to discriminate in the award of generally available public benefits, its interest in achieving a greater than necessary wall between church and state will be suspect. Going forward, Blaine Amendments are less likely to provide the compelling government interest necessary to burden religion.

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Categories: Research

Opinion analysis: Court sends cross-border shooting lawsuit back to lower court

SCOTUS Blog - 7 hours 5 min ago

It has been a little over seven years since 15-year-old Sergio Hernandez was shot by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the border. Hernandez’s family filed a lawsuit against Mesa, arguing that (among other things) the shooting violated Hernandez’s right under the Fourth Amendment to be protected against excessive deadly force. Both Mesa and the U.S. government urged the Supreme Court to uphold the lower courts’ rulings dismissing the family’s lawsuit, but their case survived – at least for now. Acknowledging that the facts outlined in the family’s lawsuit “depict a disturbing incident resulting in a heartbreaking loss of life,” the justices sent the case back to the lower court for it to take another look.

View of the courtroom on the last day of opinions (Art Lien)

The Hernandez family had asked the justices to weigh in on two questions: whether the Fourth Amendment’s bar on excessive deadly force applies outside the United States and how courts should make that determination; and whether, even if Hernandez was protected by the Fifth Amendment’s guarantee that his life would not be taken without proper judicial proceedings, Mesa is immune from suit. But the justices asked the two sides to brief another question: whether the Hernandez family can rely on the Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents, holding that a plaintiff can bring a private federal case for damages against federal officials who allegedly violated his constitutional rights, at all.

In an unsigned opinion, the Supreme Court emphasized today that the lower court had not given any consideration to the Bivens question. The justices noted that plaintiffs cannot rely on Bivens when there are “special factors counselling hesitation in the absence of affirmative action by Congress.” And in another decision last week, the court continued, it indicated that the focus of that inquiry should be whether courts are “well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Therefore, the court concluded, the case should go back to the lower court for it to consider what effect that ruling might have on the Bivens question in this case. Doing so, the court indicated, might eliminate any need for the court of appeals to decide whether Hernandez was protected by the Fourth Amendment – which, the court seemed to suggest, could be preferable to deciding the “sensitive” and potentially “far reaching” Fourth Amendment question.

The court disagreed with the lower court’s conclusion that Mesa was entitled to qualified immunity from the family’s Fifth Amendment claim. That conclusion, the court explained, rested on the fact that Hernandez was not a U.S. citizen and did not have any connection to the United States. But that fact isn’t relevant to whether Mesa can be immune from a lawsuit, the court countered, because Mesa only learned after the shooting that Hernandez was not a U.S. citizen. Here too, the court stressed, the lower court had not addressed whether the family’s claim could even proceed under Bivens; it will now consider that question, as well as a series of other arguments about qualified immunity, on remand.

Justice Clarence Thomas wrote separately to indicate that, in his view, the Hernandez family could not rely on Bivens at all. “This case,” he contended, “arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny” – in particular, conduct that occurs across an international border. He would not have sent the case back to the lower court; instead, he would have put a halt to it altogether.

Justice Stephen Breyer dissented, joined by Justice Ruth Bader Ginsburg. In his view, Hernandez was protected by the Fourth Amendment when he was shot. Even if he was on the Mexican side of the border, Breyer reasoned, his location should not, standing alone, be dispositive. This is particularly true, Breyer continued, when you consider several factors. For example, Mesa – who shot Hernandez – is a federal law-enforcement officer, and the culvert where Hernandez was shot is in fact a “special border-related area” run by an international commission to which the United States contributes tens of millions of dollars each year. Moreover, a finding that Hernandez was not protected by the Fourth Amendment would create an anomalous result: Mesa could be held liable for shooting Hernandez if Hernandez was on the U.S. side of the “imaginary mathematical borderline running through the culvert’s middle,” but not if Hernandez was just a few feet on the other side of that line, even if everything else about the case, including Mesa’s behavior, remained the same. When all of these things are considered together, Breyer concluded, there is “more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections.” He would therefore decide the Fourth Amendment question in favor of Hernandez and send the case back to the lower court for it to decide the Bivens and qualified immunity questions.

The post Opinion analysis: Court sends cross-border shooting lawsuit back to lower court appeared first on SCOTUSblog.

Categories: Research

No decision in two immigration-enforcement cases

SCOTUS Blog - 7 hours 26 min ago

President Donald Trump has made immigration enforcement a top priority. Two immigration-enforcement cases looked likely to have a big impact on the Trump administration’s plans. Both were argued before the confirmation of Justice Neil Gorsuch. Today, the Supreme Court, apparently deadlocked, ordered reargument of the cases.

One of the cases, Jennings v. Rodriguez, involved immigration detention. Detained immigrants ordinarily have been eligible to post bond and be allowed release from custody. In a January 25, 2017, executive order, among numerous immigration-enforcement initiatives, Trump announced an end to the “catch and release” of immigrants facing removal from the United States. Detention without bond thus became official immigration-enforcement policy.

Generally speaking, criminal and civil detention of U.S. citizens is subject to basic constitutional safeguards. Such a rights-based system, however, fits uncomfortably into the much more limited constitutional protections historically offered to noncitizens. Reflecting this tension, the Supreme Court’s immigration-detention decisions are not altogether consistent.

In a class-action challenge to immigrant detention, Jennings v. Rodriguez raised the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing. The U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction requiring bond hearings every six months for immigrant detainees.

Indefinite detention without a hearing and possible release is difficult to justify as a matter of constitutional law. At the same time, however, some justices at oral argument expressed concern that the 9th Circuit had acted more like a legislature than a court in mandating a bond hearing every six months. In the end, the court apparently needed a tiebreaking vote and will address immigration detention next term.

Another case that the court did not decide involved criminal removal. In the last few years, the Supreme Court has decided a steady number of criminal-removal cases. In light of the Trump administration’s stated emphasis on the removal of “criminal aliens,” we will likely see more criminal removal cases in the future. Most of the removal cases that have recently come before the court, including Esquivel-Quintana v. Sessions decided earlier this term, have raised ordinary issues of statutory interpretation and administrative deference.

Sessions v. Dimaya instead was a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been largely immune from judicial review. The court appears to be moving toward applying ordinary constitutional norms to the immigration laws. Earlier this term, for example, the court in Sessions v. Santana-Morales held that gender distinctions favoring women over men in the derivative-citizenship provisions of the immigration laws violated the Constitution’s equal protection guarantee.

A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal. The Immigration and Nationality Act defines “aggravated felonies” expansively. That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

James Garcia Dimaya, who immigrated lawfully from the Philippines in 1992, has two residential burglary convictions; neither involved violence. Based on the convictions, the immigration court and the Board of Immigration Appeals ordered Dimaya removed from the United States. The U.S. Court of Appeals for the 9th Circuit found that Section 16(b) was unconstitutionally vague and vacated the order. To reach that conclusion, the 9th Circuit relied on the Supreme Court’s 2015 opinion in Johnson v. United States, in which court found the Armed Career Criminal Act’s similarly worded definition of “violent felony” was so vague as to violate due process.

The application of the void-for-vagueness doctrine to the immigration laws apparently divided the court. At oral argument, the justices seemed to agree that the court should review immigration-removal provisions under the standard due process test for vagueness. However, they appeared to be divided as to whether the case at hand was distinguishable from Johnson and thus whether Section 16(b) is unconstitutionally vague.

For the last decade, immigration cases have been a bread-and-butter part of the Supreme Court’s docket. The Supreme Court has slowly but surely moved immigration law toward the constitutional mainstream. We will have to wait until the next term to see if the court continues that trend with respect to immigrant detention and criminal removal.

The post No decision in two immigration-enforcement cases appeared first on SCOTUSblog.

Categories: Research

A “view” from the courtroom: A day for drama on the bench

SCOTUS Blog - 7 hours 37 min ago

Even in a Supreme Court term that many would agree is the first non-blockbuster in a good five years, the justices have managed to build up some suspense for their season finale this morning.

As we await the justices, Lyle Denniston has joined us in the press section. Normally on opinion days, Denniston stays down in the press room. But he announced last week that he is retiring — once and for all — from covering the court after nearly 60 years working for such outlets as The Wall Street Journal, the Washington Star, the Baltimore Sun, the Boston Globe, SCOTUSblog, the Constitution Daily blog and his own law blog.

Lyle’s wife, Pamela Houghton-Denniston, is here today for the occasion. She is member of the Supreme Court Bar and is sitting adjacent to her husband, but in that section.

Justice Sotomayor dissents in Trinity Lutheran (Art Lien)

Also in the press section in the courtroom today are two sketch artists — Art Lien of NBC News (and SCOTUSblog) and Bill Hennessy of CNN. We mention this only because we’re afraid that one or both might soon be called away from the court regularly to sketch the White House press briefing, as Hennessy was last week when the briefing was closed to cameras.

Meanwhile, across the room in the VIP section, Virginia Thomas, Justice Clarence Thomas’s wife, arrives. She is soon followed by Jane Roberts, the wife of Chief Justice John Roberts, and their two children, Josie and Jack. Joanna Breyer, the wife of Justice Stephen Breyer, also files into the section. But Mary Kennedy, the wife of Justice Anthony Kennedy, is a no-show, even though she is no stranger to the courtroom, especially on the last day of the term.

This is probably one more indication that no retirement announcement is coming from Justice Kennedy this morning. (And we have been a bit dubious that any such announcement would come from the bench. We can’t think of a retiring justice in recent decades who first disclosed his or her retirement in the courtroom.)

The justices take the bench about a minute or two late this morning. The chief justice announces that Thomas has the opinion for the court in Davila v. Davis. Thomas briefly describes the background of the case before using a favorite phrasing of his to announce the holding: “In an opinion filed with the clerk today …” This formulation, which makes it seem as though you are witnessing the law change at that very moment, was employed by a number of past justices but has fallen out of favor with Thomas’ current colleagues.

Thomas says that because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. The decision is 5-4 along the court’s conservative-liberal divide.

Kennedy is up next with the opinion in California Public Employees’ Retirement System v. ANZ Securities Inc. As soon as Kennedy mentions the word “retirement” in the name of California’s largest public-pension fund, we can practically hear the jokes emanating from the press room about Kennedy’s discussing retirement from the bench.

The decision is another 5-4 one along the conservative-liberal divide, with the majority holding that CalPERS’ untimely filing of its complaint more than three years after the relevant securities offering is ground for dismissal.

Kennedy, who had been leaning forward to inspect the pages of his summary as Thomas spoke and remained there while he delivered it, now leans back in his chair and seems relaxed.

Roberts announces that he has the opinion in Trinity Lutheran Church of Columbia Inc. v. Comer, except that he has only a judgment of the court with respect to Footnote 3, he says. We can’t wait to read this footnote, but it will remain a mystery as the chief justice recounts the story behind a case that was granted cert way back in January 2016.

He discusses how the “pea gravel” of Trinity Lutheran’s playground that can be “unforgiving” when youngsters fall from the slides, jungle gyms and monkey bars. The church sued after it was denied a grant from Missouri’s Scrap Tire Program based on language in that state’s constitution barring aid to churches.

Roberts summarizes a fair amount of his opinion, concluding with his mention of an 1829 speech by a Maryland legislator who urged that state’s assembly to adopt a bill that would end the state’s disqualification of Jews from public office, which spoke of “persecution” and “an odious exclusion.”

“The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion,” Roberts says. “And the result of the state’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Jordan Lorence of the Alliance Defending Freedom, which represented Trinity Lutheran, is seated near the front of the thinly populated bar section again today, and he listens intently to the summary.

The chief justice explains the somewhat complicated lineup that includes concurrences by Thomas and Justice Neil Gorsuch, a concurrence in the judgment by Breyer, and a dissent by Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg.

Sotomayor reads from the bench at some length from her 27-page dissent.

“This court has never before, in its 200-year history, allowed a state to turn over taxpayer funds to a house of worship,” she says. “This case is remarkable.”

There are now three merits cases still up in the air. Roberts explains that in one, Hernandez v. Mesa, about the cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent, a per curiam opinion has been issued and that the decision of the court below has been vacated and the case remanded. He explains that Thomas has filed a dissent, as has Breyer, joined by Ginsburg. But we otherwise don’t know in the courtroom what is really going on there.

Next, the chief justice announces that Jennings v. Rodriguez and Sessions v. Dimaya, both dealing with immigration, “are restored to the calendar for reargument.” Those are likely 4-4 ties in cases heard before Gorsuch joined the court.

The chief justice isn’t done. He has saved the announcement regarding the “travel ban” cases for one more dramatic moment in the courtroom.

He announces that the cert petitions in “Donald J. Trump versus International Refugee Assistance Project” and “Donald J. Trump versus Hawaii” are granted, and the government’s stay request is granted in part, with a partial concurrence and partial dissent by Thomas, Justice Samuel Alito, and Gorsuch. Again, there is a per curiam opinion that we don’t immediately have in hand.

Roberts then provides his traditional closing comments, thanking court employees for their outstanding work and dedication. He recognizes two who have retired in recent months: John Boulanger, an IT specialist with 25 years of service with the court, and Yvonne Rogers, a technician with 38 years’ experience.

The chief justice then turns towards the press section to recognize Denniston, citing not only his nearly 60 years of covering the Supreme Court but a career that began in 1948, covering the Otoe County Courthouse in Nebraska City, Neb. Denniston has covered Supreme Court terms that fill more than 200 volumes of the United States Reports, Roberts points out.

Every member of the court is looking Denniston’s way and smiling, including those who rarely if ever look toward the press section.

With that, Marshal Pamela Talkin bangs her gavel and announces that court is adjourned until October as the justices retreat through the curtains, the day’s drama at an end.

The post A “view” from the courtroom: A day for drama on the bench appeared first on SCOTUSblog.

Categories: Research

Relist Watch: Retirement Watch Edition

SCOTUS Blog - 8 hours 36 min ago

John Elwood reviews Monday’s relists.

We don’t have time to linger over the fact that the court set a new record by granting cert in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, after 14 relists, thus unseating the previous champ, District of Columbia v. Wesby15-1485 (granted after eight relists). Or the fact that the court granted cert without a relist in the two “travel ban” cases, Trump v. International Refugee Assistance Project, 16-1436, and Trump v. Hawaii, 16-1540. Or that, with those grants, as we said last week, “October Term 2017 is shaping up nicely after two lackluster terms.” (We’re basically back in “every term a blockbuster” mode. See footnote 1 here.) Nor do we even have time to discuss in detail how the court resolved all of the pending relists, issuing separate opinions regarding some and summarily reversing another. No, we have to rush because the court did another one of its anticipated-but-impromptu conferences today, and it considered a lot of new relists that might turn into grants imminently. For times like this … it’s Relist Watch Select™.

The court’s business has ended for another term, which is the traditional time to announce personnel changes. Retirement speculation has been swirling for weeks, so we’re eager to put those rumors to rest: I will not be retiring from Relist Watch. In a closely related vein, you should always carefully read the terms and conditions before clicking “agree” — you have no idea the kind of onerous terms you could be subjecting yourself to. See you back here in October!

Thanks to Bryan U. Gividen and newcomer R. Kent Piacenti for compiling the cases in this post, and the voices in my head for drafting it.


New Relists 

Cyan, Inc. v. Beaver County Employees Retirement Fund, 15-1439

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issue: Whether state courts lack subject-matter jurisdiction over covered class actions that allege only Securities Act of 1933 claims.

(Relisted after the June 22 conference)


Meshal v. Higgenbotham, 15-1461

Issue: Whether a U.S. citizen may bring a Bivens claim in the absence of any other remedy when federal law-enforcement officers unlawfully detain and grossly mistreat him during a criminal counterterrorism investigation abroad.

(Relisted after the June 22 conference)


Bank Melli v. Bennett, 16-334

Issues: (1) Whether Section 1610(g) of the Foreign Sovereign Immunities Act establishes a freestanding exception to sovereign immunity, as the U.S. Court of Appeals for the 9th Circuit held below, or instead merely supersedes First National City Bank v. Banco Para El Comercio Exterior de Cuba’s presumption of separate status while still requiring a plaintiff to satisfy the criteria for overcoming immunity elsewhere in Section 1610, as the U.S. Court of Appeals for the 7th Circuit has held and the United States has repeatedly urged; and (2) whether a court should apply federal or state law to determine whether assets constitute “property of” or “assets of” the sovereign under the Terrorism Risk Insurance Act and Section 1610(g), and whether those provisions require that the sovereign own the property in question, as the U.S. Court of Appeals for the District of Columbia Circuit has held and the United States has repeatedly urged, contrary to the decision below.

(Relisted after the June 22 conference)


Christie v. National Collegiate Athletic Association, 16-476

Issue: Whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States.

(Relisted after the June 22 conference)


New Jersey Thoroughbred Horsemen’s Association, Inc. v. National Collegiate Athletic Association, 16-477

Issue: Whether a federal statute that prohibits adjustment or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States and Printz v. United States.

(Relisted after the June 22 conference)


PEM Entities LLC v. Levin, 16-492

Issue: Whether bankruptcy courts should apply a federal rule of decision (as five circuits have held) or a state-law rule of decision (as two circuits have held, expressly acknowledging a split of authority) when deciding to recharacterize a debt claim in bankruptcy as a capital contribution.

(Relisted after the June 22 conference)


Rubin v. Islamic Republic of Iran, 16-534

Issues: (1) Whether 28 U.S.C. § 1610(g) provides a freestanding attachment-immunity exception that allows terror victim judgment creditors to attach and execute upon assets of foreign state sponsors of terrorism regardless of whether assets are otherwise subject to execution under Section 1610; and (2) whether the commercial-use exception to execution immunity, codified at 28 U.S.C. § 1610(a), applies to a foreign sovereign’s property located in the United States only when the property is used by the foreign state itself.

(Relisted after the June 22 conference)


Leslie v. Hancock Park Capital II, L.P., 16-1136

Issue: Whether a bankruptcy court’s authority to recharacterize putative debt as equity arises from the bankruptcy court’s general equitable powers under 11 U.S.C. § 105(a) as announced in Pepper v. Litton (as five circuits have held) or arises under 11 U.S.C. § 502(b), thus restricting the bankruptcy court’s equitable powers to applicable state law (as two circuits have held).

(Relisted after the June 22 conference)


Marinello v. United States, 16-1144

Issue: Whether a conviction under 26 U.S.C. 7212(a) for corruptly endeavoring to obstruct or impede the due administration of the tax laws requires proof that the defendant acted with knowledge of a pending Internal Revenue Service action.

(Relisted after the June 22 conference)

The post Relist Watch: Retirement Watch Edition appeared first on SCOTUSblog.

Categories: Research

Today in OpenGov: White House officials may have something to Confide

Sunlight Foundation - 16 hours 7 min ago

After a long weekend away, we're back with the latest open government news from Washington, around the U.S. and across the globe. 

Last week, Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive filed a lawsuit against President Trump and the Executive Office of the President arguing that they "appear to be violating the Presidential Records Act (PRA) and the Constitution’s requirement that the president “take care” that the laws be faithfully executed through the White House’s use of confidential messaging applications and other problematic practices including its destruction of the president’s tweets." Read more, including the entire text of the lawsuit, on CREW's website.

washington watch
Image Credit Linnaea Mallette
  • Scott Pruitt wins the Golden Padlock Award. The dubious honor goes to " the most secretive U.S. agency or individual. Pruitt was selected for this honor for steadfastly refusing to provide emails in the public interest and removing information from public websites about key environmental programs." (Investigative Reporters and Editors) Other finalists for the award included Atlanta Mayor Kasim Reed, the entire Missouri Department of Health and Senior Services, and more.  
  • The House Legislative Branch Appropriations Subcommittee unanimously supported public access to Congressional Research Service Reports. (Daniel Schuman) We're thrilled to see Congress taking steps to open publicly funded research.
  • Jury selection begins in Sen. Menendez corruption trial. "Menendez, a New Jersey Democrat, is accused of improperly seeking to help Florida doctor Salomon Melgen in a Medicare overb illing case, a contract dispute with the Dominican Republic and with visa applications for three girlfriends. Prosecutors say Menendez accepted nearly $1 million in campaign donations and luxury travel, including a Paris vacation, from Melgen." (Bloomberg)
  • New audit finds 60% of federal websites fail on privacy, security, and consumer protection. The Online Trust Alliance "assessed approximately 1,000 websites for the 2017 Online Trust Audit & Honor Roll report and found that the number of government sites that made the “honor roll” dropped to 39 percent this year from 46 percent in 2016." (Executive Government)
  • The New York Times collected and published "nearly every outright lie" that President Trump has told since taking his oath of office in January. 
  • Trump Organization's Indian partners have history of law enforcement attention. "In two deals signed before Donald Trump was elected president, the company aligned itself with Indian partners who were already attracting the attention of law enforcement authorities. One, called IREO, is under investigation by India’s Enforcement Directorate over the source of its funding, suspected violations in its land purchasing and the possibility of money laundering. The other, M3M India, has been the target of sweeping tax raids; on a different project, the company was recently accused in a criminal complaint of bribing officials to clear-cut land." (Washington Post)
  • Recent Trump appointee is a registered lobbyist for Saudi Arabia. Richard Hohlt, who was recently appointed to the President's Commission on White House Fellowships "is a registered agent of Saudi Arabia earning hundreds of thousands of dollars to lobby on the kingdom’s behalf, according to U.S. Department of Justice records reviewed by the Center for Public Integrity." (The Center for Public Integrity)
  • Leakers at increased risk under Obama and Trump administrations. "But since 2009, the federal government has grown increasingly hostile toward leakers and news organizations that have published classified information. As The New York Times noted in its coverage of  [Reality] Winner, President Trump, 'like his predecessor Barack Obama, has signaled a willingness to pursue and prosecute government leakers.'" (The Conversation) Meanwhile, over-classification runs rampant. "Part of the reason government secrets have ballooned is that government employees are incentivized to classify records—a decision to keep information unclassified can come back to haunt an employee but not so the reverse. The system is irrational and confusing because the same documents that are classified in one file are not always classified in another. Even a document available on the internet can be classified as 'top secret,' yet courts have refused to acknowledge the discrepancy in how documents are treated as a defense when people are charged with leaking classified information." (America, The Jesuit Review)
states and cities
  • Bakersfield, California shares interactive street condition data. "The Bakersfield Public Works Department has unveiled its city street conditions data online at the request of Ward 4 City Councilman Bob Smith. Go to the interactive map and a colorful array of green, yellow, orange and red lines wiggle across your computer screen, telling you in how good or bad of shape experts think individual roads are. You can type in a street name to zero in on its condition." (Government Technology)
  • Engaging government staff as a civic tech volunteer. Jesse Birosack, a product manager with the City of Boston, shared some good advice for people who want to work with local public officials to improve their governments. 
  • New Jersey Supreme Court rules that electronic records are public records. "In what one lawyer called a 'very significant' decision, the court unanimously held that the state’s 16-year-old Open Public Records Act, which guarantees people the right to most government records, covers requests for information taken from emails, provided releasing it would not intrude on privacy rights or run afoul of any of the other 30 or so exemptions in the law. The court’s ruling reversed an appellate decision that had, for a time, made it harder to get such information, said John Paff, a well-known public records advocate who was the plaintiff in the case." (NJ Spotlight)
around the world
Russian President Vladimir Putin
  • European countries ramp up long running efforts to counter Russian misinformation. Across Europe, "countries are deploying a variety of bold tactics and tools to expose Russian attempts to sway voters and weaken European unity," write Dana Priest and Michael Birnbaum in the Washington Post.
  • Open data portal will bring unprecedented access to Denmark's energy data. "A revolutionary new online portal, which gives open access to Denmark’s energy data, is set to spark innovation in smart, data-led solutions for energy efficiency. The Energy Data Service, launched on 17 June 2017 by the CEO of Denmark’s state-owned gas and electricity provider Energinet, and the Minister for Energy, Utilities and Climate, will share near real-time aggregated energy consumption data for all Danish municipalities, as well data on CO2emissions, energy production and the electricity market." (Open Knowledge)
  • Help research the EU's efforts to open up. " If you know of interesting initiatives within the EU institutions, or know people who would be interesting to talk to about their work within the EU institutions then please get in touch. Drop Mat an email on with a few sentences outlining the initiatives or people that you know about." (Demsoc)
save the dates
Committee on House Administration
  • June 27th: Legislative Data and Transparency Conference in Washington, DC. "The Legislative Data and Transparency Conference 2017 (#LDTC17), hosted by the Committee on House Administration, will take place on Tuesday, June 27, 2017in the Capitol Visitor Center Congressional Auditorium. The #LDTC17 brings individuals from Legislative Branch agencies together with data users and transparency advocates to foster a conversation about the use of legislative data – addressing how agencies use technology well and how they can use it better in the future." Learn more here.
  • June 27th: Boosting Government Efficiency in Washington, DC. At this event, hosted by Nextgov, "we’ll explore how agencies are using emerging technologies, advanced analytics, and big data to nurture practical innovation and deliver results.  Join us to hear best practices and case studies from the government leaders at the forefront of improving government performance." Learn more here
  • June 28th, 10am EST: How Can Demand Driven & Bottom Up Social Accountability Tools Improve Health Services? The Experience of Rural Mozambique, Webinar. "This webinar explores how Concern Universal has managed to find the intersections in incentives and goals between government and rural communities while helping overcome some crucial gaps in health service delivery. It focuses on lessons learned through application of collaborative government/citizen’s approach. More information here:"
  • June 29th: DATA Act Summit 2017 in Washington, DC. "The fourth annual DATA Act Summit, hosted by the Data Coalition and Booz Allen Hamilton, will bring together supporters of the open data transformation from across government and the private sector." Learn more and get your tickets here.
  • July 5th, 10am EST: ICT-mediated Citizen Engagement: Voice or Chatter? Webinar. "In this webinar, IT for Change will present the results of eight empirical case studies of citizen engagement through ICTs they undertook. This research, funded by Making All Voices Count, explored in each case how new forms of participation were shaped by IT, how IT affected power relations between government and citizens, and how the interactions between different actors continuously shape governance. More information here:"
  • July 19th, 5:30 PM EST. Book Discussion: When Your Job Wants You To Lie in Washington, DC. "Join us for a discussion that will help us deal with the kinds of situations we all encounter. Presented by the American Society for Public Administration, National Capital Area Chapter (ASPA NCAC). Refreshments start 5:30, and the discussion starts 6:00. Space is limited, so you must RSVP in advance." Learn more and RSVP here
  • July 27th, 10 am: Chief FOIA Officers Council Meeting in Washington, DC. "OGIS and the Department of Information Policy (OIP) at the Department of Justice are happy to announce that the next meeting of the Chief FOIA Officers Council will be held on Thursday, July 27th from 10 am to noon. You can register to join the audience in the William G. McGowan Theater beginning on July 26. You can also plan on watching the livestream via the National Archives’ YouTube Channel."
  • September 11th and 12th: TicTec@Taipei in Taipei. "TICTeC@Taipei is the first ever conference about the influence of civic tech to be held in Asia. We’ve invited members of academia, business, politics, NGOs, education to participate, and discuss their research. We hope through this event, we can build a global network of civic tech enthusiasts." The event is being held during #CivicTechFest 2017. Learn more, submit a session proposal, and register to attend here.
  • September 13th: Civic and Gov Tech Showcase in San Jose, California. "Innovate Your State, in partnership with Microsoft and the City of San Jose, is bringing the 3nd Annual Civic & Gov Tech Showcase to the Capitol of Silicon Valley. The Civic & Gov Tech Showcase is an opportunity to connect with civic minded entrepreneurs, potential investors, and government leaders to showcase the great work that is being done to improve government and governance. The goal of the event is to encourage collaboration and the support of new technologies to improve government and public participation." Learn more and get your tickets here.
  • September 14th – 16th: Digital Humanities and Data Journalism Symposium, in Miami, Florida. "Digital humanists and data journalists face common challenges, opportunities, and goals, such as how to communicate effectively with the public. They use similar software tools, programming languages, and techniques, and they can learn from each other. Join us for lectures and tutorials about shared data types, visualization methods, and data communication — including text visualization, network diagrams, maps, databases and data wrangling. In addition to the scheduled content, there will be opportunities for casual conversation and networking." Learn more and register here.


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Categories: Research

Ohio Government Websites Hacked With Pro-Islamic State Messages

Slashdot: Your Rights Online - 22 hours 54 min ago
An anonymous reader quotes Bloomberg: The websites of Ohio Governor John Kasich and other state government agencies were hacked on Sunday with a posting professing love for the jihadist group Islamic State. Ten state websites and two servers were affected, and they've been taken off line for an investigation with law enforcement into how the hackers were able to deface them, said Tom Hoyt, a spokesman for the Ohio Department of Administrative Services... The same pro-Islamic State message, accompanied by music, were also shown on Sunday on the website of Brookhaven, a town on New York's Long Island about 50 miles (80 kilometers) from Manhattan, the New York Post reported... Ohio Treasurer Josh Mandel, a Republican candidate for the U.S. Senate in 2018, posted on Facebook that the Department of Rehabilitation and Correction website had been hacked and said, "Wake up freedom-loving Americans. Radical Islam infiltrating the heartland."

Read more of this story at Slashdot.

Categories: Research

UN-WHO Global Abortion Policies Project Database – Laws and Policies

beSpacific - Sun, 06/25/2017 - 22:07

“The Global Abortion Policies Project (GAPP) has been designed to strengthen global efforts to eliminate unsafe abortion by producing a global, open-access repository of current abortion laws, policies, and national standards and guidelines. The purpose of the Project is to increase both the transparency of abortion laws and policies and to foster accountability among governments as they adopt and implement such policies. The Project has been structured to facilitate comparative analyses of countries’ abortion laws and policies by placing them in the context of the WHO guidance on safe abortion. Current laws and policies on abortion can be used as benchmarks to monitor and evaluate national progress in creating an enabling policy and regulatory environment for eliminating unsafe abortion. The Project Database is a collaborative effort by the Population Division of the Department of Economic and Social Affairs of the United Nations and the Department of Reproductive Health and Research of the World Health Organization.”

Categories: Research

Commentary – Here’s Why You Should Simply Give In to Google

beSpacific - Sun, 06/25/2017 - 21:47

Here’s Why You Should Simply Give In to Google, Gavin Phillips, June 19, 2017: “Google powers internet search for just under two-thirds of U.S. adults. Google produces routers, installs fiber connections, and is working on driverless vehicles. Google’s Android is now the mobile operating system of choice for 86 percent of all smartphone users, and well over 50 percent of the U.S. smartphone market. There aren’t many areas where Google isn’t involved. But search and data remains the primary income source, and long shall it remain. Google has unfettered power over our internet search. Privacy advocates believe Google simply has too much power and too much responsibility for a single corporation to handle. Are those privacy concerns unfounded? Moreover, should we give in to Google for the best user experience? Let’s find out…” […And if you’re truly worried, you can always use a VPN to protect your data along with a Google search alternative – Yes to both!]

Categories: Research

Roadside Cameras Infected with WannaCry Virus Invalidate 8,000 Traffic Tickets

Slashdot: Your Rights Online - Sun, 06/25/2017 - 21:34
Long-time Slashdot reader nri tipped us off to a developing story in Victoria, Australia. Yahoo News reports: Victoria Police officials announced on Saturday, June 24, they were withdrawing all speed camera infringement notices issued statewide from June 6 after a virus in the cameras turned out to be more widespread than first thought. "That does not mean they [the infringement notices] won't not be re-issued," Assistant Commissioner Doug Fryer told reporters, explaining that he wants to be sure the red light and speed cameras were working correctly. Acting Deputy Commissioner Ross Guenther told reporters on Friday that 55 cameras had been exposed to the ransomware virus, but they've now determined 280 cameras had been exposed. The cameras are not connected to the internet, but a maintenance worker unwittingly connected a USB stick with the virus on it to the camera system on June 6. Fryer said that about 1643 tickets would be withdrawn -- up from the 590 that police had announced on Friday -- and another five and a half thousand tickets pending in the system would be embargoed. Fryer said he was optimistic the 7500 to 8000 tickets affected could be re-issued, but for now police would not issue new tickets until police had reviewed the cameras to ensure they were functioning properly... The "WannaCry" malware caused the cameras to continually reboot, Fryer said. Fryer said there was no indication the malware had caused inaccurate radar readings, but police were being "over cautious" to maintain public faith in the system. Last week Victoria's Police Minister was "openly furious" with the private camera operator, saying the group hadn't notified the relevant authorities about the infection.

Read more of this story at Slashdot.

Categories: Research

Sideways Dictionary makes tech jargon more accessible

beSpacific - Sun, 06/25/2017 - 21:24

Engadget – ‘Sideways Dictionary’ simplifies tech jargon for the masses The Google/Washington Post venture uses analogies to explain “DDoS,” “cookie” and other terms. If you ever get confused about tech jargon (or want to clear up said confusion), a new tool from Google’s Jigsaw incubator and the Washington Post may help. The “Sideways Dictionary” uses analogies and metaphors to help regular, non-techy people understand terms like “zero-day,” “metadata,” “net neutrality” and other jargon. Users will be able to access analogies online like a regular dictionary or find them in the Post, where they’ll accompany articles that contain “technobabble.”

Categories: Research

WH Historical Assoc. Leverages Amazon Web Services to Expand Digitization of Historical Assets

beSpacific - Sun, 06/25/2017 - 21:16

News release: “The White House Historical Association [a private, non-profit organization founded in 1961 by First Lady Jacqueline Kennedy]…announced [on June 21, 2017] a new innovative and strategic use of Amazon Web Services (AWS), expanding the Association’s digital archive and making educational materials more accessible to the public through the power of the AWS Cloud.  The White House Historical Association is leveraging the AWS Cloud to expand the digitization of White House artifacts and assets in the . The Library holds thousands of images of the White House covering its entire history, including exterior views, images of rooms and furnishings, and photos of events including inaugurations and holiday celebrations. In support of the Association’s educational mission, each image is accompanied by carefully documented historical information provided free to the public in an easy-to-use format. Using AWS will allow significant expansion of the Library through infrastructure development, advanced cloud computing technology, and other AWS Partner Network (APN) services…”

Categories: Research

The Stanford Open Policing Project

beSpacific - Sun, 06/25/2017 - 20:14

The Stanford Open Policing Project – “On a typical day in the United States, police officers make more than 50,000 traffic stops. Our team is gathering, analyzing, and releasing records from millions of traffic stops by law enforcement agencies across the country. Our goal is to help researchers, journalists, and policymakers investigate and improve interactions between police and the public.”

Categories: Research

Free tool allows users to locate and analyze curated public datasets from around the world

beSpacific - Sun, 06/25/2017 - 20:08

Caroline Scott’s article – “Data released by official agencies and government bodies provides transparency and insight, and can often highlight trends or anomalies that are in the public interest. However, some of these datasets are often difficult to access, while in other instances it is not clear whether they even exist, making it harder for journalists to find stories and collect information to provide the bigger picture. Enigma Public, a free tool built by data management and intelligence company Enigma, launched yesterday (20 June) with the aim of helping users find the data they need and learn how to improve their use of information. The 100,000 datasets from over 100 countries bring together information from international organisations and federal governments, and local and state governments in the USA, spanning subjects like building permits and fire inspection data, to things such as the contents of shipping containers, and financial contributions to political campaigns. Users get a description of the datasets, along with key use cases and related information

“We wanted to provide an interface that enabled that information to be searched, discovered, and related,” said Marc DaCosta, Enigma’s chairman and co-founder. “All the data in Engima Public will be updated regularly, from online and offline sources, and is really a work in progress to grow and keep adding to it.”

The site can be used in two main ways: to search for a specific topic, company or person and see the datasets related, or to browse through the collection and see what stands out to you individually. There are curated collections of datasets to help journalists, such as energy, health and sanctions, or they can simply work through the categorised public collections of data to find what they are looking for, and bookmark the sets they want to come back to later. Datasets can be filtered by keyword to help reporters find what they are looking for within the bulk of information, and they can be exported to save to a user’s computer…”

Categories: Research

Great Barrier Reef valued at $56B by Deloitte economists

beSpacific - Sun, 06/25/2017 - 19:56

Great Barrier Reef Foundation – “A new Deloitte Access Economics report has calculated the total asset value of the Great Barrier Reef to be $56 billion, assessing the World Heritage site’s economic, social and iconic brand value together in one study for the first time. In the report commissioned by the Great Barrier Reef Foundation with support from National Australia Bank and the Great Barrier Reef Marine Park Authority, Deloitte Access Economics analysed the Reef’s:

  • Economic, social, and iconic value;
  • Contribution to the economy through industry value added and employment;
  • Brand value to Australia and the international community; and
  • Significance to Aboriginal and Torres Strait Islander Traditional Owners.

Great Barrier Reef Foundation Director Steve Sargent said: “Like the Great Barrier Reef itself, the numbers revealed in the report are big and highlight just how significant the Reef’s contribution to Australia’s economy is:

  • $56 billion value as an economic, social, and iconic natural asset;
  •  $6.4 billion economic value added to the Australian economy in 2015-16;
  •  $3.9 billion in economic value added to Queensland’s economy in 2015-16;
  • $2.9 billion economic value added to the Great Barrier Reef Marine Park (GBRMP) region in 2015-16; and
  • 64,000 jobs nationally linked to the Reef, including 33,000 in Queensland.”

“At $29 billion, tourism is the biggest contributor to the Reef’s $56 billion value, followed by $23.8 billion from indirect or non-use value, i.e. those who haven’t yet visited the Reef but value knowing it exists, and its value to recreational users ($3.2 billion) makes up the balance,” Mr Sargent said. “As the largest living structure on Earth and one of the world’s most complex and diverse natural ecosystems, the Great Barrier Reef is justifiably considered priceless and irreplaceable.”

Categories: Research