State Court Docket Watch

Mitchell v. Roberts

July 23, 2020

Docket Watch 2020

By Samantha Harris

Mitchell v. Roberts came before the Utah Supreme Court on certification from the U.S. District Court for the District of Utah.[1] The plaintiff, Terry Mitchell, brought claims against the defendant, Richard Roberts, based on allegations that he had sexually abused her when she was a teenager in 1981. Although the statute of limitations had already run on Mitchell’s claim, a 2016 law passed by the Utah legislature revived time-barred sex abuse claims if brought within 35 years of a victim’s 18th birthday or within 3 years of the law’s effective date, whichever was later.[2] Mitchell filed her claim within 3 years of the statute’s effective date.[3]

Roberts challenged the Utah legislature’s authority to enact a statute reviving time-barred claims. As an initial matter, the court noted that it agreed with the legislature’s policy judgment in wishing to revive time-barred child sex abuse claims.[4] However, the court held,

The original meaning of the constitution binds us as a matter of the rule of law. Its restraint on our power cannot depend on whether we agree with its current application on policy grounds. Such a commitment to originalism would be no commitment at all. It would be a smokescreen for the outcomes that we prefer.[5]

To analyze the constitutional question raised by Roberts, the court examined both its own precedent as well as historical evidence of the original understanding of due process and legislative power.

First, the court held that its precedents had long been clear that “the legislature lacks the power to revive a plaintiff’s claim in a manner that vitiates a ‘vested’ right of a defendant,” and that this limitation has long been extended to “the right to retain a statute of limitations defense after a plaintiff’s claim has expired under existing law.”[6] The court cited to a long line of its decisions holding that the legislature cannot retroactively deprive an individual of a vested right, including the right to rely on a ripened statute of limitations defense.[7] Some of these cases, while acknowledging the vested right limitation, also relied on the fact that the legislature had not made a clear statement that a revised statute of limitations should apply retroactively. However, the court confronted this issue directly in State v. Apotex Corp., and held that even when the legislature explicitly made a statute of limitations change retroactive, “the defense of an expired statute of limitations is a vested right . . . which cannot be taken away by legislation.”[8]

The plaintiff, Mitchell, argued that Apotex was an outlier and that the weight of the court’s precedent suggested that the vested-right limitation applied only when the legislature had not — as it had in this case — made clear its intent that a statute should apply retroactively.[9] While acknowledging some ambiguity in its earlier decisions about the relationship between the “clear statement rule” and the “vested-rights limitation,” the court disagreed with Mitchell, holding both that “the vested rights limitation on legislative power can be traced through our decisions for more than a century” and that “these statements of a hard-and-fast constitutional rule limiting the legislature’s power is consistent with the original understanding of our state constitution.”[10]

Specifically, the court found that the vested-rights limitation is consistent with the framers’ understanding of the due-process clause of the Utah Constitution.[11] That clause, the court noted, was originally understood as a “principle for enforcement” of the separation of powers in a system in which “the executive has the power to enforce law (not to make it), the judiciary has the power to adjudicate cases under existing law in accordance with established procedures, and the legislature has the power to enact general laws to govern behavior going forward.”[12] Thus, at the time of the Constitution’s framing, the due-process clause was understood to prohibit the legislature from encroaching on the power of the judiciary, including by “retrospectively divest[ing] a person of vested rights that had been lawfully acquired under the rules in place at the time.”[13]

The court also reviewed records of the state’s constitutional convention, which revealed discussions of “the concept of ‘vested rights’ in the context of the legislative power to enact retroactive laws” — discussions that further bolstered the court’s view that the framers’ conception of due process was linked to the separation of powers.[14]

The court then examined whether the historical documents supported the claim that a ripened statute of limitations defense, specifically, constitutes a vested right. The court noted that the year before the Utah Constitution was drafted, the court’s predecessor “defined a vested right as ‘title, legal and equitable, to the present and future enjoyment of property, or to the present enjoyment of a demand or a legal exemption from a demand.’”[15] The court pointed out that a statute of limitations defense seemed to fit within the definition of “a legal exemption from a demand,” and noted that its prior decision in Ireland v. Mackintosh[16] “provides compelling evidence that early Utahns viewed revival of a time-barred claim as an impermissible interference with a vested right.”[17]

Ultimately, the court expressed great sympathy for the legislature’s desire to increase the opportunity for child sex-abuse survivors to seek justice even when trauma or other factors had previously prevented them from coming forward. However, the first and foremost responsibility of judges is to uphold their “oath . . . to support, obey, and defend the constitution,” and they concluded that the constitution here was clear: “The legislature lacks the power to retroactively vitiate a ripened statute of limitations defense under the Utah Constitution.”[18]

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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

[1] Certification of Issue to State Supreme Court, Mitchell v. Roberts, No. 2:16-cv-00843 (D. Utah June 1, 2017), ECF No. 37.

[2] UTAH CODE ANN. § 78B-2-308(7) (LexisNexis 2020).

[3] Mitchell v. Roberts, 2020 UT 34, ¶ 2.

[4] Id. at ¶¶ 6-7.

[5] Id. at ¶ 8.

[6] Id. at ¶ 11.

[7] Id. at ¶¶ 12-17.

[8] State v. Apotex Corp., 282 P.3d 66, 81 (Utah 2012).

[9] Mitchell, 2020 UT at ¶ 19.

[10] Id. at ¶¶ 20, 25-26.

[11] Id. at ¶ 30.

[12] Id. at ¶ 31.

[13] Id. at ¶ 34 (quoting Nathan S. Chapman & Michael McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1782 (2012)).

[14] Id. at ¶ 36.

[15] Id. at ¶ 43 (quoting Toronto v. Salt Lake Cty., 37 P. 587, 588 (Utah 1894)).

[16] 61 P. 901 (Utah 1900).

[17] Mitchell, 2020 UT at ¶ 44.

[18] Id. at ¶ 52.

The Effect of Ramos v. Louisiana

July 15, 2020

Docket Watch 2020

By GianCaro Canaparo

In April of this year, the Supreme Court decided Ramos v. Louisiana, holding that the Sixth Amendment’s[1] requirement of jury unanimity in criminal convictions was incorporated against the states.[2]

At the time of Evangelisto Ramos’s conviction, Louisiana permitted non-unanimous convictions based on 10-to-2 or 11-to-1 jury votes. In the time between his conviction and his appeal, Louisiana changed its law to require unanimous convictions.[3]  

In opposing Ramos’s claim, Louisiana argued, among other things, that requiring unanimous jury verdicts would cause chaos for its criminal justice system.[4] For one thing, anyone convicted by a non-unanimous jury whose appeal had not yet become final would have to be retried. And for another, defendants whose non-unanimous convictions had become final would challenge them on collateral review.[5] 

The Court rejected these two arguments. As to the first, it acknowledged that the decision would “surely impose a cost” but said that cost did not outweigh the constitutional harm that permitting non-unanimous verdicts imposes on defendants.[6] As to the second, the Court noted that the test for whether a new rule of criminal procedure applies retroactively is so stringent that it has never been met.[7] 

As Louisiana predicted, defendants convicted by non-unanimous juries are now challenging their convictions. At least for now, however, that burden seems much lighter than Louisiana expected. Orders granting writs for review in light of Ramos began appearing on the Louisiana Supreme Court’s docket a month after the Supreme Court decided that case.[8] The first day such orders appeared, there were more than thirty, but since then, if any appear among the court’s list of orders, there are at most a handful.

The Louisiana Supreme Court has quickly adapted to handle these cases. In cases where a defendant was convicted by non-unanimous verdict and his or her appeal was not yet final, the Louisiana Supreme Court issues a unanimous, form, per curiam order remanding the case “for further proceedings and to conduct a new error patent review in light of Ramos.”[9] The order also provides that even if the defendant abandoned or failed to preserve his or her objection to the non-unanimous verdict, the lower court should still consider the issue.[10]

In at least one case, the record did not indicate whether the verdict was unanimous because “the district court ceased polling the jury after the first ten jurors.”[11] In that case, the Louisiana Supreme Court ordered the lower court to “ascertain whether the verdict was unanimous.”[12] Chief Justice Bernette Johnson dissented, arguing that the jurors’ memories will be “tainted” by all the publicity that has surrounded the jury unanimity issue in the four years since the defendant’s conviction, and so it would be better to simply remand for a new trial.[13]

So far, it does not appear that any challenges to final non-unanimous convictions have made it to the Louisiana Supreme Court on collateral review. It is clear, however, that the court is expecting those challenges in the future. Its form per curiam order includes the line, “Nothing herein should be construed as a determination as to whether that ruling will apply retroactively on state collateral review to those convictions and sentences that were final when Ramos was decided.”[14]

Although Ramos has not imposed a significant burden on the Louisiana courts yet, the number of potential collateral review challenges likely far outstrips the number of non-final non-unanimous convictions subject to immediate retrial. After all, Louisiana has permitted non-unanimous verdicts since 1898.[15] The true burden of Ramos, therefore, remains to be seen.

It is also nearly certain that at some point in the future the Supreme Court will be asked to decide whether the Ramos rule applies retroactively. If it holds that it does—which would be a first[16]—then Louisiana’s courts, and the courts of any other states that have permitted non-unanimous verdicts, will most likely be deluged by collateral challenges.

To view this article on the Federalist Society’s website, click here.

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

[1] U.S. Const. amend. VI; see also Thompson v. Utah, 170 U. S. 343, 351 (1898) (holding that the Sixth Amendment’s guarantee of a jury trial included the historical requirement of unanimity); Patton v. United States, 281 U.S. 276, 288 (1930) (same).

[2] 140 S. Ct. 1390 (2020)

[3] Id. at 1407.

[4] Id. at 1406.

[5] Id. at 1407.

[6] Id. at 1406.

[7] Id. at 1407.

[8] See Court Actions/May 27, 28, and June 3, 2020, Louisiana Supreme Court, (last visited, July 10, 2020).

[9] See, e.g., State v. Kendell Shanner Cagler, No. 2018-KO-01988 (June 3, 2020), available at

[10] Id.

[11] State v. Dermaine Norman, No. 2020-K-0109 (July 2, 2020), available at

[12] Id.

[13] Id., dissent available at

[14] See, e.g., Kendell Shanner Cagler, No. 2018-KO-01988.

[15] Ramos, 140 S. Ct. at 1393.

[16] Id. at 1407

Jackson v. Raffensperger

July 8, 2020

Docket Watch 2020

By Anastasia P. Boden

A Georgia trial court recently held that the state constitution “does not recognize a right to work in one’s chosen profession.”[1] In Jackson v. Raffensperger, the Georgia Supreme Court reversed that decision and reaffirmed the state constitution’s role in protecting people’s ability to pursue a livelihood without unreasonable state interference.[2]

The plaintiffs in the case, Mary Jackson and her non-profit organization, Reaching Our Sisters Everywhere, Inc. (ROSE), challenged the constitutionality of the Georgia Lactation Consultant Practice Act.  Lactation care providers, or “LCs,” provide breastfeeding support in clinical settings and at home, and for decades they were able to work in Georgia free of a licensure requirement. But in 2016, the legislature passed a law that not only mandated licensure, but also limited eligibility to individuals who are privately credentialed as International Board Certified Lactation Consultants (IBCLCs).[3] The law thus excluded consultants who were certified by other prominent organizations, including Certified Lactation Counselors (CLCs). Mary Jackson, who is certified as a CLC, alleged in her lawsuit that the law deprived her of due process and equal protection under the state constitution because it unfairly prohibited her from working as a lactation consultant even though she and other members of ROSE were just as competent as IBCLCs to provide lactation care.

Though the statute banned CLCs from getting a license, it contained a multitude of exceptions for other professionals, including, “[p]ersons licensed to practice the professions of dentistry, medicine, osteopathy, chiropractic, nursing, physician assistant, or dietetics;” “doulas and perinatal and childbirth educators;” “students, interns, or persons preparing for the practice of lactation care and services” (with supervision); certain federal, state, county, and local employees; and anyone who does it for free.[4]

The trial court ruled that the plaintiffs failed to state a legal claim under the state constitution’s due process clause because the Georgia Constitution doesn’t recognize a right to work in one’s chosen profession. It further ruled that that they failed to state a claim that the Act violates the equal protection clause because CLCs and IBCLCs are not similarly situated.[5]

In a relatively short opinion, the Georgia Supreme Court reversed and remanded, citing a long line of cases establishing that the state constitution does, in fact, protect “the right to pursue an occupation of one’s choosing free from unreasonable government interference.”[6]  It ruled that the lower court’s decision was based on an erroneous interpretation of a prior case which merely stood “for the unremarkable proposition that an individual’s due process right to practice a . . . profession is subject to reasonable regulation by the State.”[7] That case did not, however, mean that there was no right to practice a profession at all.  It therefore remanded so that the due process claim could proceed to the merits.

The court also agreed with the plaintiffs that CLCs and IBCLCs are similarly situated, such that the plaintiffs had adequately stated a claim that treating the groups differently violated the equal protection clause.[8] Not only do the two perform similar work, the complaint alleged that both groups were equally competent to do that work. (That allegation was bolstered by the fact that the legislature had previously rejected a nearly identical bill after the Georgia Occupational Regulation Review Council determined that CLCs and IBCLCs were equally qualified.  The legislature went on to pass a later iteration of the bill despite those objections.[9]) Given that CLCs and IBCLCs perform similar tasks and are similarly qualified, the court ruled that they were similarly situated for purposes of an equal protection challenge.

On remand, the plaintiffs will now have the chance to make their case on the merits.

To view this article on the Federalist Society’s website, click here.

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

[1] Jackson v. Raffensperger, 2020 WL 2516517, at *1

[2] Id. at *3.

[3] Id. at *2-3.

[4] Id. at *3. While permitted to practice lactation care, many of these groups were prohibited from holding themselves out as licensed lactation consultants.

[5] Id. at *1.

[6] Id. at *3.

[7] Id. at *4.

[8] Id. at *5.

[9] Id. at *2.

Ladd v. Real Estate Commission

July 8, 2020

Docket Watch 2020

By Anastasia P. Boden

In Ladd v. Real Estate Commission,[1] the plaintiff Sarah Ladd was an entrepreneur who used ingenuity and the burgeoning short term rental industry to her advantage. She built a business handling marketing and other logistics for short term rentals, including responding to inquiries, coordinating bookings, managing billing, and ensuring that the properties were cleaned between uses. The homeowners were separately responsible for entering into contracts with the renters and making sure that the relevant fees and taxes were paid and regulations followed. The Commonwealth of Pennsylvania, however, defined Ladd’s business as a “real estate brokerage” and required her to secure a license.  Completing the licensure requirements would have forced her to complete years of training, pass two exams, work as an apprentice, and obtain a physical office. In total, Ladd would have had to complete 165 hours of coursework geared toward large scale real estate transactions and forego income for three years while she pursued licensure.

Rather than pursuing a license, Ladd sought a judicial declaration that the real estate licensing law deprived her of her right to pursue her chosen occupation under the state constitution. The government moved to dismiss based on ripeness, failure to exhaust, and failure to state a claim. It also sought to dismiss one of the plaintiffs ⸺ a former client of Ladd’s who argued that she was injured because she was no longer able to use Ladd to book clients for her short term rental.

The trial court dismissed.  It first rejected the government’s ripeness and exhaustion claims, finding that Ladd was suffering a sufficiently direct and immediate harm to warrant pre-enforcement review.[2] Because she was forced to suffer the costs of complying or possible sanctions for non-compliance, Ladd could seek a judgment in court rather than pursuing administrative remedies.

The court then dismissed the case on the basis that Ladd could not possibly prove her claim. It reasoned that it’s rational to have prerequisites for a career, and those prerequisites do not become any less rational merely because a person practices “in a limited fashion.”[3] The government had warned that Ladd’s reasoning would permit people to “practice medicine without attending medical school” so long as they do not “perform major surgery,” or allow architects to “design small houses,” or enable pharmacists to work unlicensed so long as they “only work weekends and do not prescribe narcotics.”[4] The lower court agreed, ruling that to hold otherwise would “effectively upend the legitimacy of any requirement by the Commonwealth for a professional license.”[5]

The Pennsylvania Supreme Court reversed. Citing its earlier opinion in Gambone v. Commonwealth of Pennsylvania,[6] the Court affirmed that even under the rational basis standard, any exercise of the police power should not be “unreasonable, unduly oppressive, or patently beyond the necessities of the case.”[7]Moreover, laws must bear a “real and substantial relation” to a legitimate policy objective and the government’s stated justification must be supported by the record.[8] Given that standard, Ladd had made a colorable claim that the real estate licensure requirement, as applied to her, violated due process.

For instance, Ladd alleged that forcing her to engage in an apprenticeship, complete coursework and exams, and arrange physical office space in order to continue her business did not bear a “real and substantial” relationship to protecting the buyers and sellers of homes because Ladd did not buy or sell property, facilitate leases, or handle large sums of money.[9] “Taking courses on how to perform those functions” was therefore “irrelevant to her competent performance of a wholly different service,” which entailed managing rentals “that last only a few days and cost only a few hundred dollars.”[10] In other words, Ladd had not just alleged that she sought to practice “limited” brokerage services, but instead that she sought to practice what was essentially an entirely different profession altogether.[11] Moreover, the law’s exemptions for other related professions and blanket prohibition on “[u]nfair methods of competition and unfair or deceptive acts” meant that there were less restrictive ways to protect the public than licensure of Ladd’s services.[12]

In dissent, Justice David Wecht disagreed with the “deeply flawed ‘heightened rational basis’ test’” established in Gambone.[13] Justice Wecht viewed that test as permitting courts, “under the facade of substantive due process—to second-guess the wisdom, need, or appropriateness of otherwise valid legislation,” and to effectively act as legislators themselves. Referencing the United States Supreme Court’s infamous decision in Lochner v. New York,[14] Justice Wecht argued that decisions protecting economic liberty, like the right to freedom of contract or the right to earn a living, merely lock in judges’ policy preferences.[15] Gambone, Justice Wecht said, embodies Lochner even though the Supreme Court itself has abandoned that test.[16] Indeed, in his view Gambone goes beyond Lochner,because rather than purporting to protect unenumerated rights, it explicitly allows courts to declare laws unconstitutional based on whether they are “reasonable.”[17] In Justice Wecht’s view, “the only constitutionally relevant question is whether the RELRA’s broker licensing requirements are rationally related to a legitimate government interest.”[18] In response to that question, the justice answered, “I have little doubt that they are.”[19]

Even arguing on the majority’s terms, Justice Wecht found the majority’s opinion problematic because it would create a constitutional right to “a custom-made licensing statute” that would mean that “requirements for dentists are unconstitutional as applied to practitioners who only intend to extract teeth.”[20] To this, the majority responded that the relevant fact was not merely that Ladd’s services were limited, but that they were so limited so as to constitute an entirely different profession. It analogized to the distinction between a dental hygienist and dentist, rather than between a dentist and a part-time dentist.[21]

In a much shorter dissent, Justice Sallie Updyke Mundy briefly noted that she too believed that the real estate law was rational regardless of whether Ladd limited the scope of her business.[22]

On remand, Ladd will now have the opportunity to proceed to discovery and to make her argument on the merits that the law goes too far.

To view this article on the Federalist Society’s website, click here.

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

[1] Ladd v. Real Estate Commission, 2020 WL 2532285, at *1 (Pa. 2020).

[2] Ladd v. Real Estate Commission of Commonwealth, 187 A.3d 1070, 1076 (Pa.Cmwlth. 2018).

[3] Id. at 1078. 

[4] 2020 WL 2532285at *8.

[5] Id.

[6] Gambone v. Commonwealth of Pennsylvania, 375 Pa. 547 (Pa. 1954).

[7] Id.

[8] Ladd, 2020 WL 2532285 at *6.

[9] Id. at *7.

[10] Id.

[11] Id. at *12.

[12] Id. at *15.

[13] Id.

[14] 198 U.S. 45 (1905).

[15] Id. at *16.

[16] Id. at *17.

[17] Id. at *18.

[18] Id. at *20.

[19] Id.

[20] Id.

[21] Id. at *14 n.19.

[22] Id. at *21.

Institute For Responsible Alcohol Policy v. Oklahoma ex rel. Alcohol Beverage Laws Enforcement Comm.

June 16, 2020

Docket Watch 2020

By Jarrett Dieterle

In January 2020, the Oklahoma Supreme Court upheld a challenge under the Oklahoma Constitution to a state law concerning so-called “forced sale clauses”[1] under the state’s system of regulation for alcoholic beverages.[2] The story traces back to 2016, when the Oklahoma Legislature passed a joint resolution to place State Question 792 on the November ballot that year. The ballot question was approved by a majority of voters, and it took effect in October 2018.

State Question 792 sought to replace and update Article 28 of the Oklahoma Constitution—involving the control and regulation of alcoholic beverages—with a new section titled Article 28A. One of the main goals of the proposed change was to repeal Oklahoma’s so-called “weak beer” law, which restricted the ability of grocery and convenience stores in the state to sell beer over 3.2 percent ABV.[3]

The ballot question also addressed other features of the state’s alcohol regulation system, including proposing a new provision in Article 28A of the Oklahoma Constitution that specified that a manufacturer of alcohol “may sell” its brand of beverages to a licensed wholesaler in the state.[4] This contrasted with the old Article 28 of the Oklahoma Constitution, which included a “forced sale clause” stating that a manufacturer “shall be required to sell” its brand to any wholesaler who desired to purchase it.[5]

Shortly after the ballot question was approved, the state legislature passed SB 608, a law which re-instituted a new type of forced sale clause specifying that any wine or spirit product that constituted a “top brand” (defined as any brand in the top 25 of sales) “shall be offered by the manufacturer for sale” to every licensed wholesaler in the state.[6]

SB 608 was promptly challenged by various companies and organizations, including numerous alcohol manufacturers, wholesalers, and retailers (collectively, appellees), who argued that it directly contradicted the recently enacted language in Article 28A stating that alcohol producers had discretion (i.e., “may sell”) when it came to selling to wholesalers. The law was defended by Oklahoma’s Alcoholic Beverage Laws Enforcement Commission as well as several other alcohol wholesalers in the state (appellants), who argued that Article 28A and SB 608 were not in direct conflict and that SB 608 was a proper use of legislative authority under the anti-competitive provisions of the Oklahoma Constitution.[7]

The district court held that the forced sale clause of SB 608 was in direct conflict with the language in Article 28A of the Oklahoma Constitution. Appellants appealed, and the Oklahoma Supreme Court agreed to hear the appeal.[8] The Oklahoma Supreme Court upheld the district court’s opinion, agreeing that SB 608 was unconstitutional under Article 28A of the state constitution.[9]

The majority opinion started by noting that when a statute is challenged under the state constitution, the court “looks first to [the constitution’s] language, which if unambiguous, binds the Court.”[10] A statute should be upheld “unless it is ‘clearly, palpably and plainly’ inconsistent with the Constitution.”[11]

Because the “clear and ordinary language” of Article 28A of the Oklahoma Constitution states that alcohol manufacturers “may sell such brands” to alcohol wholesalers, and because the word “may” denotes that “an action is permissive or discretional, and not mandatory,” any statute that contradicts that language runs afoul of the constitution. Therefore, SB 608’s forced sale clause, which states that manufacturers of the top 25 brands “shall” sell those products to all wholesalers, is unconstitutional.[12]

The court also addressed the appellants’ additional argument that SB 608 was a proper use of legislative authority under the anti-competitive provisions of the Oklahoma Constitution—namely, Article V, Sections 44 and 51, which bar unlawful monopolies or trusts and prohibit any laws that grant corporations exclusive rights or privileges. The court held that if a statute like SB 608 violates one part of the Oklahoma Constitution (such as Article 28A) it cannot be saved by other provisions elsewhere in the constitution.[13] Regardless, the majority held that Article 28A was not in conflict with the anti-competitive provisions of the Oklahoma Constitution since prior court cases had declined to find antitrust violations for situations in which an alcohol producer granted a single wholesaler the exclusive rights to distribute its product.[14]

The majority decision sparked two dissents. First, Justice Kauger argued that the majority incorrectly found an irreconcilable conflict between SB 608 and Article 28A. Justice Kauger argued the text of Article 28A was ambiguous given that it also specified that producers must sell their products to wholesalers “without discrimination,” and only selling to one wholesaler at the exclusion of others could be construed as a type of discrimination.[15] 

Justice Kauger urged a consideration of the “intention of the framers” of Article 28A, which should govern over “technical rules” regarding statutory construction. When considering the entirety of State Question 792, which implemented Article 28A—including analyzing the Final Ballot Title and the “gist” of the ballot question as they appeared on the electoral ballot—Justice Kauger concluded that the state legislature was primarily concerned with three things: preventing the formation of monopolies, preventing discrimination and retaining legislative authority to regulate the sale of alcoholic beverages. Therefore, when “the resolution, the title, and the gist, are read collectively, it is apparent the voters were voting on these same three things, [whereas] voters were not notified about whether [the ballot question would] allow a manufacturer to sell to only one wholesaler.”[16]

Under Justice Kauger’s analysis, SB 608 was a valid use of legislative authority. The primary goal of SB 608 was to prevent wholesaler monopolies from arising if all wholesalers were not allowed to sell the top 25 brands in the marketplace.[17]

A second dissent, authored by Justice Barnes, argued that the Oklahoma Constitution must be construed “as a consistent whole,” thus the Court must “attempt to harmonize” Article 28A with the anti-competitive provisions of the constitution. Given the broad powers the legislature is recognized to have over alcoholic beverage regulation, in conjunction with the broad anti-competitive and anti-monopoly powers granted to the legislature under the constitution, exercises of legislative power like SB 608 are “not plainly and clearly prohibited.” Therefore, the dissent argued, any doubt should be resolved in favor of the legislature’s actions, which means SB 608 should be upheld.[18]

While it’s hard to know if the Oklahoma Supreme Court’s decision will be the concluding chapter in the state’s long saga concerning State Question 792, it definitively concludes that legislation forcing alcohol producers to sell their products to wholesalers violates the state constitution.

To view this article on the Federalist Society’s website, click here.

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

[1] In this context, a forced sale clause means a requirement in a commercial transaction that one party (here, an alcohol producer) sell their products to another party (such as an alcohol wholesaler).

[2] Institute For Responsible Alcohol Policy v. Oklahoma ex rel. Alcohol Beverage Laws Enforcement Comm., Case Number 118209, (Okla. Jan. 22, 2020), available at

[3] Id. ¶4.                                                                             

[4] [Citation] (emphasis added).

[5] Id. ¶13.

[6] Id. ¶6.

[7] Id. ¶8.

[8] Id. ¶9.

[9] Id. ¶22.

[10] Id. ¶12.

[11] Id.

[12] Id. ¶14-¶17.

[13] Id. ¶18.

[14] Id. ¶20.

[15] Id.,¶2 (Kauger, J., dissenting).

[16] Id. ¶11-12. (Kauger, J., dissenting).

[17] Id. ¶15-17.

[18] Id. ¶4, ¶15-16 (Barnes, J., dissenting).

In re Salon a la Mode, et al.

June 8, 2020

Docket Watch 2020

By Ken Paxton

In response to the global pandemic caused by COVID-19, local authorities in Texas, like local authorities across the country, issued a variety of orders with the goal of flattening the curve. Many of those orders prevented “non-essential” businesses from operating and limited the ability of individuals to travel freely. In late April, a group of small businesses in Texas, along with two individuals, filed an original mandamus petition in the Texas Supreme Court, arguing that a number of those local orders violated Texas statutory law and the Texas Constitution.

The Texas Supreme Court denied the mandamus petition without an opinion.[1] Justice Blacklock wrote a concurring opinion that was joined by three other Justices to make three points: (1) courts must enforce the Constitution during a pandemic, (2) governments must demonstrate that restrictions on liberties are necessary, and (3) the judicial process must consider all relevant facts.

As to the first point, the concurrence began with the court’s declaration from a prior case that “[t]he Constitution is not suspended when the government declares a state of disaster.”[2] While expressing hope that many of these conflicts could be decided in the public square rather than a courtroom, the concurrence acknowledged that courts must not uncritically defer to the other branches of government or shrink from their duty to interpret and apply the Constitution.[3] Commending the “sovereign people” for enduring the suspension of their civil liberties, the concurrence reminded them that duly elected officials were making difficult decisions in difficult circumstances.[4] But the concurrence went on to encourage the people, the courts, and all branches of government to insist that government action comply with the Constitution, as tolerating unconstitutional orders out of expediency or fear risks “abandon[ing] the Constitution at the moment we need it most.”[5]

The concurrence did not purport to choose a legal standard for judging the constitutionality of government actions taken during a pandemic. But it indicated that the burden would be on the government to justify any restrictions on liberties, positing strict scrutiny or another “rigorous form of review.”[6] The concurrence reasoned that governments should welcome the opportunity to demonstrate that restrictions on liberties are “absolutely necessary to combat a threat of overwhelming severity” and that no less restrictive measures would suffice.[7] 

Finally, the concurrence’s analysis suggested that a thorough discussion of the facts is a necessary part of this “rigorous” review. Indeed, the lack of a factual record was one of the reasons cited by the concurrence for denying mandamus.[8] The concurrence noted the change in circumstances from the pandemic’s early stages, when the people did not know enough facts to second-guess lockdowns and other local orders, to the present, when they have more information about the threat posed by COVID-19 and specific ways to respond to it.[9] The concurrence hypothesized that the additional knowledge may alter the balance between local orders and civil liberties.[10]

Ultimately, the concurrence concluded that, because the Constitution still limits government action during a pandemic, the court must also comply with the limits on its authority.[11] Because the court’s jurisdiction was doubtful and it lacked a factual record, denial of the mandamus petition was appropriate.[12] Instead, the case should have been brought in district court.[13]

To view this article on the Federalist Society’s website, click here.

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

[1] In re Salon a la Mode, No. 20-0340, 2020 WL 2125844, at *1 (Tex. May 5, 2020).

[2] Id. (Blacklock, J., concurring) (quoting In re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020)).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at *2.

[9] Id. at *1.

[10] Id.

[11] Id. at *2.

[12] Id.

[13] Id.

Morrisey v. West Virginia AFL-CIO

May 27, 2020

Docket Watch 2020

By Elbert Lin

Just over four years after its enactment, West Virginia’s Right to Work law (the Act) has been definitively upheld by the State’s highest court.  In February 2016, the West Virginia Legislature passed the Act, overrode the Governor’s veto, and made West Virginia the 26th state to enact right-to-work legislation.  Among other things, the law bans collective bargaining agreements that require non-union employees to pay any dues or fees as a condition of employment.  Labor unions challenged the law as violating the West Virginia Constitution.   On April 21, 2020, the West Virginia Supreme Court of Appeals conclusively rejected these arguments, overturned the trial court for the second time, and remanded the case for judgment to be entered for the State.[1] 

The State’s highest (and sole) appellate court had previously found the unions’ constitutional arguments likely to fail.  In September 2017, the Supreme Court of Appeals reversed a preliminary injunction of the Act.  The high court concluded that the unions “had failed to establish, beyond a reasonable doubt, any likelihood of success on the merits as to any of the three theories they argued in support of a finding that the Act is unconstitutional.”[2]  But on remand, the trial court proceeded to enter a permanent injunction, despite “the absence of any additional evidence or arguments,” leading to the second appeal.[3] 

Joined by four of the five justices, the majority opinion in the latest appeal held that “the Act does not violate constitutional rights of association, property, or liberty.”[4]  In so doing, the majority noted that states are “expressly authorized” by the National Labor Relations Act to enact right-to-work laws, that seventeen have laws “like” West Virginia’s, and that no appellate court anywhere has found a right-to-work law unconstitutional.[5]  The majority also stressed that the trial court “clearly erred in its application of” the high court’s previous reversal of the preliminary injunction.[6]

As to associational rights, the majority looked to two decisions of the U.S. Supreme Court, after concluding that the West Virginia Constitution provides no greater protection “in the context of the instant matter” than the U.S. Constitution.[7]  First, the majority held the unions’ position foreclosed by the U.S. Supreme Court’s seventy-year-old decision in Lincoln Federal Labor Union v. Northwestern Iron & Metal Co.,[8] which “rejected the argument that the government infringed upon the rights of the labor organizations by refusing to compel union membership as a condition of employment.”[9]  Second, the majority also found support in Janus v. American Federation of State, County & Municipal Employees,[10] in which the U.S. Supreme Court recently “highlighted the importance of protecting the rights of workers to be free from financially supporting labor organizations whose views they do not share.”[11]  The majority acknowledged that Janus concerned public-sector unions, but explained that “[w]orkers in the private sector have no less of a right than public sector employees to be free from forced association with a labor organization.”[12]

As to property rights, the majority rejected on several grounds the unions’ argument that, by depriving unions of non-member fees, the Act effectuates an uncompensated taking because unions must still provide services to non-member employees.  For one, the majority explained that the obligation on unions to represent all employees is imposed by federal law, not by the Act.  Moreover, unions “actually do receive compensation for their duty to represent all employees in a bargaining unit.”[13]  As explained in Janus, unions receive “exclusive” bargaining status in exchange for that duty, giving them “a privileged place in negotiations over wages, benefits, and working conditions”—a “tremendous increase” in power.[14]

As to liberty rights, the majority was brief.  The trial court found the Act arbitrary and violated substantive due process because it requires unions “to provide expensive services for nothing.”[15]  The majority reiterated that “[t]he obligation to provide services to nonmembers is imposed on labor organizations by federal law, not the Act, and they are compensated for those services.”[16]

Two justices wrote separately.  Justice Hutchison joined the majority in full, but concurred in a short opinion to stress his duties as a justice.  After extolling the virtues of unions, Justice Hutchison explained that he “do[es] not approach this question as a legislator or as a private citizen,” but as a justice.[17]  As such, he must respect that “[w]ith almost clarion unity, courts repeatedly hold that legislatures may give rights to unions and can just as quickly take those rights away with constitutional impunity.”[18]

Justice Workman “reluctantly” concurred in the judgment only.[19]  She thought the trial court’s “carefully crafted decision” was “absolutely correct in its associational rights and takings analyses … at the time it was written, in a pre-Janus world.”[20]  And even though Janus was “wrongly decided” by the U.S. Supreme Court, it now “compel[s]” the majority’s outcome.[21]  Justice Workman criticized the majority for giving short shrift to whether the West Virginia Constitution provides more protection to unions than the U.S. Constitution as interpreted in Janus, but she ultimately could not “say with certainty” that the West Virginia Constitution should be so construed, as striking down a right-to-work law would make West Virginia an “outlier” on a “long, lonely limb.”[22]  Justice Workman also disagreed that the Act “was enacted for a beneficial purpose.”[23]  In her view, the law reflects “a mad rush in state legislatures, including our own, to choke off the lifeblood of labor unions” and “was intended to sound the death knell for both public and private workers’ unions in West Virginia.”[24]

To view this article on the Federalist Society’s website, click here.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Mr. Lin represented the U.S. Chamber of Commerce as amicus curiae in the case, and at the preliminary injunction stage was the WV Solicitor and counsel for the State. Mr. Lin’s views expressed here are his own and do not necessarily reflect the view of his clients.

[1] Morrisey v. West Virginia AFL-CIO, No. 19-0298, 2020 WL 1982284 (W. Va. Apr. 21, 2020) (Slip opinion available at

[2] Slip op. at 18.

[3] Id. at 1.

[4] Id. at 2.

[5] Id. at 33-34.

[6] Id. at 64.

[7] Id. at 26.

[8] 335 U.S. 525 (1949).

[9] Slip op. at 38.

[10] 138 S. Ct. 2448 (2018).

[11] Slip op. at 45.

[12] Id.

[13] Id. at 53.

[14] Id. at 53-54 (internal quotations omitted).

[15] Id. at 61 (internal quotations omitted).

[16] Id. at 64.

[17] Slip op. (Hutchison, J., concurring) at 5 (available at

[18] Id.

[19] Slip op. (Workman, J., concurring and dissenting) at 1 (available at

[20] Id. at 2.

[21] Id. at 1-2.

[22] Id. at 17.

[23] Id. at 6.

[24] Id. at 4, 10.

Newell Normand, Sheriff & Ex-Officio Tax Collector for the Parish of Jefferson v., USA LLC

May 12, 2020

Docket Watch 2020

By Adam A. Millsap & Lee A. Steven an e-commerce platform operated by Walmart, Inc. In addition to products offered for sale directly from Walmart, the site allows third-parties to sell products using the digital infrastructure. Pursuant to contract, third-party retailers are “the sellers of record.”[1]’s service includes connecting customers to retailers, providing a checkout system, processing payments, and protecting against fraud.[2] Although retailers may authorize to collect sales taxes on items sold, they are not required to do so and remain responsible for any tax liabilities, including sales taxes, related to their sales on[3]

In Normand v., the Louisiana Supreme Court overturned lower court decisions that found liable for the payment of sales tax on items sold on its online marketplace by third-party retailers.[4] The case was brought on behalf of the tax collector for Jefferson Parish for unpaid sales taxes from 2009 to 2015. Although paid the sales tax due on the sale of its own items, it had not paid or reported sales tax due from online sales made by third party retailers.

The case turned on the interpretation of the word “Dealer” under La. R.S. 47:301(4)(l).[5] Under that statute, a dealer is defined broadly to include retail sellers, manufacturers and producers, lessors and lessees, service providers, recipients of services, and certain persons who make deliveries. The definition also encompasses out-of-state sellers who operate in Louisiana. The statute imposes on the dealer the responsibility for collecting and paying sales tax. Notwithstanding the broad definition, the court held that the statute does not apply to the facilitator of a sale between two parties, such as an online marketplace. was therefore not liable for the taxes at issue.

Specifically, the court noted that pursuant to its contract with third-party retailers, “ never had title or possession of the property being sold by third party retailers and did not transfer title or possession of the property to purchasers.”[6] It therefore concluded that “an online marketplace is not a party to the underlying sales transaction between the third party retailers and their customers, but rather a facilitator of the sale.”[7] The court also reviewed related statues and regulations to explain that:

it is the seller of merchandise, the performer of taxable services, and the rentor or lessor of property as parties to the underlying transactions that are liable for collection of the tax. The statutory and regulatory scheme does not contemplate the existence of more than one dealer that would be obligated to collect sales tax from a purchaser. An online marketplace in its role as a facilitator for sales of third party retailers does not fall in these groups.[8]

The court also discussed the special statutory provisions relating to auctioneers, who are responsible under Louisiana law for the collection and payment of sales taxes. The court acknowledged that, like an online marketplace, auctioneers are facilitators between the seller and purchaser. Because of the unique nature of that relationship, specific legislation was required to obligate auctioneers to collect and pay sales taxes. No such legislation exists for online marketplaces, and absent that legislation:

double taxation could result if both online marketplaces and third party retailers are obligated to collect sales tax on the same transaction. It is not in the province of the judiciary to create an exception (in the context of a retail sale) to the seller’s obligation to collect sales tax for a marketplace facilitator, similar to that legislatively enacted for auctioneers.[9]

Finally, the court looked to the contract between and third-party retailers to find that, “Wal did not contractually assume the obligation of the third party retailers, as dealers, to collect and remit sales tax.”[10] Therefore, the third-party retailers remained liable for the payment of sales tax.

The decision of the majority earned a dissent from the court’s chief justice, who argued that should be considered a dealer within the meaning of the statute. The dissent argued that the definition of dealer in the statute was sufficiently broad to encompass an online marketplace such as It focused on the fact that controlled all aspects of the online sales experience, including the collection of any payments. “ processes all payments and collects all proceeds from the sales, thereby retaining exclusive actual control over the collection of sales taxes from customers for all online market sales transactions, yet refuses to collect those taxes unless expressly requested to do so by the third party seller.”[11] Finding to be a dealer would “eliminate[] this problem and increase[] compliance with sales/use tax collection and remittance, allowing these tax proceeds to benefit the citizens of Jefferson Parish as intended.”[12]

In the wake of the Supreme Court’s decision in South Dakota v. Wayfair, which found that states may impose sales tax on purchases made from out-of-state sellers without a physical presence in the state, this case raises the broader question of whether and to what extent an online marketplace that facilitates third-party transactions should be responsible for the collection of sales tax on those transactions. State legislatures that want to increase the collection of sales tax revenues may start amending their statutes to place the obligation to collect and pay the sales tax directly on online marketplaces.

To view this article on the Federalist Society’s website, click here.

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

[1] Normand v. USA, LLC, No. 2019-C-00263, slip op. at 27 (La. Jan. 29, 2020).

[2] Id. at 4.

[3] Id. at 27.

[4] The decision was issued on January 29, 2020.  On April 9, 2020, the Louisiana Supreme Court denied an application for rehearing.

[5] The case also involved a detailed issue of procedural law relating to tax collection, discussed at length by both the majority and a dissent.

[6] Normand v. USA, LLC, No. 2019-C-00263, slip. op. at 17 (La. Jan. 29, 2020).

[7] Id.

[8] Id. at 23.

[9] Id. at 26.

[10] Id. at28.

[11] Id. at 3 (Johnson, C.J., dissenting).

[12] Id. at 4.

Indiana Department of Natural Resources v. Kevin Prosser

April 14, 2020

Docket Watch 2020

By Prof. Aaron Nielson

If you are like most people, when you hear the words “administrative law,” you think about big buildings in Washington D.C. where everyone wears suits and speaks in acronyms. Your mind probably does not turn a property owner seeking to install 117 feet of concrete seawall on Lake Manitou in Rochester, Indiana.[1] Yet administrative law is everywhere, including on the shore of Lake Manitou.

On February 24, 2020, the Indiana Supreme Court denied review in Indiana Department of Natural Resources v. Prosser, a case about concrete seawall.[2] The legal issue in Prosser is a familiar one in administrative law: What does “substantial evidence” review require?

 In 2015, Kevin Prosser needed a permit under state law to install a concrete seawall on his property.[3] After the permit was denied, Mr. Prosser sought review from an administrative law judge (“ALJ”).[4] The ALJ concluded that because Mr. Prosser’s property is not “developed,” it is subject to special requirements, including that a seawall must be built with bioengineered materials.[5] Mr. Prosser argued, however, that the area is developed.[6] Both sides agreed that the relevant area had been excavated in 1947.[7] The question was whether that excavation “result[ed] in an increase in the total length of shoreline around the lake.”[8] According to Mr. Prosser, the shoreline was extended, and he had two eyewitnesses (who were children at the time) to prove it.[9] Aerial photos also arguably supported that position.[10] The State, however, offered evidence of its own that cast doubt on Mr. Prosser’s position.[11] The ALJ concluded that there was “insufficient” evidence that “the shoreline of Lake Manitou was increased . . . by dredging or other means” and that the eyewitness testimony was not dispositive.[12]

Mr. Prosser sought judicial review—at first, successfully.[13] He appealed the ALJ’s ruling to the trial court, which concluded that the State’s evidence was insufficient to overcome the eyewitness testimony.[14] The appellate court, however, disagreed.[15] The court reasoned that it was “bound by the agency’s findings of fact if those findings are supported by substantial evidence,” which standard, under both Indiana and federal precedent, is “more than a scintilla, but something less than a preponderance of the evidence.”[16] Applying that deferential standard, the court sided with the State.[17] After all, as the court explained, “it was ALJ’s job to evaluate the testimony of witnesses and other evidence for credibility and weight, and the ALJ’s evaluation of their evidence strikes us as neither arbitrary nor capricious.”[18] The Indiana Supreme Court denied review.[19]

Prosser is especially noteworthy because of a concurrence by Justice Geoffrey Slaughter. Although Slaughter agreed with his colleagues not to hear Prosser, he wrote separately to express concern about substantial evidence review itself.[20] Slaughter observed that “what qualifies as ‘substantial’ evidence is not substantial at all.”[21] Rather, “if there is sufficient evidence in the record, a reviewing court must defer to an agency’s factfinding,” with no de novo review by a jury or judge.[22] Slaughter also expressed discomfort with deference more generally and explained that in a future case he is “open to entertaining legal challenges to this system.”[23] Presumably litigants in Indiana will now begin formulating arguments in response to Slaughter’s call. What those arguments will be remains to be seen. But it is safe to say that administrative law creates difficult questions. Coming up with the right answers will be even more difficult.[24] But it is important to ask questions—and Indiana isn’t a bad place to start.

To view this article on the Federalist Society’s website, click here.

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 also invite responses from our readers. To join the debate, please email us at

[1] See Ind. Dep’t of Nat. Resources v. Prosser, 132 N.E.3d 397 (Ind. App.), trans. denied 139 N.E.3d 702 (Ind.

App. 2019).

[2] See Prosser,139 N.E.3d at 702.

[3] See Prosser,132 N.E.3dat 398; see also Olivia Covington, Slaughter Invites Challenges to Reviews of Agency Adjudications,


[4] Prosser,132 N.E.3dat 398.

[5] See id. at 399-400.

[6] See Brief of Appellee at 13, Prosser, 132 N.E.3d 397 (No. 18A-MI-02644).

[7] Id. at 16.

[8]Appellant’s Response to Appellee’s Petition to Transfer at 7, Prosser, 132 N.E.3d 397 (No. 18A-MI-2644).

[9] See Prosser, 132 N.E.3d at 399.

[10] Id.

[11] Id.

[12] Id. at 400.

[13] Id.

[14] Id.

[15] Id. at 402.

[16] Id. at 401; see also, e.g., Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010).

[17] See Prosser, 132 N.E.3d at 399, 402.

[18] Id.

[19] Prosser, 139 N.E.3d at 702.

[20] Id. (Slaughter, J., concurring).

[21] Id.

[22] Id.

[23] Id.

[24] See, e.g., Aaron L. Nielson, Confessions of an “Anti-Administrativist”, 131 Harv. L. Rev. F. 1, 12 (2017 (“Because administrative law is complex, there are many ideas, some better and some worse—and all needing further thinking.”).

Brush & Nib Studio v. City of Phoenix

April 3, 2020

Docket Watch 2020

By Jonathan Scruggs

For the last decade, courts and commentators have penned many pages about anti-discrimination norms and religious liberty. Since the U.S. Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission,[1] lower courts have tried to balance these interests and begun to protect creative professionals from anti-discrimination laws that force them to speak messages against their conscience. The Arizona Supreme Court’s decision in Brush & Nib Studio v. City of Phoenix exemplifies this trend.[2]

Brush & Nib involved two artists who operate a Phoenix art studio called Brush & Nib Studio.[3] Brush & Nib offers both pre-made artwork and custom commissioned artwork, such as paintings for home decor, hand-lettered signs, wedding vows, and wedding invitations.[4] And though Brush & Nib offers to sell its artwork to anyone, its artists do not create artwork conveying messages contrary to their religious beliefs—such as artwork promoting racism, demeaning others, or celebrating same-sex weddings.[5]

Phoenix has a law forbidding public accommodations from discriminating on the basis of sexual orientation.[6] The law penalizes violators up to $2500 and six months in jail for each day of non-compliance.[7]

Brush & Nib and its artists brought a pre-enforcement challenge to stop the law from forcing them to create custom artwork celebrating same-sex weddings.[8] Forcing them to do so, they argued, would compel them to speak, substantially burden their religion, and therefore violate both the Arizona Constitution’s Free Speech Clause and Arizona’s Free Exercise of Religion Act (FERA)[9]—the Arizona version of the Religious Freedom Restoration Act.

Phoenix countered that (1) the artists and their studio lacked standing; (2) its law regulated discriminatory business activity and only burdened speech incidentally; (3) its law did not compel Brush & Nib’s speech because people would attribute that speech to Brush & Nib’s clients; (4) its law merely required equal treatment and that its effect on the artists was too attenuated to substantially burden their religious beliefs about marriage; and (5) applying its law to the studio served the compelling interest of stopping discrimination and helped prevent widespread discrimination.[10]

Rejecting these arguments, the Arizona Supreme Court ruled 4-3 that Phoenix would unconstitutionally compel speech and violate FERA by forcing Brush & Nib to create custom wedding invitations celebrating same-sex weddings.[11]

As for standing, the majority only analyzed Brush & Nib’s wedding invitations because its other artwork did not sufficiently appear in the record. But the majority found a credible threat that Phoenix would prosecute the artists for declining to create same-sex wedding invitations, particularly because Phoenix conceded its law required this.[12]

As for compelled speech, the majority emphasized that public accommodations laws facially and typically regulate discriminatory business conduct. But these laws still compel speech when applied to “speech itself”—in this case when compelling artists to write words and paint paintings they disagree with. These artists did not forfeit their free speech rights by offering to create speech on commission.[13]

Nor did Brush & Nib’s artwork speak only for their clients. The majority cited tattoo artists, parade organizers, and professional fundraisers as proof that speakers often work with others to create expression. Even when collaborating, artists still have an interest in choosing what they write, paint, or say.[14]

As for religious exercise, the majority found a substantial burden because the law’s steep penalties forced the artists to do something they considered religiously objectionable. Citing Burwell v. Hobby Lobby Stores, Inc.,[15] the majority refused to dismiss this objection as too attenuated from the artists’ fundamental religious beliefs. Doing that would force the court to question the reasonableness of their religious beliefs—something courts should not and cannot accurately do.[16]

And finally, the majority recognized Phoenix’s interest in stopping discrimination but denied its relevance here. Because the studio objected to conveying a message celebrating same-sex marriage for anyone and served LGBT persons generally regardless of their status, the studio did not discriminate against anyone. So compelling the studio to speak did not further Phoenix’s anti-discrimination interest.[17]

This point also negated any slippery-slope concerns. According to the majority, Phoenix can still use its laws to stop actual status-based discrimination. It just cannot use its laws in the rare situation when doing so would compel speech, like writing words or creating paintings. For the majority, this struck the right balance of respecting freedom while still allowing the government to stop status discrimination.[18]

In response to these conclusions, three dissenting opinions echoed arguments made by Phoenix. The first two dissents emphasized that Phoenix’s law textually regulated discriminatory conduct, and that it did not require the artists to endorse any view but merely required them speak their clients’ views, and therefore only burdened speech incidentally—a burden justified by the state’s compelling interest in stopping status discrimination.[19]

These two dissents also denied any substantial burden on the Brush & Nib artists, saying the law did not affect “fundamental tenets” of their beliefs and that courts should inquire into the “nexus” between a religious belief and a particular practice to decide whether a substantial burden exists.[20]

And all three dissents raised line-drawing and slippery-slope concerns: that the majority opinion would open the door to discrimination of different sorts in the future, whether based on sexual orientation, race, or religion.[21]

The Brush & Nib decision will have far-reaching consequences inside and outside Arizona. In its 52-page decision, the Arizona Supreme Court tackled most of the arguments in this controversial area of law and provided a blueprint for balancing anti-discrimination norms and constitutional rights—protecting dissent and good-faith disagreement on one hand yet still giving officials the tools to stop status discrimination on the other. And because the majority relied almost entirely on federal caselaw, other courts will surely cite and grapple with the Brush & Nib analysis when similar questions pop up elsewhere.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Alliance Defending Freedom represented Brush & Nib Studio and the studio’s artists in their case against the City of Phoenix, with Mr. Scruggs serving as lead counsel throughout the litigation. Mr. Scruggs’ view expressed here are his own and do not necessarily reflect the view of his clients.

To view this article on the Federalist Society’s website, click here.

[1] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

[2] Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019).

[3] Id. at 898.

[4] Id. See also; (depicting some of these art pieces).

[5] Brush & Nib, 448 P.3d at 897-98.

[6] Id. at 898.

[7] Id.

[8] Id. at 899.

[9] Id. at 899-900.

[10] Id. at 900, 905, 911-12, 916, 920-21, 923.

[11] Id. at 926.

[12] Id. at 901-02.

[13] Id. at 914, 928-29.

[14] Id. at 907-08, 910-11.

[15] Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

[16] Brush & Nib, 448 P.3d at 919-22.

[17] Id. at 909-10, 914-15, 922-26.

[18] Id. at 908, 916, 923-26.

[19] Id. at 929-34, 937-38.

[20] Id. at 934-35, 939-40.

[21] Id. at 937-39, 941.