Supreme Court Update: Williams-Yulee v. Florida Bar (13-1499), Mach Mining, LLC v. EEOC (13-1019) and Bullard v. Blue Hills Bank (14-16)

May 5, 2015 Supreme Court Update

Greetings, Court fans!

We're back with the two decisions from last week and one issued yesterday: Williams-Yulee v. Florida Bar (13-1499), upholding a prohibition on the personal solicitation of campaign donations by judicial candidates; Mach Mining, LLC v. EEOC (13-1019), concluding that the EEOC's mandatory pre-suit conciliation efforts are subject to some judicial review; and Bullard v. Blue Hills Bank (14-16), ruling that a bankruptcy court's denial of a debtor's proposed repayment plan is not immediately appealable.

In Williams-Yulee v. Florida Bar (13-1499), a majority of the Court finally found a campaign-finance regulation it could love, perhaps because it affects a practice it hates—judicial elections. Florida, like thirty-eight other states, allows for some form of popular election of state judges. And, like twenty-nine of those states, Florida has a rule, Canon 7C(1), which prohibits judicial candidates from personally soliciting campaign donations, while allowing them to raise money through committees. In support of her 2009 campaign for a seat on the Hillsborough County Court, Lanell Williams-Yulee (who goes by "Yulee") sent a mass-mailing letter personally asking recipients for contributions to meet "primary election fund raiser goals." Though her solicitation did not attract enough donations to help her win the primary, it did attract the attention of the Florida Bar, which filed a complaint against Yulee for violating Canon 7C(1). Yulee defended on First Amendment grounds, but Florida Supreme Court rejected her argument, holding that Canon 7C(1) is narrowly tailored to serve the compelling interest of preserving the integrity of the State's judiciary. Noting that a few federal circuits had invalidated similar restrictions, while every state supreme court had upheld them, the U.S. Supreme Court granted cert to determine whether the First Amendment permits restrictions on personal solicitations in judicial elections.

Yes, it does, said the nation's highest ranking judge, joined by his four liberal colleagues. The Chief began by addressing the level of scrutiny to be applied to judicial campaign solicitations. In concluding that strict scrutiny should apply, Roberts drew an analogy between judicial campaign solicitations and charitable solicitations, which are often "intertwined with informative and perhaps persuasive speech." He rejected the analogy to restrictions on campaign contributions, which need only be "closely drawn" to match a "sufficiently important interest." See Buckley v. Valeo (1976). In all, seven justices agreed that strict scrutiny applies: a plurality of Roberts, Kagan, and Sotomayor, plus the four dissenters (who obviously disagreed on whether the Canon satisfied strict scrutiny). Justice Ginsburg concurred separately, arguing for a less exacting standard of review in the judicial-elections context. Justice Breyer also concurred to register his view that the Court's tiers of scrutiny are merely "guidelines informing our approach to the case at hand, not tests to be mechanically applied." With that understanding, he joined the Chief's opinion in full.

Turning to the standard's application, the Roberts concluded that this is "one of the rare cases in which a speech restriction withstands strict scrutiny." Canon 7C(1) "advances the State's compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech." The majority was careful to distinguish the Canon from campaign-finance restrictions in political elections. "States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians." While politicians should be responsive to the preferences of their supporters, judges must remain completely impartial. Though Yulee pointed out that Florida's Canon is comically underinclusive—in addition to allowing committees to solicit campaign contributions on behalf of judges, it permits the judges to write personalized thank-you notes for contributions—the Chief noted that "the First Amendment imposes no freestanding underinclusiveness limitation" and that "[a] State need not address all aspects of a problem in one fell swoop." Here, the solicitation ban aims at the conduct most likely to undermine public confidence in the integrity of the judiciary even if it allows other conduct to go unchecked. As for the Canon's overinclusiveness, Roberts insisted that it "restricts a narrow slice of speech," leaving "judicial candidates free to discuss any issue with any person at any time." Finally, the Chief rejected Yulee's argument that Florida could achieve its interests through less restrictive means, including strict recusal rules and campaign contribution limits. Each of these means would likely have adverse consequences relative to the simple prohibition on personal solicitations. Roberts concluded by stressing that the Court was not taking sides in the 200-year-old debate over the desirability of judicial elections. However, "[a] State's decision to elect judges does not compel it to compromise public confidence in their integrity." Accordingly, restrictions on personal campaign solicitations in judicial elections are permissible under the First Amendment.

The decision provoked three caustic dissents. In the principal dissent, Justice Scalia accused the majority of applying only "the appearance of strict scrutiny" through a series of "twistifications." In his view, Canon 7C(1) fails a straightforward application of strict scrutiny because, even assuming the State has a compelling interest in ensuring that its judges are not perceived to be beholden to campaign donors, the canon is not narrowly tailored to advance that interest. It does not prevent lawyers and potential litigants from attempting to influence judges by making campaign contributions; it merely prevents a candidate from asking for those contributions. There is not "the slightest evidence that banning requests for contributions will substantially improve public trust in judges," Scalia wrote and, even if it did, the ban is not narrowly tailored to achieve the desired end. The canon is overinclusive in that it "prohibits candidates from asking for money from anybody—even from someone who is neither lawyer nor litigant, even from someone who (because of recusal rules) cannot possibly appear before the candidate as a lawyer or litigant." And it is underinclusive in that it only restricts personal solicitations related to campaigns: "although Canon 7C(1) prevents Yulee from asking a lawyer for a few dollars to help her buy campaign pamphlets, it does not prevent her asking the same lawyer for a personal loan, access to its law firm's luxury suite at the local football stadium, or even a donation to help her fight the Florida Bar's charges." On the whole, Scalia concluded that Canon 7C(1)—and the majority that upheld it—is really motivated by a "hostility toward judicial campaigning." He derided the majority (and the Florida Supreme Court and the ABA and elitist lawyers, generally) for putting the purported public interest in judicial integrity on a pedestal above interests in preventing animal torture, protecting the innocence of children, and honoring valiant soldiers—all state interests that were deemed insufficient to justify speech restrictions in the Court's recent First Amendment cases. "The First Amendment," he concluded, "is not abridged for the benefit of the Brotherhood of the Robe."

Justice Kennedy joined Scalia's dissent, but also wrote separately "to underscore the irony in the Court's having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate's own speech is at issue" as well as "the irony in the court's having weakened the rigors of the First Amendment in a case concerning elections, a paradigmatic forum for speech and a process intended to protect freedom in so many other manifestations." Justice Alito added a third dissent to emphasize how simple this case should have been had the court faithfully applied strict scrutiny. After all, argued Alito, the non-solicitation rule "is about as narrowly tailored as a burlap bag."

On the whole, it's hard to escape the conclusion that the majority applied something less than strict scrutiny here, in order to uphold a regulation aimed at preserving public confidence in the judiciary. While many observers have predicted (perhaps wishfully) that Roberts will provide a sixth vote in favor of marriage equality in order to promote public respect for the Court, Williams-Yulee may well end up as the more obvious example of the nation's highest judge putting his interest in preserving confidence in the courts above other constitutional concerns.

The Chief also took the pen in Bullard v. Blue Hills Bank (14-166), where the Court disappointed debtors by holding that a bankruptcy court's order denying confirmation of a Chapter 13 debtor's proposed repayment plan is not subject to immediate appeal. After Bullard filed for bankruptcy, he submitted a proposed repayment plan that prompted one of his creditors, Blue Hills Bank, to object. The Bankruptcy Court sustained the Bank's objection and denied confirmation of the plan, ordering Bullard to submit a new plan within thirty days. Bullard appealed to the Bankruptcy Appellate Panel ("BAP") of the First Circuit instead. The BAP found that the order denying confirmation was not a "final" order subject to a right of appeal, but nevertheless heard the appeal under 28 U.S.C. § 158(a)(3), a provision allowing discretionary interlocutory appeals of bankruptcy court orders. On the merits, the BAP didn't like Bullard's proposed plan any more than the Bankruptcy Court. Undeterred, Bullard sought further appellate review with the First Circuit. There, however, he was stymied. The First Circuit ruled that it lacked jurisdiction because the appeal did not originate from a final order of the Bankruptcy Court. It also declined Bullard's request for discretionary interlocutory review. Bullard sought cert, arguing that an order denying confirmation is a final order, subject to immediate appeal under 28 U.S.C. § 158(a).

The Court unanimously ruled against Bullard (who was backed by the SG), in a brief opinion. Appellate jurisdiction over bankruptcy matters is broader than in ordinary civil litigation matters. A party can appeal as of right not just from "final judgments," but also from final "orders, and decrees." §158(a). This makes sense because the bankruptcy process often aggregates various independent controversies into one forum. The issue presented here was whether an order denying confirmation of the plan was an independent controversy yielding a "final order" or merely part of a process of coming to an acceptable plan or, alternatively, being unable to do so, which would result in dismissal. The Court took the latter view, holding that a denial of confirmation is not final because the debtor can simply amend the plan. No legal rights are affected until a plan is either approved, or the case is dismissed. Any other rule would allow debtors to appeal each plan denial seriatim, all while enjoying the benefit of the automatic stay. While the Court recognized that this rule will limit a debtor's practical ability to obtain appellate review of legal issues raised by plan denials, "our litigation system has long accepted that certain burdensome rulings will be ‘only imperfectly reparable' by the appellate process." The Court was not too concerned as it expected that the bankruptcy courts will usually get it right and, when they do err, most errors "will not be the sort that justified the costs entailed by a system of universal immediate appeals." Instead, truly unique situations can be addressed adequately via the discretionary mechanisms for appeal contained in Sections 158(a)(3) and 1292(b).

The Court was also unanimous in Mach Mining, LLC v. EEOC (13-1019), where it considered how much conciliation by the EEOC is enough? And, can we even ask that question? The answers: "almost any amount," and "yes we can." Before suing under Title VII, the EEOC is directed to first "endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). When the EEOC determined that there was reasonable cause to believe Mach Mining had engaged in discriminatory conduct, it sent a letter inviting Mach Mining and the complainant to participate in a conciliation process. The letter indicated that an EEOC representative would soon contact them to begin conciliation efforts. About a year later, the EEOC sent a second letter indicating that it had determined that conciliation efforts had been unsuccessful and the EEOC planned to sue. In response to the EEOC's suit, Mach Mining claimed that the EEOC did not conciliate in good faith. The EEOC argued that its conciliation efforts were unreviewable, but, in any event, that the two letters were sufficient proof that it had fulfilled its statutory obligation. The District Court found that it could review the adequacy of the EEOC's conciliation efforts, but instead of rolling up its sleeves to delve into the evidence here, granted the EEOC leave to immediately appeal the ruling. The Seventh Circuit found the EEOC's conciliation process unreviewable.

Led by Justice Kagan, the Court reversed (but, employers, let's not get too excited yet). There is a "strong presumption" in favor of reviewing agency action, she explained. And that presumption is not rebutted here, particularly given the mandatory language of the conciliation provision. Though Congress provided the EEOC "wide latitude" to choose the methods for conciliating a dispute, that does not mean courts cannot engage in manageable judicial review. It simply means that the scope of judicial review is narrow. At bottom, the statute only requires the EEOC to "tell the employer about the claim—essentially, what practice has harmed which person or class—and … provide the employer an opportunity to discuss the matter in an effort to achieve voluntary compliance." The EEOC should usually be able to meet this standard through submission of an affidavit. Only where an employer raises a genuine issue as to whether the process really happened is more discovery required.

In reaching this conclusion, the Court rejected both parties' proposed review standards. Mach Mining argued in favor of a broad review of the sufficiency of the EEOC's conciliation efforts that would be akin to a court's review under the NLRA of the collective bargaining process. As Justice Kagan explained, "the NLRA is about process and process alone," with the end goal of achieving any negotiated agreement. By contrast, the goal of conciliating under Title VII is substantive—to eliminate an unlawful employment practice. While Courts apply a searching review of the collective bargaining process, that type of review does "not properly apply to a law that treats the conciliation process not as an end in itself, but only as a tool to redress workplace discrimination." The EEOC fared no better. It argued that the two bookend letters were sufficient proof—standing alone—to establish that conciliation efforts were made. The Court disagreed. While the letters suggest that conciliation may have taken place, they do not establish that fact. What if an employer claimed the EEOC never actually contacted it between the first and second letters? Even agencies can err, which is why judicial review exists. So, Mach Mining wins this round, but probably not the fight. Even assuming no conciliation efforts took place between the two letters, the appropriate remedy, according to the Court "is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance."

That brings us up to speed with respect to opinions. The Court also granted cert in two new cases yesterday, consolidating them for argument. Together, FERC v. Electric Power Supply Ass'n (14-480) and EnerNOC Inc. v. Electric Power Supply Ass'n (13-841) ask (1) whether the Federal Energy Regulatory Commission (FERC) reasonably concluded that it has authority under the Federal Power Act to regulate the rules used by operators of wholesale electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates; and (2) whether the rule issued by the FERC is arbitrary and capricious.

The Court also invited the views of the Solicitor General on Nebraska and Oklahoma v. Colorado (144, Orig.) a case of original jurisdiction in which Nebraska and Oklahoma are seeking to challenge Colorado's permissive marijuana regime, which allows production and distribution of marijuana within the state, but has apparently cause "reefer madness" among Colorado's neighbors.

That'll do it for now, but it won't be long before we come calling again. The Court has now heard every argument of the term so it's about time for the steady stream of decisions we've had over the last few weeks to burgeon into a flood.