State Court Docket Watch

Cooper v. Berger et al.

November 30, 2018

“A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.”  So reads Article 1, Section 35 of the North Carolina Constitution.  Perhaps nowhere has North Carolina applied this maxim more frequently as of late than to the very institution charged with guarding the principle—its courts.

Change for the courts has been increasingly necessary, given the transformational developments in technology, legal practice, and society as a whole that have characterized the half century that has elapsed since North Carolina last overhauled its state court system.  For example, Chief Justice Mark Martin convened a blue-ribbon commission in 2015 to undertake a comprehensive review of the state courts system and recommend changes to better equip North Carolina’s courts to meet modern needs.  Outside of the Judicial Branch, leaders through the state have engaged in extensive debate over the structure and function of North Carolina’s courts, and the North Carolina General Assembly has passed a fair amount of legislation bringing many of the ideas in the public square to fruition.

The most recent potential change to North Carolina’s courts has come in the form of a proposed constitutional amendment that would alter how the state fills judicial vacancies between elections.[1]  Since Reconstruction, North Carolina has selected its judges by election.[2]  However, governors have long held the power to make appointments to vacant judicial seats.  Although appointees must run in the next even-year election to keep the seat, one should not underestimate the import of the appointment power: a recent analysis of election results from 2008-2014 revealed that approximately 90% of judicial appointees later won election to full terms.

In contrast to the current gubernatorial appointment model, the proposed amendment would create a “Nonpartisan Judicial Merit Commission” charged with receiving public nominations for judicial vacancies and then rating the nominees as qualified or not under state law “without regard to the nominee’s partisan affiliation.”  The Commission’s evaluations would then be forwarded to the General Assembly, which, in turn, would recommend at least two of the “qualified” nominees to the Governor.  The Governor would then have ten days to make the appointment; otherwise the General Assembly could do so.[3]

In addition to drafting the proposed amendment itself, the General Assembly also drafted the language that will appear on the ballot to present the amendment to voters (the “Ballot Question”).  The Ballot Question stated:

Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges be selected to fill vacancies that occur between judicial elections.

On August 5th, Governor Roy Cooper filed a lawsuit alleging, among other things, that the Ballot Question for the judicial vacancy amendment was constitutionally invalid because it failed “to describe [the] proposed amendment on the ballot in fair and accurate terms.”  Driven by imminent deadlines for printing and distributing ballots, litigation proceeded quickly.

On August 21, a three-judge panel[4] issued a 2-1 decision granting the Governor’s Motion for Preliminary Injunction (here at 122-152).  The panel acknowledged the state’s “beyond a reasonable doubt” standard for declaring unconstitutional an Act of the General Assembly; however, it also noted that it could identify no clear roadmap for analyzing the Governor’s claim, which had no real precedent in North Carolina law.  Citing a 1918 North Carolina Supreme Court decision stating that ballots should enable voters to “intelligently express their opinion,” the panel focused its inquiry on whether the Ballot Question clearly and fairly described the substance, purpose, and effect of the amendment and whether it implied a position for or against the amendment.  On these grounds, the panel concluded that the ballot question misrepresented or omitted aspects of the amendment to such a degree that the Governor was likely to succeed on the merits of his constitutional claim, thus warranting the preliminary injunction.  One of the three judges dissented (here at 158-172), concluding that the political question doctrine precluded the court’s consideration of the question and that the Act as a whole was not so patently or fundamentally unfair as to violate substantive due process.

Although emergency appeals ensued, the legislature promptly reconvened to address the court’s order.  On August 27th, the legislature approved new a Ballot Question for the amendment, which stated:

Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend at least two nominees to the Governor via legislative action not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.

The Governor immediately filed motions to amend the complaint and for a temporary restraining order.  After a hearing, the panel issued a unanimous decision (here at 337-351) on Friday, August 31 concluding that while perhaps not perfect, the new Ballot Question was not so misleading as to be facially unconstitutional beyond a reasonable doubt.  Accordingly, the court denied the Governor’s motion for a temporary restraining order.

The parties immediately appealed the Order directly to the state supreme court.  On Tuesday, September 4th, the Supreme Court issued an order unanimously affirming the trial court’s decision and allowing the proposed language to appear on the November ballot.

Thus, North Carolina voters will have the opportunity to recur to fundamental principles about judicial selection this fall.  Whether that recurrence will result in a change that helps secure the blessings of liberty, however, will surely continue to be a topic of much discussion and litigation going forward.

Andrew D. Brown is an Associate at Shanahan McDougal, PLLC and a member of the Steering Committee for the Triangle Chapter of the Federalist Society.  Shanahan McDougal, PLLC is a boutique law firm in Raleigh, North Carolina that offers a full range of complex litigation and business services.

[1] The amendment is one of six that will appear on the ballot.  The others, some of which are also subject to litigation, involve hunting and fishing rightsthe rights of crime victimsvoter identification requirementslowering the cap on state income tax, and a restructuring of the state ethics and elections enforcement agency.

[2] There is a very small group of judges known as “special superior court judges,” who serve five-year, state-wide terms, upon express legislative authorization and gubernatorial appointment.  This group includes judges that comprise the North Carolina Business Court.

[3] The amendment also provides other contingency mechanisms should the normal process not fully function for some reason or another.

[4] Under N.C. Gen. Stat. § 1-267.1, a facial challenge to an act of the General Assembly is transferred to a three-judge panel of the superior court for adjudication.

Hunsucker v. Fallin

November 30, 2018

With certain limited exceptions, the Oklahoma Supreme Court has in the past followed the U.S. Supreme Court’s seminal decision in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) when evaluating a party’s standing to bring suit. This standard requires a litigant to, among other things, demonstrate that the challenged act causes the plaintiff “injury in fact” that is “concrete and particularized” to the plaintiff.  This safeguard of the judicial process evaporated for public law actions in Oklahoma with the Oklahoma Supreme Court’s 5-4 ruling in Hunsucker v. Fallin.


In 2017, the Oklahoma Legislature passed the Impaired Driving Elimination Act 2. The new law enacted significant reforms in the state’s DUI laws. It moved away from a system of administrative license revocations for drunk drivers (which had generated significant backlogs in administrative forums) to incentive programs that encouraged those arrested for impaired driving to consent to the installation of ignition interlock devices (which has been shown to reduce recidivism in other states.) The law made other changes to the state’s drunk driving law regime as well, such as improved impairment testing procedures.

Four attorneys that regularly represent clients charged with DUI violations challenged the constitutionality of the new law, alleging that the law violated the state’s constitutional requirement that all acts of the Legislature “embrace but one subject.” The challengers attempt to demonstrate their standing in four ways.

First, the DUI attorneys speculated that the new law might impact them as licensed drivers should they be arrested at some unspecified time in the future for driving under the influence of alcohol. Second, they brought suit on behalf of future hypothetical clients that may be arrested for DUI, although that basis for standing had been rejected by the U.S. Supreme Court in Kowalski v. Tesmer, 543 U.S. 125 (2004). Third, the attorneys argued the new law could impact future business from hypothetical clients who would no longer be subject to administrative license revocations. Fourth, the challengers claimed they possessed “public interest” standing.

The ruling

Without addressing the other claimed bases for standing, the Court accepted the challenger’s final theory of “public interest” standing, asserting “discretion to grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance.” Justice Edmondson, writing for the five justice majority, wrote that the Court will exercise such discretion in cases where “there are ‘competing policy considerations’ and ‘lively conflict between antagonistic demands.’” The Court also reasoned that granting standing was appropriate due to the exigent nature of the controversy (since the law was going into effect imminently) and by analogy to historical common-law prototypes in writs and bills in equity to test the legality of the conduct of public officials.

Having granted the challengers standing, the Court ruled that the new law did not meet Oklahoma’s constitutional “single subject” rule. For the purposes of a single subject analysis, the court noted that the title of the act (referencing “impaired driving” as the subject) was “highly generalized,” and instead chose to focus on the bill’s uncodified “purpose” section, which focused on “administrative monitoring” of impaired drivers. Because the law addressed both administrative and criminal solutions to reducing impaired driving, the Court determined it did not embrace a single subject and therefore was unconstitutional. The Court also held that, because all portions of the law were tightly interrelated, even those aspects that related to “administrative monitoring” were not severable from the rest of the law.

Petitioners also challenged a portion of the law on procedural due process claims, but the majority took the liberty of deeming the law invalid under substantive due process.

The dissent

Justice Wyrick, in a dissent joined by two of the other three Justices in the minority, criticized the “boundless” nature of the majority’s “public interest” exception to standing, which he argued undermined the Oklahoma Constitution’s separation of powers. “By limiting our jurisdiction to justiciable ‘cases,’” Justice Wyrick writes, “the Constitution ensures that the judicial branch stays confined to its role of exercising judicial judgment rather than political will.” Justice Wyrick continues:

“Let that sink in. The Court believes it can reduce to nil ‘the irreducible constitutional minimum’ of standing anytime it is presented with two parties disagreeing over important policy considerations. In other words, the Court can disregard constitutional limits on its jurisdiction anytime it is presented with precisely the type of policy dispute that those constitutional limits are designed to bar it from deciding. But nothing in our Constitution permits us to assume jurisdiction over a case merely because the issue it presents is ‘important,’ and the Court’s invocation of the publici jurisstandard as a measure of justiciability is without precedent.”

The dissent also provides a detailed criticism of the majority’s single subject ruling. Justice Wyrick warns that the Court’s “increasingly permissive standing rules and amorphous single-subject (and special-law) jurisprudence have created a potent one-two punch that allows the Court to judicially veto virtually any of the Legislature’s and People’s laws.”

The dissent concludes by taking the majority to task for its sua sponte finding of a substantive due process violation. While the U.S. Supreme Court has only once invalidated a law under substantive due process’s rational basis review, Justice Wyrick points out that “[t]his Court, however, has now done so twice in two years, this time to tell the Legislature that it ‘clearly lies beyond the outer limits’ of its power to enact a law allowing law enforcement to seize licenses from drunk drivers[.]”


This case has significant implications for public law jurisprudence in Oklahoma. In such cases, there would seem to be little barrier to standing. Litigants challenging the state’s new regulations on medical marijuana, for example, have already cited to Hunsucker to attack rulemakings that do not apply to them. Meanwhile, the Court’s increasingly uncertain single subject jurisprudence makes future legislative actions a crapshoot. Finally, the creation of a new substantive due process jurisprudence portends the expansion of the state supreme court’s practice of questioning the justifications for any of the Legislature’s policy choices.


*A.J. Ferate is Of Counsel at Spencer Fane LLP in Oklahoma City.

California Cannabis Coalition v. City of Upland

November 30, 2018

Unlike our federal structure of government, which places the legislative power exclusively in the hands of elected representatives, California’s state constitution, like a handful of other states’ constitutions, allows voters to legislate through the initiative process. This is known as “direct democracy.”

In California, the people’s initiative power has been described as “one of the most precious rights of our democratic process.” Voter initiatives can be a way for the public to take action when politicians refuse to do so. In that way, the initiative power often operates as a check on the political branches. On the downside, it is why California’s constitution is cluttered with hundreds of amendments, amassed into one of the longest constitutions in the world.

The California Supreme Court recently grappled with the initiative power in California Cannabis Coalition v. City of Upland, a case that has surprisingly little to do with marijuana. The local initiative at issue sought to allow up to three medical marijuana dispensaries in the City of Upland, provided that each dispensary paid a $75,000 annual fee, and requested that the initiative be voted on at a special election. After concluding that the “fee” was a general tax in disguise, the city council decided that the initiative had to be voted on in at the next November general election.

The initiative’s proponents then sued, asserting that the initiative should be voted on in a special election as requested. The trial court ruled that California’s constitution requires general tax increases to be decided by voters at a general election, but the court of appeal reversed, holding that the constitutional provision invoked by the trial court applies only to taxes imposed by “local government,” not voters. The California Supreme Court granted review to decide the question.

The Supreme Court’s majority opinion framed the case as a conflict between the people’s constitutional right to legislate by initiative, on the one hand, and article XIII C of the state constitution, which limits the ability of “local governments … to impose, extend, or increase any general tax.” The question, according to the majority, was whether article XIII C restricted the ability of voters to impose taxes via initiative.

Article XIII C curbed local general tax increases by requiring such taxes to be approved by the voters at a general election—the idea being, as one court put it, that general taxes should be “voted on in general elections with their traditionally larger turnouts, not done in a corner in the middle of January in an odd-numbered year.”

In a split decision, the high court ruled that voters are not bound by article XIII C’s general election requirement. Adopting a clear-statement rule, the majority held that without a direct reference in the text to voter initiatives, or some other unambiguous indication, the court would not construe a provision to limit the people’s initiative power. Because article XIII C’s reference to “local governments” could refer simply to a local government entity like a city council, the court held that the provision did not apply to voter initiatives.

Dissenting from the majority’s analysis, Justices Kruger and Liu questioned “by what authority” the majority purported to “dictate to legislative drafters the forms in which laws must be written to express the legislative intent.” In their view, “[a] local government tax is a local government tax, no matter how it may have been legislated into being.” They argued that applying article XIII C to voters would not, as the majority claimed, “squelch voters’ initiative rights.” Rather, the provision leaves voters free to propose initiative measures and “envisions a specific avenue for voter participation—approval at a general election.”

Ultimately, the majority and the dissent agreed that, going forward, voters may “bind themselves by making it more difficult to enact initiatives in the future,” just as Ulysses “tied himself to the mast so he could resist the Sirens’ tempting song.” This, of course, would raise separate questions not answered here: Would such self-imposed limits on the initiative power be constitutional? If so, would such limits ever amount to a structural constitutional change (a “revision,” in California’s vernacular), requiring a supermajority of the legislature and a majority vote of the electorate? These question will have to wait until voters decide to tie themselves to the mast.


*Josh McDaniel is an appellate attorney at Horvitz & Levy, LLP, and is president of the Federalist Society’s Los Angeles Lawyers’ Chapter.

Electronic Classroom of Tomorrow v. Ohio Department of Education

November 30, 2018

In Electronic Classroom of Tomorrow v. Ohio Department of Education, the Ohio Supreme Court held that public funding of Ohio’s public charter “e-schools” is based on each e-school student’s actual participation in the e-school’s curriculum, rather than based solely on the e-school’s enrollment count.

The Court split 4-2 in the August 8, 2018 decision.

Ohio’s e-school students do not attend a “brick-and-mortar” building for classes, but rather have a computer, usually in their homes, which they use to log into the school’s online platform.

Ohio statutes provide that the Ohio Department of Education (“the Department”) must fund all charter schools (Ohio law calls them “community schools”), including e-schools, “on a full-time equivalency basis, for each student enrolled.”  R.C. 3314.08(C)(1).  Another section of that statute—the key section at issue in the case—explains what full-time equivalency, or “FTE,” means:

The department shall determine each community school student’s percentage of full-time equivalency based on the percentage of learning opportunities offered by the community school to that student, reported either as number of hours or number of days, is of the total learning opportunities offered by the community school to a student who attends for the school’s entire school year.  However, no [e-school] shall be credited for any time a student spends participating in learning opportunities beyond ten hours within any period of twenty-four consecutive hours.

R.C. 3314.08(H)(3).

The Electronic Classroom of Tomorrow (known as “ECOT”) was Ohio’s largest e-school.  In the 2015-2016 school year, more than 15,000 students were enrolled at ECOT, causing ECOT to claim more than $100 million in public funds.

The Department routinely reviews charter schools’ (including e-schools) funding, and when it finds that a school has been overfunded, it exercises its right to reduce funding on a going-forward basis in order to “claw back” any monies due the department.  Prior to 2016, the Department did not consistently check documentation regarding student participation at online schools as part of the funding review process.  In 2016, the Department started looking at participation records based on concerns that had arisen regarding participation at certain other community schools that operated using a correspondence model (i.e., mailing school work to the students) and online model.  Funding reviews for community schools typically occur on a five-year schedule, and in 2016, the Department was scheduled to review ECOT’s public funding for the 2015-2016 school year.

Before that review occurred, ECOT filed suit, seeking injunctive relief prohibiting the Department from considering student participation data in determining funding.  The trial court denied injunctive relief, and ultimately the Ohio Supreme Court affirmed.

By the plain language of the funding statute, “[a]n e-school cannot be credited for any time a student spends participating in learning opportunities beyond 10 hours within a 24-consecutive-hour period,” Justice Patrick Fischer wrote for the Court.  “By stating that the maximum daily credit for each student is ten hours, it is apparent that the legislature intended that an e-school will be credited for a student’s participation for less than ten hours in a day. This calculation can be made only by referring to records that contain evidence of the duration of a student’s participation in learning opportunities.”

Justice Fischer added that another statute confirms this result.  R.C. 3314.27 provides that e-schools “shall keep an accurate record of each student’s participation in learning opportunities each day,” and the record must be kept in a manner that can easily be submitted to the Department.

Justices Terrence O’Donnell and Sharon Kennedy wrote separate dissents.

Justice O’Donnell focused on the funding statute’s use of the phrase “learning opportunities offered by the community school,” which he interpreted to mean that funding should be based on enrollment, not participation.

“If the legislature had intended to condition funding on the duration of a student’s participation in the learning opportunities offered by a community school, it could have expressed that intent by using a phrase such as ‘based on the percentage of learning opportunities participated in by that student,’ but it did not do so,” Justice O’Donnell wrote.

Justice Kennedy added that the majority’s analysis, based on the ten-hour-per-day cap that the majority found indicative of the relevance of actual participation, was “dubious at best.”

“It is true that an e-school will not receive credit for any time that a student participates in learning activities for more than ten hours a day, but that does not mean that an e-school will be funded only for the amount of time that the student chooses to participate in the e-school’s online educational platform,” Justice Kennedy wrote.

But the majority rejected these arguments, noting that interpreting the funding statute to ignore student participation would render portions of the statute meaningless.


Douglas R. Cole, Erik J. Clark, and Carrie M. Lymanstall, of Organ Cole LLP, were appointed as special counsel to the Ohio Attorney General to represent the Ohio Department of Education in this case.  Organ Cole is a litigation boutique focusing on business litigation, with significant experience in the United States Supreme Court, the Ohio Supreme Court, and several federal circuit courts, as well as in trial courts across the country.

North Dakota Legislative Assembly v. Burgum

November 30, 2018

The separation of powers between executive and legislative branches is an important and central feature of American governance on the state and federal levels.  In the case of North Dakota Legislative Assembly v. Burgum, 2018 ND 189 (ND 2018), the North Dakota Supreme Court exercised its original jurisdiction under the state constitution to address a collision of constitutional power between the North Dakota legislative assembly and first term Governor Doug Burgum.  At issue were five item vetoes exercised by Governor Burgum following the adjournment of the last regular session of the legislature.

Governor Burgum’s Vetoes:

North Dakota’s Constitution provides the Governor the power of the item veto.  Although the Governor attempted to veto items in five separate pieces of legislation, he later concurred with an Attorney General’s opinion that three of his five vetoes were ineffective.  Despite the concession, the North Dakota Supreme Court found that a justiciable controversy remained regarding all five vetoes.  The Supreme Court held that a Governor cannot withdraw a veto, and cannot achieve the same outcome by agreeing with the Attorney General’s non-binding opinion declaring a veto ineffective.

The item veto power is granted to the Governor  in Article V, Section 9 of the North Dakota Constitution.  This power allows the Governor to veto items within appropriations legislation without vetoing the entire bill and so long as what is left is workable legislation.  The veto relates specifically to appropriations and the Governor cannot veto a condition on an appropriation without vetoing the appropriation itself.  The item veto is designed to prevent “log rolling” in which items that could not garner enough support to pass on their own are amalgamated into a larger bill which has enough support to pass through the legislature.

In order to make an appropriation of funds, the legislative assembly must specify the amount of the appropriation, the object or purpose of the appropriation, and the source of funds.  The five vetoes at issue in the case all dealt with an aspect of an appropriations bill.  The Court addressed all five of Governor Burgum’s vetoes in turn.

1. The Workplace Safety Veto.

The legislative assembly appropriated $2.25 million from the state’s general and special funds for entrepreneurship grants and a voucher program.  Of the total funds appropriated, a subsection of the bill attempted to dedicate $300,000 to an organization providing workplace safety.  The Governor vetoed the expressly stated dedication of $300,000 to workplace safety.

In challenging the Governor’s veto, the legislative assembly offered three main reasons why the veto was invalid. First, they argued that a veto of the $300,000 dedicated to an organization providing workplace safety did not subtract the $300,000 from the overall $2.25 million appropriation that was then available to the Governor to allocate as he wished.  The crux of the argument was that the Governor could then graft his intent onto a $2.25 million appropriation and use the money as he wished.  The court dismissed this argument and concluded that the legal effect of the Governor’s veto was to reduce the overall appropriation by $300,000.  The Governor had no power to actually change the syntax of the overall appropriation, which was summed up effectively by Justice Jerod Tufte in stating that: “[t]he veto power is an eraser, not a pencil.”

Second, the legislative assembly offered that under North Dakota law an appropriation must specify the fund from which the appropriation springs, such as a general or special fund and that allocation of the $300,000 to an organization providing workplace safety did not specify any funding source.  The court disagreed, finding that despite the failure to use the word “appropriation” specifically, the $300,000 was an small component that gave definition to the larger appropriation of $2.25 million.  The court also disagreed that the Governor had to veto the entire appropriation because this would allow a legislative assembly that is hostile to a Governor to eliminate the item veto by consolidating all spending in one bill with an all or nothing approach.

Thirdly, the legislature argued that the $300,000 dedication of money to workplace safety was not an appropriation because it did not specify a funding source.  This argument was swept aside because the $300,000 was part of the larger $2.25 million appropriation, which did specify a funding source.

2. The Credit Hour, Any Portion, Water Commission and IT Project Vetoes:

The Court also addressed four other vetoes and found them to be ineffective.  In the Credit Hour Veto, the legislative assembly stated that: “It is the intent [of the legislature] . . . that future general fund appropriations [supporting a university nursing program] be adjusted . . . for credit hours completed at the school.”  The Governor excised by veto the “for credit hours completed at the school” language.  The Court found the veto ineffective because the Governor’s item veto does not extend to vetoing any portion of legislative intent.

The Any Portion Veto also involved a veto of legislative intent which prevented a university from shutting down “any portion” of their nursing program.  By excising the “any portion” language, the Governor essentially changed legislative intent and allowed the university to shut down portions of its program so long as it did not shut down the whole program.  This again exceeded the Governor’s item veto power as it altered express legislative intent.

In the Water Commission Veto, the legislative assembly enacted an appropriations bill which stated that: “. . . funding designated in this section is for the specific purposes identified [but funds may be transferred among items] subject to budget section approval and upon notification of the legislative management’s water topics overview committee.”  The Governor excised the “subject to budget section approval and upon notification of the legislative management’s water topics overview committee.”  Again the court found this was a change of legislative intent and found the veto to be ineffective.

The IT Project Veto involved an appropriation in which the legislative assembly stated that: “[o]f the $3,600,000, $1,800,000 may be spent only upon approval of the budget section.”  The Governor excised this language.  The court found this veto to be ineffective because it was not a veto of an appropriation, but a condition on an appropriation.  As the $3,600,000 remained in tact when the language was vetoed, the veto was not the veto of an appropriation.

Legislative Reservation Of Control Over Appropriations:

1. The Water Commission Bill:

Interestingly, although the Water Commission Veto and the IT Project Veto exceeded the veto authority of the Governor, the same legislative provisions also exceeded the power of the legislative assembly.

The court stated that the power to make law is legislative and the power to implement it is executive.  A legislative assembly cannot delegate purely legislative functions to any other body.  Limited discretion in implementation can be granted to the executive branch if the exercise of discretion is: “. . . constrained by ‘reasonably clear guidelines’ and a ‘sufficiently objective standard.’”  It is an impermissible grant of legislative power to give “unfettered discretion” to make choices in implementing legislation.

The court first addressed the “delegation” of power first in addressing the Water Commission bill.  The Water Commission bill granted the Water Commission the power to transfer funds among various stated items, but stated that this ability was: “[s]ubject to budget section approval and upon notification to the legislative management’s water topics review committee.”  The court found there were no rules or objectives within which the actions of the budget committee were restrained.  The court found the budget section was given “unfettered discretion” and that the Water Commission bill “. . .unlawfully delegated legislative authority to the budget section.”

However, despite this delegation of power violation, the more serious violation lay in the bill’s encroachment upon executive power.  The court concluded that in its improper delegation of the power of the whole legislature to a smaller component, namely, the budget committee, the legislature actually attempted to retain power over an appropriation once it had been made.  The power to implement the law lay with the executive, but the legislative assembly made the implementation subject to approval of a smaller component of the legislative assembly.  This action unconstitutionally encroached upon executive power.  “[T]he legislature may not delegate to itself, or to a subset of its members, executive or judicial functions.”

Concluding that although the actions of the legislature were impermissible, the legislature did not intend to grant the Water Commission “unfettered discretion” to transfer funds among purposes.  Thus, striking the oversight of the budget committee also required striking the Water Commission’s power to transfer funds.

2. The IT Project Bill:

The Governor argued that the IT Project bill, which stated that: “[o]f the $3,600,000, $1,800,000 may be spent only upon approval of the budget section . . .”, suffered from the same flaw as the Water Commission bill.  The legislative assembly countered stating that the budget section merely conducted fact finding to determine whether the appropriation should be available for expenditure.

The court found the IT Project bill language provided no clear guidelines or objective standards for the budget committee and was an improper delegation.  The court also found that the language was an unconstitutional encroachment on executive power in dismissing the legislative assembly’s argument that the budget committee was merely conducting fact finding on how appropriated money should be spent.  Legislative fact fining precedes the enactment of law and its signature by the Governor.  The court stated that the fact finding in the case of the IT Project bill related to the application of the law and not its enactment.  Application of the law is an executive function.

In wrapping up consideration of the IT Project bill, the court concluded that the total $3,600,000 appropriation was not to be reduced by $1,800,000 when it struck provisions granting the budget committee oversight.  The court indicated that it had no more power than the Governor to rewrite an appropriations bill.  Unlike the Water Commission bill where the legislative assembly never intended the Water Commission to have unfettered authority to transfer funds among various objectives, in the IT Project bill it was the intent of the legislative assembly to appropriate $3,600,000 to the IT Project regardless of the oversight language.


David Chapman is a solo lawyer with DJ Chapman Law, P.C., in Fargo, ND. Some citations were omitted to allow for ease of reading.

The People of the State of Illinois v. Walter Relerford

November 30, 2018

After interning, Walter Relerford interviewed for a position and continued sending emails and phone calls trying to get a job. He was then seen by and waved at the interviewer while shopping at CVS outside the office. Nevertheless, he was turned down for the position. He showed up unexpectedly at the office and was asked to leave—which he did. Relerford then posted on his Facebook page some obscene posts describing sex acts he would do with the interviewer. The interviewer did not have these posts, but a third party forwarded them to her. On these facts, Relerford was eventually convicted of stalking and cyberstalking and sentenced to 6 years imprisonment.

The cyberstalking statute prohibits knowingly causing a person to suffer emotional distress. There are several problems with this conviction which the appellate court recognized, reversing the conviction. The state then appealed the case to the Illinois Supreme Court. The Cato Institute, together with the Marion B. Berchner First Amendment Project, filed an amicus brief—prepared by the UCLA Law School First Amendment Clinic and noted scholar Eugene Volokh—asking the Illinois Supreme Court to reverse Relerford’s conviction. While “true threats” aren’t protected by the First Amendment, there must be an intent to threaten. While Relerford clearly scared the interviewer by his actions, the government needs to prove that this was his intent, which it didn’t even try to do. The cyberstalking statue thus sweeps in a lot of constitutionally protected speech. Speech directed to a person, such as harassing phone calls, can be punished, but not merely speech about a person. Indeed, the U.S. Supreme Court recently considered a case, Snyder v. Phelps (2011), in which the Westboro Baptist Church picketed funerals of solders with signs like “Thank God for Dead Solders,” language clearly designed to inflict emotional distress. The Court there correctly held that this disgusting speech, which intentionally causes severe emotional distress, is protected by the First Amendment from even a civil fine—let alone criminal jail time. The speech in these Facebook posts falls well within this precedent.

On August 14, 2018 the Illinois Supreme Court recognized the First Amendment problems with this case and affirmed the reversal of Relerford’s conviction.

Board of Trustees of the University of Arkansas v. Matthew Andrews

November 30, 2018

Article 5, section 20 of the Arkansas Constitution declares that “[t]he State of Arkansas shall never be made a defendant in any of her courts.”  In Board of Trustees of the University of Arkansas v. Matthew Andrews, 2018 Ark. 12, the Arkansas Supreme Court overruled more than 20 years of precedent and held—based on the text of section 20—that the state legislature may not waive sovereign immunity.  The Court thus invalidated the portion of the Arkansas Minimum Wage Act purporting to waive sovereign immunity for the type of claim brought by Mr. Andrews.  This decision sent shock waves through the state judiciary, the state legislature, and the state bar.  Judges, legislators, and lawyers continue to debate the breadth or narrowness of the holding and its impact on various types of lawsuits against the state.  Several cases already on the docket for this coming term will press the Arkansas Supreme Court to apply, broaden, refine, or narrow its decision in Andrews.

 Matthew Andrews was a bookstore manager at a small publicly-funded community college that eventually became part of the University of Arkansas educational system.  Andrews claimed that, during a portion of the time he worked at the bookstore, he was improperly classified as being exempt from the overtime pay requirements of the Arkansas Minimum Wage Act.  The University moved to dismiss the suit, arguing that the University (as an instrumentality of the State) was immune from suit.  The University acknowledged that the Arkansas Minimum Wage Act provided that “an employee may bring an action for equitable or monetary relief against an employer, including the State of Arkansas or a political subdivision of the state, if the employer pays the employee less than the minimum wage, including overtime wages, to which the employee is entitled . . . .”  Ark. Code Ann. 11-4-218(e)(emphasis added).  The University further acknowledged that, since 1996, the Arkansas Supreme Court had (in numerous cases concerning several different statutes) directly and impliedly sustained the state legislature’s authority to waive sovereign immunity by statute.  Nonetheless, the University argued that such legislative waivers of sovereign immunity violated the plain language of Article 5, section 20 of the Arkansas Constitution.  The University also noted that its position mirrored the position of the Arkansas Supreme Court from 1935 to 1996.  The University explained that the Court’s 1996 sea change occurred with nearly no discussion of the 60 years of prior caselaw and with no adversarial briefing on the issue—because the state Attorney General in 1996 effectively conceded the issue.

The state trial court denied the University’s motion to dismiss, as required by the then-operative precedent of the State Supreme Court.  The University appealed directly to the Arkansas Supreme Court, and the current Arkansas Attorney General, Leslie Rutledge, filed an amicus brief supporting the University’s position.  (Disclaimer:  I was Solicitor General at the time and helped draft the brief.)  The Arkansas Supreme Court, in a 5-2 decision, reversed the trial court.  First, the Court noted that Article 5, Section 20 should be interpreted “precisely as it reads.”  Andrews, 2018 Ark. 12 at *10.  The state can’t be a defendant in her courts, even if the state legislature desires otherwise.  Second, and somewhat relatedly, the Court emphasized the historical context of this constitutional provision. “The drafters of the current constitution removed language from the 1868 constitution that provided the General Assembly with statutory authority to waive sovereign immunity and instead” said the state shall “never” be made a defendant in her courts.  Id. at 11.  Noting that “[t]he people of the State of Arkansas approved this change when ratifying the current constitution,” the Court made clear that “the General Assembly does not have the power to override” or ignore this intentional change in language.  Id.  Third, the Court concluded that principles of stare decisis actually cut in favor of (or at least mitigate any problem with) following the 60 years of precedent—between 1935 and 1996—that preceded the unexplained and unreasoned 1996 sea change in the interpretation of Article 20, Section 5. Id.

                Based on the foregoing reasoning, the Court invalidated the portion of the Arkansas Minimum Wage Act that waived sovereign immunity and dismissed the case.  As it did so, however, the Court acknowledged the existence of a forum where Mr. Andrews could seek monetary relief—the Arkansas State Claims Commission, a body created by and subject to the ultimate control of the state legislature.  Id. at 12.  While not legally decisive, the existence of the Claims Commission appeared to provide the Court with comfort that claims like the one brought by Mr. Andrews would not be left without any avenue for redress.

In a strongly worded dissent, two Justices argued the majority’s textual analysis of Article 5, section 20 was faulty and dangerous.  The dissent’s principal argument was that, in cases where the legislature waives sovereign immunity, the state is not “made a defendant” as that phrase was used in the state Constitution.  Pointing to several possible dictionary definitions of the word “made,” the dissent suggests “made” is best interpreted in this context as “compelled.”  Id. at 14 (Baker, J., dissenting).  Under that view, the constitutional provision at issue allows for, expects, and is thus not inconsistent with statutory waivers of sovereign immunity.

The dissent did not engage with the majority’s historical analysis—i.e., the change in constitutional language from the former constitution to the current one—but instead chose a definition of “made” based on principles of stare decisis and concern with the results of the majority’s definition.  The dissent argued that the last 20 years of caselaw (not the 60 years prior to that) are the cases that must be followed unless they are “patently wrong” or “manifestly unjust.”  Id. at 17.  Because the constitutional provision could reasonably be read to accommodate the more recent cases, by defining “made” as “compelled,” the dissent would have done so.  The dissent was especially concerned that the majority’s contrary reading of the provision “effectively revive[s] the antiquated doctrine that ‘the king can do no wrong.’”  Id.  Pointing to numerous laws waiving immunity and numerous types of cases against the state that might be affected by this ruling, the dissent decried “the implications” of the majority’s decision as “astounding.”  Id. at 18.

The biggest open issues resulting the Andrews case are (1) whether actions for future injunctive relief may be maintained against state officials alleged to be acting illegally or unconstitutionally, and (2) whether actions brought against state agencies pursuant to the AAPA (Arkansas Administrative Procedure Act) may be maintained.  Since Andrews, lower state courts have split pretty evenly on these issue.  And while several justices in the Andrews majority have gone out of their way to caution that Andrews should be read very narrowly and to imply that Andrews will be limited to monetary relief cases, see e.g., Arkansas Community Correction v. Barnes, 2018 Ark. 122 at *4 (Wynne, J., concurring), the Arkansas Supreme Court has yet to directly address the issues.  Stay tuned.

Regents of the University of California v. Superior Court

November 30, 2018

Once again California has moved ahead of other states in expanding exposure to tort liability, ruling a university has a duty to protect students from foreseeable violence. Regents of the University of California v. Superior Court (Rosen), __ Cal.5th __ [2018 WL 2018 WL 1415703] (No. S230568, March 23, 2018). The California Supreme Court has led the nation in issuing similar pro-plaintiff decisions, such as its 1976 opinion in Tarasoff v. Regents of the University of California, where a mental health professional has a duty to individuals threatened by a patient.

In Regents, the facts also involved the mental health of a perpetrator. As a UCLA student in 2008, Damon Thompson reported hearing voices and wanting to hurt others. Staff at the UCLA hospital diagnosed him as possibly schizophrenic, and he agreed to take anti-psychotic medications and submit to sessions with the campus psychological services staff. Thompson apparently stopped taking the medications at some point, and his condition worsened over time. In October of 2009, in a UCLA chemistry lab, Thompson accused others of verbally harassing him, leading to referrals to the campus response team and psychiatric services. On October 8, Thompson repeatedly stabbed another student in the lab, Katharine Rosen.

Rosen, who survived the attack, sued the Regents and various UCLA employees for negligence, alleging UCLA had a “special relationship” with her as an enrolled student. Thus, she claimed, the university had a duty to protect her from reasonably foreseeable criminal conduct on its campus and in its buildings — in this case, from a student whom UCLA knew to suffer from a serious and potentially dangerous mental illness. While the trial court found such a duty could exist, a divided Second District Court of Appeal overturned the trial court order, concluding: “[A] public university has no general duty to protect its students from the criminal acts of other students.”

In reversing, Supreme Court Associate Justice Carol Corrigan wrote for the seven-member court, and following Tarasoff, found a duty to control (and protect) may arise if the defendant has a “special relationship” with the foreseeably dangerous person that entails an ability to control that person’s conduct. The “special relationship” doctrine is an exception to the general rule there is no duty to protect others from the conduct of third parties. In reaching its conclusion, the Court examined today’s changing college environment, in which

“colleges provide a discrete community for their students. For many students, college is the first time they have lived away from home. Although college students may no longer be minors under the law, they may still be learning how to navigate the world as adults. They are dependent on their college communities to provide structure, guidance, and a safe learning environment.”

Thus, the Court concluded, the college-student relationship fits within the paradigm of a special relationship. Using factors in Rowland v. Christian (1968) 60 Cal.2d 108, the Court also analyzed various considerations of public policy and foreseeability. As to the latter, it concluded violence against students in the classroom or during curricular activities, while rare, is a foreseeable occurrence. With this conclusion and based on other Rowland factors, the Court concluded considerations of public policy do not justify categorically barring an injured student’s claims against the university.

A special concern of the Regents and many amici was whether recognizing a duty to warn and protect would discourage colleges from offering comprehensive mental health and crisis management services, much as UCLA provided to Damon Thompson. UCLA argued the effect of recognizing the duty here would give colleges an incentive to expel anyone who might pose a remote threat to others. The Court acknowledged this may in fact occur, and that schools might become reluctant to admit certain students or to offer mental health treatment. But the Court pointed to obligations the colleges already have under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), and under most violence prevention protocols adopted in the wake of the 2007 Virginia Tech shooting incident. The Court also dismissed concerns that this duty would deter students from seeking treatment or irreparably damage the psychotherapist-patient relationship. It referenced studies that have shown no evidence that patients have been discouraged from coming to therapy or that they fear breaches of their confidentiality. Ultimately, the Court found “[r]ecognizing that the university owes its students a duty of care under certain circumstances is unlikely to appreciably change this landscape.” Finally, the Court noted the plaintiff must still prove a breach and the lack of immunities, and remanded the matter for further proceedings.

The opinion articulated the duty to warn or protect is limited to “curricular activities” and to activities “closely related to the delivery of educational services.” On the latter point, Justice Ming Chin concurred in the judgment, but did not agree the duty to protect extends beyond the classroom.

Tom Gede is of Counsel at Morgan, Lewis & Bockius LLP, and is a former Deputy and Special Assistant Attorney General for the state of California. By way of disclosure, Mr. Gede is a member of the Board of Directors of University of California, Hastings College of the Law, but the College took no part in the litigation.

Ex parte Jessie Livell Phillips

November 30, 2018

Jessie Livell Phillips shot and killed his wife, Erica Phillips, on February 27, 2009. Testimony at trial indicated that Erica was pregnant when she died. Phillips was convicted of one count of capital murder for the deaths of two people, Erica and her unborn child, by one act. See § 13A-5-49(9), Ala. Code 1975 (regarding the aggravating circumstance of intentionally causing the death of two or more persons by one act or pursuant to one scheme or course of conduct). The jury unanimously recommended that Phillips be sentenced to death, and the trial court sentenced him to death.

The Alabama Court of Criminal Appeals, on appeal, affirmed Phillips’s conviction and sentence. The Alabama Supreme Court granted Phillips’s petition for a writ of certiorari and held oral argument in this case on the campus of Troy University in November 2017. A final decision by the Alabama Supreme Court is expected in 2018. Phillips is represented by Bryan Stevenson, Randall Susskind, and John William Dalton of the Equal Justice Initiative. Alabama Attorney General Steve Marshall, Alabama Chief Deputy Attorney General Clay Crenshaw, Alabama Solicitor General Andrew Brasher, and Alabama Assistant Attorney General Kristi Deason Hagood represent the State of Alabama.

The central issue before the Alabama Supreme Court is whether Phillips was properly convicted of the murder of “two or more persons” under § 13A-6-1, Ala. Code 1975, which defines “person” to include “an unborn child in utero at any stage of development, regardless of viability.” Phillips contends that he lacked the specific intent to murder two people, and that his intent to kill only one person cannot be transferred to the unborn child. The State of Alabama argues that, if a defendant specifically intends to murder someone, the factual circumstances surrounding the murder are immaterial to the determination of whether the murder was capital.

Other issues on appeal involve the admissibility of a urine sample taken during Erica’s autopsy as evidence of her pregnancy; the admissibility of a photograph of Erica’s uterus, ovaries and fallopian tubes on the medical examiner’s table; and whether the State of Alabama struck jurors based on their race in violation of the requirements in Batson v. Kentucky, 476 U.S. 79 (1986). Ex parte Phillips is the first capital murder case before the Alabama Supreme Court to specifically involve the definition of “person” in § 13A-6-1 to include an unborn child.

Allen Mendenhall is associate dean at Faulkner University Thomas Goode Jones School of Law and executive director of the Blackstone & Burke Center for Law & Liberty. Visit his website at

Citizens Protecting Michigan’s Constitution v. Secretary of State

November 29, 2018

On July 30, 2018, the Michigan Supreme Court in Citizens Protecting Michigan’s Constitution v. Secretary of State ruled that a proposal by the Volunteers with the Voters Not Politicians (VNP) to create an independent redistricting commission may appear on Michigan’s general election ballot.

The question before the Court was whether under the Michigan Constitution the voter initiative proposal was an “amendment” to the Constitution, which could be proposed by petition, or a “general revision” of the Constitution that could only be enacted through a constitutional convention.

The VNP proposal seeks to establish an independent redistricting commission composed of thirteen total members (four members from each major political party and five independent voters). All thirteen members would be randomly selected from a pool of candidates who have submitted applications, taken oaths, and met various other requirements. Under the proposal, the leaders of both parties in the Michigan Senate and House can strike, in total, 20 names from the applicant pools. A redistricting plan is adopted only with at least two votes from each subgroup, as well as a majority of the whole.

A sufficient number of signatures to support the placement of the petition on the ballot were collected, but Citizens Protecting Michigan’s Constitution challenged the proposal, contending that the proposal was a “general revision” of the Michigan Constitution that could only be enacted through a constitutional convention.

In a 4-3 decision, the Michigan Supreme Court determined there was no controlling authority construing the meaning of the term “amendment” in Michigan’s Constitution. Relying on non-textual sources such as the “Address to the People” by the Constitutions’ framers, and records from various constitutional conventions, the majority created a new test to determine whether a proposal is an amendment. According to the Court, a voter-initiated amendment is permissible if it proposes changes that do not “significantly alter or abolish the form or structure of the government in a way that is tantamount to creating a new constitution.”  The Court reasoned that VNP’s proposal did not significantly alter or abolish the structure of government because it would leave the form and structure of the government in essentially the same state as contemplated by Michigan’s 1963 Constitution. Addressing the significant argument that the proposal disrupts the separation of powers, the Court held that while the Legislature had been responsible for drafting redistricting plans, that power was not derived from the Constitution. In comparison to the former constitutional provision, which created a bipartisan commission for redistricting – a provision that was previously struck down because it could not be severed from unconstitutional apportionment standards of the Constitution – the Court held the proposal actually “increases, slightly, the Legislature’s participation in the process. . . . And the Legislature’s new, minor role does not come at the expense of either of the other two branches, which have no real part in the process.”

Chief Justice Stephen Markman, joined by Justices Brian Zahra and Kurtis Wilder, dissented. Chief Justice Markman opined that while the people possess the authority to restructure their own charter or government, the VNP proposal “reflects a fundamental alteration in the relationship between the people and their representatives” and is, therefore, not just an amendment of the Constitution but a “general revision” of the Constitution that requires a constitutional convention. The proposal would create a “super-administrative” commission to carry out “the foundational role of self-government,” which is exactly the type of proposal that warrants “the reflection, deliberation, and consensus decision-making” of a constitutional convention. “The VNP proposal would affect the foundational power of government by removing altogether from the legislative branch authority over redistricting and consolidating that power instead in an independent commission made up of 13 randomly selected individuals who are not in any way chosen by the people, representative of the people, or accountable to the people.” Whatever the merits of the proposal, because it would effect a fundamental change of Michigan’s Constitution and government, it warrants careful deliberation and placement on a ballot only after a constitutional convention.

In November 2018, Michigan voters will decide whether to amend their Constitution by adopting VNP’s proposal.


Thomas Rheaume and Donovan Asmar are members of Bodman PLC’s commercial litigation and appellate practice groups. Bodman PLC is one of the Midwest’s leading business law firms, providing counsel to the region’s most successful companies and individuals on a broad range of issues. Deeply rooted in the communities they serve, Bodman lawyers provide clients with the personal attention of a small firm combined with the talent and knowledge expected of the nation’s leading attorneys. To learn more, visit