Sixth Circuit concludes that the Kentucky Billboard Act violates the First Amendment.

The Kentucky Billboard Act requires a permit for billboards that advertise off-site activities—but no permit is required for on-site billboard advertising. Lion’s Den, an “adult superstore” that sought to advertise to interstate drivers with a billboard on a neighbor’s property, challenged the law as a violation of its rights under the First and Fourteenth Amendments. The district court agreed with Lion’s Den and enjoined enforcement of the Act. Recently, the Sixth Circuit affirmed.

Judge Sutton’s opinion for the court proceeded from the proposition that government regulation of speech based on its content is constitutional only if the regulation satisfies strict scrutiny. The on-site/off-site distinction is content-based: to know which rules apply to a billboard, one has to know the message on the billboard. Continue Reading

Certifying Questions To State Supreme Courts – Lessons from Lindenberg

In our prior post, we noted that the Sixth Circuit seldom grants motions to certify questions of state law.  And even though the circuit grants less than 20% of such motions, the questions still have to be accepted by the state supreme court.  But the certification process is often a rough road.

No recent case better exemplifies those difficulties than Lindenberg v. Jackson Nat’l Life Ins. Co., 912 F.3d 348 (6th Cir. 2018), which held that Tennessee’s statutory cap on punitive damages violates the state constitution.  The district court had actually granted certification on that question but the Tennessee Supreme Court (after a seven month delay) declined to take the issue because certain factual questions had not been resolved.  The state court suggested instead that certification might be appropriate once the case was on appeal.  And, in fact, the State of Tennessee later intervened in the appeal and suggested, in a footnote, that the issue should be certified.  The panel, over a dissent from Judge Larsen, decided that the statutory cap violated the state constitution without certifying the question.

The Sixth Circuit’s denial of rehearing en banc produced some important separate opinions that are worth reading for anyone interested in certification.  Judge Bush argued that the Sixth Circuit should set clear standards for certification.  He saw Lindenberg as ideal for certification because the panel had invalidated a state law based on the state constitution in a decision that would encourage forum-shopping, and where the state supreme court had suggested certification would be appropriate on appeal.  Judge Nalbandian wrote separately to encourage the use of certification on federalism grounds.

Judge Clay, in turn, emphasized that certification should be left to the discretion of the panel, and noted the potential for delay:  “I am personally aware of multiple instances in which state courts in our circuit have sat on certification requests for up to a year or more, only to deny the requests without taking any action.”  Worries about unnecessary delay were especially sharp in Lindenberg, as Judge Clay was writing a full five years after the jury’s verdict.

There is no question that certification entails significant delay.  Circuit courts take a couple of months to a year to decide certification motions (about the same pace as merits decisions).  Then the state supreme court has to decide whether to accept the question, which takes about four to six months on average.  They then need to decide the merits, which averages another five to six months.  Then case goes back to the Sixth Circuit, which takes another couple of months to a year.  Studies show that seeking certification delays a Sixth Circuit appeal, on average, by a little more than a year—but the delay can stretch up to two years.  (See here and here, among others.)

Lindenberg, however, also illustrates the friction that can be caused by federal courts deciding important issues of state law.  Not long after that decision, the Tennessee Supreme Court took the unusual step of calling out Lindenberg as “unpersuasive” even though the statute was not at issue in that case.  The court also pointedly criticized the Sixth Circuit’s decision not to certify, stating that “the procedure for certifying questions of state law to this Court is designed to promote judicial efficiency and comity, and to protect this State’s sovereignty.”  McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 693 n.8 (Tenn. 2020).  (This censure is, of course, tempered by that court’s lower-than-average willingness to accept certified questions.)

While the certification process can be rough, there are a number of steps litigants can take to maximize their chances of success.  We’ll talk about those in the next post on this issue.

Academic focus on a pending Sixth Circuit en banc

Almost a year ago, the Sixth Circuit reheard en banc Preterm-Cleveland v. Himes, which involves a constitutional challenge to an Ohio law that bans abortion where the reason for the abortion is that the fetus has or may have Down syndrome. After the en banc oral argument, the Supreme Court decided June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020), but no single opinion garnered a majority of the Justices. The parties in Preterm-Cleveland promptly filed dueling 28(j) letters that addressed June Medical and, specifically, the import of Chief Justice Roberts’s concurring opinion.

The en banc case remains pending. Now Professor Marc Spindelman of Ohio State’s Moritz College of Law has published this article in the Georgetown Law Journal Online that analyzes in greater depth the meaning of the Chief Justice’s concurring opinion and applies that analysis to Preterm-Cleveland.

Certified Questions To State Supreme Courts Are Especially Rare In The Sixth Circuit

Nearly every state allows federal courts to certify questions of state law to obtain definitive answers from state supreme courts on unsettled issues of state law.   The United States Supreme Court has explained that certifications “saves time, energy, and resources and helps build a cooperative judicial federalism.”  All states, except North Carolina, have rules or statutes allowing their highest court to accept certified questions from federal courts on questions of state law.  Though federal courts decide unsettled questions of state law every day, this procedure remains rarely used—and it is especially rare in the Sixth Circuit.

Studies have shown that some circuit courts are far more likely than others to certify a question of state law.  For example, one recent study by the FJC shows that the Ninth Circuit grants the parties’ motions to certify issues of law about 90% of the time.  The Third Circuit grants such motions about 50% of the time, the Tenth Circuit grants only 30% of the time, while the most recent study states that the Sixth Circuit granted only 17% of motions to certify between 2010 to 2018.

But that’s not the only hurdle.  The state supreme court also needs to accept your appeal.  In the Sixth Circuit, the state supreme courts have historically accepted and decided the certified question about 60% of the time.   By comparison, state supreme courts in the Third and Ninth Circuits issued opinions on the issue of state law in about 80% of the certified cases.

Assuming those numbers are accurate, litigants in the Sixth Circuit will have an uphill battle attempting to get an answer on state law from a state supreme court.  Even though motions to certify are rare in the Sixth Circuit, only about 10% of those motions will ultimately result in an answer on the merits of the question from the state supreme court.  By contrast, the same motion is about seven times more likely to result in a decision on state law from a state supreme court.

In a following post, we’ll discuss the ways litigants can increase their chances of success for a certified question in the Sixth Circuit.

A “Side Note” About Ripeness

The Sixth Circuit recently decided OverDrive Inc. v. Open E-Book Forum, a copyright case with an Article III twist.  Pertinent here, the plaintiff argued that a potential transfer of assets—that might or might not occur in an impermissible way—would (if it occurred in that certain way) “violate the [Copyright] Act in the future.”  That framing was bound to perk up the ears of any federal court, and the panel’s (Boggs, Sutton, Nalbandian) application of the ripeness doctrine to the case at hand was straightforward; it concluded that the plaintiff was asking the federal courts to wade into a hypothetical dispute, riddled with “contingencies and speculation” that “obstruct federal ‘judicial review.’”

Notably, however, the panel offered a “side note” forecasting a different future dispute – this one about ripeness doctrine.  The standard, two-question ripeness inquiry asks (1) “[d]oes the claim arise in a concrete factual context and concern a dispute that is likely to come to pass?” and (2) “[w]hat is the hardship to the parties of withholding court consideration?”  The OverDrive panel notes that just “one negative answer creates a ripeness problem.” But could a court really ever answer “yes” to the first question, but then decline to exercise jurisdiction based on a “no” answer to the second?  The OverDrive panel thinks that’s “doubtful,” pointing to recent Supreme Court precedent reminding federal courts that their “obligation to hear and decide cases within [their] jurisdiction is virtually unflagging.” Kiser v. Reitz, 765 F.3d 601, 606–07 (6th Cir. 2014) (internal quotation marks omitted) (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014)).  “For now,” the panel says that courts should continue to look at both questions, see Trump v. New York, 141 S. Ct. 530, 536 (2020) (considering both ripeness questions), though “[p]erhaps over time the second inquiry will merge into the first, merely offering a way of establishing concreteness, or its absence[.]”  Of course, that determination will have to wait for a future dispute.

Sixth Circuit practice tip: pendent appellate jurisdiction

The Sixth Circuit’s recent decision in Watkins v. Healy is an interesting read on its own:  Ledura Watkins was released after 42 years in prison for a murder conviction that was overturned with the help of the WMU-Cooley Innocence Project.  Watkins has now brought a 42 U.S.C. § 1983 civil rights suit against the alleged key players in his conviction, which was based on a single hair and a classmate’s repeatedly recanted testimony.  But the opinion also includes some useful pointers on appellate jurisdiction.  Continue Reading

Supreme Court Denies Certiorari in Challenge to Michigan’s Alcohol Delivery Law

On Monday the Supreme Court addressed—or, perhaps more to the point, chose not to address—an issue close to the hearts of many in the midst of a pandemic: home delivery of fine wine and spirits.  The Court declined to review the Sixth Circuit’s decision in Lebamoff v. Whitmer, which upheld the State of Michigan’s alcohol delivery laws in the face of a dormant Commerce Clause challenge.

Like many states, Michigan employs a “three-tier system” for alcohol distribution.  State-licensed alcohol producers and manufacturers (first tier) sell their products to licensed wholesalers (second tier), who in turn distribute the product to licensed retailers (third tier).  Participants in each tier are heavily regulated by the State, which retains the authority to impose price controls, taxes, and other health-and-safety regulations.  By requiring all alcohol entering the State to pass through this three-tier system, Michigan ultimately controls the amount of alcohol sold within its borders.

In 2016 Michigan enacted a statute permitting licensed retailers (the third tier) to offer home delivery.  While consumers undoubtedly welcomed this development (particularly on those harsh winter weekends when they were facing—and losing to—the Ohio State Buckeyes), retailers in neighboring states apparently were not impressed.  An Indiana retailer, Lebamoff Enterprises, sued the State, arguing that the statute violated the dormant Commerce Clause by allowing in-state—but not out-of-state—retailers to deliver alcohol to Michigan residents.

The Sixth Circuit rejected Lebamoff’s argument this past April, holding that the statute was a valid exercise of the State’s authority to regulate the importation of alcohol under the Twenty-first Amendment. Continue Reading

New year comings and goings

Happy New Year from everyone here at the Sixth Circuit Blog!  We’re kicking off 2021 with some exciting news.  Ben Beaton, my appellate practice co-chair who often graced these pages, was sworn in last month as a US District Judge for the Western District of Kentucky.  We will miss Judge Beaton and his contributions to SPB’s work.  But we couldn’t be happier for him, and all of WDKY, as he surely will make a very fine judge.  We’re also pleased to announce that Keith Bradley, an appellate and regulatory specialist based in Denver, will serve as co-chair and help continue to grow our national practice.  You can read about Keith’s deep experience in appellate and administrative law and his impressive background here and here.

All our best wishes for 2021.  Stay tuned as we cover the latest developments out of the Sixth Circuit during these unusual times.

Assessing the amount in controversy when seeking to vacate an arbitral award

Yesterday’s published decision in Hale v. Morgan Stanley Smith Barney LLC established the law of the circuit on a nifty issue of subject matter jurisdiction in the context of arbitration. Where a plaintiff from one state has initiated arbitration against a defendant from another state, seeking millions, but has then received an arbitral award of zero, does a federal court have diversity jurisdiction to entertain the plaintiff’s motion under 9 U.S.C. § 10(a) to vacate the arbitral award? Yes, it does. In an opinion by Judge Donald for a panel that also included Chief Judge Cole and Judge Readler, the Sixth Circuit revisited its last published opinion germane to the issue (decided over 25 years ago!) and explained that its conclusion “was not that the amount of the arbitrator’s award should be considered when calculating the amount in controversy in this context, but that in making such determinations, it is necessary to look to the amount alleged to be in controversy in the complaint.”

Is Title IX’s deliberate-indifference standard a question of law for the court to decide? Yes—at least “in an appropriate case,” says the en banc Sixth Circuit.

Continuing an active year for Title IX precedent, the Sixth Circuit issued an en banc decision in Foster v. University of Michigan, which adds further contour to the Circuit’s Title IX “deliberate indifference” jurisprudence. It also implicitly raises—but does not necessarily answer—important questions regarding the appropriate standard of review for such claims.

In Foster, a divided panel (Judges Clay, Moore, and Sutton, with the latter dissenting) had reversed the district court’s grant of summary judgment for the University of Michigan, holding that the plaintiff had established a genuine dispute of material fact regarding whether the school was deliberately indifferent to the sexual harassment she suffered from a fellow student (the respondent). The original panel majority and dissenting opinions agreed that the plaintiff was subjected to sexual harassment and that the school had notice of that harassment. So, as is often the case, the only remaining question was whether the school’s response was “clearly unreasonable in light of the known circumstances” such that it amounted to “deliberate indifference” under Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999). The panel originally concluded that questions of fact remained regarding whether Michigan’s response to the respondent’s harassment was actionable under Title IX, including, among others, whether Michigan had conceded that its response was inadequate yet failed to take any additional measures and whether the university adhered too long to its “no contact order” remedy in the face of mounting evidence that the respondent was likely to violate that order. 952 F.3d 765, 784–88 (6th Cir. 2020).  Judge Sutton dissented, and would have held that Michigan’s response was appropriate “proportionate escalation.” The dissenting opinion at the panel stage worried that the majority was “dilut[ing] deliberate indifference into mere reasonableness.” Id. at 791–95.

The Sixth Circuit took the case en banc and affirmed the district court’s judgment, holding, as a matter of law, that Michigan did not show deliberate indifference.  The en banc majority (Sutton, J.), echoing the Supreme Court in Davis, explained that the deliberate-indifference standard presents a “high bar” to imposing Title IX liability on a university and that, “[i]n an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not [deliberately indifferent] as a matter of law.”  (Slip Op. at 7, 14–15.)  Plaintiff’s case, according the en banc majority, was such a case. Continue Reading

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