State Court Docket Watch

Docket Watch 2020

By Jason Torchinsky & Dennis W. Polio

In Fisher v. Hagett and Lay v. Goins, a majority of the Supreme Court of Tennessee vacated an injunction which had temporarily forced the State of Tennessee to provide any eligible Tennessee voter, who applied to vote by mail in order to avoid transmission or contraction of COVID-19, an absentee ballot in that state’s August 2020 and December 2020 elections.^[1]

Tennessee, like many other states, requires that registered voters must “qualify” to vote by absentee ballot. Qualified absentee voters in Tennessee include persons that are over 60 who are hospitalized, ill, or disabled; individuals younger than 60 who are unable to appear at their polling place on election day because of being hospitalized, ill, or physically disabled; or persons who are caretakers of a hospitalized, ill, or disabled person.^[2]

The plaintiffs in both cases, which were heard together and decided in a single opinion, included registered Tennessee voters who wished to vote by mail in the August 2020 and November 2020 elections due to the COVID-19 pandemic, but who did not satisfy Tennessee’s eligibility requirements for doing so.^[3]

On June 4, 2020, the trial court, the Chancery Court for Davidson County, Tennessee, issued its “Memorandum and Order Granting Temporary Injunction to Allow Any Tennessee Registered Voter to Apply for a Ballot to Vote by Mail Due to COVID-19.”^[4] The trial court applied the Anderson-Burdick framework the U.S. Supreme Court has developed for election law challenges and held that, during the unique circumstances of the pandemic, the state’s interpretation of the eligibility criteria constituted an unreasonable and discriminatory burden on the fundamental right to vote guaranteed by the Tennessee Constitution, and that plaintiffs were therefore entitled to a temporary injunction.^[5] The temporary injunction directed the state to (1) provide any eligible voter, who applies to vote by mail in order to avoid transmission or contraction of COVID-19, an absentee ballot for the August 2020 and November 2020 elections during the pendency of pandemic circumstances; and (2) construe the eligibility criteria to include any qualified voter who “determines it is impossible or unreasonable to vote in-person at a polling place due to the COVID-19.”^[6] The state filed an interlocutory appeal, and the Supreme Court of Tennessee assumed jurisdiction over it.^[7]

On appeal, the state challenged the trial court’s holding that the Tennessee Constitution required the state to allow all Tennessee voters to vote by mail in the August and November elections.^[8]

A majority of the Supreme Court of Tennessee distinguished two distinct categories of plaintiffs and voters: (1) persons with special vulnerability to COVID-19 and their caretakers; and (2) persons who are not especially vulnerable to COVID-19 or who do not act as caretakers to those who are.^[9] The state conceded that  persons in the first category are eligible to vote absentee by mail under the eligibility criteria.^[10] The court instructed the state to provide appropriate guidance to registered voters with respect to the eligibility requirements to vote by absentee ballot in advance of the November 2020 election, and it held that with respect to plaintiffs and persons with special vulnerability to COVID-19 or who are their caretakers, injunctive relief was not necessary because they already met the eligibility criteria for absentee voting.^[11]

With regard to plaintiffs and other registered voters who are not especially vulnerable to COVID-19 or caretakers for those who are, the state continued to contend that the Tennessee Constitution did not require it to provide a vote-by-mail mechanism for the elections.^[12] The majority of the court first found that the plaintiffs had standing to bring their claims because they asserted a sufficient infringement and alleged sufficient facts regarding injury.^[13] Next, the majority assumed without deciding that the flexible Anderson-Burdick framework applied to the merits of plaintiffs’ claims.^[14]

The state argued that only rational basis review should apply to the challenged provisions under Anderson-Burdick because voting by absentee ballot is a “privilege” rather than a fundamental right under the Tennessee Constitution. The state relied on cases such as McDonald v. Bd. of Election Comm’rs of Chicago,^[15] where the U.S. Supreme Court held that challenges to absentee ballot regulations do not implicate the right to vote but rather a claimed right to receive absentee ballots.^[16] The Supreme Court of Tennessee rejected this characterization because:

Characterizing absentee voting by mail as a “privilege” begs the question of whether, under some circumstances, limitations on this lawful method of voting can amount to a burden on the right to vote itself. The answer to that question must be yes. If it were not, even when the right to vote is unavailable through any other means, deprivation of absentee voting by mail would nevertheless be deemed not to burden the fundamental right to vote itself.^[17]

However, the majority found that in-person voting was not foreclosed to the plaintiffs and that they were not excluded from voting because (1) the risk of COVID-19 to the category of plaintiffs in the case at issue “is significantly less than the risk to voters with special vulnerability to COVID-19” or their caretakers, (2) the state is actively responding to the pandemic, and (3) Tennessee’s current absentee ballot access laws accommodate vulnerable populations.^[18] Accordingly, the court held that the burden on plaintiffs’ right to vote was moderate, rather than severe, under the Anderson-Burdick balancing test.^[19]

The majority opinion balanced the moderate burden on plaintiffs’ voting rights against the state’s interests in maintaining the eligibility criteria: ensuring the efficacy and integrity of the election process, preventing fraud, keeping costs down, and maintaining feasible elections.^[20] Unlike the trial court, the majority found these interests to be sufficient to justify the moderate burden the eligibility criteria place on the right to vote. It held that the state may act prophylactically to prevent fraud, regardless of whether there is evidence of fraud on the record, and that the Constitution’s delegation to the legislature of the power to regulate elections, “which certainly includes within its scope the interest in fiscal responsibility and efficient conduct of the elections” constrained the court from judging the merits of the state’s policy choices.^[21] Accordingly, the court vacated the trial court’s injunction, but it left in place for voters who already requested and submitted an absentee ballot by mail for the August 2020 election, pursuant to the trial court’s temporary injunction, due to the proximity to that election.^[22]

Justice Sharon G. Lee of the Supreme Court of Tennessee issued a separate opinion concurring in part and dissenting in part. She concurred in the majority decision’s allowance of individuals to vote by absentee ballot if they, in their discretion, determine that they have underlying health conditions that make them more susceptible to contracting COVID-19 or if they are vulnerable to greater health risks should they contract COVID-19, or if they care for someone with such a condition.^[23] She also agreed with much of the rest of the opinion, including the deference given to the Legislature in creating election policy, the application of Anderson-Burdick, and the moderate burden the eligibility criteria place on the right to vote of those plaintiffs who do not have (or care for someone with) an underlying condition.^[24] However, Justice Lee dissented in the rest of the majority opinion because she believed that it did not go far enough—she stated that the decision should allow all qualified voters in Tennessee to vote by absentee ballot during the pendency of the COVID-19 pandemic.^[25]

This case is one of many challenges to election laws that have been and continue to be fought in state court in light of COVID-19. Such litigation—in both state and federal court—is expected to increase exponentially as the November 2020 election approaches. The role of state courts in resolving these kinds of questions concerning separation of powers and last-minute election law changes will certainly be tested in numerous other state courts in the coming months.

Note from the Editor: The Authors, Jason B. Torchinsky and Dennis W. Polio, authored an amicus brief in Lay v. Goins. The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] Fisher v. Hargett, 2020 Tenn. LEXIS 283, *3-*4 (Tenn. Aug. 5, 2020).

[2] Id. at *9.

[3] Id. at *10-*12, *15-*16. The individual plaintiffs were joined by an organization that stated that it was devoted to increasing voter registration and turnout. Id.

[4] Id. at *19.

[5] Id. at *20.

[6] Id. at *20-*21.

[7] Id. at *22-*23.

[8] Id. at *23-*24.

[9] Id. at *25.

[10] Id. at *24-*25.

[11] Id.

[12] Id. at *25.

[13] Id. at *31.

[14] Id. at *39-*40.

[15] 394 U.S. 802 (1969).

[16] Fisher v. Hargett, 2020 Tenn. LEXIS at *40-*43.

[17] Id. at *43.

[18] Id. at *46.

[19] Id. at *47.

[20] Id. at *47-*48.

[21] Id. at *48-*51.

[22] Id. at *51-*52.

[23] Id. at *53-*54 (Lee, J., concurring and dissenting in part).

[24] Id.

[25] Id.

Docket Watch 2020

By Thomas J. Rheaume & Gordon J. Kangas

When Rafaeli, LLC underpaid its property tax bill by $8.40, the county auctioned off the property for $24,500 and kept the surplus proceeds. The process was proper under Michigan’s General Property Tax Act, and the lower courts held that the application of the statute was valid under Michigan’s Constitution. But the Michigan Supreme Court unanimously reversed, holding that the county violated the Michigan Constitution’s Takings Clause when it failed to return the difference between the sale proceeds and the taxes, fees, and interest Rafaeli owed.^[1]

The two lower courts considered it a simple case. In their view, the property was not “taken” from the plaintiffs,^[2] but they instead “forfeited” it to the government by failing to timely redeem it, and therefore the plaintiffs lost all property interests.^[3] The Michigan Court of Appeals likened the case to Bennis v. Michigan, where a court ordered the forfeiture of a nuisance-causing car.^[4] The U.S. Supreme Court held that, under the U.S. Constitution, the forfeiture proceeding provided due process to the car’s owners, so “the property in the automobile was transferred by virtue of that proceeding from [the owners] to the State.”^[5] In light of that transference, the Court reasoned that the government was not “required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.”^[6]

Justice Brian Zahra, writing for the Michigan Supreme Court, distinguished the civil asset forfeiture in Bennis from Rafaeli’s tax foreclosure, but he recognized that even if Bennis “had directly addressed the issue presented here,” it would still not control the Court’s interpretation of the Michigan Constitution’s Takings Clause.^[7] Michigan’s Constitution expressly retained the common law as it was in 1963, so long as it was “not repugnant to” that Constitution.^[8] So the court began by explaining—from the Magna Carta onward—the common law roots of “a property owner’s right to collect the surplus proceeds that result from a tax-foreclosure sale,” and it recognized that the ratifiers of Michigan’s Constitution “would have commonly understood this common-law property right to be protected under Michigan’s Takings Clause at the time of the ratification[.]”^[9] And a decision by the Michigan Supreme Court thirteen years after ratification confirmed the continued existence of that common law right.^[10] The court then reasoned that “[w]hile the Legislature is typically free to abrogate the common law, it is powerless to override a right protected by Michigan’s Takings Clause.”^[11]

Having concluded that the county committed a taking, the court went on to determine what the plaintiffs were owed. The plaintiffs argued that “just compensation” required that they be “awarded the fair market value of their properties so as to be put in as good of [a] position had their properties not been taken at all.”^[12] The court rejected that position because the property taken was not plaintiffs’ real property, but the surplus proceeds from the sale. And if plaintiffs received more than the surplus, they would be benefitting from their own tax delinquency.^[13]

Justice David Viviano concurred with the result but disagreed with much of the court’s reasoning.^[14] In his view, the court improperly looked to the ratifiers’ expected application of the Takings Clause, rather than interpreting how the term “property” was publicly understood when the Michigan Constitution was ratified in 1963. Under that original public meaning approach, even if there was a common law property right to surplus proceeds in 1963, the Takings Clause would not prevent the legislature from modifying that property right in the future. Justice Viviano also contended that the relevant property right was not “the right to surplus proceeds,” but rather plaintiffs’ “equity in the property,” arising from the common law’s longstanding “equity of redemption.”^[15] Although in this case the equity and the surplus were equal, that might not always be so.^[16]

Michigan is one of only five states whose statutes allow the government to retain the surplus proceeds of a sale, even when it is far above the amount of taxes, fees, and interest owed.^[17] Although these windfalls seem to be the exception, rather than the rule, Michigan’s statute has drawn judicial ire more than once.^[18] The Rafaeli decision affirms the longstanding view of property rights as a “bundle of sticks,” i.e., “a collection of individual rights which, in certain combinations, constitute property.”^[19] The holding means that at least one of those sticks—the right to surplus proceeds—survives even though the owner loses the physical property itself to tax foreclosure. The decision is an example of how state courts and litigants can look to state Constitutions for solutions, rather than focusing exclusively on the text and precedents of the U.S. Constitution.

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

[1] See Rafaeli, LLC v. Oakland Cty., — N.W.2d —, No. 156849, 2020 WL 4037642 (Mich., July 17, 2020).

[2] The other plaintiff was another LLC that went through a similar ordeal: it owed $6,000 and failed to receive notice, so when it did not pay, its property was auctioned for $82,000, and the county kept the surplus proceeds.

[3] Rafaeli, LLC v. Oakland Cty., 2015 WL 13859576, at *2 (Mich. Cir. Ct.).

[4] Rafaeli, LLC v. Oakland Cty., No. 330696, 2017 WL 4803570, at *4 (Mich. Ct. App. Oct. 24, 2017).

[5] Bennis v. Michigan, 516 U.S. 442, 452 (1996).

[6] Id.

[7] Rafaeli, 2020 WL 4037642 at *15 n.73.

[8] Mich. Const. (1963) art. 3, § 7.

[9] Rafaeli, 2020 WL 4037642, at *19.

[10] See id. at *20 (citing Dean v. Mich. Dep’t of Nat. Res., 247 N.W.2d 876 (Mich. 1976)).

[11] Id.

[12] Id. at *24.

[13] Id.

[14] Id. at *25 (Viviano, J., concurring).

[15] Id. at *35–36.

[16] Id. at *25, 39.

[17] The four other states with similar regimes are North Dakota (N.D. Cent. Code § 57-28-20.1), Massachusetts (Mass. Gen. Laws ch. 60, § 43), Minnesota (Minn. Stat. § 280-29), and Montana (Mont. Code §§ 7-6-4414(2), 15-17-322).

[18] See, e.g., Freed v. Thomas, No. 17-cv-13519, 2018 WL 5831013, at *2 (E.D. Mich. Nov. 7, 2018) (describing Michigan’s law as “unconscionable”); Wayside Church v. Van Buren Cty., 847 F.3d 812, 823 (6th Cir. 2017) (“In some legal precincts that sort of behavior is called theft. But under the Michigan General Property Tax Act, apparently, that behavior is called tax collection.”) (Kethledge, J., dissenting).

[19] Rafaeli, 2020 WL 4037642, at *19 n.101.

Docket Watch 2020

By Brad Schlozman

Since the November 2018 election of Democrat Laura Kelly as governor of Kansas, the state’s Republican-controlled legislature has found itself in an increasing number of battles with the leader of the executive branch. One of the most recent controversies—a high-stakes separation of powers dispute in April over the legislature’s authority to claw back gubernatorial executive orders issued in connection with the COVID-19 pandemic—culminated in a short-lived win for the governor before the Kansas Supreme Court.[1] Ruling solely on statutory grounds, the court held that a legislative snafu effectively deprived the legislature of the ability to abrogate pandemic-related executive orders

I. Background

The Kansas Emergency Management Act (“KEMA”) grants the governor a statutory power to declare a state of “disaster emergency” for virtually any reason.[2] At the time this case arose, the governor enjoyed nearly unfettered discretion during such emergencies to issue executive orders and perform such other duties “as are necessary to promote and secure the safety and protection of the civilian population.”[3] But as a check on gubernatorial power, the statute greatly restricted the duration of disaster emergencies. In particular, the governor’s declaration automatically expired after 15 days unless ratified by a concurrent resolution of the legislature.[4]

After Governor Kelly declared a disaster emergency related to COVID-19 on March 12, 2020, the legislature hurriedly passed a concurrent resolution extending the disaster emergency until May 1.[5] The resolution included a provision allowing the Legislative Coordinating Council (“LCC”)—a statutorily-created body comprised of leaders from the state’s House of Representatives and Senate that is authorized to act on behalf of Kansas’ part-time legislature during periods of recess[6]—to terminate the state of disaster emergency or revoke any executive order as it saw fit.[7]

In their haste to leave the capital, legislators did not subject the concurrent resolution’s text to the typical rigorous review by the Revisor of Statutes. As a result, the concurrent resolution inadvertently stated that the LCC had no power to modify or revoke any gubernatorial action in connection with the disaster emergency unless the State Finance Council had first extended the emergency.[8] (The State Finance Council is a separate, statutorily-created body comprised of the governor and key legislative leaders. Its myriad responsibilities include approving regulations issued by the state’s department of administration and appropriating funds for unanticipated and unbudgeted needs.)[9]

In the weeks following the issuance of the concurrent resolution, all parties recognized the scrivener’s error, but the governor opted to work with the LCC in crafting her executive orders rather than invite a confrontation that could ultimately limit her authority during the pandemic. The détente proved only temporary.

On April 7, just five days before Easter, the governor issued Executive Order 20-18, which removed “religious gatherings” and funerals from the list of activities exempted from her prior directive prohibiting mass gatherings.[10] Violations were a criminal misdemeanor under state law, punishable by up to one year in jail and a $2,500 fine.[11] The LCC majority, noting that the governor had deliberately targeted churches while still allowing bars, restaurants, libraries, and shopping malls to operate with proper social distancing, promptly voted to invalidate the executive order the next day.[12]

The governor responded by filing an original action (a petition for a writ of quo warranto) against the LCC and both bodies of the legislature in the state supreme court. Predicating her claim solely on constitutional grounds, she argued that the legislature could not empower the LCC to overturn an executive order. She insisted that the only way the legislature could abrogate her order was by satisfying traditional bicameral adoption and presentment requirements.[13]

Although confronted with legislative text that unequivocally did not support its actions, the LCC claimed that the drafting errors did not reflect the legislature’s intent and that the text as written was illogical.  The LCC pointed out in oral argument that, under the literal text of the resolution, the State Finance Council could not possibly extend the disaster emergency in this case because the maximum 30-day extension the State Finance Council could impose would expire well before the extension granted by the legislature’s concurrent resolution. The LCC further suggested that the governor had unclean hands because she had expressly agreed to the LCC’s claw-back authority (in return for the elimination of additional restrictions on her power).[14] Finally, the LCC maintained that its enabling statute conferred upon it the authority to act on behalf of the legislature as a whole during a recess, thereby rendering its actions valid in this dispute and fully consistent with legislative intent.[15

II. The Court’s Opinion

In a brief per curiam opinion, the Kansas Supreme Court declined to address the governor’s constitutional arguments. Instead, it ruled exclusively on statutory grounds, holding that the text of the legislature’s concurrent resolution simply did not permit the LCC to modify or strike any executive order issued pursuant to the KEMA unless and until the State Finance Council had previously extended the disaster emergency.[16] Given the lack of any action by the State Finance Council, the LCC’s conduct was void from the outset. No equitable principle, the court reasoned, could be used to alter the resolution’s clear text.[17] As for the power of the LCC to act in the legislature’s absence, the court concluded that the more specific language of the KEMA controlled over the LCC’s enabling statute.[18] 

In a concurring opinion, Justice Dan Biles said that, even if the concurrent resolution had been worded as the legislature intended, the LCC’s actions still would have been invalid because the text of the KEMA did not endow the legislature with any authority to allow the LCC to invalidate gubernatorial executive orders.[19] Citing INS v. Chadha,[20] he opined that the legislature could not nullify an otherwise valid executive order via a concurrent resolution.[21]

In another concurring opinion, Justice Caleb Stegall reasoned that the LCC’s delegation of authority argument was colorable “in light of the vexing separation of powers problems created when one branch of government delegates its powers to another branch.”[22] Here, he reasoned, “[a]bsent a liberal interpretation of the Legislature’s ability to continually oversee the Governor’s exercise of delegated Legislative authority, the structure of KEMA itself risks violating the constitutional demand of separate powers.”[23]

Justice Stegall further agreed that the concurrent resolution’s requirement of State Finance Council action as a prerequisite to LCC invalidation was a legal impossibility and produced absurd results.[24] But, he added, while this ambiguity arguably might sanction the court looking behind the text to legislative intent, particularly in the urgency of a pandemic, the concurrent resolution could just as easily be rewritten to allow the State Finance Council to extend the disaster emergency beyond the deadline imposed by the legislature.[25] As a result, he determined the most prudent course of action would be to:

hold fast to the tried and true bedrock of legal interpretation and analysis—the words on the page. This commitment both constrains judicial action in circumstances where judges are ill-suited to make rules on the fly and gives the policy-making branches of government the greatest leeway to fix problems of their own making.[26]  

Finally, Justice Stegall noted that the court was affirmatively not reaching the potentially significant religious liberty dimensions of the governor’s actions.[27] Those concerns were later the subject of federal court litigation that resulted in the issuance of an injunction against enforcement of the governor’s order.[28] 

III. The Aftermath

Less than two months after the court issued its opinion, the legislature amended the KEMA to strip the governor of much of the considerable powers she had previously possessed during a disaster emergency. The new legislation, which the governor signed into law on June 8, extended the state of disaster emergency through September 15.[29] But it prohibits the governor from proclaiming any new COVID-19-related disaster emergency during 2020 unless the State Finance Council validates her declaration by an affirmative vote of at least six of the eight members.[30] The legislation also prevents her from directing the cessation of activities of any business for more than 15 days,[31] altering any election laws or procedures due to the pandemic,[32] or closing schools absent a majority vote by the state board of education[33] (which she failed to attain when she subsequently tried to do so).[34] The bill further authorizes each board of county commissioners to adopt public health provisions that are less restrictive than those imposed by the governor.[35]  And it eliminates the criminal penalties for violations of executive orders and treats infringements as mere civil offenses.[36] In sum, the governor’s victory in the Kansas Supreme Court turned out to be brief.

Note from the Editor: The author of this article, Mr. Schlozman, served as counsel to the Kansas Legislative Coordinating Council and the Kansas House of Representatives in the case. The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

[1] Kelly v. Legislative Coordinating Council, 460 P.3d 832 (Kan. 2020). 

[2] Kan. Stat. Ann. § 48-924(b).

[3] Id. § 48-925(c)(11).

[4] Id. § 48-924(b)(3). The KEMA also allowed a disaster emergency to be extended by an affirmative vote of the State Finance Council. Id. § 48-924(b)(4). But the State Finance Council never took any action in the case.

[5] H.R. Con. Res. 5025 (Mar. 20, 2020).

[6] Kan. Stat. Ann. § 46-1201 et seq.

[7] H.R. Con. Res. 5025 § 2(A), (D).

[8] Id. §§ 1-2.

[9] Kan. Stat. Ann. § 75-3708 et seq.

[10] In Executive Order 20-14, the governor had imposed restrictions on mass gatherings, but included an array of exemptions. Executive Order 20-18, which superseded Executive Order 20-14, incorporated nearly all of the same exemptions except those for funerals and religious gatherings.

[11] Kan. Stat. Ann. § 48-939.

[12] See Jonathan Shorman, Renee Leiker, and Michael Stavola, War over Easter: Kansas lawmakers revoke Gov. Kelly’s order limiting church gatherings, K.C. Star, Apr. 8, 2020, available at https://www.kansascity.com/news/politics-government/article241861126.html.

[13] See Pet’r Pet. 6-7; Mem. Supp. Pet. 7-13.

[14] See Resp’t Resp. 14-15.

[15] See id. at 5-9.

[16] Legislative Coordinating Council, 460 P.3d at 838-39.

[17] Id. at 839.

[18] Id.

[19] Id. at 840.

[20] 462 U.S. 919 (1983).

[21] Legislative Coordinating Council, 460 P.3d at 840-41.

[22] Id. at 841.

[23] Id.

[24] Id. at 842.

[25] Id.

[26] Id. at 843.

[27] Id. at 843-44.

[28] First Baptist Church v. Kelly, 2020 WL 1910021 (D. Kan. Apr. 18, 2020).

[29] H.B. 2016, § 5(a).

[30] Id. § 5(b).

[31] Id. § 6. Extensions of business closures are permitted only with a supermajority vote of the State Finance Council, which is controlled by Republican leaders in the legislature.

[32] Id. § 33 (codified at Kan. Stat. Ann. § 48-925(f)).

[33] Id. § 7.

[34]  See Jonathan Shorman and Dion Lefler, Kansas Board of Education rejects Kelly order delaying schools opening to stem virus, Wichita Eagle, July 22, 2020, available at https://www.kansas.com/news/politics-government/article244401862.html.

[35] H.B. 2016, § 33 (codified at Kan. Stat. Ann. § 48-925(h)).

[36] Id. § 36.

Docket Watch 2020

By Daniel Ortner

Most discussions of judicial deference to administrative agencies center on federal doctrines like those established in the Chevron and Auer cases. But there have been a lot of recent developments regarding deference and the separation of powers at the state level. Over the past several years, seven state supreme courts have rejected deference to the statutory or regulatory interpretations of state agencies.[1] These state courts have suggested that such deference is incompatible with the duty of the judiciary to “say what the law is.”[2] But until recently, none of the state courts that rejected deference had been asked to determine whether a law expressly requiring that the judiciary defer to an agency’s interpretation was unlawful.

In HWCC-Tunica, Inc. v. Mississippi Dep’t of Revenue[3], the Mississippi Supreme Court addressed that question head-on and determined that a statute requiring the judiciary to defer to the Department of Revenue’s statutory interpretations was incompatible with the Mississippi Constitution.[4]

In HWCC-Tunica,two Mississippi casinos had developed rewards programs which allowed members to gain entries in a randomized prize drawing through frequently patronizing the casino. The casinos deducted the cost of the prizes from their gross revenues when calculating state income taxes, under an exemption for payouts made as a “result of a legitimate wager.”[5] The Department concluded that this deduction was improper under a Department regulation providing a specific list of things that would qualify as a “legitimate wager.”[6] The trial court deferred to the Department’s regulation and ruled in its favor. The casinos appealed, arguing that deference was incompatible with the Mississippi Constitution and with the Mississippi Supreme Court’s decision in King v. Mississippi Military Dep’t,[7] in which the court had abandoned deference to agency statutory interpretations.

After dispensing with some preliminary arguments concerning argument preservation, the court concluded that the law requiring deference to the Department was incompatible with the Mississippi Constitution because “when deference is given to an agency interpretation, [the courts] share the exercise of the power of statutory interpretation with another branch in violation of Article I, Section 2” of the state constitution.[8] The court concluded that this principle “is applicable to any case in which an agency interprets a statute” because “[i]nterpreting statutes is reserved exclusively for courts.”[9]

Because the trial court had deferred to the Department’s regulation rather than conduct its own independent analysis of the key statutory terms, the court found that it had erred by failing to conduct a de novo review.”[10]

Nevertheless, the court ultimately ruled in favor of the Department after conducting its own statutory analysis. Because state law described random drawings as “promotional activity” rather than a “gambling game,” the court concluded that the casinos could not deduct the cost of prizes as a loss.[11] The court therefore affirmed the decision granting summary judgment to the Department.

Even though the Department ultimately prevailed, HWCC-Tunica is a significant decision. It makes Mississippi the first state, to my knowledge, to invalidate a legislature’s express effort to require judicial deference to an agency interpretation. As such, this decision can be read as a declaration of judicial independence, not only from executive agencies, but also from the legislative branch.[12] According to the Mississippi Supreme Court, neither the legislature nor the executive can interfere with the judiciary’s exercise of its duty to “say what the law is.” And although Mississippi is the first, it is unlikely to be the last to reach that conclusion.

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

[1] In re Complaint of Rovas Against SBC Michigan, 482 Mich. 90, 111, 754 N.W.2d 259, 272 (2008); Bowen v. State, Dep’t of Transp., 2011 WY 1, ¶ 7, 245 P.3d 827, 829 (Wyo. 2011); Douglas v. Ad Astra Info. Sys., L.L.C., 296 Kan. 552, 559, 293 P.3d 723, 728 (2013); Hughes Gen. Contractors, Inc. v. Utah Labor Comm’n, 2014 UT 3, ¶ 25, 322 P.3d 712, 717; Ellis-Hall Consultants v. Pub. Serv. Comm’n, 2016 UT 34, ¶ 31, 379 P.3d 1270, 1275; Tetra Tech EC, Inc. v. Wisconsin Dep’t of Revenue, 2018 WI 75, ¶ 42, 382 Wis. 2d 496, 535, 914 N.W.2d 21, 40; King v. Mississippi Military Dep’t, 245 So. 3d 404, 407 (Miss. 2018). Myers v. Yamato Kogyo Co., Ltd., 220 Ark. 135 (2020).

[2] Marbury v. Madison, 5 U.S. 137, 178 (1803).

[3] 296 So. 3d 668 (Miss. 2020)

[4] Id. ¶ 19. The statute, Miss. Code Ann. § 27-77-7(5), reads, “[a]t trial of any action brought under this section, the chancery court shall give no deference to the decision of the Board of Tax Appeals, the Board of Review or the Department of Revenue, but shall give deference to the department’s interpretation and application of the statutes as reflected in duly enacted regulations and other officially adopted publications.”

[5] Id. ¶ 42 (quoting Mississippi Code Section 75-76-193).

[6] Id. ¶ 39.

[7] 245 So. 3d 404, 408 (Miss. 2018)

[8] Id. ¶ 33 (quoting King, 245 So. 3 at 408). Article I, Section 2 states that “[n]o person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others.”

[9] Id. ¶34.

[10] Id. ¶40.

[11] Id. ¶ 47.

[12] Id. ¶¶ 34-36.

Docket Watch 2020

By Zachery Keller

The Ohio Supreme Court’s decision in State v. Nettles^[1] concerns what happens when decades-old laws meet modern-day technology. More precisely, the court addressed the question of where police “intercept” a cellular call under Ohio’s wiretap statutes. Nettles held that an interception occurs in at least two places: both at the location of the targeted call (where the target speaks) and at the listening post (where the police listen in).^[2]

The Nettles decisionwas fifty years in the making. In the late 1960s, the United States Supreme Court held that warrantless electronic surveillance of a telephone booth violated the Fourth Amendment.^[3] The next year, Congress enacted the Omnibus Crime Control and Safe Streets Act, which established warrant procedures governing interceptions of wire communications. States followed suit. Ohio, for example, enacted wiretap statutes in the 1980s. 

Ohio’s statutes direct law enforcement to apply for a wiretap warrant in “the county in which the interception is to take place.”^[4] The statutes do not spell out exactly where an interception occurs. But they do define “intercept” to mean “the aural or other acquisition of” communications.^[5] And they also define some related terms, like “aural transfer,” which is a “transfer containing the human voice at a point between and including the point of origin and the point of reception.”^[6]

Enter Keith Nettles, a drug dealer who was smuggling cocaine from Michigan into northern Ohio. Federal agents caught wind of this activity. As a result, an agent applied for a wiretap warrant targeting Nettles’s cell phone. The agent applied for that warrant in the county where Nettles lived and committed his crimes. But, in carrying out the wiretap, agents chose to use a listening post in a different, nearby county from which they monitored Nettles’s calls. 

Armed with evidence from the wiretap, the state charged Nettles with multiple counts of drug trafficking. Both at trial and on appeal, Nettles argued for suppression of the wiretap evidence. His theory was that an interception occurs solely in the county of the listening post, where police first hear the intercepted communications. So, under his view, the wiretap warrant came from the wrong county.

In a tidy six-page opinion, the Ohio Supreme Court unanimously rejected Nettles’s listening-post-only theory. It stressed that Ohio’s wiretap statutes broadly define “intercept” to mean both the “aural” and “other acquisition” of communications.^[7] The court then considered that language in light of current technology. It explained that, under modern surveillance practices, “the government, with the aid of phone companies, captures and redirects a phone call the moment a speaker speaks” into the phone.^[8] It follows that, given Ohio’s broad definition of “intercept,” an interception occurs both “at the place where a speaker uses the phone (other acquisition)” and where “the government overhears the call at the listening post (aural acquisition).”^[9] Thus, the court grounded its decision in Ohio’s statutory text. But it did mention, for added support, that its interpretation of Ohio law was consistent with federal and state cases interpreting similar laws in other jurisdictions.^[10]

Taking a broader view, Nettles yields at least two takeaways. First, the decision has important real-world implications for law enforcement in Ohio. It allows police flexibility in deciding where to apply for a warrant, so they may go to the location they think best fits the investigation. For example, they might apply where the officers who need to present supporting evidence are located. Nettles’s interpretation, on the other hand, would have meant that law enforcement would have been unable to obtain a warrant in Nettles’s home county—the county tha thad the strongest connection to his crimes.

Second, Nettles falls in a long line of cases where older text runs into newer technology. This often happens in the Fourth Amendment context, where courts must decide what constitutes a “search” or a “seizure” after two-hundred years of technological advances.^[11] In Nettles, pinning down the location of an interception might have been “relatively easy . . .  back in the days of wiretaps and landlines, but the advent of cell phones . . . made things a bit more difficult.”^[12] Difficult, however, does not mean impossible: as Nettles aptly shows, the text can still lead to an answer, even if the question involves technology the text’s drafters were not thinking of.

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

Note From the Author: Any opinions expressed in Zachery’s posts represent his own views, which do not necessarily reflect the views of the Ohio Attorney General’s Office.

[1] __ Ohio St. 3d __, 2020-Ohio-768.

[2] Id. at ¶ 11.

[3] Katz v. United States, 389 U.S. 347 (1967).

[4] Ohio Rev. Code § 2933.53(A).

[5] Ohio Rev. Code § 2933.51(C).

[6] Ohio Rev. Code § 2933.51(T).

[7] Nettles, 2020-Ohio-768, ¶¶ 9–11.

[8] Id. at ¶ 11.

[9] Id.

[10] Id. at ¶¶ 15–16 (compiling non-Ohio cases).

[11] E.g., Kyllo v. United States, 533 U.S. 27 (2001).

[12] 2020-Ohio-768, ¶ 1.

Docket Watch 2020

By Anthony (Tom) Caso

The U.S. Supreme Court has long acknowledged that “true threats” are not protected speech under the First Amendment.^[1] But the question of what constitutes a true threat, especially in the age of social media, has sparked a split of judicial opinion.^[2] First Amendment scholars expected the Supreme Court to resolve this question in the Elonis case. However, the Court decided that it was “not necessary to consider any First Amendment issues.”^[3]

The Colorado Supreme Court has tried to fill that void with its decision in People v. R.D.^[4] The case involved a Twitter exchange between two teens who did not know each other’s names or even where each other lived or went to school. 

The conversation featured such memorable phrases as “kill you” and “body bag” and one Tweet featured a picture of gun. The trial court reasoned that the picture of the gun was similar to showing a real gun in a face-to-face confrontation and ruled that the exchange was not protected by the First Amendment.^[5] (This led to an interesting, but slightly off-topic discussion of how gun emojis might appear to be real guns on some operating systems and water pistols on others.)^[6]

The First Amendment does not protect true threats solely because of the possibility that real violence will occur. The doctrine also recognizes the social interest in protecting the targets of the threat from intimidation and fear.^[7] Thus, the Supreme Court has ruled that it is irrelevant that the speaker did not intend to carry out the threat.^[8] Still, it must be a real threat and not simply “political hyperbole.”^[9] The question left unanswered by Elonis is whether the speaker must intend to cause fear in the recipient.

The Colorado Supreme Court ruled that the objective tests used in the past were not sufficient to distinguish between constitutionally protected speech and a true threat.^[10] Instead, the court articulated five “contextual factors” that must be considered by the trier of fact: 1) “the statement’s role in the broader exchange”; 2) the “medium” through which the statement was communicated; 3) whether the statement was anonymous and whether it was private or public; 4) any relationship between speaker and recipient; and 5) the subjective reaction of the “intended or foreseeable recipient(s).”^[11]

The court noted that these factors were not an exhaustive list but are intended as tools to help the fact finder put the statements into context. The court further stated that trial court had discretion on how to weigh the various factors and even suggested that it might be necessary to resort to experts “to help illuminate coded meanings, explain community norms and conventions, or bridge other contextual gaps.”^[12]

The true test of appellate decisions such as this is whether they give the trial court sufficient guidance on how to judge a particular case. In Colorado, the trial court’s balancing of the five factors is not determinative. Whether a statement constitutes a true threat is “a matter subject to independent review” on appeal.^[13]

Social media continues to evolve, as do social norms for how we communicate with each other. Indeed, as the Twitter conversation in this case and our own experiences demonstrate, social media seems to bring out the worst in people and coarsen the public dialogue—even as it makes that dialogue easier.^[14] As social media makes it easier to communicate and the coarseness of modern culture encourages hyperbolic statements, courts will need to carefully consider the context and mode of communication to distinguish between protected speech and a true threat. The Colorado Supreme Court has started the conversation on how courts should make that distinction.

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

[1] Elonis v. United States, 135 S. Ct. 2001, 2024 (2015) (Thomas, J., dissenting) (“‘From 1791 to the present, . . . our society . . . has permitted restrictions upon the content of speech in a few limited areas,’ true threats being one of them.) (citing R.A.V. v. St. Paul, 505 U.S. 377, 382-83 (1992)).

[2] Elonis, 135 S. Ct. at 2018 (Thomas, J., dissenting).

[3] Id. at 2012.

[4] People v. R.D., 464 P.3d 717 (2020). 

[5] Id. at 724.

[6] Id. at 730.

[7] Virginia v. Black, 538 U.S. 343, 360 (2003). 

[8] Id.

[9] Watts v. United States, 394 U.S. 705, 708 (1969).

[10] R.D., 464 P.3d at 731.

[11] Id.

[12] Id. at 734.

[13] Id.

[14] Glenn Harlan Reynolds, I deleted my Twitter account. It’s a breeding ground for thoughtlessness and contempt. USA Today, Dec. 3, 2018 (https://www.usatoday.com/story/opinion/2018/12/03/twitter-facebook-social-media-bias-political-poison-blogosphere-instapundit-column/2183648002/).

Docket Watch 2020

By Rick M. Esenberg

In May, Wisconsin became the only state to emerge from a gubernatorial “stay-at-home” order by judicial decision. The decision was not based on a claim of individual liberty or, for that matter, any constitutional claim at all. Rather, it focused on statutory limits on the power of government, serving as a reminder that liberty can be served by legal limitations on the state’s general authority as well as the protection of specified freedoms.

In Wisconsin Legislature v. Palm, the Wisconsin Supreme Court held that the state’s “Safer at Home” order was invalid because it had not been adopted through administrative rule-making.[1] It also held that a state law permitting the state’s Department of Health Services (DHS) to, among other things, take “all emergency measures necessary to control communicable diseases”[2] did not empower DHS to order Wisconsin citizens to stay at home, forbid “non-essential” travel, or close “non-essential” businesses.

Palm grew out of an effort by Wisconsin Governor Tony Evers to extend a shutdown order imposed under a public health emergency that had been declared in early March. That emergency—which grants the governor the power to issue “orders” deemed “necessary for the security of persons and property”—had been one of the bases upon which he had issued a so-called “Safer at Home” order on March 23. That order resembled the more aggressive shutdowns ordered in March, closing businesses and schools, forbidding public gatherings, and ordering Wisconsinites to stay in their homes save for approved purposes. Gov. Evers’ initial order was set to expire on April 24 and, as its expiration approached, he wished to extend it. But under Wisconsin law, a gubernatorial emergency—and the extraordinary powers that such a declaration confers—is limited in duration.[3] A declared emergency can be rescinded by a joint resolution of the legislature and, in all events, expires after sixty days if not extended by such a joint resolution. As the expiration of the “Safer at Home” order approached, so did the expiration of the public health emergency.

The governor, a Democrat, had a choice to make. He could either agree on the terms of an extension with the Republican legislature or find a workaround. He thought he had discovered the latter in Wisconsin Statute § 252.02, which confers broad authority on DHS to “promulgate and enforce rules or issue orders to prevent the introduction of communicable diseases into the state, for the control and suppression of such diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected”[4] by such disease and for the sanitary care of certain public institutions. The statute also empowers DHS to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics,”[5] and it grants to DHS a broad authority to take “all emergency measures necessary to control communicable diseases.”[6] Relying on Chapter 252, the governor instructed Acting DHS Secretary Andrea Palm to issue an order extending the “Safer at Home” order known as Executive Order 28 and also an order establishing the “Badger Bounce Back Plan,” which would set the terms under which the shutdown would be lifted. Evers and Palm argued that Chapter 252 was not dependent on the declaration of an emergency, was unlimited in duration, and was not subject to legislative oversight apart from the passage of law subject to gubernatorial veto.

But Wisconsin law also requires that agencies “shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute.”[7] A rule must be made through processes specified in the state’s Administrative Procedure Act, involving, among other things,  public notice, comment, and review by a joint committee of the legislature. Executive Order 28 was not promulgated as a rule, and so the legislature filed suit, arguing that the order was invalid because it had not been promulgated as a rule, exceeded statutory authorization, and was arbitrary and capricious.

The case moved quickly. It was filed on April 21, fully briefed by the parties and fourteen amici by April 29, and argued on May 5. On May 13, by a 4-3 vote, the court agreed that the stay-at-home order was a “general order of general application” and therefore a rule within the meaning of Wisconsin law. Because it had not been promulgated as a rule, it was invalid. The majority rejected the argument that the order was not of “general application” because it was limited to the circumstances of the coronavirus pandemic. It held that the factual circumstances leading to imposition of a rule are irrelevant, noting that, under Wisconsin law, a rule is of general application when the class of people regulated “is described in general terms and new members can be added to the class . . . .”[8] The court also noted that the challenged order regulated all persons in Wisconsin at the time it was issued and all who will come into Wisconsin in the future, and that the power claimed, even if aimed at a particular circumstance, was unlimited in duration. The court concluded that because rulemaking procedures weren’t followed, the order was invalid.

In reaching this conclusion, the court noted that violations of the stay-at-home order were punishable as a crime and that, under Wisconsin law, violation of an agency directive cannot be subject to criminal penalties unless the directive is defined by rule. Although the legislature did not claim that the order was unconstitutional, the majority emphasized the canon of constitutional doubt, noting that a legislative delegation that authorized an executive officer to take any step for any amount of time without the procedural protections provided by rule-making processes would raise serious constitutional concerns.

As noted above, the court went on to suggest that, notwithstanding the broad language of Chapter 252, the order to stay home, the prohibition of “non-essential” travel, and the identification and shuttering of “non-essential” businesses exceeded the agency’s authority. Noting Wisconsin law requiring that the authority to promulgate a rule must be explicit, the court concluded that the challenged order went too far, although it did not specify just how far a properly promulgated rule might go.

Justices Rebecca Grassl Bradley and Daniel Kelly concurred, placing greater emphasis on the separation of powers problems that would be raised by a broad interpretation of the statute. Noting that “fear never overrides the Constitution,” each would have held that a law broad enough to give a single executive officer the power to indefinitely place the state on lockdown would violate the state consitution’s separation of powers.[9]

Three justices dissented. Justice Brian Hagedorn declined to consider “constitutional doubt” as relevant to the construction of the statute, noting that the legislature (as opposed to amici) had not challenged the consitutionality of the § 252.02 and, in fact, would lack standing to do so.[10] Writing separately, Justice Rebecca Dallet rejected what she saw as an attempt to resurrect the “non-delegation” doctrine; she emphasized that broad delegations of legislative authority should be upheld whenever the law, “including its purpose, factual background, and context,” operated to somehow “bind the agency’s authority.”[11] For each of the dissenters, EO 28 was not of “general application” because it was limited to the cirumstances of the coronavirus. Although it could be extended and, as the majority noted, was effectively extended by the “Badger Bounceback Order” providing that it would not be lifted unless and until certain prerequisties were met, Justice Hagedorn noted that the EO had a putative expiration date and was issued in response to a particular crisis.[12] Because it was the expiring time limits imposed by § 323.10 that occasioned theneed for reliance on § 252.02, the dissents apparently contemplated that an order could be indefinite in duration and unlimited in scope but not of general application because it was issued in response to a specific outbreak that could be presumed to be of some fixed, but unknown, duration.[13] The majority rejected that view, maintaining that the specific reason for the issuance of an order otherwise indefinite in duration and general in its applicability did not obviate the need for rulemaking.[14]

Even though the legislature had asked it to do so, the court declined to delay the effective date of its order to allow DHS to promulgate a rule. Oddly, four justices “would have” granted a stay—the three dissenters and the author of the majority opinion, Chief Justice Patience Roggensack.  The Chief Justice wrote separately to say that she “would have” stayed the effective date of the invalidation of EO 28 for one week.[15] But since there were not four actual votes to stay the decision, EO 28 was immediately invalidated.

Although a rulemaking process was initiated shortly after the decision, it was promptly abandoned, with the governor contending that he and the legislature were unlikely to reach agreement. Thus, Wisconsin has been without a statewide order imposing a “stay-at-home” obligation since May 13. The Palm dissenters forecast dire consequences for the state,[16] and the governor excoriated the majority for turning the state into the “wildwest.”[17] A recently published study by the National Bureau of Economic Research found “no evidence” that the sudden lifting of Wisconsin’s order “impacted social distancing, COVID-19 cases, or COVID-19-related mortality” during the 14 days that followed.[18]In the past month, Wisconsin has experienced an increase in cases although the death rate and hospitalization rates have yet to follow in a commensurate fashion.[19] But connecting even that to the Palm decision would seem to be a heavy lift.

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

[1] 2020 WI 42.

[2] Wis. Stat. § 252.02(6).

[3] Wis. Stat. § 323 et seq.

[4] Wis. Stat. § 252.02(4).

[5] Wis. Stat. § 252.02(3).

[6] Wis. Stat. § 252.02(6).

[7] Wis. Stat. §227.10(1).

[8] Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979).

[9] Palm, 2020 WI at ¶85.

[10] Id. at ¶ 167, 169.

[11] Id. at ¶ 145 n. 11.

[12] Id. at ¶ 232.

[13] Id.

[14] Id. at ¶ 27.

[15] Id. at ¶ 65.

[16] Id. at  ¶ 129-130, 192.

[17] Meagan Flynn, After Wisconsin court ruling, crowds liberated and thirsty descend on bars. ‘We’re the Wild West,’ Gov. Tony Evers says, Washington Post, May 14, 2020, https://www.washingtonpost.com/nation/2020/05/14/wisconsin-bars-reopen-evers/ (last visited July 20, 2020). 

[18] Dhaval M. Dave, et al., Did the Wisconsin Supreme Court Restart a COVID-19 Epidemic? Evidence from a Natural Experiment, NBER Working Paper No. 27322 (June 2020), https://www.nber.org/papers/w27322 (last visited July 20, 2020).

[19] COVID-19: Wisconsin Summary Data, Wisc. Dep’t of Health Servs. https://www.dhs.wisconsin.gov/covid-19/data.htm (last visited July 20, 2020). 

Docket Watch 2020

By GianCarlo Canaparo

On June 12, 2020, the Oregon Supreme Court struck down a preliminary injunction that had been granted by a lower court to Elkhorn Baptist Church, which had challenged Governor Kate Brown’s COVID-19 executive orders.^[1]

Like many governors, Brown implemented a series of emergency executive orders to respond to the public health crisis posed by COVID-19. The most recent orders were issued in mid-March, and they put a 25-person cap on gatherings, including religious services, and required attendees to obey various “social distancing” requirements.^[2]

Plaintiffs, a number of churches and individuals, sued and sought to enjoin the governor from enforcing the orders.^[3]  Curiously, unlike the plaintiffs in two similar challenges that were recently rejected by the United States Supreme Court,^[4] the plaintiffs here did not claim that the orders violated their religious liberties.^[5]  Instead, they argued that the orders had expired in late April pursuant to a statutory deadline, or in the alternative, a state constitutional deadline.^[6]

The court rejected these arguments concluding that the plaintiffs’ claims failed as a matter of law because the deadlines were inapplicable. 

In reaching that conclusion, the court first worked its way through the complicated interplay of two chapters of the Oregon code. 

The first is chapter 433, which permits the governor to “declare a state of public health emergency” and grants her the power to, among other things, limit “entry into, exit from, movement within, and the occupancy of premises in any public area subject to or threatened by a public health emergency.”^[7] This public health emergency and its conferred powers expire after, at most, 28 days.^[8] It was this power that the governor wielded when she limited gatherings to 25 people.^[9] Accordingly, the plaintiffs argued that the orders expired no later than the end of April and were no longer enforceable.

Although the governor wielded powers set forth in ORS 433.441, she did not invoke that statute when she declared an emergency. Rather, she declared an emergency pursuant to chapter 401, which permits the governor to “declare a state of emergency”^[10] and grants her police powers^[11] and other powers not relevant to the dispute.^[12] This state of emergency and its conferred powers do not expire until the governor or the legislature says so.^[13] In other words, the governor declared an emergency pursuant to a statute with no deadline, but wielded powers pursuant to another statute with a 28-day deadline.^[14]

The court sided with the governor in holding that because the emergency declaration was made pursuant to chapter 401, there was no deadline. First, it concluded that chapter 433 permits the governor to do wield its powers even if the emergency declaration is made under chapter 401.^[15] Section 433.441(4) provides that if the governor declares a state of emergency pursuant to chapter 401, “the Governor may implement any action authorized by ORS 433.441. . .”^[16] Second, to the extent that chapter 433 and 401 were in conflict, the court concluded that chapter 401 rendered 433 inoperative.^[17]  Lastly, the court picked through the legislative history of chapter 433 and concluded, based on the testimony of legislative witnesses, that the legislature intended for chapter 433 to be “a step short of declaring a state of emergency under chapter 401.”^[18]

Alternatively, the plaintiffs also argued that the governor’s orders were subject to a 30-day deadline under Article X-A of the Oregon Constitution.^[19] Article X-A permits the governor to declare a “catastrophic disaster” and grants the governor extraordinary powers—beyond those of chapter 401 or 433—which expire after 30 days.^[20] The court held that Article X-A’s deadline did not apply because the governor did not invoke Article X-A and did not have to because Article X-A is discretionary.^[21]

Justice Christopher Garrett, joined by Justice Thomas Balmer, concurred in the opinion but wrote separately to say that the majority opinion went further than necessary.^[22] They would not have said, as the majority did, that the plaintiffs cannot prevail; “it is enough to say that their arguments to this point fall short of what is required for preliminary relief.”^[23]

The ultimate effect of Elkhorn is to turn chapter 433’s 28-day deadline into a dead letter, meaning that a governor can give herself all the powers of chapter 433 while avoiding that chapter’s deadline.

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

[1] Elkhorn Baptist Church v. Brown, 466 P.3d 30 (OR 2020).

[2] Id. at 37.

[3] Id. at 39.

[4]  S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (rejecting an emergency First Amendment challenge to California’s COVID-19 orders); Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070, 591 U.S.__ (2020) (rejecting an emergency First Amendment challenge to Nevada’s COVID-19 orders).

[5] Elkhorn, 466 P.3d at 51.

[6] Id.at 39.

[7] Or. Rev. Stat. § 433.441, et seq.

[8] Id.

[9] Elkhorn, 466 P.3d at 45–46.

[10] Or. Rev. Stat. § 401.165.

[11] Id. § 401.168.

[12] Id. § 401.175.

[13] Id. § 401.192.

[14] The court did not address whether the powers she wielded to limit the size of gatherings qualified as a “police power” for the purposes of chapter 401.

[15] Elkhorn, 466 P.3d at 44.

[16] Or. Rev. Stat. § 433.441(4).

[17] Elkhorn, 466 P.3d at 44.

[18] Id. at 46.

[19] Id. at 49.

[20] Or. Const. art. X.

[21] Elkhorn, 466 P.3d at 50.

[22] Id. at 52 (Garrett, J., concurring).

[23] Id. at 53.

Docket Watch 2020

By Jason Torchinsky & Drew Watkins

In Bailey v. South Carolina State Election Commission, the Supreme Court of South Carolina, accepting original jurisdiction, dismissed an action that sought to expand South Carolina’s absentee ballot provisions in light of the ongoing COVID-19 pandemic.[1]

The plaintiffs in Bailey were candidates in the South Carolina Democratic primary, the South Carolina Democratic Party, and the Democratic Congressional Campaign Committee (DCCC). They argued that the state’s absentee balloting laws, which permit absentee voting by “physically disabled persons,” encompass those practicing social distancing to avoid contracting or spreading COVID-19.[2] Such voters, plaintiffs argued, could not vote in person in the state’s June primary or November general elections “because of . . . illness” and were therefore “physically disabled persons” under South Carolina’s absentee balloting laws.[3] Carrying this argument to its ultimate conclusion, plaintiffs maintained that this construction would permit all registered voters to vote by absentee ballot for the duration of the COVID-19 pandemic.[4] Although all five justices of the state’s Supreme Court agreed that the claim should be dismissed, there was a split in reasoning.

The majority held that this case presented a nonjusticiable political question, and that it was not appropriate for the court to weigh in. As the court noted, on the same day it heard oral argument in Bailey, the South Carolina legislature met and approved temporary changes to the election law to allow all qualified electors to vote absentee if their place of residence or polling place was located within an area subject to a state of emergency declared by the governor and it was within 46 days of an election.[5] The next day, this legislation was signed into law. Because at the time there existed a declared state of emergency in South Carolina, and it was within 46 days of the June primary election, the Court recognized that the legislature had mooted the plaintiffs’ case with respect to the June election.[6] However, the new legislation expired on July 1, 2020, leaving the issue potent for the November general election.

Nonetheless, the majority considered the legislature’s action in changing the law as “a clear indication the absentee voting statutes did not already permit” any voter practicing social distancing to vote absentee.[7] Furthermore, the court said, by providing an expiration date in the new law, the legislature was reenacting the old law as of July 1.[8] As a result of this “legislative determination” of the plaintiffs’ challenge, the majority considered itself constrained by a construction of South Carolina’s absentee voting law “not based on its plain language or the canons of construction, but based on the Legislature’s political act of reenacting the subsection after temporarily changing the law.”[9] The legislature’s answer to the plaintiffs’ challenge “with absolute clarity” rendered the question—in the view of the majority—a “political question.” Accordingly, the court felt bound by separation of powers principles to abstain from reaching a different conclusion. “[W]hen the Legislature considers the very same question—knowing it is doing so at the very same time the Court considers the question—and answers the question with clarity, we cannot give a different answer through the judicial act of statutory interpretation.”[10]

The majority clarified, however, that the plaintiffs were not without potential relief—it just would not come from the court. The South Carolina legislature, by joint resolution, set September 15, 2020, to resume legislative session and consider, among other items, “legislation concerning COVID-19.”[11] At that time, it will be left to the legislature to “consider this political question.” After all, as the majority explained, it is “the Legislature which bears the constitutional obligation to ensure that elections are carried out in such a manner as to allow all citizens the right to vote.”[12] Accordingly, the legislature may still make a change in South Carolina’s absentee voting law for the November general election, but the court will not.

Although the dissent agreed with the decision to dismiss plaintiffs’ case, it would not have done so with the same finality as the majority.[13] Relying on the familiar doctrine from Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is,” the dissent would have viewed the question as one of pure statutory interpretation, not a political question.[14] The dissent rejected the notion that “the action or inaction of the General Assembly . . . determine[s] whether a question is political, and therefore, nonjusticiable.”[15] Instead, it would have considered the “plain and ordinary meaning of ‘physically disabled persons,’ as defined” under South Carolina law.[16] Nonetheless, the dissent would have still dismissed the complaint “on the ground that the matter involving the general election is not yet ripe for judicial consideration, which would not foreclose a future suit.”[17]

As more cases arise and the November election approaches, the volume of state and federal litigation is expected to increase. The role of state courts in these political question and separation of powers cases will likely be tested in a number of state courts in the coming months.

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

[1] Bailey v. S.C. State Election Comm’n, No. 27975 (May 27, 2020), available at https://www.sccourts.org/opinions/HTMLFiles/SC/27975.pdf.

[2] Id. (slip op. at 4).

[3] Id.; S.C. Code Ann. §§ 7-15-310(4) and 7-15-320(B)(1).

[4] Bailey, No. 27975 (slip op. at 4).

[5] Id.

[6] Id. (slip op. at 5); S.C. Exec. Order No. 2020-35 at 9 (May 12, 2020).

[7] Bailey, No. 27975 (slip op. at 5).

[8] Id.

[9] Id. (slip op. at 5-6).

[10] Id. (slip op. at 6).

[11] Id.

[12] Id.

[13] Id. (slip op. at 8) (Hearn, J., concurring in part, dissenting in part).

[14] Id. (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)).

[15] Id. (slip op. at 10).

[16] Id.

[17] Id. (slip op. at 11).

Docket Watch 2020

By Nicholas Bronni

When should courts defer to an agency’s interpretation of a statute? At the federal level, the law is clear: When reviewing an agency’s interpretation of a statute that it is charged with administering, courts apply the two-step test from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.[1] Under that test, “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”[2] If the statute is silent or ambiguous, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”[3] And where the agency’s interpretation is reasonable, the court must defer to that interpretation.[4]

But at the state level, the rule isn’t always clear. Some states reject Chevron outright. The Michigan Supreme Court, for example, has rejected Chevron deference on the grounds that it is both “very difficult to apply” and inconsistent with separation of powers principles.[5] Other courts, like the Maine Supreme Judicial Court, reject those concerns and apply “the same two-step analysis adopted by the United States Supreme Court in Chevron.”[6] And still others apply something in between or more akin to the Supreme Court’s approach in Skidmore v. Swift & Co.[7]

Arkansas courts have at various times applied all three different approaches. But a few months ago, in Myers v. Yamato Kogyo Co., the Arkansas Supreme Court adopted a standard more akin to Skidmore than Chevron.[8] Indeed, though neither the majority nor the dissent mentioned Skidmore, Chevron, or any of the other various deference doctrines, the decision places Arkansas firmly among the states that consider an agency’s interpretation of an ambiguous statute just “one of . . . many tools used to provide guidance.”[9]

Myers concerned a workers’ compensation decision. After Michael Myers was killed in an industrial accident in 2014, his employer, Arkansas Steel Associates, never contested his widow’s workers’ compensation benefits claim.[10]  Myers’s widow, however, was dissatisfied with the award she received, and she “filed a wrongful death suit against . . . Arkansas Steel Associates’ parent companies.”[11] The trial court sent her case to the Arkansas Workers’ Compensation Commission.[12]

Interpreting Arkansas law, the Workers’ Compensation Commission held that the parent companies were shielded from civil liability as “principals and stockholders” of an employer subject to the exclusive remedy set forth in the Arkansas Workers’ Compensation Act.[13] The Arkansas Court of Appeals subsequently affirmed that conclusion on the grounds that “while not binding on this court,” an agency’s interpretation of a statute is “highly persuasive” and is “not [to] be overturned unless it is clearly wrong.”[14]

The Arkansas Supreme Court ultimately agreed with the Commission’s interpretation of Arkansas law, but it rejected the court of appeals’ deferential standard. Instead, the court began by “acknowledg[ing] confusion in prior cases regarding the standard of review for agency interpretations of a statute.”[15]Indeed, the court conceded that its own cases had employed both more and less deferential standards.[16] And as a result, the Arkansas Supreme Court concluded that it needed to resolve that discrepancy.[17]

It then held that in “determin[ing] what a constitutional or statutory provision means,” Arkansas courts should “not afford deference to [an agency’s] interpretation.”[18] Instead, “where ambiguity exists,” the Arkansas Supreme Court explained, an agency’s interpretation will be considered only to the extent it is persuasive.[19] In other words, Arkansas courts give Skidmore-likedeference to agency interpretations, nothing more. And as other courts have done in adopting that same approach, the Arkansas Supreme Court explained that only that standard was consistent with basic separation of powers principles and the judiciary’s “duty . . . to determine what a statute means.”[20]

The dissent, moreover, did not dispute the majority’s formulation of the relevant standard, its arguments about the separation of powers, or the proper role of the courts. Far from it, the lone dissent simply disagreed with the majority’s—and by extension the Arkansas Workers’ Compensation Commission’s—interpretation of the relevant statute.[21] As a result, Arkansas can now be counted among those states that apply something akin to Skidmore deference when reviewing agency statutory interpretations.

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

[1] 467 U.S. 837 (1984).

[2] Id. at 842-43.

[3] Id. at 843.

[4] Id. at 844-45.

[5] In re Complaint of Rovas Against SBC Michigan, 754 N.W.2d 259, 271 (Mich. 2008).

[6] Cobb v. Bd. of Counseling Prof’ls Licensure, 896 A.2d 271, 275 (Me. 2006).

[7] 323 U.S. 134 (1944). See, e.g., Nw. Youth Servs., Inc. v. Commonwealth Dep’t of Pub. Welfare, 66 A.3d 301 (Pa. 2013).

[8] 597 S.W.3d 613 (Ark. 2020).

[9] Id. at 617.

[10] Id. at 615.

[11] Id.

[12] Id.

[13] Id. at 616.

[14] Myers v. Yamato Kogyo Co., 578 S.W.3d 296, 301 (Ark. Ct. App. 2019).

[15] Myers, 597 S.W.3d at 616.

[16] See id. at 616-17 (citing Ark. Dep’t of Hum. Servs. v. Pierce, 435 S.W.3d 469 (Ark. 2014), and Brookshire v. Adcock, 307 S.W.3d 22 (Ark. 2009)).

[17] See Myers, 597 S.W.3d at 616-17.

[18] Id.; accord id. at 617.

[19] Id.

[20] Id.

[21] Id. at 620-22 (Hart, J., dissenting).