Commonwealth v. Alexander

March 8, 2021

Docket Watch 2021

By Matthew P. Cavedon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Note from the Editor:

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

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

[2] Id. at 151.

[3] 399 U.S. 42.

[4] Id. at 51.

[5] 471 U.S. 386.

[6] Id. at 387.

[7] Id. at 391.

[8] Id. at 392.

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

[10] 625 Pa. 183 (2014).

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

[12] See id. at *41–55.

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

[14] Id.

[15] Id. at *3–21.

[16] Id. at *22.

[17] Id. at *59–63.

[18] Id. at *73.

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

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

[21] Id. at *78–79.

[22] Id. at *80.

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

[24] Id. at *84.

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

Arizona v. Mixton

March 8, 2021

Docket Watch 2021

By Timothy Sandefur

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

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

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

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

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

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

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

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

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

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

[1] Ariz. Const. art. II § 8.

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

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

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

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

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

[7] Mixton, 2021 WL 79751 at **2–6.

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

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

[10] 30 Ariz. 258 (1926).

[11] Id. at 261.

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

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

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

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

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

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

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

[19] Id. at *8.

[20] Id. at *3.

[21] Id. at *13.

[22] Id. at *9.

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

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

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

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

[27] Id. at *7.

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

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

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

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

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

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

Texas v. Hollins

December 17, 2020

Docket Watch 2020

By Cory Liu

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

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

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

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

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

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

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

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

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

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

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

[2] Tex. Elec. Code § 82.001.

[3] Id. § 82.002.

[4] Id. § 82.003.

[5] Id. § 82.004.

[6] Id. § 82.007.

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

[8] Id.

[9] Id. at 4–5.

[10] Id. at 5.

[11] Id. at 6.

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

[13] Id.

[14] Id. at 6–7.

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

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

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

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

[19] Tex. Elec. Code § 83.001(a).

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

[21] Id. § 1.010(a).

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

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

[24] Id. at 11.

[25] Id. at 11–12.

[26] Id. at 14.

[27] Id.

Jackson v. Raffensperger

July 8, 2020

Docket Watch 2020

By Anastasia P. Boden

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

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

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

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

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

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

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

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

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

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

[2] Id. at *3.

[3] Id. at *2-3.

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

[5] Id. at *1.

[6] Id. at *3.

[7] Id. at *4.

[8] Id. at *5.

[9] Id. at *2.

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

June 16, 2020

Docket Watch 2020

By Jarrett Dieterle

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2] Institute For Responsible Alcohol Policy v. Oklahoma ex rel. Alcohol Beverage Laws Enforcement Comm., Case Number 118209, (Okla. Jan. 22, 2020), available at https://law.justia.com/cases/oklahoma/supreme-court/2020/118209.html.

[3] Id. ¶4.                                                                             

[4] [Citation] (emphasis added).

[5] Id. ¶13.

[6] Id. ¶6.

[7] Id. ¶8.

[8] Id. ¶9.

[9] Id. ¶22.

[10] Id. ¶12.

[11] Id.

[12] Id. ¶14-¶17.

[13] Id. ¶18.

[14] Id. ¶20.

[15] Id.,¶2 (Kauger, J., dissenting).

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

[17] Id. ¶15-17.

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

In re Salon a la Mode, et al.

June 8, 2020

Docket Watch 2020

By Ken Paxton

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

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

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

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

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

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

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

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

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

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

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at *2.

[9] Id. at *1.

[10] Id.

[11] Id. at *2.

[12] Id.

[13] Id.

Morrisey v. West Virginia AFL-CIO

May 27, 2020

Docket Watch 2020

By Elbert Lin

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

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

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

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

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

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

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

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

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

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

[1] Morrisey v. West Virginia AFL-CIO, No. 19-0298, 2020 WL 1982284 (W. Va. Apr. 21, 2020) (Slip opinion available at http://www.courtswv.gov/supreme-court/docs/spring2020/19-0298b.pdf).

[2] Slip op. at 18.

[3] Id. at 1.

[4] Id. at 2.

[5] Id. at 33-34.

[6] Id. at 64.

[7] Id. at 26.

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

[9] Slip op. at 38.

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

[11] Slip op. at 45.

[12] Id.

[13] Id. at 53.

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

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

[16] Id. at 64.

[17] Slip op. (Hutchison, J., concurring) at 5 (available at http://www.courtswv.gov/supreme-court/docs/spring2020/19-0298c-hutchison.pdf).

[18] Id.

[19] Slip op. (Workman, J., concurring and dissenting) at 1 (available at http://www.courtswv.gov/supreme-court/docs/spring2020/19-0298cd-workman.pdf).

[20] Id. at 2.

[21] Id. at 1-2.

[22] Id. at 17.

[23] Id. at 6.

[24] Id. at 4, 10.

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

May 12, 2020

Docket Watch 2020

By Adam A. Millsap & Lee A. Steven

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

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

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

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

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

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

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

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

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

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

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

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

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

[2] Id. at 4.

[3] Id. at 27.

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

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

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

[7] Id.

[8] Id. at 23.

[9] Id. at 26.

[10] Id. at28.

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

[12] Id. at 4.

Illinois Supreme Court Ruling Explores Scope of Second Amendment

January 31, 2014

On September 12, 2013, in People v. Aguilar, the Illinois Supreme Court held that Illinois’s blanket prohibition of the concealed carry of a firearm in public in its aggravated unlawful use of weapons (“AUUW”) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) violated the second amendment to the U.S. Constitution, but that the portion of Illinois’s unlawful possession of a firearm (“UPF”) statute ((720 ILCS 5/24-3.1(a)(1) (West 2008)) that prohibited the possession of firearms by minors did not.1  Upon denial of rehearing on December 19, 2013, the Court modified its opinion and clarified that its holding was limited to the “Class 4” form of the specified AUUW violation, leaving unanswered the question of whether other “classes” of a similar AUUW violation (such as a “Class 2” violation of the statute by a felon) would also be deemed unconstitutional and leading two Justices to dissent from the majority opinion, which was previously unanimous.2

The Illinois Supreme Court’s ruling came on the heels of (and largely adopted) the Seventh Circuit’s ruling in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), which similarly found that the AUUW’s blanket prohibition on concealed carry of a firearm in public was unconstitutional.  While the practical effect of the Court’s ruling was largely mooted by the Illinois legislature’s enactment afterMoore of the Firearm Concealed Carry Act (see Pub. Act 98-0063 (eff. July 9, 2013)), which amended the AUUW to allow for a limited right to carry certain firearms in public, the ruling nevertheless provides insight into the outcome of future challenges to Illinois laws restricting and regulating the personal use of firearms.

I.  Factual Background

At issue in Aguilar were defendant’s second amendment challenges to his conviction for violating two Illinois gun control laws.3  Police arrested defendant (who was then 17 years old) after they had investigated a group of teenagers who were making disturbances and observed defendant with a gun in his hand.  At the time of this observation (and his arrest), defendant was in his friend’s backyard.4  Defendant was charged with and convicted of violating the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute (prohibiting the concealed carrying of a loaded firearm anywhere other than “his or her land or in his or her abode or fixed place of business”) and section 24-3.1(a)(1) of the UPF statute (prohibiting the possession of “any firearm of a size which may be concealed upon the person” by anyone under 18 years of age).5  The trial court sentenced defendant to 24 months’ probation for the AUUW conviction and did not impose any sentence on the UPF conviction.6  Defendant appealed his convictions and the appellate court affirmed.7

II. Standing Challenge

Before addressing the constitutionality of the two Illinois statutes at issue, the Illinois Supreme Court first rejected the State’s argument that defendant lacked standing to assert a constitutional challenge to these statutes.8  The State’s position was that to have standing defendant must show that “he was engaged in conduct that enjoys second amendment protection” and that he could not do so because “the conduct involved in this case, namely, possessing a loaded, defaced, and illegally modified handgun on another person’s property without consent, enjoys no such protection.”9  In rejecting the State’s argument, the Illinois Supreme Court noted that defendant was not arguing that these statutes as applied in this case were unconstitutional, rather he was arguing that they facially violated the second amendment and could not be enforced against anyone.10  It further stated, “If anyone has standing to challenge the validity of these sections, it is defendant.  Or to put it another way, if defendant does not have standing to challenge the validity of these sections, then no one does.”11

III. Second Amendment Challenge to the AUUW Statute

After disposing of the State’s standing argument, the Illinois Supreme Court first tackled the constitutionality of the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute.  To do so, it looked to the U.S. Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that a District Columbia law banning handgun possession in the home violated the second amendment) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (holding that second amendment right recognized in Heller is applicable to the states through the due process class of the fourteenth amendment and striking down similar laws that banned the possession of handguns in the home).12  The Illinois Supreme Court noted that Illinois appellate courts previously upholding the constitutionality of the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) had uniformly read Heller and McDonaldto hold only that the second amendment protects the right to possess a handgun in the home for the purpose of self-defense and that neither Hellernor McDonald expressly recognized a right to keep and bear arms outside the home.13

The Illinois Supreme Court also noted, however, that less than a year earlier, the Seventh Circuit Court of Appeals in Moore v. Madigan, 702 F.3d 933 (7thCir. 2012) applied the broader principles that informed Heller and McDonald to find that section 24-1.6(a)(1), (a)(3)(A) (the same Illinois provision at issue inAguilar) violated the second amendment.14  In summarizing the Seventh Circuit’s holding and rationale in Moore, the Illinois Supreme Court cited to several portions of that opinion that stated that the clear implication of Hellerand McDonald is that the constitutional right of armed self-defense is broader than the right to have a gun in one’s home.15  The Illinois Supreme Court also cited to the Seventh Circuit’s discussion in Moore of the fact that the second amendment guarantees not only the right to “keep” arms, but also the right to “bear” arms, and that the latter must imply a right to carry a loaded gun outside the home if it is to be read (as it should be) as being distinct from the former.16

Ultimately, the Illinois Supreme Court rejected the prior Illinois appellate court decisions and adopted the Seventh Circuit’s analysis in Moore.  It stated:  “As the Seventh Circuit correctly noted, neither Heller nor McDonald expressly limits the second amendment’s protections to the home.  On the contrary, both decisions contain language strongly suggesting if not outright confirming that the second amendment right to keep and bear arms extends beyond the home.”17  Although it concluded in no uncertain terms “that the second amendment protects the right to possess and use a firearm for self defense outside the home,” the Illinois Supreme Court was careful to state that it was “in no way saying that such a right is unlimited or is not subject to meaningful regulation.”18  The issue of what would constitute “meaningful regulation” was not, however, before the Illinois Supreme Court as it concluded that the statute at issue “categorically prohibits the possession and use of an operable firearm for self-defense outside the home.”19  Accordingly, the Court reversed defendant’s conviction of the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW.20

Notably, after the Seventh Circuit’s decision in Moore, but before the Illinois Supreme Court’s decision in Aguilar, the Illinois General Assembly enacted the Firearm Concealed Carry Act, which amended the AUUW statute to allow for a limited right to carry certain firearms in public.21  The Illinois Supreme Court noted this change in the law but specifically refrained from commenting on the Act or the amended AUUW statute because it was not at issue in the case before it.22

IV. Second Amendment Challenge to the UPF Statute

Having concluded that defendant’s conviction under the AUUW statute should be reversed, the Illinois Supreme Court next turned to defendant’s challenge to his UPF conviction under section 24-3.1(a)(1) for possession of a firearm by a minor.23  Defendant argued that the right to keep and bear arms extended to persons younger than 18 years of age and, in support, pointed to the fact that historically many colonies required people as young as 15 years of age to “bear arms” for purposes of militia service.24

The Illinois Supreme Court rejected defendant’s argument.  In reaching its holding, the court cited to specific language in Heller where the U.S. Supreme Court emphasized that its opinion should not cast doubt on longstanding prohibitions on the possession of firearms by certain categories of people (e.g., felons or the mentally ill) or in certain sensitive locations (e.g., schools and government buildings).25  While prohibitions on the possession of firearms by minors was not one of the specific examples enumerated in Heller, the Illinois Supreme Court surveyed several other courts that have upheld such prohibitions and found that while historically many colonies permitted orrequired minors to possess firearms for purposes of militia service, nothing like a right for minors to own firearms has ever existed.26  Relying on the rationale and historical evidence espoused by these other courts, the Illinois Supreme Court stated its “agreement with the obvious and undeniable conclusion that the possession of handguns by minors is conduct that falls outside of the scope of the second amendment’s protection.”27  Thus, the Court affirmed defendant’s conviction under 24-3.1(a)(1) and remanded the case to the trial court for imposition of sentence on the UPF conviction.28

V. The Denial of Rehearing and Dissenting Opinions

The Court’s initial opinion issued on September 12, 2013 was unanimous.  The State petitioned for rehearing, arguing that the AUUW sections at issue were not facially unconstitutional because, looking to the sentencing provisions in the AUUW, they can be applied to felons without violating the second amendment in its “Class 2” form of the offense.29  On December 19, 2013, the Court denied the State’s petition, but modified its original opinion to make it clear that it was only addressing the “Class 4 form” of the AUUW statute, which applied to anyone who violated the statute with no aggravating circumstances (e.g. prior offense, prior conviction of a felony).30  Other than the insertion of “Class 4 form of” in front of every AUUW citation, the opinion remained virtually unchanged.  The denial of rehearing and the insertion of this clarifying language, however, led two Justices to dissent to the new majority opinion.

Chief Justice Garman dissented from the denial of rehearing because, in her view, the State “fundamentally redefined the issue presented in this case” in its petition for rehearing.31  While she acknowledged that this fact may typically weigh against rehearing, she wrote, “[G]iven the constitutional nature of the issue and the potential far-reaching consequences of our decision, I would prefer to resolve this question after more deliberation.”32  Justice Theis also dissented from the modified majority opinion and denial of rehearing, stating that “the majority seeks to dramatically alter the issue in this case” by “consider[ing] not only the elements of the offense of AUUW in determining the constitutionality of the statute, but also incorporat[ing] the sentencing provisions into its constitutional analysis.”33 While questioning the “unintended consequences” of conflating the distinctions between the elements of an offense and the factors relevant to enhancing a sentence, Justice Theis took issue with the fact that the majority never explained why the class of sentence has any bearing on the constitutional question and noted that neither the Seventh Circuit decision in Moore nor the Illinois appellate decisions relied on and cited by the majority mention the words “Class 4 form” at all.34  Given this decision’s “ momentous import to the litigants and to the people of this state,” Justice Theis concluded that the “majority’s new analysis leaves too many questions unresolved” to not warrant rehearing and an opportunity for the parties to argue about whether the court’s new constitutional analysis should cause it to reconsider the determination that the AUUW statute is facially unconstitutional.35


*Tara A. Fumerton is a partner in the law firm Jones Day.  This article represents the view of the author solely, and not the view of Jones Day, its partners, employees, or agents.



1  People v. Aguilar, 2013 IL 112116, __N.E.2d__, 2013 Ill. LEXIS 1626 (Ill. Sept. 12, 2013) (petition for rehearing denied).

2  Aguilar, 2013 IL 112116, ¶22, n.3.

3  Id. at ¶¶1, 11.

4  Id. at ¶¶3-7.

5  Id. at ¶¶7, 15, 25.

6  Id. at ¶7.

7  Id.

8  Id. at ¶¶11-12.

9  Id. at ¶11.

10  Id. at ¶12.

11  Id.

12  Id. at ¶¶15-18.

13  Id. at ¶18.

14  Id. at ¶19.

15  Id.

16  Id.

17  Id. at ¶20.

18  Id. at ¶21.

19  Id.

20  Id. at ¶21.

21  See Pub. Act 98-0063 (eff. July 9, 2013).

22  Aguilar, 2013 IL 112116, ¶22 n.4.

23  Id. at ¶¶24-25.

24  Id. ¶25.

25  Id. at ¶26 (quoting Heller, 554 U.S. at 626).

26  Id. at ¶27.

27  Id.

28  Id. ¶¶28-30.

29  Id. at ¶36 (Garman, J., dissenting).

30  Id. at ¶22 n.3 (majority opinion); see also 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008).

31  Id. at ¶33 (Garman, J., dissenting).

32  Id. 

33  Id. at ¶40 (Theis, J., dissenting).

34  Id. at ¶44-45 (Theis, J., dissenting).

35  Id. at ¶48 (Theis, J., dissenting).


Illinois Supreme Court Ruling Explores Scope of Second Amendment

Washington Supreme Court Addresses Constitutionality of Water Pollution Control Mandate

January 31, 2014

In Lemire v. Department of Ecology (2013),1 the Washington Supreme Court addressed the constitutionality of an order made pursuant to the State’s Water Pollution Control Act (“WPCA”).  Lemire offers the Washington Supreme Court’s latest take on evidentiary standards for reviewing administrative agency actions that affect property rights.

I. Background

At issue in Lemire was an administrative order issued by the Washington Department of Ecology (“Department”) to cattle rancher Joseph Lemire pursuant to the WPCA.2  The Department directed Lemire to take steps—namely constructing livestock fencing and off-stream water facilities to eliminate livestock access to the stream corridor—to curb activities it determined were polluting a creek that runs through Lemire’s property.

Lemire challenged the order but the Pollution Control Hearings Board (“Board”) upheld it on summary judgment.  However, on administrative appeal the Columbia County Superior Court reversed the judgment and invalidated the Department’s order.  In its decision, the Superior Court ruled the Department’s order was unsupported by substantial evidence and constituted a taking.  Division Three of the Washington Court of Appeals certified the case directly to the Washington Supreme Court for review.

By an 8-1 vote, the Washington Supreme Court reversed the Superior Court on all counts. In an opinion written by Justice Debra Stephens,3 the majority held that the Department acted within its authority, the order was supported by substantial evidence, and Lemire failed to establish that a taking occurred.

II. Majority Opinion: Substantial Evidence Analysis

The evidence presented by the Department at the administrative hearing consisted of reports of four visits to Lemire’s property by a Department employee between 2003 and 2008, as well as four visits to his property in 2009. Reported conditions at the property included “livestock with direct access to the creek, overgrazing of the riparian corridor, manure in the stream corridor, inadequate vegetation, bare ground, erosion, cattle trails across the creek, trampled stream banks, and cattle wallowing in the creek.”

Addressing this, Justice Stephens’ opinion noted that the Department’s expert had “described via declaration how these conditions tend to cause pollution.”4The declaration also stated that Washington State’s water quality assessment report to Congress—required by the federal Clean Water Act—listed the creek as polluted. The majority continued that even when viewing the record in the light most favorable to Lemire, the evidence still supports a grant of summary judgment to the Department.  It reasoned that the observations of cattle access to the stream on Lemire’s property was  “consistent with the kind of pollution found in the stream, such as sediment content, fecal coliform, and other disturbances of the water quality” and this was all the Department was required to prove.5

This can be distinguished from the Superior Court decision, which emphasized that “[t]he record is absolutely absent of any evidence-direct evidence-that Mr. Lemire’s modest herd actually polluted Pataha Creek.”6  The Supreme Court applied a different standard than the lower court, ruling that the statute at issue “does not require it [the Department] to prove causation” and that it was sufficient that the Department’s  “expert declaration provided evidence that the current condition of Pataha Creek is polluted.”7 The court rejected arguments that causation is a question of fact and stated rather that “the ‘causation’ contemplated by the statutes is the likelihood that organic or inorganic matter will cause or tend to cause pollution.”8

III. Majority Opinion: Takings Analysis

The court also rejected Lemire’s argument that the fence he was required to construct on his property amounted to a taking by depriving him of the economic use of his land.  Specifically, Lemire had argued the fence was a taking because it prevented his cattle from grazing pasturelands on the far side of the creek and his exercise of stock water rights.

The majority opinion did not consider “whether and to what extent our state constitutional takings provision may offer greater protection than its federal counterpart,” since, they reasoned, “no factual basis existed for finding a taking.”9 The majority concluded that none of the evidence in the record suggested the Department’s order would restrict cattle from any access to the creek, the record was devoid of evidence regarding stock water rights, and Lemire had conceded that his claim of economic loss is “neither a physical invasion nor a regulatory taking.”10

IV. Dissent

The sole dissenter in the case, Justice James Johnson, asserted that “the majority disregards constitutionally protected private property rights, and bases its decision on credibility judgments and factual findings.”11

Specifically, Justice Johnson contended that “the majority assumed that [the Department of] Ecology’s allegations are gospel truth and summarily dismissed the statements in Lemire’s declaration that counter [the Department of] Ecology’s claims as ‘conclusory allegations.’”12 Justice Johnson examined Lemire’s responses to the Department’s allegations, and concluded that several issues of fact remained.  He argued that because the Washington Administrative Procedure Act requires that this type of appeal to be viewed in the light most favorable to the nonmoving party13 and Lemire’s statements “amount to much more than ‘conclusory allegations,’’14 there were “genuine issues of material fact about whether or not the conditions [the Department of] Ecology’s witness (not a qualified ‘expert’) allegedly observed are present.”15

Justice Johnson also took issue with the majority’s application of the WPCA, asserting that the majority’s and Board’s approach was inconsistent with what the drafters of the statute intended.16

With respect to takings, Justice Johnson asserted that “to make it clear that the ‘question’ of whether or not our state constitutional takings provision offers greater protection than its federal counterpart has already been answered in the affirmative,” and cited two cases in support of this proposition.17 Pointing to the Washington Constitution Article I, Section 16’s provision that “[n]o private property shall be taken or damaged for public or private use without just compensation having been first made,” Justice Johnson maintained that “[t]he extent of this greater protection has not yet been fully delineated in all contexts.”18

Justice Johnson determined there was insufficient record evidence to establish a per se taking under Washington jurisprudence, reasoning that it was “possible that Lemire’s property has been ‘damaged’ by the order, but there is not enough evidence in the record to establish the type and magnitude of this damage.”19 Nonetheless, Justice Johnson premised his takings analysis on an apparent clarification or change in the Department’s interpretation of its order’s effect.20

V. Conclusion

Lemire did not establish any new jurisprudential doctrines or significantly expand on existing ones. But the opinion is noteworthy because it provides the Washington Supreme Court’s latest gloss on evidentiary requirements and burdens for judicial review of administrative agency orders affecting private property.


*Seth L. Cooper is an attorney in Washington State. In 2005-06 he served as a judicial law clerk at the Washington Supreme Court.



1  Lemire v. Department of Ecology, No. 87703-3 (Wash. Aug. 15, 2013).

2  Wash. Rev. Code § 90.48.

3  Justice Stephens’ opinion was joined by Chief Justice Barbara Madsen, by Justices Charles Johnson, Susan Owens, Mary Fairhurst, Charlie Wiggins, Steven Gonzalez, and by Justice Pro Tempore Tom Chambers.

4  Lemire v. Department of Ecology, No. 87703-3, slip op. at 7 (Wash. Aug. 15, 2013) (majority opinion).

5  Id. at 9.

6  Id. 9 (internal citation omitted).  The Superior Court stated, “There’s no testing, there’s no showing, there’s no increased numbers, there’s nothing.”

7  Id. at 10.

8  Id. (internal citation omitted).

9  Id. at 16 (citing U.S. Const. amend. V; Wash. Const., art. I, § 16).

10  Id. at 17.

11  Lemire v. Department of Ecology, No. 87703-3, slip op. at 2, (Wash. Aug. 15, 2013) (Johnson, J., dissenting).

12  Id. at 5.

13  Id. at 3 (citing chapter Wash. Rev. Code § 34.05 (internal citartion omitted)).

14  Id. at 13.

15  Id. at 13.

16  Id. at 11-12 (citing Wash. Rev. Code § 90.48.120(1)) (“According to the Board and the majority, in order for a rancher to create a “substantial potential” to pollute, all the rancher has to do is (1) have a state water body on his or her property that is not completely fenced off and (2) own cattle that occasionally cross or drink from the water body. That is it. Nothing else needs to be proved but those facts. Surely, that cannot be what the 1945 legislature intended by “substantial potential to violate.”).

17  See id. at 15 (citing Manufactured Hous. Cmtys. of Wash. v. State, 142 Wn.2d 347, 357-361, 13 P.3d 183 (2000); Brutsche v. City of Kent164 Wn.2d 664,681 n.11, 193 P.3d 110 (2008)).

18  Id.

19  Id. at 18.

20  Id. at 17 (“If we review the order, it clearly does not make any specific provision for the cattle to drink from or cross the creek . . . To the contrary, it requires “exclusion fencing,” “off-stream watering facilities,” and that Lemire eliminate “[l]ivestock access to the stream corridor” . . . It was only later in its briefing to the superior court and before this court that Ecology finally clarified that Lemire’s cattle would be allowed to drink from and cross the stream to reach the other pasturelands; this is argument, and it contradicts the challenged order in the record.”).


Washington Supreme Court Addresses Constitutionality of Water Pollution Control Mandate