State Court Docket Watch

Docket Watch 2021

By Thomas J. Rheaume & Gordon J. Kangas

Michigan’s Supreme Court confirmed that the state’s constitution permits reimbursement to religious schools for costs incurred from mandated health and safety measures. The case, Council of Organizations and Others for Education About Parochiaid v. State of Michigan, was decided on December 28, 2020, but the story begins decades earlier.[1]

In the summer of 1970, Public Act 100 became law in Michigan. It permitted the Michigan Department of Education to pay a portion of private school teachers’ salaries, if those teachers taught only secular subjects.[2] That fall, Michigan voters approved Proposal C and thereby amended the state constitution by referendum to explicitly limit payments and other aid to nonpublic schools.[3] This rendered Public Act 100 unconstitutional, and it also raised questions about other funding arrangements.

The following year, the Michigan Supreme Court answered several certified questions concerning aid to nonpublic schools in Traverse City School District v. Attorney General.[4] The court held that “shared time”—an arrangement where private school students attend public schools for certain courses—remained constitutional even after the amendment because the public school still administered the courses and received the funding. State funding for “auxiliary services” such as hearing tests, street crossing guards, speech therapy, and other remedial services also remained constitutional because they are “health and safety measures” that “only incidentally benefit religion and do not constitute state support of or excessive entanglement in religion.”[5] In a subsequent opinion, however, the Michigan Supreme Court held that the state could not pay for textbooks to be given or lent to private schools, because unlike auxiliary services that are “commodities ‘incidental’ to a school’s maintenance and support,” textbooks “are essential aids that constitute a ‘primary’ feature of the educational process and a ‘primary’ element required for any school to exist.”[6]

These decisions framed the debate in the recent Parochiaid case. A 2016 law “appropriated $2.5 million in funds for the 2016–2017 school year ‘to reimburse costs incurred by nonpublic schools’ for compliance with various state health, safety, and welfare mandates to be identified by the [Michigan] Department of Education[.]”[7] The ACLU of Michigan and other organizations and public schools filed suit, alleging that the law violated the Michigan Constitution’s prohibition on nonpublic school funding.

A panel majority of the Michigan Court of Appeals held that the appropriation was constitutional. The majority reasoned that:

Conducting criminal background checks, disposing of instruments containing mercury, and maintaining epinephrine autoinjectors, while mandatory, have nothing directly to do with teaching and educating students; these compliance actions are truly incidental to providing educational services and focus instead on a student’s well-being, i.e., his or her health, safety, and welfare.[8]

The dissent disagreed with distinguishing costs as auxiliary and instead saw the majority’s three examples as simply the cost of doing business as a school.[9] Because criminal background checks are mandated by state law, wrote the dissent, “they are by definition a primary element necessary for a school’s operation,” and because Michigan law forbids the employment of a teacher who has been convicted of a sexual crime, “[e]mploying legally qualified teachers is a primary function of a school.”[10] The Michigan Supreme Court granted leave to appeal the decision, but when that court split evenly, the court of appeals’ decision was affirmed.

Writing in favor of affirmance, Justice Stephen J. Markman began by recognizing, as the court had in Traverse City, that if Proposal C were read “literally,” it would prohibit even police and fire services to a nonpublic school, which “would raise significant questions about whether the provision violates the Free Exercise Clause [of the U.S. Constitution] given its effect on religion.”[11] And like the Court of Appeals, Justice Markman interpreted Traverse City as employing “distinct analyses” for auxiliary services and shared time to deal with the problem posed by a literal interpretation.[12] Auxiliary services are permissible under the Michigan Constitution because they are “general health and welfare measures.”[13] “Proposal C was only understood to prohibit appropriations for nonpublic-school educational services,” so health and welfare measures “simply fell outside the scope of Proposal C.”[14] Shared time services are permissible under the Michigan Constitution because, despite being educational, the “control” remains within the public school system.[15] Justice Markman reasoned that “the auxiliary services permitted by Traverse City are substantively indistinguishable from the reimbursements permitted” by the 2016 law.[16] “If the state is constitutionally permitted to provide speech-correction services directly to nonpublic-school students without running afoul of Proposal C . . . the state should be able to facilitate those same services indirectly in the manner set forth by [the 2016 law].”[17] Justice Markman concluded that the law was therefore constitutional.

Writing in favor of reversal, Justice Megan Cavanaugh disagreed with that reading of Traverse City. Justice Cavanaugh took the Traverse City court to have followed a series of steps, which she would have applied.[18] First, a court must determine whether the law violates the Michigan Constitution. If it does, then the court must determine whether applying the Michigan Constitution would conflict with the U.S. Constitution. “If there is no conflict, then the funding is prohibited.”[19] Otherwise, a court must decide “whether there is an alternative constitutional construction” that preserves the purpose of the Michigan Constitution’s provision and “is consonant with a common understanding of the language used” in that provision.[20] In Justice Cavanaugh’s view, the Traverse City court found that the 1970 law conflicted with the Michigan Constitution, but that this holding would put the Michigan Constitution in conflict with the U.S. Constitution.[21] So the Traverse City court engaged in a saving construction of the Michigan Constitution that would allow shared time and auxiliary services. Justice Cavanaugh believed that the opinion for affirmance misapplied these steps because, unlike the law challenged in Traverse City, the 2016 law did not raise overbreadth concerns under the U.S. Constitution, and thus there was no need to find an alternative construction of the Michigan Constitution.[22] Instead, she would have held that the law was invalid under a plain reading of the Michigan Constitution.[23]

In light of the Supreme Court’s even split, the Michigan Court of Appeals’ opinion now controls. That court’s decision provides the following test for future legislation:

[T]he Legislature may allocate public funds to reimburse nonpublic schools for actual costs incurred in complying with state health, safety, and welfare laws. But the reimbursement may only occur if the action or performance that must be undertaken to comply with a health, safety, or welfare mandate (1) is, at most, merely incidental to teaching and providing educational services to nonpublic school students (noninstructional in nature), (2) does not constitute a primary function or element necessary for a nonpublic school to exist, operate, and survive, and (3) does not involve or result in excessive religious entanglement.[24]

That will be the test going forward in the event that future funding is provided for nonpublic schools.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org

[1] Council of Orgs. & Others for Educ. about Parochiaid v. State, No. 158751, 2020 Mich. LEXIS 2290 (Dec. 28, 2020), available at https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/20-21%20Term%20Opinions/Council%20of%20Orgs-OP.pdf.

[2] In re Legislature’s Request for An Op., 180 N.W.2d 265, 266 n.2 (Mich. 1970).

[3] Parochiaid, 2020 Mich. LEXIS 2290, at *7-9.

[4] 185 N.W.2d 9 (Mich. 1971).

[5] Id. at 22.

[6] Advisory Opinion re Constitutionality of 1974 PA 242, 228 N.W.2d 772, 773 (Mich. 1975).

[7] Parochiaid, 2020 Mich. LEXIS 2290, at *2.

[8] Council of Orgs. & Others for Educ. About Parochiaid v. State, 931 N.W.2d 65, 80 (Mich. Ct. App. 2018). The law permitted reimbursements for many other costs as well.

[9] Id. at 84 (Gleicher, J., dissenting). The majority did not entirely disagree with the dissent’s approach, but considered itself bound by the Traverse City precedent. Id. at 82 (“Were we restricted to solely examining and contemplating the language of Const. 1963, art. 8, § 2, absent any other considerations and on a clean slate, we might very well agree with our colleague’s position.”).

[10] Id. at 89 (Gleicher, J., dissenting).

[11] Parochiaid, 2020 Mich. LEXIS 2290, at *20 (citing Traverse City, 185 N.W.2d at 29) (Markman, J., writing for affirmance).

[12] Id. at *22.

[13] Id. at *23 (quoting Traverse City, 185 N.W.2d at 22).

[14] Id. at *25.

[15] Id. at *24.

[16] Id. at *28–29.

[17] Id.

[18] Id. at *44 (Cavanaugh, J., writing for reversal).

[19] Id.

[20] Id. (quoting Traverse City, 185 N.W.2d at 18).

[21] Id. at *46.

[22] Id. at *51-53.

[23] Id. at *63.

[24] Parochiaid, 931 N.W.2d at 68.

Docket Watch 2021

By Matthew P. Cavedon

Pennsylvania’s highest court has extinguished the automobile exception to the warrant requirement. No warrant is required to search a car under the federal Fourth Amendment. In 1925’s Carroll v. United States, the U.S. Supreme Court held that probable cause authorizes warrantless seizures “of contraband goods in the course of transportation.”^[1] Chief Justice William Howard Taft’s opinion found precedent dating back to the American Founding that distinguishes seizing items “concealed in a movable vessel where they could readily be put out of reach of a search warrant” from entry into homes.^[2]

The Court elaborated on Carroll’s so-called “automobile exception” in 1970’s Chambers v. Maroney.^[3] It held that the exception is justified by the exigent circumstances that are present when “an automobile [is] stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.”^[4]

A reader could be forgiven for thinking that these justifications actually imply limits on warrantless searches of motor vehicles. For instance, what if the target auto were off the road and could not so easily drive away? The Supreme Court shut the door to questions like this in 1985’s California v. Carney.^[5] That case concerned a search of a parked but “fully mobile ‘motor home’ located in a public place.”^[6] The Court held that no warrant was required because even where a vehicle cannot be quickly moved, “the lesser expectation of privacy resulting from its use as a readily mobile vehicle” triggers the exception.^[7] The reduced privacy results “from the pervasive regulation of vehicles capable of traveling on the public highways.”^[8] In light of Carney, the automobile exception itself become immovable: If there is probable cause to search a car, then no warrant is necessary.

Enter the Pennsylvania Supreme Court case Commonwealth v. Alexander,^[9] which held that the automobile exception is incompatible with the commonwealth’s constitution. This decision was particularly surprising given that a plurality of the same court approved of the automobile exception only six years earlier, in Commonwealth v. Gary.^[10] The Gary plurality based its holding on four factors Pennsylvania uses in deciding when to distinguish the state constitution from the federal one: (1) Pennsylvania’s constitutional text; (2) its case law; (3) other states’ case law; and (4) policy.^[11] Gary found these factors to weigh in favor of the automobile exception.

The Alexander court disagreed. I will omit the court’s lengthy stare decisis analysis.^[12] But here are Alexander’s findings as to the four constitutional factors above:

(1) Pennsylvania’s constitutional provision governing searches and seizures protects “possessions” and “things,” not just the Fourth Amendment’s “persons, houses, papers, and effects.”^[13] This broader language covers items on a person regardless of where he is, including in a car.^[14]

(2) Pre-Gary precedent afforded Pennsylvanians more search protections than does federal constitutional jurisprudence.^[15]

(3) “[M]ost states have adopted the federal exception”^[16] . . .

(4) . . . but Pennsylvania has a strong policy favoring privacy—so much so that it rejects the federal good-faith exception to the warrant requirement. “If the United States Constitution tips the scale towards law enforcement needs in analyzing Fourth Amendment questions, our own charter does not . . . .”^[17]

Three of the four factors, then, favor stronger auto search protections under the Pennsylvania constitution. Therefore, the federal automobile exception cannot stand in the Keystone State. Without it, motor vehicle searches are analyzed just like any others: “Obtaining a warrant is the default rule. If an officer proceeds to conduct a warrantless search, a reviewing court will be required to determine whether exigent circumstances existed to justify the officer’s judgment that obtaining a warrant was not reasonably practicable.”^[18] The presence of a chassis and wheels changes nothing.

Alexander featured one concurring and three dissenting opinions. Justice Max Baer’s brief concurrence said that stare decisis is good, but that Gary was too wrong and too recent to merit its full protection.^[19]

Chief Justice Thomas Saylor dissented. He found the majority’s reliance on the constitutional reference to “possessions” overwrought, given the Fourth Amendment’s mention of “effects.”^[20] He noted that the commonwealth constitution lacks any rule requiring the exclusion of evidence obtained unconstitutionally.^[21] He said that the majority’s ruling “impedes the effective enforcement of criminal laws in a fashion well beyond any impact that the framers might have envisioned.”^[22]

Justice Kevin Dougherty’s dissent found no “special justification” for overruling Gary, as required by stare decisis.^[23] But he did note his own “serious misgivings” about the automobile exception.^[24]

Justice Sallie Mundy dissented based on stare decisis and her agreement with Gary.^[25]

Alexander may be a minor protest against 100 years of federal search and seizure jurisprudence. But it did mark out a path for litigators to undermine longstanding federal doctrines using unique trends in state precedent. It also demonstrates that stare decisis only goes so far to protect decisions of recent vintage, and only works so much magic against the civil libertarian instincts of certain benches. These are lessons worth noting when litigating state constitutional issues.

Note from the Editor:

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

^[1] 267 U.S. 132, 149.

^[2] Id. at 151.

^[3] 399 U.S. 42.

^[4] Id. at 51.

^[5] 471 U.S. 386.

^[6] Id. at 387.

^[7] Id. at 391.

^[8] Id. at 392.

^[9] No. 30 EAP 2019, 2020 Pa. LEXIS 6439 (2020).

^[10] 625 Pa. 183 (2014).

^[11] Alexander, 2020 Pa. LEXIS 6439 at *21 (discussing Gary’s use of Commonwealth v. Edmunds, 526 Pa. 374 (1991)).

^[12] See id. at *41–55.

^[13] Id. at *57–58 (discussing Pa. Const. art. I § 8 (“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.”)); contrast U.S. Const. amend. IV.

^[14] Id.

^[15] Id. at *3–21.

^[16] Id. at *22.

^[17] Id. at *59–63.

^[18] Id. at *73.

^[19] Id. at *74–77 (Baer, J., concurring).

^[20] Id. at *77 (Saylor, C.J., dissenting).

^[21] Id. at *78–79.

^[22] Id. at *80.

^[23] Id. at *81 (Dougherty, J., dissenting).

^[24] Id. at *84.

^[25] Id. at *93 (Mundy, J., dissenting).

Docket Watch 2021

By Timothy Sandefur

Arizona’s Constitution is virtually unique in its treatment of searches and seizures. Unlike its federal counterpart, which prohibits only “unreasonable” searches of “persons, houses, papers, and effects,” the Arizona Constitution promises that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”[1] Only Washington State’s Constitution—from which this language was copied—contains the same language.[2]

In State v. Mixton,[3] the Arizona Supreme Court was asked to interpret this Clause in a way that would, in the words of Judge Jeffrey Sutton, “extend greater protections [for individual rights] than the Federal Constitution.”[4] The court rejected this invitation and instead relied on what it called “the value in uniformity with federal law”[5] to interpret the Clause as essentially identical with the Fourth Amendment.

Mixton was a child pornography case in which officers obtained information about the defendant’s physical location by delivering a subpoena to a software company which operates a messaging application that Mixton used to receive illegal images. Courts applying the Fourth Amendment have applied the so-called third party doctrine to hold that officers need not obtain a warrant before seeking evidence from someone to whom the suspect has voluntarily given the information.[6] Accordingly, the Arizona Supreme Court held that officers had not violated Mixton’s Fourth Amendment rights.[7] But Mixton also argued that the state’s Private Affairs Clause nevertheless required officers to obtain a warrant, citing Washington court decisions that have refused to adopt the third party doctrine under that state’s Private Affairs Clause.[8]

This argument confronted an anomaly, however: despite the fact that the two states’ Private Affairs Clauses are identical, Arizona courts have almost entirely ignored Washington Private Affairs precedent. Indeed, while the Evergreen State’s courts have developed a robust state-based jurisprudence interpreting that state’s clause,[9] Arizona courts have done the opposite. In its first Private Affairs case—Malmin v. State[10]in 1926—the Arizona Supreme Court declared that “although different in its language” from the federal Constitution, the clause “is of the same general effect and purpose as the Fourth Amendment, and for that reason, decisions on the right of search under the latter are well in point.”[11] Since then, with only a few relatively insignificant exceptions,[12] Arizona courts have interpreted the clause as if it were identical to the Fourth Amendment. This is incongruous, given that Arizona courts have followed Washington precedent when interpreting other provisions of its constitution that were copied from Washington’s.[13] Some have argued that it contravenes the Arizona’s founders’ intentions; they expressly rejected the proposal to copy the Fourth Amendment’s language because they hoped to provide Arizonans with greater protections than those available under the federal Constitution.[14]

Perhaps the most significant difference between the federal and state constitutions is that the Private Affairs Clause contains no reference to reasonableness; unlike the Fourth Amendment, the clause requires “lawful authority” for all searches, whether reasonable or not. This absence of a “reasonableness” element has led Washington courts to reject many of the exceptions to the warrant requirement fashioned by federal courts, because those exceptions have arisen from interpretations of “reasonableness.” For example, the Fourth Amendment does not require warrants for mandatory traffic checkpoints[15] or inventory searches,[16] because these are not “unreasonable.” But Washington courts have refused to adopt these exceptions under the Private Affairs Clause, because the clause bars even reasonable searches absent lawful authority.[17] Arizona courts, however, have done the reverse. Since Malmin, they have interpreted the clause as essentially identical to the Fourth Amendment. Until Mixton, however, it never explained why.

In its 4-3 decision, the court ruled that officers did not violate Mixton’s rights under the clause and offered five reasons why it followed federal Fourth Amendment precedent instead of Washington Private Affairs Clause precedent. First, pointing to Malmin, it observed that “since statehood,” Arizona courts have viewed the clause as effectively redundant of the Fourth Amendment.[18] Second, it claimed there was no “affirmative evidence” that the clause’s authors specifically intended to bar “use of a subpoena to obtain a business record to facilitate a legitimate criminal investigation.”[19] Third, officers had not read the “contents of [Mixton’s] communication[s],” but only acquired location information.[20] Fourth, there is “utility” in having “uniform state and federal criminal rules,” and state courts have reached a “consensus” that such location information is not constitutionally protected.[21] Finally, although the clause does not expressly refer to reasonableness, determining whether something is a private affair “necessarily include[s] an assessment of the reasonableness” of that claim.[22]

The three dissenters called this reasoning “curious and perplexing.”[23] First, the dissenters argued that although it is true that, since Malmin, Arizona courts have viewed the clause as effectively redundant of the Fourth Amendment, that does not mean that Malmin was right.[24] Second, the Arizona constitutional convention’s records are notoriously spotty, but Arizona courts have nevertheless followed Washington precedent relating to other clauses borrowed from that state’s constitution, and the records of debates over the Private Affairs Clause are sufficient to show that the clause’s wording “was deliberately chosen as an alternative” to the Fourth Amendment, in order to provide stronger protections for personal information.[25] Third, while Mixton did not involve the contents of communications, information about “which websites a person has visited” is nevertheless personally revealing.[26] As for the value of “uniformity with federal law,”[27] or a consensus among the states, the framers and adopters of Arizona’s Constitution rejected uniformity by choosing not to copy the Fourth Amendment,[28] and the “consensus” of other states is irrelevant, since their constitutions contain no Private Affairs Clauses.[29]

The dissenters argued that the majority’s final reason—that reasonableness is inherent in the privacy determination—was more plausible, but they preferred a more objective approach: “we would ask (1) whether the search encompasses intimate details of a person’s life, and (2) whether the disclosure of information was made for a limited purpose and not for release to other persons for other reasons.”[30] This, they argued, would avoid the “inherent subjectivity” of that plagues Fourth Amendment reasonableness inquiries.[31]

The Mixton decision has significance far beyond the question of searches and seizures, however. As the dissenters asked, “if the framers wanted to craft language that would be enforced on its own terms, how could they have better done so than to reject one set of words and deliberately adopt another?”[32] If the fact that the state constitution’s language differs entirely from that of the federal Constitution—because its framers wanted the two documents to mean different things—can be overlooked in service of a policy of uniformity, then “by what standard we will determine when to give independent meaning to our state constitutional language in other contexts[?]”[33] Whether the majority’s desire to harmonize state and federal law will also affect other state constitutional provisions must await further decisions.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] Ariz. Const. art. II § 8.

[2] Wash. Const. art. I § 7. Washington’s Constitution was written in 1889; Arizona’s in 1910. In the later twentieth century, other states began adding express protections for “privacy” to their state constitutions, but these provisions were focused primarily on rights of personal intimacy, whereas the Washington and Arizona constitutions’ reference to “private affairs” had a broader sweep. See Timothy Sandefur, The Arizona “Private Affairs” Clause, 51 Ariz. St. L.J. 723, 726–40 (2019).

[3] No. CR-19-0276-PR, 2021 WL 79751 (Ariz. Jan. 11, 2021).

[4] Jeffrey S. Sutton, 51 Imperfect Solutions 66 (2018).

[5] Mixton, 2021 WL 79751 at *7.

[6] United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979).

[7] Mixton, 2021 WL 79751 at **2–6.

[8] State v. Gunwall, 106 Wash. 2d 54 (1986); State v. Miles, 160 Wash. 2d 236 (2007).

[9] See Sandefur, supra note 2 at 757–61.

[10] 30 Ariz. 258 (1926).

[11] Id. at 261.

[12] Those exceptions only began in the 1980s, when the Arizona Supreme Court for the first time asserted that the clause provides stronger protections for individual rights than the federal Constitution. In State v. Bolt, 142 Ariz. 260 (1984), and State v. Ault, 154 Ariz. 207 (1987), it held that the clause provides stronger protections for searches of the home. In Rasmussen v. Fleming, 154 Ariz. 207 (1987), it declared that the right to refuse medical treatment was a private affair protected by the clause. These exceptions to Malmin, however, are relatively insignificant given that subsequent federal decisions held that the federal Constitution protects these rights as well—and that the Fourth Amendment is already at its strongest in cases involving homes. See Sandefur, supra note 2 at 763-65.

[13] See, e.g., Bailey v. Myers, 206 Ariz. 224, 230 (Ct. App. 2003); Mountain States Tel. & Tel. Co. v. Arizona Corp. Comm’n, 160 Ariz. 350, 355 (1989).

[14] See Sandefur, supra note 2 at 726; Charles W. Johnson & Scott P. Beetham, The Origin of Article I, Section 7 of the Washington State Constitution, 31 Seattle U. L. Rev. 431, 435–36 (2008).

[15] See, e.g., Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451–55 (1990).

[16] See, e.g., S. Dakota v. Opperman, 428 U.S. 364, 368–71 (1976).

[17] See State v. Stroud, 720 P.2d 436, 441 (Wash. 1986) (inventory searches); City of Seattle v. Mesiani, 755 P.2d 775, 777 (Wash. 1988) (checkpoints).

[18] Mixton, 2021 WL 79751 at *6.

[19] Id. at *8.

[20] Id. at *3.

[21] Id. at *13.

[22] Id. at *9.

[23] Id. at *20 (Bolick, J., dissenting).

[24] Id. at *19–20 (Bolick, J., dissenting).

[25] Id. at **18, 23 n.3 (Bolick, J., dissenting); see also Sandefur, supra note 2 at 735–36; Johnson & Beetham, supra note 14 at 444–47, 454–56.

[26] Mixton, 2021 WL 79751 at *26 (Bolick, J., dissenting) (citation omitted).

[27] Id. at *7.

[28] Id. at *18 (Bolick, J., dissenting).

[29] Id. at *24 (Bolick, J., dissenting).

[30] Id. at *26 (Bolick, J., dissenting).

[31] Id. at **22 n.2, 25 (Bolick, J., dissenting).

[32] Id. at *18 (Bolick, J., dissenting).

[33] Id. at *20 (Bolick, J., dissenting).

Docket Watch 2020

By Drew Watkins

In League of United Latin American Citizens of Iowa v. Pate (LULAC v. Pate), the Iowa Supreme Court denied a request to block enforcement of a portion of Iowa’s absentee balloting law which requires county auditors to contact voters who submit defective absentee ballot applications in order to correct the errors.[1]

In June 2020, during the COVID-19 pandemic, the Iowa legislature passed, and the Governor signed into law, House File 2643 (HF 2643), which amended certain provisions of Iowa’s election law.[2] In particular, two sections of HF 2643, sections 123 and 124, altered Iowa Code section 53.2(4) to require that certain identifiable information must be provided by “a registered voter” in order to request an absentee ballot, and that county auditors must contact applicants within twenty-four hours to obtain or correct any deficient required information in an application.[3] Importantly, this law replaced a prior version that permitted county auditors to use “the best means available” to obtain missing information.[4]

Shortly after HF 2643 was enacted, plaintiffs—the League of United Latin American Citizens of Iowa and Majority Forward—brought suit seeking to block enforcement of the provision of HF 2643 that required county auditors to contact voters to cure flawed absentee ballot applications.[5] Alleging that Iowa’s law created an unconstitutional, severe burden on the right to vote, plaintiffs sought to allow county auditors to correct errors and omissions in applications sua sponte, without additional voter contact.[6] The district court denied plaintiffs’ request for a temporary injunction.[7]

In affirming the district court’s decision, the Iowa Supreme Court relied on its decision in Democratic Senatorial Campaign Committee v. Pate (DSCC v. Pate),[8] which upheld the requirement that the applicant provide his or her identifiable information, rather than having such information prefilled on forms mailed by county auditors. The Iowa Supreme Court determined that the “purpose of both requirements is to protect the integrity and security of the absentee ballot system.”[9]

Focusing on whether plaintiffs had demonstrated a likelihood of success on the merits to justify a temporary injunction, the Iowa Supreme Court applied the familiar Anderson-Burdick framework for evaluating statutes impacting state electoral processes.[10] Under this framework, when evaluating a state’s regulation of the voting process, the “rigorousness” of a court’s review “depends upon the extent to which a challenged regulation burdens” constitutional rights.[11] If a restriction is “severe” the regulation must survive strict scrutiny—that is, “the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’”[12] However, if a regulation imposes “only ‘reasonable, nondiscriminatory restrictions … the State’s important regulatory interests are generally sufficient to justify’ the restrictions.”[13]

Applying the Anderson-Burdick framework, the Iowa Supreme Court determined the burden imposed by the Iowa statute on voters’ constitutional right to vote was not severe. In so doing, the Iowa Supreme Court determined that the challenged provisions in DSCC v. Pate and LULAC v. Pate, were “two sides of the same coin,” both intended to ensure that the voter completes the absentee ballot application “as a means of assuring the application comes from the voter.”[14] In effect, the Iowa Supreme Court determined, plaintiffs were attempting to relieve the responsibility on voters to complete the application (which the court found to be a nonsevere burden in DSCC v. Pate) by allowing the county auditor to correct any errors or omissions.[15] Instead, the law provided “the applicant a second chance to fill out the application correctly.”[16]

Weighing the nonsevere burden imposed by Iowa’s statute against Iowa’s interest in ensuring its elections are free from fraud, the court noted that under Iowa election law, “anyone can turn in an absentee ballot request on behalf of another person.”[17] Accordingly, incorrect and omitted information on an application “raise potential concerns about whether the person completing the form is in fact the registered voter.”[18] As such, “[t]he auditor’s direct communication with the voter furthers the integrity of absentee voting by helping to ‘ensure that the person submitting the request is the actual voter.’”[19]

Although the court recognized that HF 2643 was not passed in response to evidence of actual fraud, the court reasoned that the “legislature need not ignore potential threats, and ‘should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively.’”[20] Moreover, the absence of actual fraud had “little significance” given the minimal burden imposed by the law.[21] As the court explained, the Iowa Supreme Court has long recognized the prevention of fraud to be a legitimate interest in regulating absentee ballot requests.[22]

In addition, the court took a dim view of the record established by plaintiffs in support of their case. First, the Iowa Supreme Court found that the plaintiffs had presented no evidence of anyone actually being stopped from voting as a result of the challenged statute.[23] Additionally, in response to plaintiffs’ hypothetical concern that voters could be confused about the status of their ballot request, the court pointed out that the Secretary of State allows voters to track their request online.[24] Also, pointing to public data that showed only a small percentage of absentee ballot requests had yet to be fulfilled, and that over 90% of unprocessed requests originated from two counties which had to recall unlawfully prepopulated ballot request forms, the Iowa Supreme Court questioned the magnitude of plaintiffs’ concerns.[25] In particular, the court noted that the data called into question plaintiffs’ expert witness who had predicted a “tsunami” of requests leading up to the request deadline when, in fact, “the actual data show[ed] daily decreases [sic] in ballot requests … [and] yet-to-be-mailed ballots.”[26]

Finally, the court summarily rejected plaintiffs’ claims that the statute violated the Iowa Constitution’s equal protection clause and procedural due process protections.  The court found that plaintiffs offered no evidence to support an equal protection claim and, in any event, it held that variations among county auditors’ in their cure practices did not, without more, establish an equal protection violation.[27] Additionally, in rejecting the procedural due process claim, the court noted that it largely overlapped with the court’s holding “as it relates to the permissible balance between election security and access to voting.”[28] The court also highlighted additional safeguards in place to protect the right to vote including that the Secretary of State mailed an absentee ballot application to every registered voter, that the ballot request forms contained clear instruction, that county auditors were compelled to contact voters to cure insufficient applications, and that Iowa had extensive early absentee and in-person voting periods in addition to election day voting.[29]

Writing in dissent, Justice Oxley distinguished between what she termed the “front-end process of filling out the form correctly,” and the “back-end process of timely correcting the errors … and getting an absentee ballot back to the voter in time to use it.”[30] In the dissent’s view, “[t]he front-end and back-end provisions impose significantly different burdens on Iowa voters’ ability to actually receive an absentee ballot,” and this difference “tips the scale differently in this case than it did in DSCC v. Pate.”[31] Applying a higher standard in light of a perceived higher burden on the right to vote, the dissent weighed “the evidence in the record” suggesting a likelihood that thousands of Iowa voters will not receive an absentee ballot in time, against the state’s “mere incantation of ‘integrity of the election system’ and ‘voter fraud’” to conclude that plaintiffs have shown a likelihood of success on the merits and are entitled to a temporary injunction.[32] In response, the majority countered that the dissent: (i) confused “the burden on the voter with the potential burden on county auditor;” (ii) mistook the “facts on the ground with the predictions of a party’s retained expert;” and (iii) overstated the distinction between “front-end” and “back-end” processes which are “really one verification method.”[33]

In LULAC v. Pate, the majority reaffirmed the state legislature’s prerogative to enact nonsevere burdens on the voting process in an effort to combat fraud in elections. The court even floated the notion that protecting “public confidence in the electoral process” may suffice to impose “minimally burdensome regulations” on the right to vote.[34] In the aftermath of the 2020 election cycle, and considering that absentee and early voting will likely sustain increased use in future elections, state legislatures will be looking at ways to ensure the integrity of their elections. It is likely that many of the changes state legislatures make to their voting process will be challenged, and the bounds of a state’s regulation of its elections may be tested.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] League of United Latin Am. Citizens v. Pate (LULAC v. Pate), No. 20-1249, 2020 Iowa Sup. LEXIS 89, at *3-4 (Oct. 21, 2020) (per curiam).

[2] Id. at *4.

[3] Id. at *4-5; see also Iowa Code § 53.2(4)(a) and (b).

[4] LULAC v. Pate, 2020 Iowa Sup. LEXIS 89, at *5.

[5] Id. at *5-6.

[6] Id. at *2.

[7] Id. at *6-7.

[8] Democratic Senatorial Campaign Comm. v. Iowa Sec’y of State (DSCC v. Pate), No. 20-1281, 2020 Iowa Sup. LEXIS 88 (Oct. 14, 2020) (per curiam).

[9] LULAC v. Pate, 2020 Iowa Sup. LEXIS 89, at *3.

[10] Id. at *9.

[11] Burdick v. Takushi, 504 U.S. 428, 434 (1992).

[12] Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).

[13] Id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)).

[14]  LULAC v. Pate, 2020 Iowa Sup. LEXIS 89, at *10 (emphasis in original).

[15] Id.

[16] Id.

[17] Id. at *11 (citing Iowa Code § 53.17(1)(a)).

[18] Id.

[19] Id. at *12 (quoting DSCC v. Pate, 2020 Iowa Sup. LEXIS 88, at *8).

[20] Id. at *12-13 (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986)).

[21] Id. at *12.

[22] Id. at *13 (citing Luse v. Wray, 254 N.W.2d 324, 329-30 (Iowa 1977) (en banc)).

[23] Id. at *16.

[24] Id. at *17.

[25] Id. at *18-19.

[26] Id. at *19-20.

[27] Id. at *23-24.

[28] Id. at *24.

[29] Id. at *25.

[30] Id. at *27 (Oxley, J., dissenting).

[31] Id. at *28-29.

[32] Id. at *29.

[33] Id. at *20-22.

[34] Id. at *14 (citing Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)).

Docket Watch 2020

By Cory Liu

In Texas v. Hollins, the Supreme Court of Texas unanimously enjoined the Harris County Clerk from mailing unsolicited applications for mail-in ballots to every registered voter in the county, regardless of whether the voter was legally eligible to vote by mail.

Texas has more than 16 million registered voters, roughly 2.4 million of whom reside in Harris County.[1] Under Texas law, there are five categories of voters who are eligible to vote by mail: (1) those who expect to be absent from the county during the voting period;[2] (2) those with a disability;[3] (3) those who will be 65 or older on election day;[4] (4) those confined to jail at the time their application is submitted;[5] and (5) crime victims whose addresses are confidential by law.[6]

On August 25, 2020, the official Twitter account of the Harris County Clerk’s Office wrote: “Update: our office will be mailing every registered voter an application to vote by mail.” Two days later, the Texas Secretary of State’s Director of Elections, Keith Ingram, sent a letter to the Harris County Clerk demanding that he “immediately halt” this plan.[7] The letter asserted that the plan was contrary to the Secretary of State’s guidance, would confuse voters about their eligibility to vote by mail, and could clog up the vote-by-mail infrastructure with millions of applications from persons who are not legally eligible to vote by mail.[8] The letter gave the Harris County Clerk until noon on August 31 to announce the retraction of his plan.[9] The Clerk informed Ingram that he would not comply, so the State of Texas went to court.[10]

The question presented to the Supreme Court was whether the district court abused its discretion by denying the State a temporary injunction.[11] In a unanimous per curiam opinion, the Supreme Court held that the State was entitled to a temporary injunction.

To obtain a temporary injunction, the State had to establish: “(1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.”[12] The Harris County Clerk did not dispute that the State had a cause of action, so the court’s analysis focused on the second and third factors.[13]

The court’s analysis began with a discussion of background principles for interpreting the scope of the Harris County Clerk’s powers. In Texas, political subdivisions such as counties, municipalities, and school districts are creations of the State and may exercise only powers granted to them by state law.[14] As the court explained nearly a century ago in Foster v. City of Waco, a political subdivision has only three categories of powers: (1) those that are granted to it in “express words”; (2) those that are “necessarily or fairly implied in” an express grant of power; and (3) those that are “indispensable” to the accomplishment of its objectives.[15] Subsequent caselaw has “clarified” that powers “necessarily or fairly implied” must also be “indispensable.”[16] Foster also articulated a canon of interpretation requiring ambiguities about a political subdivision’s powers to be resolved against the political subdivision: “Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the [political subdivision], and the power is denied.”[17]

Turning to the question of whether the State had a right to relief, the court observed: “The Election Code does not expressly authorize [the Harris County Clerk] Hollins’ proposed mass mailing, and he does not argue to the contrary. Thus the question is whether the authority is implied.”[18] The Harris County Clerk argued that his duties to “conduct the early voting in each election,”[19] to manage polling locations,[20] and to “make printed forms . . . readily and timely available,[21] authorized his plan to mail unsolicited applications to vote by mail to all voters.

The court rejected these arguments for several reasons. First, the Harris County Clerk’s plan was not “necessary” and “indispensable” to the carrying out of these duties, as evidenced by every other Texas county’s decision to abide by the usual practice of mailing applications to only those who request them.[22] Second, numerous provisions of the Election Code contemplate that applications to vote by mail are to be requested by voters.[23] Third, the Election Code requires the Secretary of State to ensure uniformity throughout the State in the implementation of the election laws.[24] Finally, the Election Code demonstrates a general “expectation that most Texans will vote in person,” with voting by mail being “the exception, rather than the rule,” as evidenced by the strict legal requirements for applying to vote by mail.[25] For these reasons, the court concluded that the Harris County Clerk’s plan was unlawful and that the State had established a probable right to relief.

The court went on to conclude that in a lawsuit by the State to enjoin an unlawful action by a political subdivision, “a showing of likelihood of success on the merits is sufficient to satisfy the irreparable-injury requirement for a temporary injunction.”[26] Because the State satisfied all the requirements for a temporary injunction, the court reversed the court of appeals and directed the entry of a temporary injunction prohibiting the Harris County Clerk from mailing unsolicited applications to vote by mail.[27]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] Texas v. Hollins, No. 20-0729, slip. op. at 3 (Tex. Oct. 7, 2020) (per curiam).

[2] Tex. Elec. Code § 82.001.

[3] Id. § 82.002.

[4] Id. § 82.003.

[5] Id. § 82.004.

[6] Id. § 82.007.

[7] Texas v. Hollins, No. 20-0729, slip. op. at 4 (Tex. Oct. 7, 2020) (per curiam).

[8] Id.

[9] Id. at 4–5.

[10] Id. at 5.

[11] Id. at 6.

[12] Id. (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)).

[13] Id.

[14] Id. at 6–7.

[15] Id. at 7. (quoting Foster v. City of Waco, 255 S.W. 1104, 1105–06 (Tex. 1923)).

[16] Id. (citing Tri-City Fresh Water Supply Dist. No. 2 of Harris Cty. v. Mann, 142 S.W.2d 945, 947 (Tex. 1940)).

[17] Foster, 255 S.W. at 1106.

[18] Texas v. Hollins, No. 20-0729, slip. op. at 8 (Tex. Oct. 7, 2020) (per curiam).

[19] Tex. Elec. Code § 83.001(a).

[20] Id. § 83.001(c) (giving the clerk the same duties as a presiding election judge, which are set forth in § 32.071, for early voting).

[21] Id. § 1.010(a).

[22] Texas v. Hollins, No. 20-0729, slip. op. at 8–9, 13 (Tex. Oct. 7, 2020) (per curiam).

[23] Id. at 9–11 (citing Tex. Elec. Code §§ 1.010(b)–(c), 84.012, 84.013).

[24] Id. at 11.

[25] Id. at 11–12.

[26] Id. at 14.

[27] Id.

Docket Watch 2020

By Stafford (Mac) J. McQuillin, III

Background

In early March, South Carolina’s Governor, Henry McMaster, issued a State of Emergency following the President’s national emergency declaration due to the public health risks posed by the coronavirus. By the end of March, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which appropriated $30.75 billion to the Education Stabilization Fund, was passed by Congress and signed by the President.^[1] One of the provisions in the Act ordered the Secretary of Education to allocate money to the Governor’s Emergency Education Relief (“GEER”) Fund.^[2] The Governor applied for a GEER Fund grant, and South Carolina was awarded $48,467,924 from the Department of Education.^[3] The Governor later announced the creation of the Safe Access to Flexible Education (“SAFE”) Grants Program, which used $32,000,000 of the CARES award “to provide one-time, need-based grants of up to $6,500 per student to cover the cost of tuition for eligible students to attend participating private or independent schools in South Carolina for the 2020-2021 academic year.”^[4] Following the initiation of the program, public educators challenged the program as violating Article XI, Section 4 of the South Carolina Constitution, which prohibits public funding of private schools.^[5] In early October of this year, the South Carolina Supreme Court issued an opinion addressing these claims in Adams v. McMaster.

Standing

The first issue considered by the court was whether petitioners—a group of public school teachers—had standing to sue. The Governor moved to dismiss the petitioners’ claims because they lacked standing. Specifically, the Governor asserted that petitioners failed to identify a statute that would give them standing, and he argued they lacked constitutional standing because they could not demonstrate an injury-in-fact. Petitioners claimed they had standing under the public importance exception, which does not require a showing of a concrete or particularized injury. The court found that petitioners established public importance standing because of the nature of the case. The court reasoned, “[t]he COVID-19 pandemic that has plagued our State in recent months has posed unprecedented challenges in every area of life and severely disrupted essential governmental operations.”^[6]

Constitutionality under Article XI, Section 4

The next issue before the court was whether the Governor’s use of GEER funds for the SAFE Grants Program violated Article XI, Section 4 of the South Carolina Constitution because it allocated public funds to the direct benefit of private schools. Pursuant to Article XI, Section 4, “[n]o money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.”^[7]

a. Public Funds

The court first looked to whether the GEER Funds constituted “public funds” within the meaning of the constitutional provision. Petitioners argued that since the state code required the money to be deposited in the state treasury, this indicated that the GEER Funds were “public funds.”^[8] Additionally, petitioners argued the funds were not passively flowing through the state, but that the state—through the Governor—was actively using the funds for the purpose of funding the SAFE program.^[9] The court agreed with this rationale and found that “when the GEER funds are received in the State Treasury and distributed through it, the funds are converted into ‘public funds’ within the meaning of Article XI, Section 4.”^[10]

b. Direct Benefit

The most controversial component of the constitutional issue before the court was whether the GEER Funds issued to benefit students who chose to attend private schools directly benefitted the private institution. Petitioners claimed the Governor’s allocation of the GEER funds to create grants for students to attend private schools violated the Constitution’s prohibition on using public funds for the “direct benefit” of a “private educational institution.”^[11] The Governor claimed the SAFE Grants Program did not benefit participating private schools but instead, provided a direct benefit to the student recipient and his or her family. The Governor argued that Article XI, Section 4 did not prohibit this sort of benefit and that it was, in fact, amended in 1972 specifically to remove a prohibition on indirect financial aid.^[12] The Governor’s position was reiterated in several amicus briefs, including those submitted by the American Center for Law and Justice (ACLJ) and the Institute for Justice, which emphasized that the students were the ones who directly benefitted from the funds, not the schools.^[13] The court rejected the Governor’s argument based on the fact that the SAFE grants were not transferred directly to the student, but instead were transferred from the state treasury to the selected school. Further, it explained that the direct payment to private schools was contrary to the framers’ intention not to grant public funds “outrightly” to such institutions.^[14]

Lastly, the Governor claimed the CARES Act granted him absolute discretion in using the GEER funds such that the federal law preempts the state constitutional provision under the Supremacy Clause. In its amicus brief, the ACLJ supported this position and argued that “[the Governor’s] actions were precisely within the intent of Congress in passing the CARES Act.”^[15] The language establishing the GEER Fund provides that the funds may be available to an “education related entity within the State that the Governor deems essential for carrying out emergency educational services to students.”^[16] The Governor claimed this language illustrated the intent of Congress to grant him broad discretion in distributing the funds.^[17]

However, the court held that “there is no clear congressional intent in the education provisions of the CARES Act to allow the Governor to allocate the GEER funds in his discretion in contravention of our State Constitution.” ^[18] “If that were the case, Congress certainly understood how to make such intention clear . . . .”^[19] Accordingly, the court found the Governor’s SAFE Grants Program to be in violation of Article XI, Section 4 of the state’s constitution.^[20]

Conclusion

The Governor’s use of GEER funds for the SAFE Grants Program was ultimately deemed to be in violation of the South Carolina constitution. The South Carolina Supreme Court found that despite giving students the ability to choose which private school they wished to attend, the schools were being directly benefited because the funds were transferred from the state treasury directly to the private institution. Finally, the court held that Congress did not intend to allow Governor McMaster to distribute GEER funds at his discretion in contravention of the state constitution.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] Pub. L. No. 116-136, 134 Stat. 281 (2020).

[2] See id. at 564.

[3] Adams v. McMaster, No. 2020-001069, 2020 WL 5939936, at 2 (S.C. 2020).

[4] Id.

[5] S.C. Const. art. XI, § 4.

[6] Adams, 2020 WL 5939936, at 3.

[7] S.C. Const. art. XI, § 4.

[8] Adams, 2020 WL 5939936, at 3.

[9] Id.

[10] Id. at 4.

[11] Id.

[12] Adams, 2020 WL 5939936, at 4.

[13] See Brief for the American Center for Law & Justice as Amicus Curiae, at 1, Adams v. McMaster, 2020 WL 5939936 (S.C. 2020); Brief for the Institute for Justice as Amicus Curiae, at 6, Adams v. McMaster, 2020 WL 5939936 (S.C. 2020).

[14] Adams, 2020 WL 5939936, at 5.

[15] Brief for the ACLJ as Amicus Curiae, supra note 13, at 3, Adams v. McMaster, 2020 WL 5939936 (S.C. 2020).

[16] Pub. L. No. 116-136, 134 Stat. 281 (2020).

[17] Adams, 2020 WL 5939936, at 5.

[18] Id.

[19] Id.

[20] Id.

Docket Watch 2020

By Jeremiah Mosteller

As COVID-19 spread across our country, many jurisdictions struggled with how to protect those in our prisons and jails. Many jurisdictions responded by, among other things, seeking to reduce the number of people entering the system while also finding ways to safely release more individuals into the community.[1] Nevertheless, there has been litigation arguing that these efforts have not been extensive enough, and judges have weighed in about how we should protect those who are medically vulnerable or at high risk of contracting COVID-19 in our prisons and jails.[2]

One petition, filed by the Hawaii Office of the Public Defender, asked the state’s supreme court to order additional action by the Hawaii Department of Public Safety and the Hawaii Paroling Authority in response to the risk of COVID-19.[3] This petition sought expedited release for those incarcerated for any nonviolent offense without individualized hearings, a temporary suspension of cash bail, and the release through parole of individuals who are over age 65, pregnant, or detained for a technical violation of parole.[4] The Department of Public Safety, Paroling Authority, and four county prosecutors all filed answers stating significant objections to those requests and suggesting alternative courses of action.[5]

Supreme Court Order

The Hawaii Supreme Court ordered a variety of temporary policy changes across the Aloha State’s justice system, reasoning that the court must balance the interests of public health and public safety. These changes applied to any individual who was not charged with or convicted of a list of offenses including homicide, assault, kidnapping, sexual offenses, child abuse, burglary, and violating a quarantine requirement.[6]

The changes included:

1. Suspending intermittent jail sentences and discouraging courts from imposing new intermittent jail sentences.
2. Releasing anyone arrested or detained solely for misdemeanor offenses.
3. Barring all courts from imposing bail for misdemeanor offenses.
4. Discouraging courts from imposing bail for defendants charged with a felony not on the exclusion list and encouraging the release of such defendants to home confinement or electronic monitoring.
5. Discouraging the detention of persons who violate their probation terms unless they pose “a significant risk to public health or safety.”
6. Clarifying that individuals incarcerated in state prisons who test positive for COVID-19 can be released without taking another test if they meet CDC contagion guidelines.

These actions are not unusual by the standard of temporary policy changes adopted by many courts, prosecutors, law enforcement agencies, and corrections departments in response to COVID-19.

The Hawaii Supreme Court issued a second order a few days after the first, rejecting a motion from the Office of the Public Defender to preemptively issue an order to compel compliance. The court found that this motion was not “sufficiently supported” and “not within the scope of the relief previously ordered.”[7] These two orders superseded a variety of other orders issued by the Hawaii Supreme Court during the preceding weeks.[8]

Concurring Opinion

Justice Sabrina McKenna’s concurring opinion raises concerns about the inclusion of “violation of interstate or intrastate travel quarantine requirements” in the list of excluded crimes.[9] She notes that the majority’s order allows the incarceration of those who violate quarantine procedures.[10] But unlike the other crimes in the exclusion list, violations of quarantine requirements are not the violation of a criminal statute. Rather, they are violations of executive orders authorized by Hawaii’s emergency management statutes.[11]

These statutes delegate extensive powers to the governor when the state is facing “disasters or emergencies of unprecedented size and destructiveness.”[12] They provide the governor with the sole power to declare the existence of an emergency and then adopt rules that “have the force and effect of law,” including a quarantine requirement for people exposed to an infectious disease.[13] These statutes allow criminal sanctions for violations of quarantine requirements, but they neither include nor require a mens rea standard, and they only provide minimal requirements for how the public should be informed of these new rules.[14] This could present serious overcriminalization and due process problems because under the order, a person could be incarcerated without any actual knowledge of the state’s current quarantine requirements.

Commentators across the political spectrum have expressed concern that government responses to COVID-19 might rely too much on the heavy hand of criminal sanctions, exacerbating preexisting overcriminalization problems.[15] Local law enforcement has already used the Hawaii Supreme Court order to jail at least one person.[16]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] See e.g. Dave Minsky, Sheriff has booked, released nearly half of those arrested since coronavirus emergency order, Santa Maria Times (Oct. 28, 2020), https://santamariatimes.com/news/local/crime-and-courts/sheriff-has-booked-released-nearly-half-of-those-arrested-since-coronavirus-emergency-order/article_5ddbc4f5-f2b9-5abe-ba0c-45f6ed7c1760.html; 646 more Kentucky inmates released from prison to prevent COVID-19 spread, WLKY (Aug. 25, 2020), https://www.wlky.com/article/646-more-kentucky-inmates-released-from-prison-to-prevent-covid-19-spread/33798804#; Jordan Rubin, Will Pandemic Be ‘Tipping Point’ For Justice Reform?, The Crime Report (June 4, 2020), https://thecrimereport.org/2020/06/04/will-pandemic-be-tipping-point-for-justice-reform/; Xerxes Wilson, Why Delaware Arrests Have Plummeted During the Pandemic, U.S. News and World Report (May 2, 2020), https://www.usnews.com/news/best-states/delaware/articles/2020-05-02/why-delaware-arrests-have-plummeted-during-the-pandemic; James Mayse, Arrests have declined dramatically due to effort to reduce COVID-19 exposure, Messenger-Inquirer (Apr. 17, 2020), https://www.messenger-inquirer.com/news/arrests-have-declined-dramatically-due-to-effort-to-reduce-covid-19-exposure/article_1ea3b65e-febb-52bd-a47a-a60d5565261e.html; Kenneth Lipp, Jail inmate roster halved, News Times (Apr. 16, 2020), https://newportnewstimes.com/article/jail-inmate-roster-halved; Heather Walker, Coronavirus prompts prisons to parole inmates more quickly, WOOD TV (Apr. 14, 2020), https://www.woodtv.com/health/coronavirus/coronavirus-prompts-prisons-to-parole-some-early/; James Baron, Some non-violent inmates released from area jails amidst coronavirus pandemic, The Free Lance-Star (Mar. 28, 2020), https://fredericksburg.com/news/crime_courts/some-non-violent-inmates-released-from-area-jails-amidst-coronavirus/article_53423ed4-81da-5d13-9353-f66ec0377b65.html; Memorandum from Attorney General William Barr to Director of Bureau of Prisons (Mar. 26, 2020), available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf; Jody Godoy & Stewart Bishop, Federal Prisons Can Send More Inmates Home. Will They?, Law 360 (Mar. 26, 2020), https://www.law360.com/articles/1257468; Kerri O’Brien, Area jails releasing inmates to prevent COVID-19 outbreak behind bars, ABC 8 News (Marc. 23, 2020), https://www.wric.com/news/virginia-news/area-jails-releasing-inmates-to-prevent-covid-19-outbreak-behind-bars/.

[2] See, e.g.,United States v. Zukerman, No. 16 Cr. 194 (AT) (S.D.N.Y. Apr. 3, 2020); United States v. Ramos, 450 F. Supp. 3d 63 (D. Mass. Mar. 26, 2020); Burton Bentley II, The Growing Litigation Battle Over COVID-19 in the Nation’s Prisons and Jails, Law.com (Aug. 25, 2020), https://www.law.com/2020/08/25/the-growing-litigation-battle-over-covid-19-in-the-nations-prisons-and-jails/?slreturn=20201018081011; Matthew Santoni, Inmates Say Pittsburgh Jail Not Following COVID-19 Guidance, Law360 (Apr. 9, 2020), https://www.law360.com/articles/1261781/inmates-say-pittsburgh-jail-not-following-covid-19-guidance; ACLU Sues Oakdale Federal Prison For Release Of Those Most At Risk From Covid-19, ACLU (Apr. 6, 2020), https://www.aclu.org/press-releases/aclu-sues-oakdale-federal-prison-release-those-most-risk-covid-19.

[3] Petition for Extraordinary Writ Pursuant to H.R.S. §§ 602-4, 602-5(5), and 602-5(6) and/or For Writ of Mandamus, In the Matter of Individuals in Custody of the State of Hawai‘i, No. SCPW-20-0000509 (Haw. Aug. 12, 2020) [Hereinafter “Petition”]; See also John Burnett, Surge in COVID-19 cases spurs petition from Office of Public Defender seeking the release of some inmates, Hawaii Tribune-Herald (Aug. 14, 2020), https://www.hawaiitribune-herald.com/2020/08/14/hawaii-news/surge-in-covid-19-cases-spurs-petition-from-office-of-public-defender-seeking-the-release-of-some-inmates/.

[4] Petition supra note 3 at 14-16.

[5] Order Re: Petty Misdemeanor, Misdemeanor, and Felony Defendants, 2 (Haw. Aug. 27, 2020), available at https://www.courts.state.hi.us/wp-content/uploads/2020/08/SCPW-20-0000509ord6.pdf.

[6] Id at 3-5.

[7] Order Denying Petitioner’s Motion to Compel Compliance with this Court’s Orders, 2 (Haw. Sep. 1, 2020), available at https://www.courts.state.hi.us/wp-content/uploads/2020/09/SCPW-20-0000509ord7.pdf.

[8] Order Granting in Part and Denying in Part Motion for Clarification and/or Reconsideration (Haw. Aug 26, 2020), available at https://www.courts.state.hi.us/wp-content/uploads/2020/08/SCPW-20-0000509recong.pdf;Order Re: Petty Misdemeanor, Misdemeanor, and Felony Defendants at the Maui Community Correctional Center, the Hawai‘i Community Correctional Center, and the Kaua‘i Community Correctional Center (Haw. Aug. 24, 2020), available at https://www.courts.state.hi.us/wp-content/uploads/2020/08/SCPW-20-0000509ord5.pdf;Interim Order for In the Matter of Individuals in Custody of the State of Hawaii (Haw. Aug. 19, 2020), available at https://www.courts.state.hi.us/wp-content/uploads/2020/08/SCPW-20-0000509ord4.pdf; Amended Order Re: Felony Defendants (Haw. Aug. 18, 2020), available at https://www.courts.state.hi.us/wp-content/uploads/2020/08/SCPW-20-0000509amord3.pdf; Amended Order Re: Petty Misdemeanor and Misdemeanor Defendants (Haw. Aug. 17, 2020), available at https://www.courts.state.hi.us/wp-content/uploads/2020/08/SCPW-20-0000509amord.pdf; Interim Order for In the Matter of Individuals in Custody of the State of Hawaii (Haw. Aug. 14, 2020), available at https://www.courts.state.hi.us/wp-content/uploads/2020/08/SCPW-20-0000509ord1.pdf; Order for In the Matter of Individuals in Custody of the State of Hawaii (Haw. Aug. 13, 2020), available at https://www.courts.state.hi.us/wp-content/uploads/2020/08/SCPW-20-0000509ord.pdf.

[9] Order Re: Petty Misdemeanor, Misdemeanor, and Felony Defendants (Haw. Aug. 27, 2020) (McKenna, J., concurring and dissenting), available at https://www.courts.state.hi.us/wp-content/uploads/2020/08/SCPW-20-0000509condop1.pdf.

[10] Id.

[11] Haw. Rev. Stat. § 127A-1-32 (2020).

[12] Haw. Rev. Stat. § 127A-1; 127A-12; 127A-13; 127A-14; 127A-15; 127A-25 (2020).

[13] Haw. Rev. Stat. § 127A-13; 127A-14; 127A-25 (2020).

[14] Haw. Rev. Stat. § 127A-15 (2020).

[15] Timothy Head, How the coronavirus is revealing America’s over criminalization problem, The Hill (June 1, 2020), https://thehill.com/opinion/criminal-justice/500502-how-the-coronavirus-is-revealing-americas-over-criminalization; National Association of Criminal Defense Lawyers, NACDL Supplemental Statement of Principles and Further Call to Action Concerning COVID-19 and America’s Criminal Justice System (May 11, 2020), https://www.nacdl.org/newsrelease/COVID19Criminalization; Betsey Pearl, et al., The Enforcement of COVID-19 Stay-at-Home Orders, Center for American Progress (Apr. 2, 2020), https://www.americanprogress.org/issues/criminal-justice/news/2020/04/02/482558/enforcement-covid-19-stay-home-orders/.

[16] Katie Dowd, San Francisco woman jailed for allegedly violating Hawaii COVID-19 rules, SFGate (Nov. 18, 2020), https://www.sfgate.com/hawaii/article/maui-coronavirus-travel-rules-violation-arrest-15736193.php.

Docket Watch 2020

By Robert Alt

When does uncertainty regarding enforcement standards constitute an impermissible delegation of legislative authority such that a criminal law should be declared unconstitutionally vague? The Kansas Supreme Court addressed this important question in answering whether a small pocketknife meets the statutory definition of a prohibited knife in State v. Harris.^[1]

Kansas law makes it a crime for a convicted felon to possess a “knife.” K.S.A. 2019 Supp. 21-6304 defines a knife as “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” In State v. Harris, the Kansas Supreme Court considered whether the statute’s catch-all clause—“or any other dangerous or deadly cutting instrument of like character”—was impermissibly and unconstitutionally vague. The Kansas high court’s July 2020 decision held that it is.

Christopher Harris, a convicted felon, brandished a pocketknife with a 3½ inch serrated blade during an altercation in Wichita. Kansas charged him with aggravated assault, criminal use of a weapon, and criminal possession of a weapon by a felon. At trial, Harris was acquitted of the first two charges, but the jury convicted him of the third.

Harris appealed on two grounds: first, that the law’s definition of a knife was unconstitutionally vague both facially and as applied to his case; and second, that the trial court erred in preventing Harris from introducing evidence that his parole officer told him that he could legally possess his serrated pocketknife. The appellate court rejected Harris’s constitutional challenge, holding that the statute was not “so vague that it [did not warn] people of ordinary intelligence of the prohibited conduct or that the statute is susceptible to arbitrary and discriminatory enforcement.”^[2] The appellate court, however, reversed Harris’s conviction and remanded the case for a new trial after finding “a reasonable probability that the outcome of the trial would have been different had the court allowed Harris to introduce the parole officer’s testimony and the [Kansas Department of Corrections’] Handbook to the jury.”^[3] Harris and Kansas appealed their respective appellate losses to the Kansas Supreme Court.

The Kansas Supreme Court’s majority ruled that the Kansas statute was unconstitutionally vague on its face, and therefore the majority declined to address the evidentiary question presented by the state.^[4] Two justices joined Justice Daniel Biles in dissent.

Justice Caleb Stegall, writing for the Harris majority, observed that vagueness challenges raise two concerns: due process and separation of powers. Due process challenges ask whether “the statute fairly put people on notice as to the conduct proscribed? Are the words used common and understandable enough to allow persons of ordinary intelligence to easily grasp their meaning?”^[5] The separation of powers concerns arise when the legislature “fails to ‘provide explicit standards’ for enforcement” such that the law “‘threaten[s] to transfer legislative power to’ police, prosecutors, judges, and juries, which leaves ‘them the job of shaping a vague statute’s contours through their enforcement decisions.’”^[6] The majority focused on the second concern, and held that the statute’s “or any other dangerous or deadly cutting instrument of like character” clause violated this separation of powers doctrine and presented a “textbook example” of the arbitrary guesswork induced by vague laws because:

. . . [Kansas] enforcement officials must ask, what exactly is a dangerous cutting instrument of like character? We are unable to discern a sufficiently objective standard of enforcement in this language. Instead, we are left with the subjective judgment of the enforcement agencies and actors. A pair of scissors? Maybe. A safety razor blade? Perhaps. A box cutter? Probably, but would that decision be driven by an objective rule or a historically contingent fear of box cutters?^[7]

The dissent objected to such hypotheticals, but the majority countered that the “crucial question” was whether the law “invite[s] ‘varying and . . . unpredictable’ enforcement decisions ‘on an ad hoc and subjective basis,’” and that the state’s own inconsistent interpretations answered that question in Harris’s favor.^[8] The majority noted that the state’s prosecutors believed that the statute was enforceable against Harris’s possession of the pocketknife, while the Department of Corrections through its Handbook and parole officer believed it was not. Thus, the majority concluded, “the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard.”^[9]

Justice Biles disagreed that the statute was unconstitutionally vague either facially or as applied to Harris. He argued in dissent that the majority was wrong to frame the challenge only as a facial one, and that “the statutory language does not insert subjective judgment unmoored from the statute’s specifics. Harris’ knife . . . falls well within this statute’s foreseeable bounds.”^[10] The majority’s approach, according to Justice Biles, “goes too far” by transforming “the appropriate degree of specificity . . . from a requirement for commonsense adequate protections against arbitrary and discriminatory enforcement to an unbearably exacting requirement that all statutes making specific conduct criminal must be wholly expressed by the Legislature.”^[11] Such an exacting standard, argued Justice Biles, plows new legal ground for Kansas.^[12]

The dissent, however, would have reversed Harris’s conviction and afforded him a new trial in which to present his “mistake-of-law defense” with the previously excluded evidence that his parole officer and the Department of Corrections Handbook had advised Harris that he could legally possess a pocketknife with a blade shorter than 4 inches.^[13]

The Harris decision opens the door for challenges to other statutes that might lack explicit standards for enforcement under principles of non-delegation and void for vagueness.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] State v. Harris, No. 116,515 (Kan. July 17, 2020).

[2] Id. slip op. at 4 (Kan. App. 2018) (unpublished opinion).

[3] Id. at 8.

[4] Id. at 6 (“Because we resolve this case in Harris’ favor on constitutional grounds, we need not reach the evidentiary issue raised by the State’s petition for review.”).

[5] Id. at 8.

[6] Id. (quoting Sessions v. Dimaya, 138 S. Ct. 1204, 1228 (2018) (Gorsuch, J., concurring)).

[7] Id. at 11.

[8] Id. (citations omitted).

[9] Id. at 12.

[10] Id. at 19 (Biles, J., dissenting).

[11] Id. at 23 (Biles, J., dissenting).

[12] Id. at 22 (Biles, J., dissenting).

[13] Id. at 13 (Biles, J., dissenting).

Docket Watch 2020

By Billy Easley

Can law enforcement compel you to unlock your smartphone to access your texts, phone logs, and other private materials? State and federal courts are all over the place when it comes to this question.[1] In State of New Jersey v. Robert Andrews, New Jersey joined Massachusetts[2] in explicitly allowing police officers to compel defendants to enter their phone passcodes. Law enforcement in both states have a new rule: if police can 1) establish that they know a defendant owns the phone, 2) show that the defendant has the passcode, and 3) state with specificity what data is on the phone that’s relevant to the case, then they can compel an individual to unlock their phone.[3] The United States Court of Appeals for the Third Circuit adopted a similar rule.[4]The Indiana[5] and Pennsylvania[6] state supreme courts have rejected such a rule, for now. The Florida District Courts of Appeals have adopted competing rules.[7] Courts are struggling to answer this question consistently as they consider such difficult questions as how to apply old doctrine to new technology and how to preserve individual privacy. The Supreme Court of New Jersey’s recent decision demonstrates the difficulty in resolving these issues.

In State of New Jersey v. Robert Andrews, the Supreme Court of New Jersey held that the compelled production of an individual’s phone passcode is testimonial evidence under the Fifth Amendment. But the court also determined that the government can require a defendant to produce their passcodes under the Supreme Court’s foregone conclusion exception.

The defendant, Robert Andrews, was indicted for official misconduct, hindering, and obstruction related to a drug dealing investigation. The state already had testimony, phone records, and text messages suggesting that the defendant had been in contact with another individual involved in the scheme. The state secured a warrant that granted access to specific apps on the defendant’s iPhone, including the default Phone application and its messaging counterpart. However, the state could not access the phone’s contents due to Apple’s security protocols. When the trial court granted the state’s motion to compel the defendant to provide his phone’s passcode, the defendant refused and claimed that disclosure violated his Fifth Amendment right against self-incrimination, New Jersey’s analogous statutory right, and New Jersey common law’s broader privacy principles.

The court rejected the state’s argument that phone passcodes are mere numbers and recognized that they have testimonial value. However, testimonial evidence can be exempted from Fifth Amendment protection under the foregone conclusion doctrine if the existence, possession, and authentication of the testimony are already known to the government. Since the state already demonstrated at trial that the phone’s passcode exists, that the defendant owned and operated the smartphone associated with it, and the passcode itself simply authenticates this previously known knowledge, the court found that the foregone conclusion exception applies.[8]

Justice Jaynee LaVecchia dissented, focusing on two points. First, she argued that the majority’s particular application of the doctrine violates the fundamental privacy principles found within the U.S. Constitution and the state’s common law. The dissent preferred a broader conception of privacy than the one the majority adopted. As Justice LaVecchia put it, “the precept that one’s inner thoughts cannot be compelled to be disclosed because they are protected by the Fifth Amendment privilege against self-incrimination is still an accepted United States Supreme Court principle.”[9]

Secondly, the dissent believed it was unwise to expand the foregone conclusion doctrine to digital technologies. “The exception originated in the setting of the government ferreting out already existing, physical documents held by another person,” Justice LaVecchia wrote.[10] “It requires expansion to be used here. Its lineage does not merit its use in the present context of overriding the privilege to keep one’s thoughts and recollections to one’s self and not turn that over to the government for use in easing its investigatory efforts.”[11] Unlike the majority, the dissent saw a sharp distinction between compelling individuals to share specific bank account information—the type of physical documentation commonly seen in the Supreme Court’s limited foregone conclusion jurisprudence—and compelling them to open up access to their smartphones. LaVecchia urged the majority to wait for the U.S. Supreme Court to determine whether the foregone conclusion doctrine should be expanded. 

The Supreme Court will eventually have to resolve both these questions—whether phone passcodes are testimonial evidence and whether the foregone conclusion doctrine applies to them. And a firm rule may not be enough. The Court will also need to provide a proper framework to guide lower courts in analyzing compelled production cases. For instance, in G.A.Q.L. v. State, the Florida District Court of Appeals “reasoned that the evidence sought in a password production case . . . is not the password itself; rather it is the actual files or evidence on the locked phone.”[12] It therefore denied the defendant Fifth Amendment protection. Both the New Jersey Supreme Court and the Third Circuit disagreed with that approach. Instead, they “view the compelled act of production in this case to be that of producing the passcode.”[13] This distinction not only impacts the self-incrimination analysis but also related privacy questions.

It is highly likely that the Supreme Court will be asked to resolve these questions in the next few years. Until then, expect more splintering and confusion in the lower courts on these essential questions regarding privacy, self-incrimination, and modern technology.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] See Eunjoo Seo v. State, 148 N.E.3d 952, 968 (Ind. 2020).

[2] Com. v. Gelfgatt, 468 Mass. 512, 518, 11 N.E.3d 605, 611 (2014).

[3] Id.

[4] United States v. Apple MacPro Computer, 851 F.3d 238, 248 (3d Cir. 2017).

[5] Eunjoo Seo v. State, 148 N.E.3d 952, 962 (Ind. 2020).

[6]Com. v. Davis, 220 A.3d 534, 550 (Pa. 2019).

[7] See State v. Stahl, 206 So. 3d 124, 136 (Fla. Dist. Ct. App. 2016); G.A.Q.L. v. State, 257 So. 3d 1058 (Fla. Dist. Ct. App. 2018).

[8] State v. Andrews, 243 N.J. 447, 480, 234 A.3d 1254, 1274 (2020).

[9] State v. Andrews, 243 N.J. 447, 489, 234 A.3d 1254, 1280 (2020).

[10] State v. Andrews, 243 N.J. 447, 502, 234 A.3d 1254, 1288 (2020).

[11] Id.

[12] G.A.Q.L. v. State, 257 So. 3d 1058, 1064 (Fla. Dist. Ct. App. 2018).

[13] State v. Andrews, 243 N.J. 447, 480, 234 A.3d 1254, 1274 (2020).

Docket Watch 2020

By Thomas J. Rheaume & Gordon J. Kangas

In the wake of Michigan’s first positive tests for the coronavirus, Governor Gretchen Whitmer declared a state of emergency pursuant to two state laws: the Emergency Powers of the Governor Act of 1945 (the EPGA)^[1] and the Emergency Management Act of 1976 (the EMA).^[2] In the weeks and months that followed, Governor Whitmer exercised her special emergency powers by issuing a number of executive orders imposing, among other things:

• a requirement that all residents stay home, with limited exceptions;
• a requirement that all residents wear face coverings in indoor public spaces and when outdoors if unable to consistently maintain a distance of six feet or more from individuals who are not members of their household,
• a requirement that children wear face coverings while playing sports;
• a requirement that businesses comply with numerous workplace safeguards;
• a prohibition on the operation of dozens of industries; and
• a prohibition on nonessential travel and in-person work not necessary to sustain or protect life.

One such order prohibited healthcare providers from performing “non-essential” surgeries, which led three healthcare providers and a man who wished to have knee surgery to file suit in federal court against the governor, the attorney general, and the director of the Michigan Department of Health and Human Services. The plaintiffs’ case rested, in part, on the claim that the EPGA violates provisions in the Michigan Constitution concerning the separation and delegation of powers.^[3] The federal district court recognized that resolving plaintiffs’ claims would require the court to “interpret Michigan statutes that have never before been interpreted by the Michigan Courts” and therefore certified two questions to the Michigan Supreme Court.^[4] The questions addressed whether Governor Whitmer had the statutory authority to issue or renew executive orders beyond a certain date, and whether the EPGA or the EMA violated the Michigan Constitution as alleged by plaintiffs. The Michigan Supreme Court unanimously agreed to certify both questions, but the justices varied in how to answer those questions.^[5]

Writing for the majority, Justice Stephen J. Markman first addressed the EMA. Unlike the EPGA, the EMA imposes a time limit on the governor’s emergency powers. Once the governor declares the state of emergency, it continues “until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days.”^[6] If the state of emergency is to continue after that, both houses of the state legislature must approve a request from the governor that specifies the number of additional days.^[7] Governor Whitmer initially declared the state of emergency on March 10, 2020, and the Michigan legislature approved an extension until April 30, 2020, but declined to extend it further. All members of the court agreed with Justice Markman that, after that date, the governor lacked authority under the EMA to issue executive orders relating to the coronavirus pandemic.^[8] The court unanimously rejected the governor’s argument that she could “redeclare the same state of emergency” to avoid the time limit and rejected the argument that the time limit imposed a legislative veto.^[9] Rather, the EMA’s provisions “impose nothing more than a durational limitation on the governor’s authority.”^[10]

Justice Markman next addressed plaintiffs’ challenges to the EPGA, concluding at that outset that, contrary to the plaintiffs’ arguments, the EPGA applied to the coronavirus pandemic. Six of the court’s seven members rejected the contentions that an “emergency” under the act must be short-lived, or must be constrained to a local area, or that only certain types of emergencies qualified.^[11] The EPGA enables the governor to “proclaim a state of emergency and designate the area involved” and refers to circumstances “when public safety is imperiled.”^[12] Justice Markman relied on a dictionary definition to conclude that the “area involved” may “comprise the entire state, or it may comprise some more localized geographical part of the state.”^[13] He took the same approach to interpreting “emergency.” Likening an epidemic to a fire that continues to burn, the justice wrote, “an emergency is an emergency for as long as it persists as an emergency.”^[14]

Justice Markman further noted that prior cases, though not addressing the EPGA specifically, had treated epidemics as implicating “public safety” and not merely “public health.”^[15] “The people of this state, as well as their public officials, deserve to be able to read and to comprehend their own laws,” wrote Justice Markman, and “we are not prepared to rewrite the EPGA or to construe it in an overly narrow or strained manner to avoid rendering it unconstitutional.”^[16]

These conclusions led the majority to address the facial constitutionality of the EPGA. The Michigan Constitution includes an express provision regarding the separation of powers:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.^[17]

The majority looked to both its own precedent and that of the U.S. Supreme Court to assess the contours of the nondelegation doctrine—i.e., “the settled maxim[] in constitutional law . . . that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.”^[18] Citing precedent holding that Michigan’s nondelegation caselaw is similar to that developed in federal courts, Justice Markman explained that the legislative act in question must lay down “an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform[.]”^[19] Ultimately, the majority concluded that the EPGA does not provide an intelligible principle because it requires only that the governor’s directives be “reasonable” and “necessary.”^[20] Consequently, the majority held the EPGA was facially unconstitutional.

Justice David Viviano agreed with the majority that the EPGA violated the nondelegation doctrine, but he contended that reaching the question was unnecessary. In his view, “public health” and “public safety” are distinct terms of art.^[21] Relying on the history and laws that followed the 1918 influenza epidemic, Justice Viviano concluded public health crises are the province of health codes and the legislature did not intend to regulate them with the EPGA.^[22]

Chief Justice Bridget McCormack, joined by Justices Richard Bernstein and Megan Cavanagh, took the opposite position. They agreed with the majority that the EPGA does apply to pandemics, but they disagreed that it violated the nondelegation doctrine. Like Justice Markman, Chief Justice McCormack also turned to both state and federal precedent, but she concluded that only a delegation that provided “no standards to guide the decisionmaker’s discretion” would constitute an impermissible delegation.^[23] The Chief Justice believed that the “particular standards in the EPGA are as reasonably precise as the statute’s subject matter permits,” and thus constitutionally permissible.

Finally, although Justice Bernstein joined Chief Justice McCormack’s opinion in full, he wrote separately to explain why. In his view, concluding that the EPGA did not violate the separation of powers was “inherently troubling” but consistent with state and federal precedent that has let the nondelegation doctrine lay dormant since the New Deal era.^[24] Justice Bernstein explained that he “would leave to the Supreme Court of the United States to decide whether it is now time to revisit the nondelegation doctrine.”^[25]

Ultimately, the justices were unanimous that the coronavirus pandemic is an exceptional situation posing exceptional risks. Although the majority held that the EPGA unlawfully delegates legislative power to the executive branch, the court emphasized that its ruling was not the final word on dealing with the health crisis. So long as the proper constitutional roles of each branch of government are respected, there remain “many avenues for the Governor and Legislature to work together to address this challenge and we hope that this will take place.”^[26]

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] Mich. Comp. Laws 10.31 et seq.

[2] Mich. Comp. Laws 30.401 et seq.

[3] See Mich. Const. 1963, art. 3, § 2 (“The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”); Mich. Const. 1963, art. 4, § 1 (“[T]he legislative power of the State of Michigan is vested in a senate and a house of representatives.”).  The complaint and the federal district court referred to these provisions as the “Separation of Powers and Non-Delegation Clauses.” Compl. at 25–26, Midwest Inst. of Health, PLLC v. Governor of Mich., No. 1:20-cv-414 (W.D. Mich. May 12, 2020); Midwest Inst. of Health, PLLC v. Governor of Mich., No. 1:20-cv-414, slip op. at 1 (W.D. Mich. June 16, 2020).

[4] Midwest Inst. of Health, PLLC v. Governor of Mich., No. 1:20-cv-414 (W.D. Mich. June 16, 2020); see also Mich. Ct. R. 7.308(A)(2)(a) (“When a federal court, another state’s appellate court, or a tribal court considers a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent, the court may on its own initiative or that of an interested party certify the question to the Court.”).

[5] In re Certified Questions (Midwest Inst. of Health, PLLC v. Governor of Mich.), No. 161492, 2020 WL 5877599, at *4 (Mich. Oct. 2, 2020), available at https://courts.michigan.gov/Courts/Michigan
SupremeCourt/Clerks/Recent%20Opinions/20-21%20Term%20Opinions/In%20re%20Certified%
20Questions-OP.pdf.

[6] Mich. Comp. Laws § 30.403(4).

[7] Id.

[8] In re Certified Question, 2020 WL 5877599, at *24 n.25.

[9] Id. at *7.

[10] Id.

[11] Justice David Viviano would have held that the EPGA does not apply to public health emergencies such as pandemics. Id. at *36 (Viviano, J., concurring in part and dissenting in part).

[12] Mich. Comp. Laws § 10.31(2).

[13] In re Certified Question, 2020 WL 5877599, at *9.

[14] Id.

[15] Id. at *11 (citing Jacobson v. Massachusetts, 197 U.S. 11, 37 (1905) and People ex rel. Hill v. Lansing Bd. of Ed., 224 Mich. 388, 391, 195 N.W. 95 (1923).

[16] Id. at *11–12.

[17] Mich. Const. 1963, art 3, § 2. 

[18] In re Certified Question, 2020 WL 5877599, at *12 (quoting Cooley, Constitutional Limitations 116–17 (1886)).

[19] Id. at *13 (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)).

[20] Id. at *18.

[21] Id. at *27 (Viviano, J., concurring in part and dissenting in part).

[22] Id. at *29 (Viviano, J., concurring in part and dissenting in part).

[23] Id. at *42 (McCormack, C.J., concurring in part and dissenting in part).

[24] Id. at *46 (Bernstein, J., concurring in part and dissenting in part).

[25] Id. (citing Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J., concurring in the judgment) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”)).

[26] Id. at *3 n.1 (citing Gundy, 139 S. Ct. at 2145 (Gorsuch, J., dissenting)).