Publications
Lingle v. Chevron U.S.A. Inc. (04-163), Kelo v. New London, Conn. (04-808), Johanns v. Livestock Marketing Ass’n (03-1164) and order list
Greetings, Court Fans!
With only about six weeks left in the Term, the Court picked up the pace yesterday, issuing decisions in five cases. We’ve split up the summaries to make each Update a little easier to digest — this Update covers three cases, with the other two to follow.
First, in Lingle v. Chevron U.S.A. Inc. (04-163), the Court unanimously held that a property owner claiming a regulatory “taking” cannot simply allege that a regulation does not “substantially advance” a state interest. The case concerned a Hawaii statute limiting the rent that oil companies could charge when leasing service stations. Applying Agins v. City of Tiburon, 447 U.S. 255 (1980), in which the Court noted that a regulation amounts to a taking of private property if it does not substantially advance a legitimate interest, the District Court struck down the law because it did not advance Hawaii’s stated goal of controlling gas prices, and the Ninth Circuit affirmed. The Court reversed in an opinion by Justice O’Connor, who wrote that the “substantially advances” test was an unfortunate example of how “a would-be doctrinal rule or test finds its way into our case law through simple repetition of a phrase — however fortuitously coined.” Conceding that its takings jurisprudence “cannot be characterized as unified,” the Court noted that the thrust of the case law was to identify regulatory actions that were functionally equivalent to appropriating private property or ousting the owner from his domain. Agins concerned a zoning regulation, and that Court derived the “substantially advances” language from a number of due process cases involving zoning. This was “regrettable” (i.e., wrong) — while means-ends tests may be appropriate for due process cases (to test whether a regulation is arbitrary or irrational), they are not valid for takings analysis, which involves the regulation’s burden on private property regardless of how effective it is at serving a public interest. Also, the lower court’s reading of Agins would demand heightened review of almost any regulation of private property and require courts to substitute their predictive judgments for those of legislatures and agencies. In a somewhat sympathetic nod to the Ninth Circuit, the Court concluded by stating that while the lower courts followed Agins “to its logical conclusion, . . . today we correct course.” Justice Kennedy concurred to note that the decision addressed only the takings issue, not the due process issue, where the failure to accomplish a legitimate objective remained relevant. This case has obvious implications for the Court’s still-outstanding decision in Kelo v. New London, Conn. (04-808), concerning the seizure of city residents’ homes for use in developing a conference center to generate higher tax revenues, as it indicates that the likelihood of the effort’s success will not be a factor in the Court’s decision.
Next, in Johanns v. Livestock Marketing Ass’n (03-1164), beef producers claimed that their First Amendment rights were violated by the Beef Promotion and Research Act, which imposes a $1 per head fee on cattle sales to fund government-sponsored ad campaigns bearing the attribution “Funded by America’s Beef Producers.” The beef producers argued that the law compelled them to subsidize speech they didn’t like (perhaps they felt “It’s what’s for dinner” was underinclusive and should have included breakfast and lunch!). Despite the fact that the Court had invalidated a very similar fee for mushroom advertising in United States v. United Foods, Inc., a 6-3 majority led by Justice Scalia upheld the beef law. The case turned on the distinction between compelled support of government speech as opposed to private speech: In United Foods , it was assumed that the mushroom campaign was private speech, in which case forcing others to fund it was an unconstitutional compelled subsidy. This case was different, as “compelled support of a private association is fundamentally different from compelled support of the government,” which is perfectly constitutional (“as every taxpayer must attest”). The Court found that the involvement in the ad campaign of a semi-private Cattlemen’s Beef Board did not render the speech private because the government effectively controlled all aspects of the campaign, and the fact that the campaign was funded by targeted fees rather than general revenues was also irrelevant. Finally, the Court noted that the attribution of the ads to “beef producers” was not required by the statute, and thus did not support a facial challenge to the law. And there was nothing in the record to support an as-applied challenge, which would require a showing that individual ads were attributed to individual producers.
Justice Thomas concurred, noting among other things that if there had been evidence objectively associating ads with individual producers, those producers would have a valid as-applied claim. Justice Breyer concurred to echo his dissent in United Foods that assessments like this are best dealt with as economic regulations, not speech, but now that the Court has adopted the “government speech” theory he accepts it as a solution. Justice Ginsburg concurred only in the judgment, basically adhering to Breyer’s economic regulation rationale from United Foods . Justices Kennedy and Souter (joined by Stevens) dissented on the ground that if the government compels specific groups to fund speech with targeted taxes, “it must make itself politically accountable by indicating that the content is actually a government message, not just the statement of one self-interested group the government is currently willing to invest with power.”
In Clingman v. Beaver (04-37), the Court upheld Oklahoma’s semi-closed primary law, under which parties can invite only members and registered independents to vote in their primaries. The Tenth Circuit struck down the law as violating the First Amendment right to association of Oklahoma’s Libertarian Party (LPO), which wished to allow members of other parties to vote in its primaries, and individual Democrats and Republicans who wanted to vote in LPO primaries. The Court, led by Justice Thomas, reversed 6-3. Just as in Johanns, the Court distinguished an earlier precedent, this time Tashjian v. Republican Party of Connecticut, where the Court invalidated a Connecticut law limiting primaries to party members. The difference between Tashjian and this case was the level of scrutiny applied to the law: severe burdens on associational rights merit strict scrutiny and must be narrowly tailored to a compelling state interest, but lesser burdens are justified if they reasonably serve important interests. For a variety of reasons the Court found that the Oklahoma law, unlike the Connecticut law, was not a severe burden on associational rights and did not warrant strict scrutiny. First, in a portion of his opinion joined only by the Chief, Scalia and Kennedy, Justice Thomas noted that the right to associate was not truly at issue here: the individual Republicans and Democrats did not want to associate with the LPO, just vote in its primary while retaining their other affiliations. In the remainder of the opinion, which O’Connor and Breyer also joined to yield a majority, the Court found that by allowing voters to register as independents and thereby vote in any willing party’s primary, the Oklahoma law was less burdensome than Connecticut’s which limited primaries only to party members. Oklahom’s “ordinary” burden on associational rights was justified by its interests in preserving the viability of parties, enhancing their electioneering and party-building efforts, and guarding against party raiding and “sore loser” candidacies by spurned primary contenders. Justice O’Connor (joined by Breyer) wrote separately to disagree with the plurality’s gloss on the respondents’ associational rights, but she concurred because these rights were not severely burdened.
Justice Stevens (joined by Ginsburg and Souter) dissented, arguing that the Court’s ruling diminished the value of a citizen’s right to vote and of a party’s right to define its mission. In particular, Stevens wrote that by focusing on associational rights rather than the right to vote, the majority had missed the point. The law actually prohibited a non-member’s exercise of the right to vote despite the LPO’s willing invitation, a restriction that could not stand absent a state interest of overriding importance. Stevens also argued that the law advanced illegitimate state interests in manipulating the outcome of elections, protecting major parties from competition, and stunting the growth of new parties.
In yesterday’s order list, the Court granted cert in only one case — but it’s a major one dealing with the standard of review governing restrictions on abortion. In Ayotte v. Planned Parenthood (04-1144), the Court will consider the following questions: (1) Did the First Circuit apply the correct standard in a facial challenge to a statute regulating abortion when it ruled that the “undue burden” standard cited in Planned Parenthood v. Casey and Stenberg v. Carhart applied rather than the “no set of circumstances” standard set forth in United States v. Salerno? (2) Does the New Hampshire Parental Notification Prior to Abortion Act, N.H. Rev. Stat. Ann. § 123:24-28, preserve the health and life of minors through its judicial by-pass mechanism and/or other state statutes?
We’ll get you summaries shortly for the Court’s other two decisions from yesterday — Deck v. Missouri (04-5293) and Medellin v. Dretke (04-5928).
Until then, thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
