Hearings in Kansas Constitutional Cases

The Kansas constitutional issues, which I’ve been tracking here because of their similarity to Washington’s McCleary case, continue to simmer.  It appears that the Kansas Supreme Court is hearing two separate cases, one involving school finance issues directly and the other involving the fallout from the Legislature’s political battle with the Court.

The Wichita Eagle reported last Friday, November 6th that the Supreme Court heard argument in the school finance case.  In this case, the Court has determined that the State has not fulfilled its duty to fund education, similar to the McCleary case here in Washington.

In the other case, involving the power of the courts to govern themselves and the effort by the Legislature to limit that power, oral argument has been set for December 10th.

Administration’s Left Hand Declines to Defend Right Hand

Ars Technica reported this morning that the Department of Justice has declined to defend the FCC in two lawsuits involving municipal-owned broadband networks.  Back in February, the FCC adopted an order preempting state laws that attempt to prohibit municipal broadband networks.  The states of Tennessee and North Carolina sued the FCC in March, complaining that the FCC does not have authority to preempt states in this area and seeking to nullify the Commission’s order.

These cases, and this development, are interesting on several levels:  interesting that the FCC felt emboldened to preempt under Section 706, interesting that the Commission’s original order was supported by the Administration, interesting that two states are challenging the order on grounds that it violates the nondelegation doctrine, principles of statutory interpretation, and federalism, and interesting to see the federal law enforcement agency back away from the cases.

The Ars Technica article quotes former FCC attorney Ronald May on the curious nature of the DOJ’s filing in the cases and the possibility that the Administration is second-guessing the FCC’s interpretation of its own authority:

The decision is “especially curious” because the FCC was following the wishes of President Obama, May wrote. “We don’t know for sure, but my best guess is that the DOJ, quite rightly, is concerned about the lawfulness of the FCC’s preemption action. If so, the concern is justified.”

Stay tuned . . . I’ll continue to track this story.

Symposium on Open Internet at ACSblog

The folks over at ACSblog have put together a nice little symposium on the FCC’s Open Internet Order and the ensuing rules:

ACSBLOG SYMPOSIUM ON FCC’S NET NEUTRALITY RULES

Net Neutrality and Regulatory Flexibility under Title II of the Communications Act

Network Equality and the End of Innovation

EFF Urges Federal Appeals Court to Protect Speech, Guard Against Censorship By Upholding Net Neutrality Order

Kansas Headed Toward Constitutional Meltdown

Earlier this month, a Kansas trial judge took a poison pill inserted by the Kansas state Legislature in June of this year, thus triggering what might turn out to be an epic separation of powers battle between the Legislature and the courts in the Sunflower State.  The object of the controversy is a 2014 bill, House Bill No. 2338, which strips certain powers from the Kansas Supreme Court over their budgets and their authority to select chief judges in the lower state courts.  That bill was seen by some as retribution by a Republican-led Legislature for two Supreme Court decisions in which the Court determined that school funding was constitutionally inadequate, not unlike our very own separation of powers battle here in Washington State in the McCleary case.

The poison pill, or self-destruct button, is a provision inserted in a funding bill this year by the Legislature.  This year’s bill provides that if a court overturns the 2014 legislation, then all funding for state courts  in this year’s funding bill will be “declared null and void.”

On September 2nd, Judge Larry Hendricks of the Shawnee County District Court declared House Bill No. 2338 unconstitutional, setting off a battle between the branches on two fronts:  (1) a continuation of the battle over the constitutionality of the House Bill 2338, and (2) the new battle over the  constitutionality of the poison pill/self-destruct button.

Non-Appropriation Theory Offered in Inter-Branch, ACA Dispute

In a fascinating recent opinion, the D.C. District Court ruled that a lawsuit filed by the U.S. House of Representatives against the Secretaries of Health and Human Services and the Treasury can proceed.  Judge Rosemary Collyer was not persuaded by the arguments of the Obama Administration that the House does not have standing to sue the Executive branch.  The decision is not a decision on the merits, but it presents a very unique constitutional theory.  The claim by the House is that the Administration is funding programs under the auspices of the Affordable Care Act without an appropriation of funds by Congress.

Lyle Denniston, of SCOTUSblog, perhaps captured the Administration’s arguments and the court’s decision best:

The government had urged the judge to dismiss the entire lawsuit, claiming that the House cannot meet one of the basic requirements for a right to sue in federal court — that is, that it would suffer a legal injury from what the government has done.  The House suffers no harm, the government argued, when the government chooses how to implement a law that Congress has enacted.

The judge, however, said the entire House of Representatives faces the potential loss of its specific authority to appropriate funds for government programs, if the government, in fact, has spent money without Congress’s prior approval.  “Neither the president nor his officers,” the judge wrote, “can authorize appropriations; the assent of the House of Representatives is required before any public monies are spent.  Congress’s power of the purse is the ultimate check on the otherwise unbounded power of the Executive.”

She added: “Disregard of that reservation [of power to the House] works a grievous harm on the House, which is deprived of its rightful and necessary place under our Constitution.  The House has standing to redress that injury in federal court.”

Judge Collyer calls this the Non-Appropriation Theory, and because no case like this has ever been considered by a court before, the Judge will likely be given some professional deference for her originality.

Review of Retired Justice Stevens’ Supreme Court Roundup

Earlier this month, Josh Blackman offered this play-by-play review of retired Justice John Paul Stevens’ recent Supreme Court roundup (July 31st) at the ABA International Human Rights Award Luncheon.  It’s an interesting “insider” view of the Court’s most recent term.  Justice Stevens offered his opinion on a wide range of cases, including King v. Burwell, Arizona State Legislature v. Arizona Independent Redistricting Commission, Glossip v. Gross, Obergefell, Lochner, and McDonald v. Chicago.

Washington State Supreme Court Imposes Sanctions in McCleary Case

The Washington State Supreme Court, today, issued a decision imposing sanction on the Legislature in the McCleary case.  Recall that the Court held, back in September of 2014, that the Legislature violated the state constitutional mandate that K-12 education is the paramount duty of the State and held the Legislature in contempt of court.  In spite of the Court’s holding at that time, it deferred on the question of which sanctions to actually impose.  Although members of the Court discussed and asked many questions about what types of sanctions would be most appropriate, it ultimately decided to delay the imposition of sanctions until after the completion of the 2015 legislative session.

The Court issued it’s decision on the question of sanctions today, without a subsequent hearing, a mere 24 business days following the last day of the 2015 legislative session, and a mere 13 business days following the filing of the Legislature’s required report to the Court.  Clearly, the Court had a plan for it’s next steps in the case and for the imposition of sanctions against the Legislature, well before the Legislature completed its 2015 session and before it heard from the Legislature following the session.

The central weapon in the Court’s sanctions order is a “penalty” of $100,000 per day until the Legislature adopts “a complete plan for complying with” the state constitution.  This is an interesting choice of sanctions, for several reasons.  First, the “penalty” will be paid into a “segregated account for the benefit of basic education.”  So, if the Legislature does nothing, the Court’s purposes will be fulfilled.  Granted, at the rate of $100,000 per day, the Court’s expectations won’t be satisfied for a few decades, but the sanctions, ironically, allow the Legislature to satisfy the Court without doing anything.

Second, the Court’s sanctions apply to “the State of Washington”.  (Throughout this case, the Court has made a tortured point to refer to the Legislature as “the State.”  Why?  The stated reason is, likely, that the state constitution mandates that “it is the paramount duty of the state” and the Court would likely explain that it is merely following the language of the Constitution.  But the more likely reason is that the Court is quite sensitive about stirring the pot of separation of power, so it repeatedly refers to “the State”, rather than “the Legislature”, as the target of it’s orders.  The Court must think we’re pretty dense.  It’s impossible for the Court to disguise it’s aggressive, inter-branch campaign.  The Court, consistent with it’s practice in this case, imposed the sanctions on the State of Washington.)  This presents an interesting question:  can the Court dictate the appropriation of state monies to this segregated fund where the state constitution clearly provides that the legislative authority of the State (including, presumably, the power to appropriate funds) shall be vested in the Legislature?  The Legislature could, in it’s constitutional discretion, ignore the Court.

And, finally, the Court attempts to strengthen it’s sanction by announcing that the penalties “will continue to accrue until the State achieves compliance.”  This is one of the most curious statements.  Granted, questions about the Court’s authority to enforce any sanctions against the Legislature have been swirling for years.  Now, this statement, in the context of the sanctions themselves, reads almost as if the Court finally and pathetically came to the realization that, when it comes to enforcing it’s will against another branch of government, is limited.  If we flash forward to 2018, the year the Court expects the Legislature to have completed it’s plan, and imagine that the Legislature has done nothing to complete such a plan, or hasn’t done what the Court expected, then what?  What can or will the Court do at that point?  Will it retain jurisdiction in the case for another 3 years?  Will it have the desire to continue the unconstitutional, inter-branch campaign?  Will the composition of the Court be different, with different Justices, with different opinions on the appropriateness of such a campaign?

Lots of open questions remain.  One thing’s for sure:  when the Court finally realized the limits of it’s authority, it meant that the State Constitution, and the critical concept of separation of powers, had prevailed.

The British Surveillance Perspective

I just ran across this fascinating article on what might be considered the British version of the Snowden and the NSA surveillance stories.  I haven’t read the entire article, but I think it might be more accurately characterized as the British perspective on those stories.  Plus, great photos . . .

GCHQ AND ME:  My Life Unmasking British Eavesdroppers

Supreme Court Asked to Review Warrantless Cell Phone Location Surveillance

The Supreme Court has been asked to review a case involving surveillance of cell phone location.  The story appeared in ars technica:

Warrantless mobile phone location tracking heads to Supreme Court

Will the justices rule for the government or Fourth Amendment privacy

by David Kravets

The US Supreme Court is being asked to resolve once and for all whether the authorities need a court warrant under the Fourth Amendment to obtain a suspect’s cell-site location data records.

The case the justices were asked to review Friday concerns a Florida man who got a life term for several robberies in a 2012 case built with his mobile phone’s location data the police obtained without a warrant.

The case has big privacy implications for anybody who carries a mobile phone. According to the government, that device may be tracked at will without the Fourth Amendment’s probable cause standard being met.

What’s more, the petition to the high court from defendant Quartavious Davis comes as cell-site tracking has become a choice surveillance tool in the aftermath of a Supreme Court ruling that said the authorities needed a warrant to affix GPS trackers to vehicles. In that 2012 decision, the high court declared that the government’s act of affixing a GPS device on a vehicle was the equivalent of a search usually requiring a warrant.

The American Civil Liberties Union is representing Davis and wants the high court to overturn a March decision (PDF) from the 11th US Circuit Court of Appeals, which ruled against Davis based on precedent from the analog age.

According to ACLU attorney Nathan Freed Wessler:

… the Eleventh Circuit relied on Supreme Court cases from the 1970s that held that certain limited information that people voluntarily share with third-party businesses can be accessed by law enforcement without a warrant. But the logic behind those precedents, known collectively as the “third-party doctrine,” has not held up well in the digital age.

The petition (PDF) to the Supreme Court says:

It is virtually impossible to participate fully in modern life without leaving a trail of digital breadcrumbs that create a pervasive record of the most sensitive aspects of our lives. Ensuring that technological advances do not ‘erode the privacy guaranteed by the Fourth Amendment’ requires nuanced applications of analog-age precedents.

In a string of federal appellate court decisions, the government had successfully argued that cell-site records are not constitutionally protected and instead are business records that telcos may hand over if the government asserts that reasonable grounds exist to believe the data is relevant to an investigation.

In all the decisions, the appellate courts and the government cited US Supreme Court precedent known as Smith v. Maryland—the same 1979 decision that paved the way for the National Security Agency’s telephone metadata snooping program that Edward Snowden exposed.

Given that no federal appeals court has sided with the Fourth Amendment on the issue, there’s a slim likelihood the Supreme Court would intervene at this juncture. However, a California federal judge ruled (PDF) this week that warrants were required for such data. If that is upheld on appeal, that could create the appellate court split that would make the issue ripe for the Supreme Court.

In the case pending before the Supreme Court, the data at issue encompasses MetroPCS records from August 1, 2010 to October 6, 2010. Davis, the defendant, made dozens of calls daily.

The data given to the government includes the dialed numbers of calls made by and to his phone. It also shows whether calls were incoming or outgoing and includes the date, time and duration of calls.

The key dispute involves the data about the cell tower that wirelessly connected the calls from and to Davis, and the location of those towers.

Vance Commentary Tees Up the Real Issues in McCleary

This morning, Crosscut posted Chris Vance’s commentary on the end of the legislative session and the next steps in the separation of powers fight between the Legislature and the Supreme Court in the ongoing McCleary case.

Commentary: Court will have a big say on Legislature’s school shortcomings

Vance sets up the coming storm:

Despite all the momentous and commendable policy decisions they made this year, legislators, by their own admission, failed to comply with the state Supreme Court’s order that they adopt a plan showing how they will achieve full state funding of basic education by 2018. And they adopted a budget that actually increases the unconstitutional reliance on local levies. So now all eyes turn to the Court. Will they take action to force lawmakers back to Olympia to deal with education funding?

He spends much of the op-ed crediting Republicans in the Legislature for the reforms and budget solutions, and then returns to McCleary.  Vance correctly points out what I’ve been preaching for some time, that very few, including those in the Legislature, appreciate the profound nature of the constitutional issues involved in this case:

As I wrote earlier this year, despite the fact that this issue has been percolating for decades very few people seem to really grasp what the McCleary decision is all about. This was a common observation among education lobbyists throughout the 2015 session.

Vance gives us a nice, concise review of the details of the case:

So let’s review McCleary:

The Washington State Constitution says it is the state’s “paramount duty” to “amply fund” a “uniform” system of public schools.

Our per-pupil expenditures are among the lowest in the nation. That’s not ample. And school districts rely on local levies for up to one-third of their funding. Given the disparities in local wealth and levy funds among districts, that’s not uniform.

The original, 2012 McCleary decision directed the state to fund a new “prototypical school model” by 2018 without the use of levies. The Court didn’t pull this order out of thin air; they were simply directing the Legislature to actually fund the education model, and meet the timelines legislators themselves established when they passed House Bill 2261 in 2009.

Then, Vance captures the real issues in the case better than any other story I’ve seen to date:

Little progress was made during the 2012 and 2013 sessions so the court justices ordered the Legislature to show them a specific, detailed, “complete” plan in 2014 for achieving full funding by 2018. The 2014 Legislature failed to adopt such a plan. The court found the state in contempt but withheld sanctions until after the 2015 session. But the Legislature, once again, did not pass a McCleary plan this year.

Why is this so difficult? Because actually meeting the court’s order will require billions of new dollars over and above what the Legislature has already spent. And doing away with levies for basic education will impact local bargaining, potentially changing dramatically how we govern our schools.

Yes, the Legislature has put roughly $2 billion more into our schools in the past two budgets. Lawmakers have reduced class sizes in grades K-3, and put money into all-day kindergarten and school transportation, materials and operating costs. But that is just the beginning of the state’s obligation.

There are still thousands of teachers and other educational staff who derive some or all of their compensation from local levies. That’s unconstitutional. The state must pay 100 percent of the compensation for basic education. In addition, the prototypical school model referred to by the court includes lower class sizes in grades 4-12, and the hiring of thousands more paraeducators, administrators, counselors and support staff. The total additional cost to fully implement the model without local levies is over $5 billion per year.

So the Legislature has to find a funding source to replace levies and increase overall education spending by billions of dollars. Ideas have been floated and bills introduced, but to this point there has been no political will to engage in serious bipartisan, bicameral negotiations on this huge issue.

Similarly, there is no consensus on how to limit the use of levies and change education governance. The powerful Washington Education Association, which represents teachers, is adamantly opposed to a law undermining local bargaining, but if you can’t use levies to fund basic compensation, what is there to bargain over locally?

Folks, the Court’s expectation is not simply that the Legislature appropriate a certain amount of new money to K-12, whether in 2015 or by 2018.  The Supreme Court expects, in addition to those funding targets, a dedicated revenue source for K-12 and a solution to the levy issue.  The Legislature might not ever be able to deliver on this expectation, not in 2015 nor by 2018.

Vance wraps up his op-ed:

The 2015 Legislature put more money into K-12, but it made no progress on these daunting structural issues and the legislators have no plan to show the court. In fact, four years after the original McCleary decision, the State of Washington still has no plan for how to create a constitutional educational funding system.

What will the state Supreme Court do? No one knows. But a common belief in Olympia is that the court must now take some sort of action, and that action will most likely result in lawmakers returning to work for a fourth special session sometime this year. A decision from the court seems likely before Labor Day.

So will the 2015 Legislature be remembered for achieving remarkable bipartisan progress on transportation and higher education, or for failing to avoid a messy constitutional showdown over education funding? Stay tuned. We’re not done yet.

Excellent analysis by Vance.  But the real issue here, and one that no one seems eager to focus on . . . yet, is whether the Supreme Court is stepping beyond the constitutional limits on its authority.  That’s a bigger question that I’ll take up in a later post.