U.S. Supreme Court Holds That Federal Age Discrimination Law Applies to All Public Employers

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In the first opinion of its new term, the United States Supreme Court unanimously held that the federal Age Discrimination in Employment Act (the “ADEA”) applies to all public employers, regardless of the number of employees that the entity has.  The ruling in Mount Lemmon Fire District v. Guido affirmed the Ninth Circuit Court of Appeals, which was alone among the circuits in holding that the ADEA applies to small as well as larger public employers.

The fire district involved in the case is a political subdivision in Arizona, and in order to resolve a budget shortfall, laid off its two oldest full-time firefighters (aged 46 and 54).  The firefighters sued the fire district and alleged that their termination violated the ADEA.  The fire district moved to dismiss the suit on the ground that the district was too small to qualify as an “employer,” as defined by the ADEA.  The ADEA’s definitional provision, which can be found at 29 U.S.C. § 630(b), states as follows:

The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .

The Equal Employment Opportunity Commission (the “EEOC”) found reasonable cause that the fire district had discriminated against the fire fighters.  The district court reversed and—following the at least four other circuit courts, including the Seventh Circuit—held that the 20-employee threshold applied to state and local public employers.  The Ninth Circuit reversed the district court.

In an opinion written by Justice Ruth Bader Ginsburg, the Court sided 8-0 with the Ninth Circuit and the fire fighters (Justice Kavanaugh took no part).  The Court briefly recounted that the ADEA originally imposed liability on private employers only and even then only when those entities “met a numerical threshold” for employees.  Slip op. at 2.  When Congress amended the ADEA to cover state and local governments, it added them to the definition of employer at the end of the definitional provision.  Thus, the Court focused on the parties’ dispute over the phrase “also means”:  Does it “add new categories to the definition of ‘employer,’ or does it merely clarify that States and their political subdivisions are a type of ‘person’ included” in the first sentence?  Id. 

The Court concluded the former interpretation—that in adding “also means,” Congress added new categories of employers to the ADEA—was the right one.  “First and foremost, the ordinary meaning of ‘also means’ is additive rather than clarifying.”  Id. at 4.  The Court also noted that the phrase appears “dozens of times throughout the U.S. Code, typically carrying an additive meaning.”  Id. at 4–5.  Finally, the Court rejected the fire district’s warning that applying the ADEA to small public employers “risks curtailment of vital public services such as fire protection,” as the EEOC has consistently interpreted the ADEA as covering all public employers regardless of size and many state age discrimination statutes do the same, and “[n]o untoward service shrinkages have been documented.”  Id. at 6. 

Although it is a short and unanimous opinion, Mount Lemmon is notable in that the Court sided with employees and the oft-maligned Ninth Circuit.  And, for a more local angle, the Supreme Court has implicitly overruled the Seventh Circuit’s decision in Kelly v. Wauconda Park District, 801 F.2d 269 (7th Cir. 1986), which held that the ADEA covered state and local governments only if they have at least 20 employees.  Small Wisconsin municipalities and other political subdivisions should take note of their vulnerability to age discrimination claims filed with the EEOC.  Of course, similar claims filed under Wisconsin law do not face any numerosity requirement for any kind of employer.  See Wis. Stat. §§ 111.32(6), .321–.322. 

Wisconsin Courts Apply Recent US Supreme Court Decision in OWI Refusal Cases

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The United States Supreme Court issued its decision in Birchfield v. North Dakota, 579 U.S. ___, 2016 U.S. LEXIS 4058 (June 23, 2016) only weeks ago. More information on the Birchfield decision is available here. In the brief time since Birchfield was decided, the Wisconsin Court of Appeals has already issued multiple opinions interpreting Wisconsin’s Implied Consent Law in light of Birchfield. State v. Blackman, No. 2015AP450-CR (Aug. 3, 2016) and State v. Dalton, No. 2016AP6-CR (July 20, 2016), both decided by the District II Court of Appeals, highlight the various implications Birchfield may (or may not) have on OWI prosecutions.

In Dalton, the defendant was involved in a one-car crash. He was charged with a second offense OWI and second offense operating with a prohibited alcohol concentration after a warrantless blood draw showed a blood alcohol concentration of .238 – almost three times the legal limit. Dalton’s attorney did not file a motion to suppress the evidence based on the warrantless blood draw, and Dalton pled no contest to the OWI charge.  Under Wisconsin law, a second offense OWI is a criminal misdemeanor. At sentencing, the trial court judge imposed a more severe penalty against Dalton due to Dalton’s refusal to voluntarily submit to the blood draw. After finding Dalton was not entitled to a Machner evidentiary hearing, the court denied Dalton’s postconviction motion to withdraw his plea due to ineffective assistance of counsel, or to be resentenced. 

The court of appeals reversed. Citing Missouri v. McNeely, 133 S.Ct. 1552 (2013), the court noted that the warrantless blood draw would be invalid, unless there were exigent circumstances. However, Dalton’s trial counsel failed to file a motion to suppress, and the issue was not decided. The court found that neither Dalton’s postconviction motion nor the facts in the record clearly established exigent circumstances. Instead, Dalton’s postconviction motion alleged sufficient facts from which a court could conclude that Dalton’s trial counsel provided ineffective assistance by failing to file a motion to suppress, that had such a motion been filed the motion may have been successful and Dalton would not have pled guilty, but instead, would have gone to trial. Therefore, Dalton was entitled to a hearing where he would bear the burden of proof in showing his trial counsel performed deficiently in failing to file a suppression motion, and that he was prejudiced as a result. Addressing Dalton’s alternative request for resentencing, the court instructed that on remand the court should also consider Dalton’s sentencing claims in light of Birchfield, which prohibits the imposition of criminal penalties for refusal to submit to blood testing.

Like Dalton, Blackman arose from a crash. However, unlike Dalton, Blackman agreed to submit to a blood test after being involved in an accident where he hit a bicyclist with his vehicle. After the accident, the officer correctly advised Blackman that if he withdrew his consent to blood testing, his license would be revoked. Blackman provided the sample, and the blood alcohol concentration was .10. The trial court granted Blackman’s motion to suppress the blood sample on the grounds that his consent was coerced.

The court of appeals reversed. It first noted that this case implicated a specific portion of the Implied Consent Law, Wis. Stat. § 343.305(3)(ar)2., which allows for the taking of a blood, breath or urine sample from any driver involved in an accident that results in great bodily harm, regardless of whether there is evidence of impairment from drugs or alcohol. If a defendant refuses the blood test, his or her license will be statutorily revoked; however, a defendant may request a refusal hearing. The court then noted the fact that impairment evidence is not required under Wis. Stat. § 343.305(3)(ar)2. is seemingly contrary to the refusal hearing statute, which strictly limits the issues at a refusal hearing to (1) whether the officer had probable cause to believe the driver was under the influence of alcohol or a controlled substance and (2) whether the driver was lawfully arrested for an OWI-related violation. As a result of this apparent disconnect, a driver such as Blackman could refuse a blood test requested under § 343.305(3)(ar)2. and have his license statutorily suspended, but was likely to succeed in having the revocation reversed at a refusal hearing.  Nonetheless, citing its decision in State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867, the court found that Blackman’s consent was not coerced. Blackman chose to provide a sample of his blood, and the fact that he may have prevailed at a refusal hearing did not negate his freely given consent. In a footnote, the court noted the Birchfield decision, but found it inapplicable in this case as the Wisconsin Implied Consent Law does not provide for criminal penalties for refusal.

The Dalton and Blackman cases harmoniously apply Birchfield, differentiating between those case implicating criminal penalties (Dalton) and those resulting in only civil penalties (Blackman). As additional cases are decided in Wisconsin with Birchfield in mind, its full effect will no doubt be clarified. Further, as suggested by Blackman, there may also be need for legislative changes to better refine Wisconsin’s Implied Consent Law.

Supreme Court Upholds Warrantless Breath Tests and Limits Penalties for Blood Test Refusals

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In Birchfield v. North Dakota, 579 U.S. __ (June 23, 2016), the United States Supreme Court held warrantless breath tests incident to arrest for drunk driving constitutional, but found warrantless blood tests unconstitutional.  The Court also held that, despite the existence of implied consent laws in all States, criminal penalties cannot be imposed against drivers who refuse to submit to a blood test.

This case is the consolidation of three separate state matters, all involving defendants arrested for drunk driving.  Defendant Danny Birchfield refused to submit to a blood test.  Birchfield was charged with misdemeanor refusal and entered a conditional plea.  His argument that criminal refusal penalties are prohibited by the Fourth Amendment was rejected throughout the state courts.  After being arrested, William Bernard was advised of Minnesota’s implied consent law, including the fact that refusal to submit to breath testing is a criminal offense.  The district court dismissed the charges against Bernard on the grounds that warrantless breath testing was not permitted by the Fourth Amendment, though the district court decision was reversed by the court of appeals and the affirmed by the Minnesota Supreme Court.  Defendant Steve Beylund was given the informed consent advisory after his arrest.  He agreed to have his blood tested, but later argued his consent was coerced because the officer’s warning advised him that refusal to consent to the blood test could have criminal repercussions.  This argument was rejected by the North Dakota courts.

Providing the background for its decision, the Court first discussed the need for drunk driving laws, as well as the methodologies available for testing blood alcohol concentration.  It also described the history of implied consent laws nationwide as well as the evolution of laws to combat and deter test refusals.  After laying this groundwork, the Court established a very clear delineation between breath and blood testing for BAC, holding the Fourth Amendment permits warrantless breath testing incident to arrest for drunk driving, but not warrantless blood testing.  Under the well-established search-incident-to-arrest doctrine, arrest alone justifies search of person.  However, there was no definitive guidance on whether blood or breath tests should be allowed incident to arrest.  As a result, the Court considered the respective privacy impacts of such tests.  Breath tests, on the one hand, require only negligible physical intrusion and the arrested party is simply expelling into the mouthpiece air that he or she would ultimately exhale at some point in the future.  Further, breath tests provide only a BAC reading, leaving no DNA or other biological information in the possession of the government.  A blood test, on the other hand, requires piercing of the skin and extraction a part of the arrestee’s body.  The resulting sample can be preserved and law enforcement could later extract information well beyond a BAC level.

The Court then evaluated the States’ need to obtain BAC readings.  The States have a “paramount” interest in protecting public safety by deterring drunk driving.  By imposing severe penalties for refusal, States incentivize cooperation in BAC testing.  Further, imposition of a warrant requirement for every BAC test further overburdens courts, particularly in more rural areas. 

Based on the minimal privacy impact of breath tests as compared to the substantial need for BAC testing, the Court found the Fourth Amendment allows for warrantless breath tests incident to arrest for drunk driving.  In contrast, however, the Court found the States failed to provide a sufficient justification for requiring the more intrusive blood testing without a warrant.  Nonetheless, the Court noted that law enforcement retains the ability to obtain a warrant or rely upon the exigent circumstances exception to obtain blood testing without a warrant when appropriate, as discussed in the Court’s decision in Missouri v. McNeely, 113 S. Ct. 1552, 569 U.S. __ (2013). 

With respect to the application of the implied consent laws and evaluation of refusal penalties, the Court found “[t]here must be a limit to the consequences to which motorists may be deemed to have consented by virtue of decision to drive on public roads.”  Id. at __ (slip op. at 36).    Drivers may only consent to “reasonable” conditions with a “nexus” to the privilege of driving and bearing penalties that are proportional to the violation.  Id. at __ (slip op. at 37).  Applying this standard, adopted from Fifth Amendment jurisprudence, the Court found drivers cannot be found to have consented to blood testing under threat of criminal penalties.

The three underlying cases were disposed of in accordance with the Court’s decision. 

The majority opinion was authored by Justice Alito.  Justice Sotomayor drafted an opinion, concurring in part and dissenting in part, which was joined by Justice Ginsburg.  This opinion dissented from the majority on the grounds that, like blood testing, breath testing should also require a warrant.  A warrant is required only in cases where the arrestee refuses, which occurs a minority of the time, and the opinion posits that adequate time and resources are available to obtain a search warrant in such cases.  Justice Thomas concurred in part and dissented in part, arguing, as he did in McNeely, that warrants should be not required for breath or blood testing incident to arrest for drunk driving.  Justice Thomas promoted the position that the dissipation of alcohol from the blood stream provides the basis for a per se rule that the exigent circumstances exception to the warrant requirement applies in all drunk driving arrests once probable cause is established.

The majority’s decision provides seemingly clear instruction on the appropriate approach to pursuing BAC testing when a driver refuses.  Those municipalities and law enforcement agencies regularly utilizing blood testing will need to ensure that their policies and approach to dealing with refusals comply with the warrant or warrant exception parameters outlined in Birchfield.  Wisconsin law does not criminalize refusal, and therefore, this decision is unlikely to affect refusal penalties in our state.  

Why Murr v. Wisconsin is a Fascinating Takings Case that the U.S. Supreme Court Should Not Decide

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The U.S. Supreme Court is commanding attention this week for its decisions in the final, and sometimes more contentious, cases of this Term. And while we too are following the Court this week, we’re also looking at a case the Court will hear in the fall. Murr v. Wisconsin, No. 15-214 (U.S.), is a fascinating takings case from the northwest corner of our state. Last week, we filed an amicus curiae brief in Murr, arguing on behalf of organizations representing every level of local government in Wisconsin that the case should not be decided on the merits of the constitutional question it presents. Instead, the brief argues, the Court should dispose of the case through one of three means: by dismissing the writ of certiorari as improvidently granted, by remanding the case to the Wisconsin state courts for further proceedings, or by certifying a question of Wisconsin state law to the Wisconsin Supreme Court.

The amicus brief we filed was written on behalf of the Wisconsin Counties Association, the Wisconsin Towns Association, and the League of Wisconsin Municipalities. Taken together, these three voluntary membership organizations represent every level of local government in the state of Wisconsin. In representing the WCA, the WTA, and the League in the Murr case, we worked with co-counsel at von Briesen & Roper, S.C.

This post about the Murr case is broken into three parts, which can be read together or separately. The first part provides an overview of the facts and the proceedings that brought this case to the U.S. Supreme Court. The second part discusses the arguments we presented in our amicus brief. And the third part summarizes the arguments the parties have presented to the Supreme Court in their merits briefs so far (the petitioners have not yet filed their reply brief) and that the federal government has offered. Readers who seek greater detail, either factual or legal, can find our brief, as well as the merits briefs of the parties and briefs by other amici here

Part 1: The Factual and Procedural Background of Murr v. Wisconsin

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The case involves two adjacent riverfront lots along the St. Croix River in northwest Wisconsin. In 1968, the Upper St. Croix River was one of eight rivers granted federal protection under the Wild and Scenic Rivers Act. In 1972, another act of Congress extended protection to the Lower St. Croix River. Legislation and regulation on the state and local levels followed, so that by the mid-1970s, land use along the Lower St. Croix River (where the lots at issue in this case are situated) were subject to several overlapping sets of zoning requirements.

William and Margaret Murr, the parents of the petitioners in the current suit, bought two adjacent riverfront lots along the Lower St. Croix in the early 1960s. Both lots were bisected by a 130-foot-high bluff, with a lower portion along the river and a higher portion atop the bluff. On the eastern lot (called Lot F in the litigation), the Murrs built a cabin close to the water. They then transferred title to both the lot and the cabin to their family plumbing business. The western lot (Lot E), they kept vacant and in their own names.

In 1982, the Murrs transferred title to Lot F and the cabin from the family business back to themselves. This was the first time that the lots were under common ownership after the adoption of the zoning regulations at issue in the case. In 1994, the Murrs gifted Lot F (the one with the cabin) to their six children. In 1995, they did the same with Lot E. Two of the children subsequently relinquished their interests in the lots, so that the lots are now owned by four siblings (the petitioners in the current suit).

In 2004, the petitioners sought to flood-proof the cabin on Lot F. They filed a permit application with St. Croix County. The County responded with a detailed letter explaining that overlapping zoning regulations applied to the lots and restricted how the petitioners could use their land. While there were options for flood-proofing the cabin in its current location, they were somewhat limited and would require obtaining variances from some of the zoning regulations overseen by the County, the Town of Troy, and the Wisconsin Department of Natural Resources. There were also additional options, including building a larger home on top of the bluff, but the petitioners rejected that approach as impractical.

For more than a year, the petitioners engaged in discussions with County zoning staff, Town officials, and WDNR representatives. In March 2006, the petitioners filed a plan to move the cabin back from the water, closer to the bottom of the bluff, and to expand its footprint. They also filed applications to the County Board of Adjustment for the five variances and two special exception permits necessary to achieve their plan. The County zoning staff analyzed the applications in detail. They reviewed the materials the petitioners submitted, visited the property, held further discussions with the petitioners, studied the applicable zoning regulations, and invited feedback from the Town of Troy, the St. Croix County Land and Water Conservation Department, the WDNR, and the Federal Emergency Management Agency (which insures homes, including the petitioners’ cabin, within the floodplain of the Lower St. Croix River). At the end of that process, the County zoning staff made extensive findings and recommended that the Board of Adjustment deny the petitioners’ applications. After seeing the recommendation and before the Board had held a hearing, the petitioners withdrew their applications.

In June 2006, the petitioners tried again. This time they sought six variances and two special use permits. Of particular note was a new request for a variance that would allow them to develop or sell Lot E separate from Lot F. A variance from applicable zoning law was necessary for separate development or sale, because each lot individually was too small—after accounting for portions of the property within the floodplain or the slope preservation zone— for development under the regulations applicable to the Lower St. Croix Riverway Overlay District. Those regulations had not been in existence when the Murrs built the cabin on Lot F, but they began to apply in 1975. And they included a provision, fairly common in Wisconsin and elsewhere, that where two contiguous properties had the same owners and were substandard (that is, too small for development as zoned), the lots were treated as one property for zoning purposes. This provision meant both that the petitioners’ plans were analyzed in the context of the two lots being one property and that the petitioners could not raise funds for their renovation of the cabin on Lot F by selling Lot E to someone else as developable riverfront property.

Once again, the County zoning staff engaged in a thorough review of the petitioners’ applications. The Town of Troy recommended approving the petitioners’ requests for variances and special exceptions to renovate the cabin on Lot F, but sought further research on the request for a variance to develop or sell Lot E separately. The WDNR and the St. Croix County Land and Water Conservation District recommended denying all of the petitioners’ applications. FEMA took no position. The County zoning staff again made extensive findings and, on the basis of those findings, recommended that the Board of Adjustment deny the petitioners’ applications. The Board held a hearing on June 22, 2006. The petitioners participated in the hearing. The Board denied all of the petitioners’ applications on June 28, 2006.

One of the petitioners, Donna Murr, then filed a certiorari suit in the Circuit Court for St. Croix County. Her suit alleged that the Board of Adjustment had acted improperly in denying the petitioners’ applications for variances and special use permits. The Circuit Court affirmed the Board of Adjustment’s denial of the variance to treat Lots E and F separately, but held that the Board of Adjustment should have granted the variances and special exceptions to renovate the cabin on Lot F. Both sides appealed the Circuit Court’s ruling. The Wisconsin Court of Appeals concluded that the Circuit Court had exceeded the scope of proper certiorari review in deciding that the Board of Adjustment should have granted some of the variances and special exceptions. It restored the Board of Adjustment’s decision in full.

The judicial proceedings over the propriety of the Board of Adjustment decision lasted for several years, until the Wisconsin Supreme Court denied Donna Murr’s petition for review of the appellate ruling in May 2011. During those proceedings, the petitioners and the County zoning staff resumed discussions in search of a way that the petitioners could reach their goals of flood-proofing the cabin. Shortly after the certiorari suit ended, the petitioners promised the County zoning staff that they were going to submit a new plan for the cabin. They never followed through with that promise. Instead, the petitioners filed another law suit.

The petitioners’ second suit, which has now reached the U.S. Supreme Court, focused solely on the denial of the variance application to develop or sell Lot E separately from Lot F. The suit alleged that the County regulation on which the denial was based—the regulation treating contiguous, substandard lots under common ownership as one property—and a state regulation that informs the Lower St. Croix Riverway Overlay District deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” Therefore, they asserted, the regulations constitute an uncompensated taking of their private property, in violation of article I, section 13 of the Wisconsin Constitution and the Fifth Amendment to the U.S. Constitution.

In the Circuit Court for St. Croix County, the County and the State moved for summary judgment. They articulated four independent, alternative grounds on which the court could rule in their favor: (1) the petitioners’ claim was time-barred under the applicable Wisconsin statute of limitations; (2) the case was not ripe for adjudication because the petitioners had not exhausted their administrative remedies before starting litigation; (3) the petitioners had no cognizable property right in Lot E separate from Lot F because the ordinance considered them as one property; and (4) the petitioners could not demonstrate a regulatory taking because they had not been deprived of all or substantially all of the beneficial use and value of their property.

The Circuit Court granted summary judgment for the County and the State. The court found that the petitioners had not filed their suit within the six-year limit set by Wis. Stat. § 893.93(1)(a). It reasoned that there were several dates when the six-year clock could have begun ticking, and that the petitioners’ claim was untimely under all of them. According to the Circuit Court, the clock could have started when the ordinance at question was adopted in 1975, since that action put the Murrs (the petitioners’ parents) on notice that their lots would be considered one property for zoning purposes if the lots came under common ownership. Or the clock could have started when the lots came under the petitioners’ common ownership in 1995, since they should then have researched the zoning regulations that applied to their property. (Neither the Circuit Court nor the parties considered the fact that the two lots had come under the Murrs’ common ownership in 1982.) Or the clock could have started in late 2004 when the petitioners began consulting County zoning staff about their options for flood-proofing the cabin, because the County staff sent letters explaining the applicable regulations to the petitioners at that time. Or the clock could have started as late as April 2005, when the petitioners’ attorney sent Donna Murr an email specifically addressing the ordinance provision treating contiguous, substandard lots under common ownership as one property. In any of those scenarios, the Circuit Court explained, the petitioners’ suit, filed in March 2012, was untimely.

Then, despite having already determined that the petitioners’ suit could not go forward, the Circuit Court analyzed the merits of the petitioners’ constitutional claim. It did not acknowledge, much less address, the County and State’s arguments that the petitioners’ claim was unripe or that the petitioners did not have a separate legal property right in Lot E. It went straight to the constitutional issue and held that the petitioners had not suffered a regulatory taking because they retain “several options for the use and enjoyment of their property despite the denial of the variance” to develop or sell Lot E separately.

The petitioners appealed this decision to the Wisconsin Court of Appeals. That court recognized the procedural oddness of the Circuit Court having “reached the merits,” “[d]espite th[e] conclusion” that “the [petitioners’] claim was time barred.” Murr v. State, 2015 WI App 13, ¶10,  359 Wis.2d 675, 859 N.W.2d 628 (Table) (unpublished) (per curiam). Nevertheless, the appellate court proceeded with its own analysis of the merits of the constitutional claim and did “not reach the issue of whether [the petitioners’] claim was timely filed.” Id., ¶12. The appellate court, like the Circuit Court, held that there was no regulatory taking in this case. Id., ¶31. The Wisconsin Supreme Court denied the petition for review. Murr v. State, 2015 WI 47, 366 Wis.2d 59, 862 N.W.2d 899 (Table).

At that point, the petitioners, represented by new counsel, filed a petition for a writ of certiorari in the U.S. Supreme Court. The State of Wisconsin waived its right to oppose the petition. St. Croix County filed a brief opposing the petition. The Court granted certiorari in January 2016. Murr v. Wisconsin, 136 S. Ct. 890 (2016). In April, the petitioners filed their opening merits brief, followed by eleven amicus briefs supporting them. In June, the State of Wisconsin and St. Croix County each filed merits briefs, followed by several amicus briefs, including ours. The petitioners’ reply brief is due in July. 

To read about our amicus brief arguing that the Court should not decide on the merits of this case, click here

Part 2: Why the Supreme Court Should Decide Not to Decide Murr v. Wisconsin

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The amicus brief we filed on behalf of WCA, WTA and the League did not delve into the merits of the takings issue that the parties are disputing. Rather, it sought to complement the parties’ arguments and assist the Court in two ways:

  • First, based on our clients’ expertise as representatives of Wisconsin local governments, we sought to contextualize the zoning ordinance at issue by showing that its approach to contiguous, substandard lots under common ownership is widespread in Wisconsin. (Other amici sought to provide additional context by discussing the historical evolution of similar provisions and their prevalence in other states.)
  • Second, we argued that, because of the procedural history of the case in the Wisconsin state courts, the case should not be the occasion for a new constitutional decision about takings.
  • Finally, we identified three possible procedural avenues by which the Court could dispose of the case without reaching an unnecessary constitutional decision.

The brief advances the interests of the WCA, the WTA, and the League by sharing additional information about how local governments in Wisconsin approach zoning decisions and urging the Supreme Court not to reach an unnecessary constitutional decision that would intrude on the balance that Wisconsin has maintained since statehood between individual property rights and respect for decision-making about land use at the local level.

Providing additional information about Wisconsin land use law

As explained in an earlier part of our blog discussion about the Murr case, the petitioners’ suit challenges a provision in the St. Croix County zoning regulations applicable to the Lower St. Croix Riverway Overlay District. Under that provision, where two contiguous properties have the same owners and are substandard (that is, too small for development as zoned), the lots are treated as one property for zoning purposes. In this case, the provision meant both that the petitioners’ plans were analyzed in the context of the two lots being one property and that the petitioners could not raise funds for their renovation of the cabin on Lot F by selling Lot E to someone else as developable riverfront property.

Our brief emphasized that such an approach is not unique either to St. Croix County or to the Lower St. Croix Riverway. Indeed, as detailed in an appendix to our brief, fifty of Wisconsin’s seventy-two counties—nearly seventy percent—have enacted zoning ordinances that effectively combine commonly-owned, contiguous, substandard lots into a single lot. Specifically, thirty-three counties—more than forty-six percent—implicitly combine commonly owned, contiguous, substandard lots through zoning ordinances. An additional seventeen counties—nearly twenty-four percent—explicitly consider commonly owned, contiguous, substandard lots as a single lot. We provide examples of ordinances that accomplish this goal implicitly and explicitly, as well as a table citing the analogous ordinances in each of the fifty Wisconsin counties that have such ordinances. We also provide a list of the twenty-two counties that do not have a similar ordinance.

Arguing against constitutional adjudication at this juncture

As explained in the earlier discussion of the procedural history, St. Croix County and the State sought summary judgment in their favor in the circuit court. When they did so, they articulated four independent, alternative grounds on which the court could rule in their favor. The circuit court agreed with the first of these arguments, that the suit was not filed within the time limits set forth in Wis. Stat. § 893.93(1)(a), the applicable statute of limitations. Then, despite having already determined that the petitioners’ suit could not go forward, the circuit court proceeded to address the merits of the petitioners’ constitutional claim, which it found lacking.

When the petitioners appealed, the Wisconsin Court of Appeals noted the procedural oddity of the circuit court deciding the merits after having ruled that the case could not proceed because it was untimely. Murr v. State, 2015 WI App. 13, ¶10. Yet the appellate court then proceeded to affirm on the basis of its own constitutional analysis, opting “not [to] reach the issue of whether [the petitioners’] claim was timely filed” but to “assume, without deciding, that it was.” Id., ¶12. The Wisconsin Supreme Court declined to hear the petitioners’ appeal, so the state courts’ analysis ended at that point.

At the petitioners’ request, the U.S. Supreme Court agreed to hear the case to consider the question of how the ‘parcel as whole’ concept described in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 130-31 (1978), applies to a takings analysis involving two commonly-owned, contiguous parcels of property. As our discussion of the merits illustrates, this is a fascinating question that has the potential to significantly alter constitutional jurisprudence on the meaning and application of the takings clause. But our amicus brief argues that there is no reason to answer that question at this point and that the Supreme Court should decline to do so.

Constitutional adjudication is unnecessary—and even inappropriate—at this stage because the case can be resolved without looking to the text of the Constitution. Under the long-established and well-settled rule of constitutional avoidance, courts resolve constitutional questions, only “[i]f they become indispensably necessary to the case.” Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (Marshall, C.J., riding circuit). As a result, Chief Justice Roberts has explained in a unanimous opinion, courts “will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Bond v. United States, 134 S. Ct. 2077, 2087 (2014) (internal quotation marks omitted; citing Ashwander v. Tenn. Valley Auth., 297 U. S. 288, 347 (1936) (Brandeis, J., concurring)). This rule applies as long as there is a non-constitutional basis for resolving a dispute, even where a lower court has already weighed in on the constitutional question. See, e.g., Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 485 U.S. 660, 669-74 (1988) (remanding for resolution of a threshold state-law question that could obviate the constitutional question decided by the Oregon Supreme Court and appealed to the U.S. Supreme Court).

In Murr, the Wisconsin Court of Appeals expressly chose not to consider whether the petitioners’ case was timely filed. By doing so, the court waded into the waters of constitutional adjudication unnecessarily. The takings question never arises if the petitioners’ suit is barred by the statute of limitations, as the circuit court in fact held. And no court has considered the limitations issue and concluded that the circuit court got it wrong. Given that, there is no necessity for the U.S. Supreme Court to address the constitutional issue. This is a case that can be—and, indeed, has been—adjudicated solely on the grounds of state statutory law. In such a case, the rule of constitutional avoidance militates against constitutional adjudication.

Moreover, no court—not the circuit court, the Wisconsin Court of Appeals, nor the Wisconsin Supreme Court—even considered the argument that the petitioners’ suit is unripe because they failed to exhaust all of their options before the St. Croix County Board of Adjustment prior to filing suit. Yet, “a final and authoritative determination of the type and intensity of development legally permitted on the subject property” is “an essential prerequisite” to a regulatory takings action. MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 348 (1986). This is necessarily true because “[a] court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.” Id. “[A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). The St. Croix County Board of Adjustment’s denial of a variance application submitted once in conjunction with one specific building plan for the petitioners’ property does not constitute “a final decision” for purposes of the ripeness analysis. See, e.g., Yolo Cty., 477 U.S. at 348-52.

The record in Murr that the petitioners’ claim is unripe is incontrovertible. The petitioners’ own conduct and words make this clear. During the eighteen months between the petitioners’ first approach to the County zoning staff about flood-proofing their cabin and the denial of their application for a variance to use Lots E and F separately, County officials repeatedly identified and suggested alternative development plans to the petitioners. The petitioners never pursued those alternatives. Moreover, even several years after the Board of Adjustment decision at issue and shortly before filing this lawsuit, the petitioners indicated to County officials that they would be submitting a new development plan for regulatory consideration. They never did. In deposition testimony, one of the petitioners explained that they “still want to pursue these [other development options outlined by the County] at some point in time. It’s just that we are in the process of the [sic] doing the taking.” But as long as those other develepment options remain on the table and have not been pursued, a takings claim remains unripe for adjudication.

Suggesting several alternate avenues to dispose of this case

Given the procedural peculiarities that militate against constitutional adjudication in Murr at this point, our amicus brief suggests three possible ways the Supreme Court could dispose of the case.

First, the Court could dismiss its writ of certiorari as improvidently granted. Doing so would end the case. It would leave the Wisconsin Court of Appeals decision below as the final word. But, because that decision was an unpublished decision signed not by any individual judge but issued per curiam (by the court as a whole), Wisconsin law prohibits its citation as a binding precedent or even as a persuasive authority. Wis. Stat. § 809.23(3). Thus, dismissal would not perpetuate the Court of Appeals’ constitutional analysis. It would simply end the dispute between the parties to this case and leave the constitutional question identified by the petitioners for resolution in another case.

Second, the Court could vacate the Court of Appeals decision and remand the case to the Wisconsin courts for a decision on whether the petitioners’ case was timely filed and/or whether their claim is ripe for adjudication. When relying on the rule of constitutional avoidance, this Court often vacates and remands for further proceedings consistent—or at least “not inconsistent”—with its opinion. If the Wisconsin Court of Appeals (and, potentially, the Wisconsin Supreme Court after it) were to follow the circuit court’s decision in concluding that petitioners’ suit was time-barred, that would render constitutional adjudication unnecessary. Of course, if the Wisconsin courts ultimately decided that neither the statute of limitations nor the ripeness doctrine resolved the case and again issued a constitutional ruling, the case could come back to the U.S. Supreme Court. See, e.g., Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990) (deciding the constitutional question avoided in earlier round of litigation after the Oregon Supreme Court held that resolution of threshold state-law question did not obviate the Free Exercise issue).

Third, the Court could certify a question of law to the Wisconsin Supreme Court. Wis. Stat. § 821.01. That certification could focus on when the limitations clock in this case began to run, on the ripeness of the petitioners’ claim under the administrative processes available to the petitioners, or on both. Were the Wisconsin Supreme Court to hold Petitioners’ suit time-barred or unripe, no constitutional adjudication would be needed. On the other hand, if resolution of the certified question(s) did not end the case, this Court could proceed to decide the constitutional issue.

Any of these approaches would have the virtue of respecting prudential doctrines that counsel against deciding constitutional questions unnecessarily. They would also acknowledge and advance the careful balance Wisconsin has struck between individual property rights, on the one hand, and state and local decision-making, on the other.

To read about the positions taken by the parties on the merits of the case, click here

Part 3: The Arguments of the Parties and the Federal Government in Murr v. Wisconsin

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The dispute over the validity of the St. Croix County zoning ordinance at issue in Murr really depends on how you define the petitioners’ property. (For an overview of the facts of this case, click here.) If, like the petitioners, you believe that Lots E and F are separate properties and must be considered as such, then there is a stronger argument that the zoning laws result in a taking. If, like the County and the State, you believe that the St. Croix County ordinance effectively merged the two lots into a single property once they came under common ownership, then there probably is no taking, because the petitioners have several options for uses of the property that would conform to the zoning laws.

A regulation is often more onerous when applied to a smaller parcel than to a larger parcel. For that reason, land owners alleging a taking generally seek to define the affected property in the narrowest possible terms, while regulators generally seek to define the property as broadly as possible. In takings law, the definition of the property subject to the challenged regulation is known as the “denominator question.” Here, the petitioners insist that the Wisconsin Court of Appeals erroneously understood the Constitution to require considering Lots E and F together as the denominator. The County and the State (as well as the federal government) disagree with that contention, though they offer different reasons for their conclusions.

The petitioners’ argument

The petitioners assert that Lots E and F are two separate parcels of land. They rely on Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), to support the argument that their adjacent properties cannot be considered as one. In that case, the owner of Grand Central Terminal claimed to have suffered a regulatory taking when New York City cited its Landmarks Preservation Law in denying the owner’s application to build an office tower above Grand Central. Specifically the company claimed its air rights had been taken without compensation. The U.S. Supreme Court held there was not a taking. The Court explained that, because takings law does not provide for dividing a single parcel into segments, the air rights should not be considered separate from the rest of the property for the takings analysis.

The petitioners read Penn Central as supporting their position. They see it as rejecting the idea that a single property can be divided into separate subdivisions with the aim of showing that one piece had been taken. But they also see it as a narrow ruling that does not allow—much less require—the aggregation of commonly owned parcels for a takings analysis. They note that, although the New York state courts evaluating the takings claim in Penn Central had considered income from other nearby properties also owned by the same developer who owned Grand Central Terminal, the U.S. Supreme Court did not adopt that reasoning. As a result, the petitioners cite Penn Central for the proposition that property neither be segmented nor aggregated in determining the denominator for a takings analysis; rather, the property must be viewed on its own terms. In this case, they see those terms as the metes and bounds that define Lot E as separate a property from Lot F.

The petitioners argue that their parents’ expectations when they purchased Lots E and F further support treating the lots as separate properties for the takings analysis. Their expectations that the two lots were distinct properties and that they had ownership rights—including the rights to possess, exclude, to use, and to convey—over each property were reasonable because the government created and approved the lots as separate parcels.

The State of Wisconsin’s argument

The State argues the petitioners’ property is one unified whole. To support this conclusion, it relies on Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Lucas says that, in identifying the relevant denominator for a takings analysis, a court should consider how state law shaped the land owner’s reasonable expectations. The State argues that applying Lucas respects each state’s authority over the division of land within its borders and that relying on state law leads to greater predictability in the results of takings litigation. The State suggests that courts should avoid looking to case-specific and subjective factors to determine the relevant parcel, because doing so will lead to less-predictable outcomes.

The State therefore frames the question in Murr this way: how have Wisconsin’s laws and regulations shaped the petitioners’ reasonable expectations regarding their land? In response, the State argues that, under Lucas, the petitioners’ claim that Lots E and F are separate parcels is unreasonable in light of Wisconsin law. To support that conclusion, the State points to the St. Croix County zoning ordinance that merges contiguous, substandard properties under common ownership; a similar regulation promulgated by the Wisconsin Department of Natural Resources; and the Wisconsin Supreme Court’s ruling in Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (1996).

St. Croix County’s argument

Like the State, St. Croix County argues the petitioners’ property is one parcel, not two. The County focuses on the issue of valuation, arguing that the Wisconsin Court of Appeals correctly considered the value of Lots E and F as one combined property with a residence, rather than the hypothetical value of Lots E and F separately with a residence on each lot. The County explains that state law defines property interests and that lot lines are not themselves controlling. It notes that the lot lines for the petitioners’ property were not permanent, but had changed several times since they were initially drawn in 1959. The County contends the Court should consider several factors—of which lot lines should be only one—when determining the relevant parcel, including ownership history, unity of use, and government treatment of the land. The County urges the Court to ignore the owner’s subjective desires for use of the property.

The County defends its zoning ordinance (and the state regulation underlying it) that treats contiguous, substandard properties under common ownership as merged by noting that many other states have similar regulations, which are “longstanding and widespread.” The County explains that isolated lots that are nonconforming to zoning ordinances are usually granted variances. However, if nonconforming lots are adjacent and have common ownership, the lots are combined and denied the variance in order to meet the zoning under the code (or become closer to meeting it). The County contends that such laws are important for striking a balance between achieving zoning goals and maintaining land uses that were allowed when the land owner purchased the property. The County notes the prevalence of such merger laws shape land owner’s reasonable expectations, as well as other factors.

Solicitor General’s amicus brief

The Solicitor General of the United States, who is the nation’s chief legal advocate, filed an amicus brief in support of the State and the County. In that brief, the United States government agrees with both the State and the County’s conclusion that the lots are one parcel, but it reaches that conclusion for different reasons.

The government explains that state lot lines do not establish the relevant parcel. Spatial, functional, and temporal considerations establish that Lots E and F are one property. The lots are contiguous, have common ownership, were acquired closely in time, and share the same topography. The Wisconsin regulation merging substandard lots in the area provides an additional reason to consider the two lots as one. On this basis, the government joins the State and the County in urging the Supreme Court to affirm the Wisconsin Court of Appeals decision.

The Solicitor General has also filed a motion asking the Supreme Court to grant the federal government some time at oral argument to advocate for its position.

The petitioners have an opportunity to respond to the State, the County, and the federal government’s arguments in their reply brief, which is due by July 29. 

Our main, introductory post on Murr v. Wisconsin can be found here

Law clerk Olivia Pietrantoni assisted in researching and writing this post. 

Supreme Court Reasserts FERC Authority Over Wholesale Markets, Open to Incentives for New Investment

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Earlier this year, the Stafford Rosenbaum Appellate Practice blog addressed the U.S. Supreme Court decision in FERC v. Electric Power Supply Association, 136 S. Ct. 760 (U.S. 2016), which discussed the boundary between the jurisdiction of the Federal Energy Regulatory Commission (FERC) and the authority of state regulators over electricity markets. Last week, in Hughes v. Talen Energy Marketing, LLC, No. 14-618 (U.S. Apr. 19, 2016), the Supreme Court decided another case about FERC’s authority.

The Hughes opinion begins by mapping the boundary dividing regulatory authority between states and the federal government with respect to energy markets. Under the Federal Power Act, FERC has “exclusive jurisdiction over wholesale sales of electricity in the interstate market.” Hughes, slip op. at 1. “[T]he law places beyond FERC’s power, and leaves to the States alone, the regulation of ‘any other sale’—most notably, any retail sale—of electricity.” Id. at 2 (internal quotation omitted).

For wholesale markets that cross state lines, FERC regulates “an auction-based market mechanism to ensure wholesale rates that are just and reasonable.” Id. at 1. Non-profit entities called regional transmission organizations, or RTOs, administer these auctions, with each RTO responsible for a portion of the nation’s electric grid. The RTO serving the mid-Atlantic region is PJM Interconnection. Various FERC rules govern wholesale electricity auctions. One of those rules is designed to protect new electricity generators from the risk of fluctuating prices on the wholesale capacity market for a period of three years.

The Maryland Public Service Commission (MPSC) wanted to increase in-state generation capacity. See id. at 6. It had concerns that the PJM auctions and FERC’s three-year protection for new producers were not adequate to incentivize investment in a new electricity generating plant in Maryland. See id. To allay the concern, Maryland first asked FERC to extend the three-year protection policy to ten years. When FERC refused, Maryland regulators adopted their own approach, set forth in a Generation Order. See id. at 7. (New Jersey regulators adopted a similar plan for a new generator in their state; that plan was not directly at issue in Hughes. Id. at 7 n.4.)

The MPSC’s Generation Order authorized a private company to build a new generation facility and sell the generated power through the PJM auctions. However, the MPSC guaranteed that the company would receive, for a period of 20 years, a fixed price for the capacity it sold, rather than the fluctuating price at the PJM auctions. The MPSC provided that any differences between the prices set by PJM auctions (known as the “clearing price”) and the contract’s fixed price would be passed along to in-state retail utilities and, ultimately, to consumers. See id. at 7.

Maryland’s existing electricity generators sued members of the Maryland Public Service Commission in their official capacities, seeking a declaratory judgment that the Generation Order violated the U.S. Constitution’s Supremacy Clause by interfering with FERC’s regulatory scheme under the Federal Power Act. See id. at 9. Both the U.S. District Court for the District of Maryland and the U.S. Court of Appeals for the Fourth Circuit ruled that federal law preempted Maryland’s program. See id. at 10­11. Last week, the Supreme Court agreed. Id. at 11.

Under the Supremacy Clause, federal law preempts state law where “Congress has legislated comprehensively to occupy an entire field of regulation,” or where “the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (internal quotation marks and citations omitted). The Federal Power Act grants FERC “plenary authority over interstate wholesale rates.” Id. at 14 (internal quotation marks omitted). Exercising that jurisdiction, FERC has chosen the auction mechanism as the “sole ratesetting mechanism” on the wholesale market. Id. at 12.

The MPSC has, through the Generation Order, authorized a new generator to participate in the PJM auctions but guaranteed that generator would receive a fixed price for its capacity. Thus, in effect the Generation Order sets an interstate wholesale rate for the new electricity generator—regardless of the clearing price established by the PJM auctions. By doing so, the MPSC “invade[d] FERC’s regulatory turf.” Id. Because “States may not seek to achieve ends, however legitimate, through regulatory means that intrude on FERC’s authority over interstate wholesale rates,” the Generation Order is preempted. Id. at 13.

The Court recognized that the MPSC “was attempting to encourage construction of new in-state generation.” Id. at 12. Such attempts are certainly legitimate, so long as they do not encroach on FERC’s exclusive jurisdiction. The Court explicitly noted other ways a state might go about incentivizing development of new generation and clean power without trespassing on FERC’s turf. Such potentially permissible avenues include “tax incentives, land grants, direct subsidies, construction of state-owned generation facilities, or re-regulation of the energy sector.” Id. at 15.

The Hughes decision is a narrow one. While it reaffirms FERC’s broad and exclusive authority over interstate wholesale markets, it strikes down only a very specific state program. The Court acknowledged the demand for new and clean energy and indicated it will not interfere with state programs, so long as those programs remain consistent with the cooperative federalism envisioned in the Federal Power Act. Importantly, as the Court noted, auction-based energy markets are still a relatively new phenomenon, and the Court’s interpretation of federal energy law in the age of deregulation in some states continues to evolve. For state electricity regulators in Maryland (and elsewhere), it is now back to the drawing board—and then likely the courtroom, to defend whatever plans they develop.

The narrow Hughes holding has little applicability in Wisconsin, which has not deregulated its retail electricity market. Wisconsin’s Public Service Commission authorizes the state’s utilities to construct new power plants, generally rendering the kind of third-party arrangement at issue in Hughes unnecessary here. 

Thank you to Joe Diedrich for his assistance with this post.

Is Denial of a Litigant’s Request for Anonymity Immediately Appealable?

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Is denial of a plaintiff’s request to bring suit without disclosing their identity within the “‘small class’ of non-final orders that are deemed final and immediately appealable” under the collateral order doctrine? Doe v. Village of Deerfield, No. 15-2069, slip op. at 4 (7th Cir. Apr. 12, 2016). The Seventh Circuit considered that question for the first time last week.

In 2014, an individual sued the Village of Deerfield, Illinois, and two individuals. The plaintiff, who identified himself using the fictitious name “John Doe,” claimed malicious prosecution and violation of his federal civil rights. He alleged that, as a result of the individual defendants’ false statements to a Village police officer, he had been arrested and prosecuted for violating two municipal ordinances. He further alleged that, even after learning the individual defendants’ statements had been false, the Village continued with the prosecution. John Doe asserts the Village engaged in this course of conduct out of a desire to retaliate against him for a previous lawsuit he filed against a Village police officer.

In response to John Doe’s complaint, the defendants moved to dismiss because Doe failed to provide his true name in the caption, as required by Federal Rule of Civil Procedure 10(a). Doe opposed the motion and separately moved to proceed anonymously. The district court denied Doe’s motion to proceed anonymously and granted the motion to dismiss. The district court allowed, however, that Doe could amend his complaint to include his real name and then proceed with his claims. Instead, Doe appealed both the dismissal order and the denial of his motion to proceed anonymously to the Seventh Circuit.

Before the Seventh Circuit could decide whether the district court properly ruled on Doe’s motion, it had to determine whether it had jurisdiction over the appeal. As a general matter, “[a]n order dismissing a complaint without prejudice is not a final order that is appealable.” Id. The district court’s order had prevented Doe from proceeding without presenting his true name, but it did not decide Doe’s claims on the merits or foreclose him from pursuing those claims.

Under statute, federal appellate jurisdiction is limited to “final decisions of the district courts” and certain enumerated interlocutory orders. 28 U.S.C. §§ 1291–1292. The United States Supreme Court, however, has carved out a narrow exception to the statutory limitations on appellate jurisdiction—the “collateral order doctrine.” In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546–47 (1949), the Court declared that a non-final order is immediately appealable if it meets three conditions:

  1. the order must “be conclusive on the issue presented”;
  2. the order must “resolve an important question separate from the merits of the underlying action”; and
  3. the order must “be ‘effectively unreviewable’ on an appeal from the final judgment of the underlying action.”

Doe, slip op. at 4.

While the order dismissing Doe’s complaint without prejudice was insufficient to trigger appellate jurisdiction, the denial of Doe’s motion to proceed anonymously could potentially fall within the collateral order doctrine. The Seventh Circuit approached this issue as a question of first impression. Id. at 5.

Agreeing with precedent from several other circuits, the Seventh Circuit held that denials of motions for leave to proceed anonymously are collateral orders that are immediately appealable. First, such orders are conclusive on the issue presented, because they “preclude a party’s ability to proceed anonymously.” Id. Second, “the question of anonymity is separate from the merits of the underlying action.” Id. at 6. Third, if the “parties were required to litigate the case . . . on the merits utilizing their true names, the question of whether anonymity is proper would be rendered moot,” which makes the initial anonymity determination “effectively unreviewable.” Id.

Having determined it had jurisdiction to hear Doe’s appeal, the court still had to decide whether anonymity was appropriate in this case. The court allowed that it may sometimes be necessary for a party to proceed anonymously but cautioned such occasions should be kept to a minimum:

We have repeatedly voiced our disfavor of parties proceeding anonymously, as anonymous litigation runs contrary to the rights of the public to have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes. To proceed anonymously, a party must demonstrate “exceptional circumstances” that outweigh both the public policy in favor of identified parties and the prejudice to the opposing party that would result from anonymity.

Id. at 7. Here, the court stated, Doe had not shown the requisite “exceptional circumstances.” Doe’s argument that “having to proceed under his true name would defeat the purpose of his criminal expungement and any resulting embarrassment he might feel” did not outweigh “the public’s and parties’ rights to the identities of parties and the potential prejudice to the opposing parties.” Id. at 8.

Ultimately, the Seventh Circuit affirmed the district court’s judgment. As Judge Bauer, writing for the court, put it, “Doe has won the jurisdictional battle [but] lost the war.” Id. at 2. While this decision does not foreclose the possibility of relief, it does require Doe to proceed unmasked. 

Municipalities May Continue to Draw Districts Based on Total Population

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The one-person, one-vote rule requires states and local governments to draw congressional districts with populations as close to perfect equality as possible. Recently, in Evenwel v. Abbott, 578 U.S. ___ (2016), the United States Supreme Court held states and local governments may apportion state legislative districts based on total population. The Evenwel decision confirmed that jurisdictions are permitted to deviate between the largest and smallest district by less than 10%. Maximum population deviation is defined as the sum of the percentage deviations from perfect population equality of the most- and least- populated districts.

After the 2010 census, the Texas Legislature redrew its state senate districts based on census total population data so that each district included roughly an equal number of people. The districts contained a different number of eligible- and registered-voters. The maximum total-population deviation between districts was about 8%, whereas the maximum eligible-voters deviation between districts exceeded 40%. The Court noted that all states use total-population data when designing congressional and state-legislative districts.

Voters (“Evenwel”) living in districts with particularly large eligible-voter popula­tions sued Texas in the U.S. District Court for the Western District of Texas, contending that basing apportionment on total population dilutes their votes in relation to voters in other districts, in violation of the one-person, one-vote principle of the Equal Protection Clause. The District Court dismissed their complaint, concluding that jurisdictions may use any neutral, nondis­criminatory population baseline, including total popula­tion, when drawing state and local legislative districts. Evenwel appealed directly to the United States Supreme Court.

The United States Supreme Court unanimously affirmed. In delivering the Court’s opinion, Justice Ruth Bader Ginsburg first spoke to the history of the “one-person, one-vote” principle. In Reynolds v. Sims, 377 U.S. 533 (1964), the Court established the principle of “one-person, one-vote,” holding that the Equal Protection Clause requires that legislative districts be apportioned equally so that votes would have equal weight. After examining the constitutional history and the Court’s past decisions, the Court concluded “that districting based on total population serves both the State’s interest in preventing vote dilution and its interest in ensuring equality of representation.”  

Finally, the Court emphasized adopting voter-eligible apportionment would upset a well-functioning approach to districting that all 50 states and countless local jurisdictions have followed for decades, and Evenwel failed to show the Court why it should disturb the longstanding use of total population. The Court noted that representatives serve all residents, not just those eligible or registered to vote. The Court concluded the Texas map complied with the requirements of the on-person, one-vote principle.

Interestingly enough, Texas argued that jurisdictions may design districts using any population baseline, including total population and voter-eligible population, so long as the choice is rational and not invidiously discriminatory. The Court did not address this issue, and it seems that the Court will not address it until a state or local government decides to divide districts based on voter-eligible population.

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