Covid E-Signature Voter Case on (Very) Fast Track from Ohio to En Banc Review?

Just two days after a federal district court’s preliminary injunction allowed use of e-signatures to satisfy some Ohio election requirements, the Ohio Attorney General has taken the unusual step of asking the en banc Sixth Circuit to overturn or stay the injunction. And the Sixth Circuit responded with equal if not greater alacrity, calling within hours for short-fuse opposition briefing.

Ohio groups advocating minimum-wage, voting-rights, and marijuana ballot initiatives for the fall election asked the Southern District of Ohio to allow electronic signatures to satisfy voting-law requirements. Public-health concerns surrounding coronavirus transmission, they argued, made traditional pen-and-paper signatures untenable. The Ohio Constitution, however, requires signatures in ink, and the state has raised concerns regarding fraud.

The district court held that the First Amendment, under current circumstances, entitles the advocacy groups to use electronic signatures and requires Ohio to extend the signature-collection deadline by a month to July 31. The court declined, however, to reduce the number of signatures required or to simply place the initiatives on the ballot directly. This decision follows hot on the heels of the Sixth Circuit’s May decision in Esshaki v. Whitmer, 2020 WL 2185553 (May 5, 2020), a split order, which addressed the First Amendment’s applicability to state election signature requirements and deadlines.

The Ohio AG’s appeal is notable for its speed (filed less than two days after the district court order) and its target (straight to en-banc review). The government also requested an administrative stay and stay pending appeal. Four hours later, the court asked the plaintiffs to respond to the en banc petition in a week. Happy drafting!

Following the initial surge of covid-related litigation over shutdown orders and religious gatherings, Ohio’s election appeal is part of a next wave of pandemic litigation worth watching. The case is Thompson v. DeWine, No. 20-3526.

Sua Sponte En Banc Rehearing Granted in Right-to-Education Case

The full Sixth Circuit has voted to rehear the Detroit right-to-education case. This vacates the panel decision holding that access to literacy was a fundamental constitutional guarantee.

The court’s order comes only 6 days after Michigan Gov. Gretchen Whitmer announced a settlement with the student plaintiffs and sought dismissal of the suit on mootness grounds.  One group of defendants and another group of would-be intervenors had asked the court to go banc. Other defendants, meanwhile, supported the settlement and opposed their co-defendants’ authority to continue the fight.

(All of which would amount to a veritable fed-courts feast–or famine. Furloughed 3Ls from Michigan to Tennessee can say a prayer of thanksgiving for p/f  this semester. Silver linings!)

Notably, the court’s order indicates that a judge *sua sponte* called for the rehearing vote. So those predicate procedural questions regarding intervention, standing, and litigating authority remain unanswered, if diminished in importance, at least for now.

Michigan Settlement Attempts to Moot Potential En Banc Review of Right-to-Literacy Ruling

Last night the State of Michigan and students from Detroit public schools reached a settlement agreement in a case concerning whether those students had a constitutional right of “access to literacy.” News reports indicate the settlement includes a legislative request by Gov. Whitmer for $94.5 million in literacy funding for Detroit schools, $280,000 for seven student plaintiffs, and creation of two task forces focused on educational quality.

As previously reported on this blog, a split Sixth Circuit panel found in Gary B. v. Whitmer  that the Fourteenth Amendment’s Due Process Clause protected a right to a basic minimum education, which included a “foundational level of literacy.”

The settlement with students comes shortly after the Michigan Legislature moved to intervene and tendered a petition for rehearing en banc. The court has not yet ruled on the Legislature’s motion to intervene. Additionally, the Michigan State Attorney General, on behalf of two of the State Board of Education members who are defendants in the suit, petitioned for rehearing en banc,  but, in an unusual filing, some defendants moved to withdraw the Rehearing petition filed by the same office on behalf of the other defendants. The parties indicated in a joint filing to the clerk that the student plaintiffs plan to move to dismiss the case in its entirety as moot.

Eagle-eyed appellate lawyers may have spotted a lurking question whether U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership and the Munsingwear doctrine have any implications for the precedential status of the panel decision under these circumstances. We will stay tuned to see whether that question is asked or answered in the coming days.

Supreme Court Trims Wire Fraud Theory of Public Corruption in Bridgegate Decision

The Supreme Court revisited the Chris Christie administration last week with a decision in Kelly v. United States that reversed the corruption convictions of two top gubernatorial aides. The charges stemmed from their role in the partial closing, and resulting traffic jam, of the George Washington Bridge.

Sixth Circuit blogger Ben Glassman recently published his views on how the ruling will–and won’t–affect public-corruption prosecutions going forward.

Although the Supreme Court characterized this conduct as an abuse of power, it held that Kelly and Baroni had not committed federal wire fraud or fraud against a federally funded program because both laws criminalize schemes to obtain money or property—and the defendants here sought political punishment, not property. …

Substantively, the Kelly decision does cut back somewhat on federal prosecutors’ ability to use wire fraud in charging public corruption. It gives additional force to arguments that the use of public employees’ time and labor must be an object of the scheme, not incidental to it. But it does not cut back that statute in nearly the way that Skilling v. United States, 561 U.S. 358 (2010), narrowed the construction of honest services fraud.

You can read the whole post here.

 

Sixth Circuit Concurrence Fears Courts May Be Groovin’ to the Wrong Tune in Copyright Cases

It’s a question we know has been keeping you up at night, as you reach deep into your quarantine discography: who is (or are) the true author(s) of the Everly Brothers hit, Cathy’s Clown?  Sadly, those looking for finality will have to wait.  On Monday, a Sixth Circuit panel held that question must be resolved by a jury.  As Dick Clark presciently recognized on American Bandstand, the song is “a little unusual, a little strange,” and so is the dispute in Everly v. Everly.

Brothers Out of Tune

Don and Phil Everly—together, the Everly Brothers—recorded and released Cathy’s Clown in 1960 and both shared in its success for many years.  The brothers, originally credited as co-authors, each granted 100% of the copyrights to Cathy’s Clown to a publication company in exchange for royalties.  Unfortunately, the brothers’ musical harmony did not extend to their personal relationship, and by 1973 Don and Phil had ceased speaking to each other.  Phil passed away in 2014, but now, Don and Phil’s successors each claim to have copyright interests in Cathy’s Clown.  Don claims he is the sole author of the song, while Phil’s successors maintain the brothers wrote the song together.

Don sued Phil’s successors in 2017, seeking a declaration that his late brother is not a co-author of Cathy’s Clown and Don owns 100% of the copyright termination rights in the song, including 100% of the royalties.  Phil’s successors counterclaimed for a declaration that both brothers were authors.  The district court granted summary judgment in favor of Don, which turned on the court’s finding that Phil’s authorship had been expressly repudiated no later than 2011 (when Don filed his copyright termination notice and claimed to be sole author of Cathy’s Clown), thus triggering the 3-year statute of limitations.  Accordingly, the district court ruled, any claim Phil may have had to authorship was forfeit by 2014.

Jury To Sort It Out

In a split decision (Bush, J., opinion, joined by Murphy, J.), the Sixth Circuit reversed.  It held that a genuine factual dispute existed regarding whether Don expressly repudiated Phil’s authorship.  Analogizing to “the doctrine of adverse possession in real property,” the court explained the statute of limitations for a copyright ownership claim begins to run whenever one author makes a “plain and express repudiation” of authorship against a putative co-author.  Because the record did not establish such a plain and express repudiation as a matter of law by Don against Phil as a co-author, the court enlisted the jury “to sort it all out.”

Doubt-Filled Concurrence

Judge Murphy, although agreeing with the outcome, wrote separately to “express doubt over [whether the plain-and-express repudiation] test is the right way to think about the start date for this statute of limitations.”  Judge Murphy takes issue with the well-worn “groove” courts “have gotten into” of mechanically applying the plain-and-express repudiation test—a “discovery rule” that triggers the statute of limitations period when a putative author “discovers or should have discovered” a co-author’s clear challenge to the others’ authorship status.  According to the concurrence, the text of the Copyright Act and Supreme Court precedent mandate a copyright authorship claim accrues (i.e., the statute of limitations begins to run) “on the date that a violation of the plaintiff’s legal right has occurred.”  As Judge Murphy sees it (quoting Nimmer on Copyright), “courts ‘should not deem the statute of limitations to start running until [a] claim has matured to the point of being legally cognizable.’”  And, Judge Murphy “do[es] not think one owner’s notice disputing another’s ownership interest suffices to create a ‘complete and present’ claim in this ownership context.”

But after setting the hook, Judge Murphy stops short of reeling in the catch.  He “remain[s] unconvinced by the plain-and-express-repudiation test,” but “confess[es] doubt . . . over when this sort of ‘claim’ does ‘accrue’ under the statute of limitations.”  The “few possibilities” apart from the plain-and-express repudiation test put forth in the concurrence admittedly “fray” and “wrinkle” by interjecting principles of “state-created claim[s],” thus calling into question the applicability of the Copyright Act’s statute of limitations altogether.  But, according to the concurrence, those “difficult questions [are] for another day,” and for some other “poor soul”—likely the Supreme Court—“tasked with getting [the courts] out” of their unfortunate groove.

Supreme Court to Review Split Sixth Circuit Decision on Judicial Review of Agency Guidance         

This morning—in connection with the Supreme Court’s inaugural teleconference arguments—the Court announced it would review the Sixth Circuit’s decision in CIC Services v. IRS. That case covers the applicability of the Anti-Injunction Act to a challenge to IRS guidance.

Certiorari is not altogether surprising, given the sharply contrasting views (and vivid language) the case elicited at the Sixth Circuit.

  • Judge Clay’s panel opinion and en banc-denial concurrence decried “death by distorted originalism on the modern administrative state.”
  • Judge Nalbandian’s panel dissent criticized the plaintiff’s choice between “risk[ing] financial ruin and criminal prosecution.”
  • Judge Thapar’s rehearing dissental contended that “people should not have to risk prison time in order to challenge the lawfulness of government action.”
  • And Judge Sutton’s rehearing concurrence–which hinted at today’s outcome–stressed that “[i]n a dispute in which the Court’s decisions plausibly point in opposite directions, it’s worth asking what value we would add to the mix by en-bancing the case in order to create the very thing that generally prompts more review: a circuit split.”

The blog’s previous coverage of the case is available here and here. Now we wait to learn whether covid means we’ll be dialing into the conference-call argument on C-SPAN this fall, or whether the Justice Department will get/have to defend its guidance regime in person.

Opioid Update: Judge Kethledge Reclaims Solitude—and Civil Procedure

Perhaps the most notable Sixth Circuit opinion of April—and almost certainly the most quotable—was Judge Kethledge’s opinion granting mandamus and reversing leave to amend in the opioid MDL.

For a unanimous panel (Siler & Griffin, JJ.), the opinion followed the Circuit’s stay of Judge Polster’s discovery order back in February. That order would’ve required pharmacies “to produce data for nearly every opioid prescription that they have filled anywhere in the United States for the past 13 years.”

The mandamus grant, however, reached back one step further, faulting the court for granting the county plaintiffs’ leave to amend their complaint to add dispensing claims against pharmacies, 19 months after the deadline for amendments and 10 months after the close of discovery. Under FRCP 16(b), the court held, “[n]ot a circuit court in the country, so far as we can tell, would allow a district court to amend its scheduling order under these circumstances.”

The opinion is a treat to read, and we’ll let it speak for itself below. But beforehand, permit us to commend another eloquent and fascinating effort from Judge Kethledge, albeit further afield from the normal Sixth Circuit fare: this Tedx Talk at the University of Michigan, Reclaim Solitude. The subject is of course very on brand for the judiciary’s foremost advocate of solitude. (Check amazon.com and your local socially distant bookstore for Lead Yourself First.)

Three quick teasers for the speech: you learn Judge Kethledge’s first and second semester undergraduate GPAs at UofM (which would be quite good, if you add them together!); the parents among us hear compelling arguments against youngsters’ smartphones, a/k/a the Devil’s Hand Grenades; and you’ll glimpse the view from the Lake Huron hamlet where Kethledge opinions often are drafted—the most recent of which we’ll return to now.

In the opioid mandamus opinion, Judge Kethledge makes clear, plainly and repeatedly, that “the rule of law applies in multidistrict litigation … just as it does in any individual case.” As promised, we’ll let the opinion speak for itself, in solitude:

  • “An MDL court’s determination of the parties’ rights in an individual case must be based on the same legal rules that apply in other cases, as applied to the record in that case alone. Within the limits of those rules, of course, an MDL court has broad discretion to create efficiencies and avoid duplication—of both effort and expenditure—across cases within the MDL. What an MDL court may not do, however, is distort or disregard the rules of law applicable to each of those cases.”
  • “Neither the Counties nor the district court have even attempted to show that the Counties demonstrated diligence as required by Rule 16(b). Quite the contrary: as the district court recognized then, and as the Counties concede now, the Counties did not bring their dispensing claims earlier because they expressly chose not to bring them.”
  • “Not a circuit court in the country, so far as we can tell, would allow a district court to amend its scheduling order under these circumstances.”
  • “The district judge in this case is notably conscientious and capable, and we fully recognize the complexity of his task in managing the MDL here. But the law governs an MDL court’s decisions just as it does a court’s decisions in any other case.”
  • “Respectfully, the district court’s mistake was to think it had authority to disregard the Rules’ requirements in the Pharmacies’ cases in favor of enhancing the efficiency of the MDL as a whole. True, § 1407 provides for the transfer of certain actions to MDL courts to “promote the just and efficient conduct of such actions”; and true, Civil Rule 1 says that the Rules should be construed “to secure the just, speedy, and inexpensive determination of every action and proceeding.”
  • “MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance. For neither § 1407 nor Rule 1 remotely suggests that, whereas the Rules are law in individual cases, they are merely hortatory in MDL ones.”
  • “An MDL court must find efficiencies within the Civil Rules, rather than in violation of them.”

Coronavirus Update: Sixth Circuit Judicial Conference Rescheduled for June 2021

Those seeking a return to normalcy will be heartened to hear that the Sixth Circuit Judicial Conference, canceled due to the pandemic, has been rescheduled.

Those seeking a cautious reopening will be heartened to hear that the Conference will be held in June…June 2021.

From Chief Judge Cole:

The Sixth Circuit Judicial Conference has been rescheduled to take place June 16 – June 18, 2021, at the Hilton Downtown Cleveland Hotel in Cleveland, Ohio.

We expect to have conference-related information, including conference registration, available to participants in February 2021.

Stay tuned for more reopening updates as–we sure hope–more green leaves begin to appear after the flood.

Sixth Circuit Holds Due Process Guarantees Right To Access Literacy

A Sixth Circuit panel held last week, in Gary B. v. Whitmer, that the Fourteenth Amendment’s Due Process Clause guarantees a “right to access to literacy.” As a result, students in some of Detroit’s worst-performing public schools may pursue their claim for improved educational offerings—at least absent further appellate review.

The district court dismissed the students’ due process claim because “a basic minimum education is not a fundamental right.” The Sixth Circuit panel majority (Clay (op.), Stranch, JJ.) disagreed. Its 61-page opinion relied on the ubiquity of public education at the time of Fourteenth Amendment’s ratification, the historical overlap between racial discrimination and education policy, and the necessity of literacy to political participation.

The dissent (Murphy, J.) objected to the court’s encroachment on state policymaking prerogative. The 23-page response emphasized the Supreme Court’s rejection of similar right-to-education claims in the equal protection and due process caselaw, as well as the inherent tension between the negative restrictions of the due process clause and the positive claims of the plaintifs’ complaint.

Unquestionably, both opinions are—to use Judge Murphy’s description of the majority—”eloquent.” But they are at loggerheads on questions fundamental to the notion of due process.

  • Is the right to literacy “implicit in the concept of ordered liberty,” or “a mere proxy for a right to education, which has long been rejected as a fundamental right”?
  • Is a “compulsory attendance” policy applied to a failing school a type of “arbitrary detention” prohibited going “back to Magna Carta,” or a duty students can choose to satisfy in a number of venues (charter, private, “cyber,” and home schools, for example).
  • Is a “fundamental right” under the substantive aspect of the Due Process Clause one whose “evolution” courts “trac[e] … through or even beyond the history of our country” (citing Obergefell), or one measured at the time of the clause’s ratification or incorporation?
  • Did Supreme Court precedents denying prior constitutional assertions of educational rights (San Antonio v. Rodriguez, Plyler v. Doe, Papasan v. Allain) reserve or foreclose the question of a right to access to literacy?
  • How if at all did the Michigan Supreme Court’s rejection of a similar claim under its state constitution’s specific free-public-education clause affect the application of the U.S. Constitution’s generic due-process provision?
  • And can the Due Process Clause’s negative restriction of state “depriv[ation]” of “life, liberty, or property” support a positive right to a “subsidy” to “compel a minimum level of public services” (in the dissent’s view)?

The decision represents a huge victory for friend-of-the-blog Carter Phillips and, more importantly, the Detroit student plaintiffs. Yet this will not be the courts’ last word on the matter. The decision suggests little about the showing plaintiffs must make (or relief they could justify) on remand. And before plaintiffs may focus on those questions, they may have to fend off en banc or cert petitions that at least some judges or justices could find compelling.

Cert Watch: Supreme Court to review split Sixth Circuit FTCA decision on election-of-remedies

The Supreme Court recently granted certiorari in Brownback v. King, agreeing to review a split decision from the Sixth Circuit (then styled King v. US) involving the contours of the Federal Tort Claim Act’s judgment bar.  The Court’s decision should help resolve confusion regarding whether plaintiffs should add FTCA claims to their Bivens actions.

28 U.S.C. § 2676 provides that a judgment on an FTCA claim “shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.”

The Supreme Court recently interpreted the FTCA’s judgment bar: “once a plaintiff receives a judgment (favorable or not) in an FTCA suit, he generally cannot proceed with a suit against an individual employee based on the same underlying facts.”  Simmons v. Himmelreich, 136 S. Ct. 1843, 1847 (2016).  So Simmons would seem to suggest that an FTCA judgement, whether in the government’s favor or not, would bar a related claim against the individual employees.

But are all “judgments” created equal for FTCA judgment-bar purposes?  A Sixth Circuit panel (Clay opinion, Boggs join) didn’t think so.  In King, it held that judgments dismissing FTCA claims for lack of subject-matter jurisdiction don’t count as “judgments” for purposes of the FTCA’s judgment bar.  To reach that holding, the King court adopted a broad view of what qualifies as a dismissal for lack of subject-matter jurisdiction.

Continue Reading

LexBlog