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Thursday, November 20, 2014
Montana District Judge Follows Ninth Circuit: Declares State's Same Sex Marriage Ban Unconstitutional
In his 18 page Order in Rolando v. Fox, US District Judge Brian Morris enjoined Montana's laws banning same-sex marriage (Article XIII, section 7 of the Montana Constitution, and Montana Code Annotated section 40-1-103 and section 40-1-401) as unconstitutional under the Fourteenth Amendment's Equal Protection Clause.
The judge essentially found that the Ninth Circuit's decision in Latta v. Otter regarding same-sex marriage - - - inclusive of its decision to adhere to heightened scrutiny in SmithKline Beecham Corp. v. Abbott - - - was binding. The court rejected the argument that the recent Sixth Circuit opinion in DeBoer v. Snyder changed Ninth Circuit precedent.
The judge, however, did discuss the state's asserted justifications, finding them with without merit and focusing on children. The judge ended by recognizing "that not everyone will celebrate this outcome," but nevertheless that the "time has come for Montana to follow all the other states within the Ninth Circuit": "Today Montana becomes the thirty-fourth state to permit same-sex marriage."
The judge did not stay the injunction.
November 20, 2014 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Friday, November 14, 2014
D.C. Circuit Upholds Contraception Opt-Out for Religious Nonprofits
The D.C. Circuit today upheld HHS accommodations to religious nonprofits that object to complying with contraception requirements under agency regs and the ACA. The ruling aligns with earlier rulings from the Sixth and Seventh Circuits and means that the accommodations stay on the books. (The case is not governed by Hobby Lobby, because the plaintiffs here challenge the accommodation, not the "contraception mandate" itself. Hobby Lobby had no accommodation option.)
The case represents yet another judicial attack against the ACA and its implementation. And this issue may eventually work its way (back) to the Supreme Court. (Notre Dame filed a cert. petition in October, after losing in the Seventh Circuit.)
The case is the latest challenge to HHS regulations that allow religious nonprofits to opt-out of the "contraception mandate" by filing a form with their insurer or a letter with HHS stating their religious objection to providing contraception. (The letter to HHS is the agency's regulatory answer to the Supreme Court's action this summer that enjoined the form and held that a religious nonprofit could instead file a letter with HHS.) Plaintiffs (religious nonprofits) argue that the accommodation itself violates the RFRA (among other things), because the accommodation "triggers" the provision of contraception by third parties.
The D.C. Circuit flatly--and quite thoroughly--rejected this claim. In sum:
We conclude that the challenged regulations do not impose a substantial burden on Plaintiffs' religious exercise under RFRA. All plaintiffs must do to opt out is express what they beleive and seek what they want via a letter or two-page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations' compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms. The ACA shifts to health insurers and administrators the obligation to pay for and provide contraceptive coverage for insured persons who would otherwise lose it as a result of the religious accommodation.
The court held that the accommodation was merely a de minimis requirement and not a substantial burden--and therefore not subject to RFRA's strict scrutiny. "In sum, both opt-out mechanisms let eligible organizations extricate themselves fully from the burden of providing contraceptive coverage to employees, pay nothing toward such coverage, and have the providers tell the employees that their employers play no role and in no way should be seen to endorse the coverage." The court emphasized that RFRA "does not grant Plaintiffs a religious veto against plan providers' compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties."
The court said that even if the accommodation were a substantial burden, the court would uphold it under RFRA's strict scrutiny. That's because "[a] confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it." Examples: the benefits of planning for healthy births and avoiding unwanted pregnancy, and the promotion of equal preventive care for women. "The accommodation requires as little as it can from the objectors while still serving the government's compelling interests."
The court also clarified some important aspects of the way the accommodation works. For one, exercising the accommodation doesn't "trigger" anything; instead, it works to take the religious nonprofit entirely out of the contraception-provision business. For another, religious nonprofits' contracts with providers don't authorize or facilitate contraceptive coverage; the federal regs do. Finally, exercising the accommodation doesn't turn a religious nonprofit's plan into a "conduit for contraceptive coverage"; instead, it takes the the religious nonprofit out of the contraceptive business entirely.
November 14, 2014 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)
Thursday, November 13, 2014
Fifth Circuit Denies En Banc Review in Fisher Remand
The Fifth Circuit has denied en banc review by a vote of 15-5 in its Order in Fisher v. University of Texas at Austin.
Recall that in a divided opinion in July, a Fifth Circuit panel held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.
Recall also that the United States Supreme Court had reversed the Fifth Circuit's original finding in favor of the University (affirming the district judge) and remanded the case for a "further judicial determination that the admissions process meets strict scrutiny in its implementation." The opinion, authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal" of diversity and the University should receive no judicial deference on that point.
Judge Emilio Garza, the Senior Judge who dissented from the panel opinion also wrote a very brief dissenting opinion from en banc review, which was joined by Judges Jones, Smith, Clement, and Owen. Judge Garza contends that while the "panel majority dutifully bows" to the United States Supreme Court's requirements in Fisher, it "then fails to conduct the strict scrutiny analysis" the opinion requires "thus returning to the deferential models" of Regents of University of California v. Bakke and Grutter v. Bollinger.
A petition for writ of certiorari is certain; the grant of that petition is less certain.
November 13, 2014 in Affirmative Action, Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 12, 2014
South Carolina Federal Judge Declares State's Same-Sex Marriage Ban Unconstitutional
In a 26 page opinion today in Condon v. Haley, Judge Richard Mark Gergel held that South Carolina's same-sex marriage bans (by statute and state constitutional amendment) is unconstitutional.
Here is the gravamen of Judge Gergel's opinion:
This Court has carefully reviewed the language of South Carolina's constitutional and statutory ban on same sex marriage and now finds that there is no meaningful distinction between the existing South Carolina provisions and those of Virginia declared unconstitutional in Bostic.
Recall that the Fourth Circuit in Bostic v. Schaefer held that Virginia's same-sex marriage laws should be evaluated by strict scrutiny because marriage is a fundamental right; not surprisingly, the bans did not survive the standard. Recall also that the United States Supreme Court denied certiorari.
Moreover, Judge Gergel rejected the argument that "same-sex couples should not look to the courts to protect their individual rights but to the 'usually reliable state democratic processes' for relief" as the Sixth Circuit's very recent opinion upholding state prohibitions of same-sex marriage declared, by noting that the Fourth Circuit rejected this same argument.
Judge Gergel did, however, dismiss Governor Nikki Haley as a defendant. Judge Gergel noted that "simply being the state's chief executive sworn to uphold the laws is not sufficient" and there is "little evidence to support an argument that Defendant Haley has taken enforcement action or engaged in other affirmative acts to obstruct Plaintiffs' asserted fundamental right to marry. " Judge Gergel specifically distinguished Bowling v. Pence, in which a federal judge reversed a prior order dismissing the Governor of Indiana as a defendant after he took "affirmative action to enforce the statute."
Judge Gergel issued a temporary stay of the injunction until November 20, 2014.
November 12, 2014 in Courts and Judging, Due Process (Substantive), Eleventh Amendment, Equal Protection, Family, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Monday, November 10, 2014
Sixth Circuit Allows Constitutional Challenge of "Hosing" Detainees to Proceed
In its opinion in Williams v. City of Cleveland, a panel of the Sixth Circuit faulted the district judge for over-extending Florence v. Board of Chosen Freeholders of County of Burlington (NJ) to include a challenge to a practice by Cleveland that "compelled pretrial detainees who were being processed into the facility to undress in the presence of other detainees and to have their naked genitals sprayed with delousing solution from a pressurized metal canister."
Recall that the United States Supreme Court in Florence upheld the authority of jail authorities to strip search a person accused of a minor crime without individualized suspicion under the Fourth Amendment. As we stated when the decision was rendered in April 2012, "Writing for the 5-4 majority, Kennedy's relatively brief opinion could be summed up in a single word: deference."
Yet that deference was not total and today's holding from the Sixth Circuit elaborates on the limits of Florence. The complaint in Williams was stayed pending resolution of Florence, and after Florence, the plaintiffs sought to amend their complaint to distinguish Florence. The district judge denied the motion to amend as "futile" because there was no real constitutional issue raised by the manner of the delousing.
Reversing, the unanimous panel of the Sixth Circuit noted that Florence "took pains to emphasize that its holding applied only to the blanket policy before it, which required a visual strip search and a compulsory shower with self-applied delousing solution." This means, according to the court, that the particular method of conducting a search must still be reasonable, and that this reasonableness is weighed against the level of intrusion.
As the panel described the allegations, the "hose treatment" included the plaintiffs being "ordered to crouch naked on the floor with several strangers in the room while corrections officers" directed a pressurized hose of delousing liquid aimed at their intimate body parts. The incident also included for one plaintiff being hosed off by another detainee and for another plaintiff, the delousing liquid "penetrating her anus." For the panel, "simply spraying the detainee with a hose as if she was an object or an animal," is problematical because
it is not obvious that it would be impracticably onerous for the jail to permit self-application of the delousing solution while reserving the "hose treatment" for instances where individual detainees misapply or refuse to properly apply the provided solution.
However, the panel noted that in "the final analysis" "the jail may have had good reasons for conducting these procedures in the particular manner in which it did." However, "that is a matter for resolution either at trial or on summary judgment, not on the pleadings."
Thus, the case will proceed at the trial level.
November 10, 2014 in Criminal Procedure, Fourth Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Friday, November 7, 2014
Missouri Federal Judge Declares State's Same-Sex Marriage Ban Unconstitutional
A day after the Sixth Circuit's divided decision upholding same-sex marriage bans in several states, and thus creating a circuit split (with the Supreme Court having denied certiorari to the Seventh, Tenth, and Fourth Circuit opinions holding to the contrary), United States District Judge Ortrie D. Smith of Missouri (and in the Eighth Circuit) has rendered an opinion in Lawson v. Kelly, finding Missouri's same-sex marriage ban unconstitutional.
Judge Smith's 18 page opinion agrees with the Sixth Circuit majority in one respect: The Supreme Court's opinion in Windsor v. United States holding DOMA unconstitutional is not dispositive. However, Judge Smith also states that the Court's 1972 dismissal in Baker v. Nelson is not dispositive.
Judge Smith holds that under Eighth Circuit precedent, sexual orientation "is not a suspect class and that classifications based on sexual orientation are not subject to heightened review of any kind." On that basis, he grants judgments on the pleadings to the defendants.
However, Judge Smith holds that the same-sex marriage bans are unconstitutional under the Fourteenth Amendment. First, Judge Smith concludes that marriage is a fundamental right under the Due Process Clause, even as he notes that not all regulations of marriage are subject to strict scrutiny. Following Zablocki v. Redhail, however, he applies the "interfere directly and substantially with the right to marry" standard and concludes that the "prohibition must be examined with strict scrutiny, and viewed in that light the restriction fails to satisfy the Due Process Clause's dictates."
Additionally, Judge Smith analyzes the same-sex marriage ban under the Equal Protection Clause as a classification based on gender:
The restriction on same-sex marriage is a classification based on gender. The State's "permission to marry" depends on the gender of the would-be participants. The State would permit Jack and Jill to be married but not Jack and John. Why? Because in the latter example, the person Jack wishes to marry is male. The State's permission to marry depends on the genders of the participants, so the restriction is a gender-based classification.
As Judge Smith avers, "Restrictions based on gender are subject to intermediate scrutiny." He finds the standard is not satisfied:
The State has not carried its burden. Its sole justification for the restriction is the need to create rules that are predictable, consistent, and can be uniformly applied. Assuming this is a valid justification for a restriction, there is no suggestion as to why the gender-based classification is substantially related to that objective. A rule that ignores gender would be just as related to that objective and be just as easy to apply (and arguably would impose less of a burden on the Recorders of Deeds because they would not have to conduct any gender-based inquiry whatsoever). Regardless, administrative convenience is not a valid reason to differentiate between men and women.
Judge Smith therefore concluded that "section 451.022 of the Revised Missouri Statutes and Article I, section 33 of the Missouri Constitution, and any other provision of state law that precludes people from marrying solely because they are of the same gender violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment" and enjoined state officials from declining to issue same-sex marriage licenses although the Judge stayed the "effects of the judgment" until the judgment is final.
November 7, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Thursday, November 6, 2014
Divided Sixth Circuit Creates Circuit Split in Same-Sex Marriage Litigation
The Sixth Circuit's opinion today in DeBoer v. Snyder upheld the constitutionality of the same-sex marriage bans in several states, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee.
The majority opinion, authored by Judge Jeffrey Sutton and joined by Judge Deborah Cook begins by invoking judicial restraint and democratic processes: "This is a case about change—and how best to handle it under the United States Constitution." Such an opening may not be surprising given Judge Sutton's published views such as this from a Harvard Law Review piece favoring "a return to a world in which the state courts and state legislatures are on the front lines when it comes to rights innovation."
Dissenting, Judge Martha Craig Daughtrey, begins with a scathing assessment of Judge Sutton's opinion:
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state's constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.
For the majority, the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." The opinion distinguishes Windsor v. United States as limited to the federal government. The opinion also rejects the relevance of the Supreme Court's denial of certiorari from circuit decisions finding same-sex marriage bans unconstitutional: "The Court's certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories."
The majority also rejects the persuasive value of the opinions from the other circuits, again returning to the judicial restraint perspective:
There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs' theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.
In considering rational basis review (under either equal protection or due process), the majority finds that states can rationally incentivize marriage for heterosexual couples who "run the risk of unintended offspring" and that states might rationally chose to "wait and see" before changing the definition of marriage.
In considering animus (which might heighten the rational basis review to rational basis "plus"), the majority distinguishes both City of Cleburne v. Cleburne Living Center and Romer v. Evans, stating that the state-wide initiatives banning same-sex marriage merely "codified a long-existing, widely held social norm already reflected in state law," rather than being novel acts of animus. Indeed, the majority states
What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: "Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters' reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate." Schuette v. Coal. to Defend Affirmative Action[BAMN].
Moreover, in another portion of the opinion the majority addresses the possibility of heightened review under the Equal protection Clause based on level of scrutiny to be applied to sexual minorities and invokes Carolene Products. For the majority, the issue of political power is the key rationale for denying heightened scrutiny:
The Fourteenth Amendment does not insulate influential, indeed eminently successful, interest groups from a defining attribute of all democratic initiatives—some succeed, some fail—particularly when succeeding more and failing less are in the offing.
And in considering fundamental right to marriage under the Due Process Clause, the majority concluded marriage is not a fundamental right, distinguishing Loving v. Virginia as a case that "addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage." Moreover, if marriage were a fundamental right, this would call into question laws regarding divorce, polygamy, and age requirements.
The majority also rejects the "right to travel" argument as a rationale for recognizing valid out of state marriages.
Additionally, the majority articulates its constitutional interpretative strategies. In section B, entitled "Original meaning" and in Section G, entitled "Evolving meaning," the majority is very clear that one theory is more consistent with its view of judicial restraint.
The Sixth Circuit - - - as many predicted - - - has now created a split in the circuits on the question of the constitutionality of same-sex marriage bans. The plaintiffs, who prevailed in the district court cases below, are sure to petition for certiorari to the United States Supreme Court, perhaps bypassing seeking en banc review by the Sixth Circuit.
November 6, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 4, 2014
Kansas Federal Judge Holds State's Same-Sex Marriage Bans Unconstitutional
In a 38 page opinion in Marie v. Moser, Judge Daniel Crabtree held that Kansas' state constitutional provisions and statutes prohibiting same-sex marriages violates the Fourteenth Amendment.
This is not surprising given the Tenth Circuit's opinions in Bishop v. Smith (finding Oklahoma's same-sex marriage prohibition unconstitutional) and Kitchen v. Herbert (finding Utah's same-sex marriage prohibition unconstitutional and the United States Supreme Court's denial of certiorari in these cases a month ago. As Judge Crabtree states: "When the Supreme Court or the Tenth Circuit has established a clear rule of law, our Court must follow it."
But, although the result may not be surprising, the opinion does have two odd aspects.
First, why is the opinion 38 pages? Shouldn't this opinion be more like last month's four page opinion by the Arizona federal judge stating that it is bound by the Circuit opinion? And indeed, Judge Crabtree's analysis of the Circuit precedent is relatively brief. However, Judge Crabtree's opinion also contains not only a brief discussion of the parties and the challenged laws, but a careful consideration of a variety of other matters including those related to justicability and jurisdiction:
- Standing (generally focusing on redressability, but including a claim that because the plaintiffs are a same-sex female couple, they cannot argue the constitutionality of the Kansas laws as applied to same-sex male couples);
- Eleventh Amendment
- Domestic Relations Exception to federal court jurisdiction
- Absention (including Pullman, Younger, Colorado River, Burford, Rooker-Feldman)
Additionally, Judge Crabtree considered an argument that the correct precedent was not the Tenth Circuit opinion, but a Kansas state court opinion (to which the United States Supreme Court denied certiorari).
Judge Crabtree rejected all of these arguments, but in a careful and considered manner.
Second, why did Judge Crabtree grant a stay to the defendants? Judge Crabtree's answer is related to the length of the opinion. He states that although
the Tenth Circuit has settled the substance of the constitutional challenge plaintiffs' motion presents. And under the Circuit's decisions, Kansas law is encroaching on plaintiffs constitutional rights. But defendants' arguments have required the Court to make several jurisdictional and justiciability determinations, and human fallibility is what it is; the Circuit may come to a different conclusion about one of these threshold determinations. On balance, the Court concludes that a short-term stay is the safer and wiser course.
Thus Judge Crabtree stayed the injunction until November 11, unless the defendants inform the court they will not appeal. Perhaps the state officials in Kansas will conclude that it would be a waste of taxpayers' money as did the state officials in Arizona. Or perhaps not.
November 4, 2014 in Due Process (Substantive), Equal Protection, Family, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 28, 2014
Court Dismisses Challenge to IRS Non-Profit Process
Judge Reggie B. Walton (D.D.C.) yesterday dismissed an action by True the Vote against the IRS for politicized foot-dragging on its 501(c)(3), not-for-profit application. The ruling ends True the Vote's case against the IRS, with very little chance of a successful appeal.
True the Vote sued the IRS after the agency took a long time with its 501(c)(3) application and requested additional information from the organization before granting not-for-profit status. True the Vote argued that the IRS did this because True the Vote was a politically conservative organization aligned with the Tea Party, in violation of the First Amendment, the IRC, and the APA.
But Judge Walton dismissed the organization's claims for declaratory and injunctive relief as moot, after the IRS ultimately granted 501(c)(3) status, leaving nothing more for the court to order in terms of relief. The court also ruled that the "voluntary cessation" exception didn't apply, because the IRS, by the plaintiff's own reckoning (and the court's judicial notice), "suspended" its "targeting scheme" on June 30, 2013, and wouldn't re-engage in the footdragging.
Judge Walton dismissed the plaintiff's claim for monetary relief, ruling that there's no Bivens remedy, because the IRC already provides a comprehensive statutory remedial scheme. (It didn't matter that the plaintiff didn't like the scheme, only that it existed.)
Finally, Judge Walton dismissed the plaintiff's statutory claim that the IRS requested and inspected more information than necessary from True the Vote, because the IRC allows it to do that.
True the Vote can appeal, but Judge Walton's ruling is likely to be upheld.
October 28, 2014 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 22, 2014
Federal Judge in Puerto Rico Dismisses Challenge to Same-Sex Marriage Ban
In his opinion in Conde-Vidal v. Garcia-Padilla, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals."
In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." For Judge Perez-Gimenez, this dismissal remains binding precedent for several reasons. Judge Perez-Gimenez finds that Baker remains good law despite the "nebulous 'doctrinal developments" since 1972. He rejects the precedential value of Windsor v. United States in this regard: "Windsor does not - - - and cannot - - - change things." He acknowledges and cites authority to the contrary, but finds it unpersuasive. He specifically rejects the relevance of the Supreme Court's denial of certiorari from circuit decisions finding same-sex marriage bans unconstitutional in light of the more solid precedent of Baker v. Nelson.
Judge Perez-Gimenez also grounds his adherence to Baker v. Nelson on the First Circuit's opinion in Massachusetts v. HHS, finding DOMA unconstitutional. The First Circuit's discussion of Baker v. Nelson is somewhat unclear, but Judge Perez-Gimenez rejects the argument that they are dicta and further reasons even if the statements are dicta, "they would remain persuasive authority, and as such, further support the Court's independent conclusions about, and the impact of subsequent decisions on, Baker."
Judge Perez-Gimenez articulates a perspective of judicial restraint, articulating deference to the democtratic institutions of Puerto Rico and adherence to stare decisis. But in the opinion's conclusion, he makes his own views clear:
Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is "exclusively [an] opposite-sex institution . . . inextricably linked to procreation and biological kinship," Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.
Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial "wisdom" may contrive methods by which those solid principles can be circumvented or even discarded.
A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is "minimal marriage", where "individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties" the blueprint for their design? *** It would seem so, if we follow the plaintiffs' logic, that the fundamental right to marriage is based on "the constitutional liberty to select the partner of one's choice."
Undoubtedly, this issue is on its way to the First Circuit. The states in the First Circuit - - - Rhode Island, Massachusetts, New Hampshire, and Maine - - - all have same-sex marriage without federal court decisions, so this decision from the District of Puerto Rico will provide the First Circuit the opportunity to reconsider Baker v. Nelson and the applicability of its DOMA decision, Massachusetts v. Gill.
Although perhaps the challengers to the same-sex and "transsexual" marriages might seek to have the issue decided by the Puerto Rican Supreme Court.
October 22, 2014 in Due Process (Substantive), Equal Protection, Family, Opinion Analysis, Recent Cases, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
Monday, October 20, 2014
First Circuit Finds Billboard Company has Standing in First Amendment Challenge to Massachusetts Scheme
Reversing the district judge, a unanimous panel of the First Circuit held that a billboard company had standing to challenge the Massachusetts regulatory scheme in Van Wagner Boston LLC v. Davey. The opinion, authored by Judge Bruce Selya who is known for his ambitious language, concludes that
the complaint plausibly alleges that the plaintiffs are subject to a regulatory permitting scheme that grants an official unbridled discretion over the licensing of their expressive conduct and poses a real and substantial threat of censorship. No more is exigible to give the plaintiffs standing to proceed with their challenge.
The First Circuit largely relied on City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) in which the Court held unconstitutional a municipal scheme giving the mayor the power to grant or deny applications for annual permits to publishers to place their newsracks on public property; the Court allowed the publishers to proceed with the facial challenge although they had not yet applied for a permit. The First Circuit thus rejected Massachusetts' claim that the company could not show injury in fact because the company "had applied for over seventy permits without having a single application denied." For the court, it was "too optimistic" to think that the "censorship risks are only theoretical." Instead, it noted that the company "is a large, repeat player in the world of outdoor advertising" and "it may plausibly fear incurring the Director's ire any time an existing or potential client seeks to display what might be deemed a controversial message."
The First Circuit also rejected Massachusetts' argument that the "case implicates strictly commercial speech" and thus a lesser standard should apply:
The factual premise of the Commonwealth's thesis is simply wrong. It confuses a recognized category of First Amendment analysis — commercial speech simpliciter — with something quite different: those who have a commercial interest in protected expression.
The court ends its opinion with the statement that it expresses "no opinion on the merits of Van Wagner's First Amendment claim."
To say more about standing would be supererogatory. The short of it is that Van Wagner has plausibly alleged that it is subject to a regulatory permitting scheme that chills protected expression by granting a state official unbridled discretion over the licensing of its expressive conduct. It follows — as night follows day — that Van Wagner has standing to mount a facial challenge to that regulatory permitting scheme.
The court mentioned but stated it was not considering Massachusetts' argument that the scheme's numerous factors howed that the discretion was not unbridled but properly cabined. The district judge will now be taking up this very question under First Amendment doctrine.
October 20, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Thursday, October 16, 2014
Arkansas Supreme Court Strikes Voter ID
The Arkansas Supreme Court yesterday struck the state's voter ID requirement under the state constitution. The unanimous ruling means that Arkansas will not use Act 595's voter ID requirements in the upcoming elections.
The ruling is based on state constitutional law only, and therefore won't and can't be appealed to the United States Supreme Court.
The state high court ruled that Act 595's voter ID requirement added a voter requirement to those set in the state constitution. Arkansas's constitution, art. 3, Section 1, says,
Except as otherwise provided by this Constitution, any person may vote in an election in this state who is:
(1) A citizen of the United States;
(2) A resident of the State of Arkansas;
(3) At least eighteen (18) years of age; and
(4) Lawfully registered to vote in the election.
The court said, "These four qualifications set forth in our state's constitution simply do not include any proof-of-identity requirement." The court struck Act 595 on its face.
The court also rejected the argument that voter ID was simply a procedural method of identifying a voter, and therefore constitutional under a state constitutional provision allowing such methods:
We do not interpret Act 595's proof-of-identity requirement as a procedural means of determining whether an Arkansas voter can 'lawfully register[] to vote in the election.' Ark. Const. art. 3, Sec. 1(4). Under those circumstances, Act 595 would erroneously necessitate every lawfully registered voter in Arkansas to requalify themselves in each election.
Justice Courtney Hudson Goodson concurred in the result, but because Act 595 failed to get a two-thirds majority vote in both houses of the legislature as required by a 1964 amendment to the constitution that sets the requirements for identification and registration of voters (and does not include photo ID) and allows for legislative amendment of those requirements if the legislature votes by two-thirds in both houses.
October 16, 2014 in Cases and Case Materials, Comparative Constitutionalism, Elections and Voting, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 14, 2014
Alaska Same-Sex Marriage: Court Declares Same-Sex Marriage Ban Unconstitutional
On Sunday afternoon before a Monday federal holiday, federal district judge Timothy Burgess of the District of Alaska issued an opinion in Hamby v. Parnell and immediately enjoined officials of the state of Alaska from enforcing either the statute or state constitutional provision barring same-sex marriages.
Judge Burgess' 25 page opinion predictably relied upon the Ninth Circuit's decision in Latta v. Otter concluding that the same-sex marriage bans of Idaho and Nevada violated the Equal Protection Clause and using the Circuit's heightened scrutiny standard for sexual orientation. Judge Burgess also found that the Alaska laws violated the Due Process Clause because they infringe on the "fundamental right to choose whom to marry."
In the Due Process discussion, Judge Burgess has an interesting invocation of originalism:
In Lawrence [v. Texas], the critical mistake identified by the Supreme Court in its earlier reasoning [in Bowers v. Hardwick] is the same error made by Defendants in this case: in the desire to narrowly define the rights protected by the Fourteenth Amendment, they "fail[] to appreciate the extent of the liberty at stake."
Our forefathers wrote the Bill of Rights hundreds of years ago and could not have predicted "the components of liberty in its manifold possibilities" as we see today. As the Supreme Court articulately explained, "those who drew and ratified the Due Process Clause[]...knew times can blind us to certain truths and later generations can see that laws once necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." The Plaintiffs in this case do not ask the Court to recognize an entirely new fundamental right to same-sex marriage; rather, Plaintiffs wish to participate in the existing liberty granted to other couples to make a deeply personal choice about a private family matter.
Alaska has filed an Emergency Motion for Stay Pending Appeal, arguing in part that there is a "reasonable likelihood the Ninth Circuit will rehear Latta en banc and thus vacate the panel's decision." This is largely based on the Ninth Circuit's application of heightened scrutiny in the panel opinion.
But recall that this heightened scrutiny is based on SmithKline Beecham Corp. v. Abbott Labs, decided 10 months ago and which was denied a rehearing en banc.
And recall also that while Justice Kennedy of the United States Supreme Court granted a stay of Latta, he later clarified that the stay was only as to Idaho and not Nevada (although the Ninth Circuit's heightened scrutiny standard was applied to the laws of both states), and the stay vacated on Friday.
Additionally, Alaska argues that "conditions compelling Supreme Court review of this issue could easily develop very soon." Recall that the Supreme Court denied certiorari of the decisions from three circuits finding same-sex marriage bans unconstitutional. As Alaska argues:
The Sixth Circuit heard argument in early August regarding cases14 from four states (Michigan, Kentucky, Tennessee, and Ohio) and could issue a decision at any time, and the Fifth Circuit has expedited argument of Louisiana and Texas cases and could issue a decision by end of this year. Accordingly, circumstances are likely to develop in which the Supreme Court is virtually obligated to review the issue.
Yet given the lack of endurance of previous stays, there is little reason to believe Alaska would be considered a different case.
October 14, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Thursday, October 9, 2014
District Court Rules Texas Voter ID Unconstitutional
Judge Nelva Gonzales Ramos (S.D. Tex.) ruled today that Texas's new voter ID law violated the Constitution and entered "a permanent and final injunction against enforcement of the voter identification provisions . . . of SB 14." Judge Ramos concluded that "SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose." Judge Ramos also held that "SB 14 constitutes an unconstitutional poll tax."
Judge Ramos ordered Texas to "return to enforcing the voter identification requirements for in-person voting in effect immediately prior to the enactment and implementation of SB 14."
We posted on Texas's move to implement its new voter ID law immediately in the wake of Shelby County.
The ruling comes the same day as the Supreme Court vacated an earlier Seventh Circuit stay of a district court injunction against Wisconsin's voter ID law.
October 9, 2014 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Supreme Court Puts the Brakes on Wisconsin Voter ID
The Supreme Court this evening vacated the Seventh Circuit stay of an earlier district court injunction halting Wisconsin's voter ID law. (The Seventh Circuit upheld the state's voter ID law earlier this week.) This latest chapter in this dizzying case means that Wisconsin will almost surely not have voter ID in the upcoming elections. It also means that the Court may once again take up voter ID.
The Supreme Court order was brief, just one page, and said only that "the Seventh Circuit's stay of the district court's permanent injunction injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari . . . ." The stay will terminate if the Court denies cert.
Justice Alito dissented, joined by Justices Scalia and Thomas. Justice Alito wrote that the Seventh Circuit's ruling wasn't unreasonable, or "demonstrably" erroneous. Justice Alito alluded to the problem of absentee ballots going out without a notice of the voter ID requirement, suggesting that these problems may have driven the Court to intervene.
October 9, 2014 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Court Rejects Challenge to Disclosure Requirement
Judge Colleen Kollar-Kotelly (D.D.C.) this week rejected a non-profit's challenge to the disclosure provisions in the Bipartisan Campaign Reform Act of 2002. The ruling was unsurprising, even if the case may be noteworthy, as it represents a next wave of challenges to campaign finance regulation.
The Independence Institute, a Colorado non-profit, sought declaratory and injunctive relief against FEC enforcement of BCRA's disclosure requirement as applied to a specific radio ad that the Institute planned to run before the fall elections. The Institute argued that the requirement was overbroad as applied, because the planned ad was genuine issue advocacy, and not express advocacy.
Judge Kollar-Kotelly was blunt in rejecting this argument:
This dispute can be distilled to the application of the Supreme Court's clear instructions in Citizens United: in no uncertain terms, the Supreme Court rejected the attempt to limit BCRA's disclosure requirements to express advocacy and its functional equivalent. Plaintiff in this case seeks the same relief that has already been foreclosed by Citizens United.
Judge Kollar-Kotelly then rejected the Institute's attempts to distinguish Citizens United, ruled in favor of the FEC, and upheld the disclosure requirement.
This ruling was hardly surprising: if a court is going to overturn disclosure requirements, it'll have to be the Supreme Court. Still, the case should get our attention as a next-wave challenge to campaign speech regulation--the challenge to disclosure requirements.
October 9, 2014 in Association, Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
First Circuit Finds Adult-Entertainment Zoning Regulations Unconstitutional
In its opinion in Showtime Entertainment v. Town of Mendon, the First Circuit reversed a grant a summary judgment for the Massachusetts town and found that the zoning bylaws infringed on Showtime Entertainment's "right to engage in a protected expressive activited" violated the First Amendment.
Judge Juan Torruella's opinion for the unanimous panel first confronted the issue of whether the challenge to the zoning bylaws should be viewed as a facial challenge or as an as-applied challenge. Here, there was "little practical distinction": there were only four plots of land within the "Adult Entertainment Overlay District" to which the bylaws applied. But because the relief sought was an invalidation of the zoning bylaws, the court treated the challenge as a facial one.
Additionally, the court discussed whether the town's actions should be judged as content-based, thus meriting strict scrutiny, or should be judged as content-nuetral, meriting intermediate scrutiny. The court withheld its conclusion, finding that the zoning bylaws failed even the more deferential intermediate scrutiny standard.
The problem for the Town was that its stated governmental interests - - - its proferred secondary effects - - - did not further a substantial governmental interest unrelated to the speech. These interests were two: the town's "rural aethetics" and traffic. The problem for the Town was that it sought to advance these interests only as to the Showtime Entertainment lot of the four lots and not as to the other lots occupied by a 6,900-square-foot self-storage facility, a drive-in movie theater with an estimated capacity of 700 vehicles,
and a 10,152-square-foot nightclub. While the court clarified that its inquiry was not strictly a "underinclusive" one: "Nonetheless, we rightly pay attention to underinclusiveness where it reveals significant doubts that the government indeed has a substantial interest that is furthered by its proffered purpose."
Thus, as to the "rural aesthetics," the court noted that there was no cognizable difference between a large building hosting adult-entertainment or another large building. The court also noted that counsel for the Town conceded at oral argument that "what's in the building" also mattered, thus seemingly acknowledging that this was a content-based regulation. The traffic concerns suffered a similar fate, with the court finding no distinct traffic concerns for this type of business than for others along this heavily traveled route.
In some secondary effects cases, courts merely defer to studies, but here the court discussed them specifically (noting it conducted an "independent review of the studies") and found them lacking. The studies had a common theme regarding the effect of adult-entertainment businesses on neighborhoods: the effect has a "limited radius." This undermined the Town's fallback argument that Showtime Entertainment effected the rural aesthetic of the town as a whole, rather than the non-existing rural aesthetic along the busy highway. Additionally, the court detailed the traffic studies, finding that they did not actually mention traffic, or were "largely anecdotal, rely nearly exclusively on personal perceptions rather than verifiable data, and include significant hedging language, such as indicating that increased traffic is merely a hypothesis." The court also stated that in "several cases, they also make apparent that the true, primary concern is not traffic, but the type of patrons thought to visit adult-entertainment businesses," thus becoming content-based.
The secondary effects doctrine has proven a controversial one, with some of the Justices who first proffered the notion later disavowing it. The First Circuit refreshingly gives the doctrine a rigorous application.
[images: the drive-in movie in Mendon via; the image of Mendon portrayed on its website via]
October 9, 2014 in Film, First Amendment, Opinion Analysis, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 8, 2014
High Court Stays Injunction in North Carolina Voting Rights Case
The Supreme Court today stayed the preliminary injunction ordered by the Fourth Circuit against North Carolina's elimination of same-day voter registration and the state's elimination of voting in an incorrect precinct. The ruling means that North Carolina will not have same-day voter registration or allow voting in an incorrect precinct in the fall elections. Still, the underlying merits case will move forward at the district court.
We posted on the Fourth Circuit ruling, with additional background and links, here.
The case is notable, because North Carolina enacted its restrictions on voting immediately after the Supreme Court struck the coverage formula for preclearance under the Voting Rights Act in Shelby County. The move suggested that the state itself thought that its law wouldn't achieve preclearance. It illustrates the sweep and practical effects of the Shelby County ruling.
Justices Ginsburg and Sotomayor dissented from the stay, arguing that the Fourth Circuit was right to enjoin the provisions, and that North Carolina's evidence comparing African-American turnout in the 2010 primary election (relatively low) with African-American turnout in the 2014 primary (relatively high, and under the changes at issue in the case) was flawed, because primary voting patterns are not representative of general election voting patterns.
October 8, 2014 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Court Strikes Virginia Congressional District as Racial Gerrymander
A divided three-judge district court in the Eastern District of Virginia ruled that the district lines for Virginia's Third Congressional District violated equal protection. The court left the district in place for the fall elections, but ordered the state legislature to redraw the boundaries in the next legislative session.
The ruling tests whether and when a state's use of race to increase the percentage of racial minority voters in a district above the pre-existing percentage--for the stated reason to avoid retrogression under Section 5 of the Voting Rights Act (pre-Shelby County)--violates equal protection.
In other words: When can a state pack racial minority voters into a district in a way that dillutes their influence elsewhere, in the name of compliance with Section 5 of the VRA?
A similar issue is now before the Supreme Court in the Alabama cases, set for oral argument on November 12. We'll have an argument preview and review.
The legislature drew Virginia's Third in 2012 with an eye toward satisfying the non-retrogression standard in Section 5 of the Voting Rights Act. (At the time, before Shelby County struck the coverage formula for Section 5, Virginia was a covered jurisdiction.) In particular, the legislature used a 55 percent floor for the percentage of persons of voting age who identified as African America (the "BVAP"), so that the district wouldn't fall below a 55 percent BVAP. The legislature then increased the BVAP from 53.1 percent (the BVAP in the old district, the benchmark, under the 2000 census) to 56.3 percent (the BVAP in the redrawn district, based on the 2010 census). DOJ precleared the plan under Section 5 (again, before Shelby County).
Plaintiffs sued, arguing that the plan was a racial gerrymander in violation of the Equal Protection Clause.
The court ruled that legislative history and circumstantial evidence showed that the predominant purpose of the plan was race, and that the plan was subject to strict scrutiny. The court assumed, without deciding, that compliance with Section 5 was a compelling state interest before the Court struck Section 4 in Shelby County, but ruled that the redrawn district wasn't narrowly tailored to meet that interest. In particular, the court, citing Bush, said that the BVAP increase wasn't narrowly tailored "when the district had been a safe majority-minority district for two decades." The court wrote that "[w]hile the BVAP increase here is small than in Bush [where a plurality of the Supreme Court held that a BVAP increase from 35.1 percent to 50.9 percent wasn't narrowly tailored to achieve non-retrogression], the principle is the same." The court also said that the legislature's use of a 55 percent BVAP threshold (as a baseline below which the district could not fall), as opposed to some other analysis of racial voting patterns, wasn't narrowly tailored.
Judge Payne dissented.
Unless and until there's an appeal, Virginia's Third will stay the shape of the 2012 plan for the 2014 elections. But the legislature will have to redraw it next year.
October 8, 2014 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 7, 2014
Seventh Circuit Upholds Wisconsin Voter ID
In the latest, and almost certainly last, chapter of the case challenging Wisconsin's voter ID law, a three-judge panel of the Seventh Circuit upheld the law and reversed a district court permanent injunction against it. Once again, the upshot is that Wisconsin will have voter ID for the fall elections.
We posted most recently on the case here.
The ruling was hardly a surprise, given the Seventh Circuit's history with this case. Recall that the same three-judge panel earlier stayed the district court ruling and injunction, and the full court declined to rehear that decision. This most recent ruling resolves the merits and almost certainly closes the case.
The court ruled that the challenge to Wisconsin's voter ID law was virtually indistinguishable from the challenge to Indiana's voter ID in Crawford v. Marion County. Recall that the Supreme Court in that case upheld Indiana's voter ID law, because the plaintiffs didn't show that it would significantly impede citizens' ability to vote, and because the government had rational reasons for it. The Seventh Circuit said for the very same reasons that Wisconsin's voter ID law did not violate the constitutional right to vote. Indeed, the court noted that this was probably an easier case than Crawford.
The court also rejected the plaintiffs' claim under Section 2 of the Voting Rights Act. The court said that any racial disparity in possessing a voter ID was not due to discriminatory intent or to any factors (like ability to obtain voter ID, or a person's ability to pay for it) that the state had control over. The court also rejected the plaintiffs' disparate impact claim, concluding that the numerical disparity alone (between voter ID for voters of different races) wasn't sufficient to show a violation.
Finally, the court said that the distrinct court injunction--"perpetual and unconditional"--swept far too broadly. But in the end, that didn't matter, because the court upheld voter ID on the merits.
October 7, 2014 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)


text:
User Profile: bobefann
Member Since: June 23, 2012
March 20, 2013 at 9:31am
Where's Bloomberg? He's easily a number 1 seed
In reply to the post Who's in your bracket for Liberal Madness 2013?
February 12, 2013 at 5:48pm
Everytime BO says "balanced approach" take a shot. Very short night.
In reply to the post Let's hear your best State of the Union drinking game ideas
October 27, 2012 at 8:45pm
Biden – "You can never go to an Obama volunteer firm and not have a Mexican accent. Am I right mis chicos?"
In reply to the post Caption that photo!: Joe Biden
October 27, 2012 at 8:43pm
Guy behind Biden – "Mr. Vice President, you can take off your sunglasses, your inside now."
Biden – "The sun never sets on a badass son."
In reply to the post Caption that photo!: Joe Biden
October 26, 2012 at 10:19am
He came to Afghan during the surge back in 2009-2010. I saw him there and not one Marine wanted to talk to him because they couldn't stand him
October 20, 2012 at 9:15am
Woah… hold on there Sally. I'm just captioning the photo. This is for comical purposes. I'm far more conservative than most people on this forum. All I could think of when Obama is laughing and in that stance is the things I posted. Please don't be so butt hurt next time when people are captioning a photo and you don't like someone else's caption.
In reply to bobefann's comment on the post Caption that photo!: Presidential debate V.2.0
October 19, 2012 at 9:29pm
"You hear that Willard, I said your mom ain't S**T"
October 19, 2012 at 9:27pm
F your couch Willard.
Responses (2) +
October 19, 2012 at 9:45pm
AmericanWomanFirst responded:
October 20, 2012 at 9:15am
bobefann responded:
October 19, 2012 at 7:19pm
Obama – "What is he talking about? Amateur… Trying to talk about the economy and foreign policy. Nobody cares about that. Doesn't he know that this election is about women's issues? Am I right guys?"
October 19, 2012 at 7:15pm
HAHA! Jokes on you Mitt, this is liberal audience.
October 4, 2012 at 12:40am
What was that 25% watching? Even Chrissy Mathews admits that Romney won.
In reply to the story Landslide: 67 Percent of Registered Voters Say Romney Won Debate, CNN Poll Reveals
September 28, 2012 at 8:29pm
(Obama talking to himself)
Dammit… Netanyahu is over there… don't look at him….just whistle and act like you don't notice.
In reply to the post Caption that photo!: Barack Obama
September 28, 2012 at 8:27pm
Whew! That was close! Thank goodness the media has my back.
In reply to the post Caption that photo!: Barack Obama
September 27, 2012 at 9:09pm
In reply to Secret Squirrel's comment on the story Mars Once Had Knee-Deep Flowing Stream, Mars Rover 'Curiosity' Reveals
September 24, 2012 at 10:57am
He doesn't even know what he is talking about and they do not have a plan. Notice how he took a shot a Romney in his rhetoric to get the attention away from the sh*tty answer he gave.
In reply to the post Axelrod on S.S. reform: 'We're not going to have that discussion right now'
September 21, 2012 at 11:20pm
guilty until proven innocent… it's up to him to prove us wrong
September 14, 2012 at 8:09pm
In reply to bobefann's comment on the post Caption that photo!: Paul Ryan
September 14, 2012 at 7:14pm
So this is what Obama is full of
September 14, 2012 at 7:13pm
We have to somehow turn his back into the Constitution.
Responses (1) +
September 14, 2012 at 8:09pm
bobefann responded:
September 14, 2012 at 7:12pm
So this is the slime that oozes out of the door to the Oval Office
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verizon is such a cunt.
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|By PR Newswire
Article Rating:
|January 9, 2014 09:30 AM EST
Purchase strengthens firm's tenant-representation services in Atlanta
TORONTO, Jan. 9, 2014 /PRNewswire/ - Mark E. Rose, Chair and CEO of Avison Young, the world's fastest-growing commercial real estate services firm, announced today that it has acquired The Eidson Group LLC, a privately held real estate services company based in Atlanta, Georgia.
The purchase further expands Avison Young's tenant-representation services in Atlanta and the U.S. Southeast.
Effective immediately, Douglas Eidson joins Avison Young as a Principal and Scott Perry joins the firm as an associate broker. They will continue to focus on their specialty of tenant representation.
"We are very pleased to welcome Doug and Scott to Avison Young in Atlanta," comments Rose. "After having operated his own firm for 16 years and having been approached by many firms, Doug's decision to join our Principal-led firm speaks to our entrepreneurial spirit and collaborative culture, which has proven to be very attractive to so many outstanding brokers both in Atlanta and across North America in the last few years."
Rose continues: "This acquisition deepens Avison Young's presence in Atlanta and is in line with the company's strategy to further strengthen our tenant representation platform and capabilities throughout North America."
Founded in 1998 by Douglas Eidson, The Eidson Group is a corporate real estate services firm specializing in representing Atlanta tenants with their office space solutions. Services offered include acquisition, disposition, facility design co-ordination, portfolio management, lease document review and move management.
"Atlanta has been critical to the growth of Avison Young in the U.S. and, as the headquarters for many Fortune 1000 and international companies, plays a vital role in our ongoing expansion program across the country," states Earl Webb, Avison Young's President, U.S. Operations. "Since Avison Young's inception, clients have relied on us for our tenant-representation expertise, which is a core service of our company. By acquiring The Eidson Group and bringing Doug and Scott on board, we can continue to ensure that our clients' needs will be met - and provide more innovative ways to deliver our offerings."
Avison Young opened its Atlanta office in January 2010 with Steve Dils joining as a Principal and Managing Director of the Atlanta office. The company acquired Atlanta-based Hodges Management and Leasing Company (HMLC) in July 2010 and Atlanta-based Barry Real Estate Companies, Inc. in October 2011.
Today, the Atlanta office has more than 75 employees with approximately 20 msf of space under property management. Led by top professionals, the Atlanta brokerage has built a broad platform covering all industry sectors. Atlanta serves as the hub of Avison Young's Southeast expansion, partnering with many of the company's other U.S. offices on several projects. Avison Young's Atlanta-based Southeast Capital Markets Group also works frequently with the firm's Canadian offices, particularly Toronto and Vancouver, to assist Canadian investors with cross-border investments in commercial and multi-residential property located in the Southeastern and Sunbelt markets.
"Adding Doug and Scott strengthens our tenant-representation team in Atlanta and the Southeast," notes Dils. "The acquisition of The Eidson Group continues our growth in Atlanta by adding a highly respected professional and a young broker who provides more depth to our team."
Eidson brings more than 20 years of commercial real estate to the company, while Perry has six years of industry experience.
"Scott and I are thrilled to be part of Avison Young's ongoing expansion program in the United States," says Eidson. "I am also excited to be part of Avison Young's unique, Principal-led ownership structure. By linking our operations with Avison Young, we can benefit from tremendous brand power and a strong brokerage network that spans the U.S., Canada and parts of Europe. At the same time, we can maintain our strong core values and tenant-representation services by partnering with people who share our philosophy of putting the client first."
Douglas Eidson
Since commencing his commercial real estate career in 1990, Douglas Eidson has completed numerous transactions through brokerage and consulting arrangements in almost every major market in the United States. He has been involved in a number of major leasing transactions as well as small- to medium-sized regional office leases for a variety of companies. He has extensive experience in the Atlanta marketplace as well as in many other major markets across the country.
Prior to joining Avison Young, Eidson found The Eidson Group, a tenant-representation firm based in Atlanta, and served as the firm's Principal. Before launching his own company, he was an associate broker with Grubb & Ellis in Atlanta. Eidson has worked closely with large corporations providing a full range of real estate facility services, including sublease arrangements, buyouts of existing space, new facility acquisition, strategic analysis and business planning. As a result of his experience, Eidson has a thorough understanding of the true needs of today's corporate user.
Eidson holds a Bachelor of Science degree from Auburn University. He is a member of the Atlanta Commercial Board of Realtors and the Buckhead Rotary, director of the Buckhead Coalition, and current treasurer of the Garden Hills Neighborhood Foundation. In addition, Eidson is a past Chair of the membership committee for the Buckhead Club, past President of the Garden Hills Civic Association Board and a past board member of Christ the King School. He served as President of the Buckhead Business Association in 2005.
Scott Perry
Scott Perry joins Avison Young after serving for five years with The Eidson Group. Prior to joining The Eidson Group, he served as an associate with CB Richard Ellis in Atlanta from 2007 to 2009. An office tenant-representative specialist, Perry provides strategic planning and real estate solutions to his clients by offering a comprehensive understanding of their overall corporate goals and objectives. He focusses on headquarters relocations, regional office locations, property acquisitions and dispositions, subleases and lease renewals for local and multi-market clients. He has represented companies such as Industriaplex, Cubellis, Advantage Sales and Marketing, Darden Restaurants, and Jocks II. Perry holds a Bachelor of Business Administration degree from Georgia State University and is a member of the Atlanta Board of Commercial Realtors.
Over the past five years, Avison Young has grown from 11 to 53 offices and from 300 to more than 1,500 real estate professionals across Canada and the U.S.
Avison Young is the world's fastest-growing commercial real estate services firm. Headquartered in Toronto, Canada, Avison Young is a collaborative, global firm owned and operated by its principals. Founded in 1978, the company comprises 1,500 real estate professionals in 53 offices, providing value-added, client-centric investment sales, leasing, advisory, management, financing and mortgage placement services to owners and occupiers of office, retail, industrial and multi-family properties.
•Editors/Reporters: please click on links to view and download photos of
Doug Eidson and Scott Perry
For further information/comment/photos:
• Sherry Quan, National Director of Communications & Media Relations, Avison Young:
604.647.5098; cell: 604.726.0959
• Mark Rose, Chair and CEO, Avison Young: 416.673.4028
• Earl Webb, President, U.S. Operations, Avison Young: 312.957.7610
• Steve Dils, Principal and Managing Director, Atlanta, Avison Young: (404) 865-3666
• Douglas Eidson, Principal, Avison Young: 404.865.3661
Avison Young was a winner of Canada's Best Managed Companies program in 2011 and requalified in 2012 to maintain its status as a Best Managed company.
Follow Avison Young on Twitter:
For industry news, press releases and market reports: www.twitter.com/avisonyoung
For Avison Young listings and deals: www.twitter.com/AYListingsDeals
Follow Avison Young Bloggers: http://blog.avisonyoung.com
Follow Avison Young on LinkedIn: http://www.linkedin.com/company/avison-young-commercial-real-estate
SOURCE Avison Young Commercial Real Estate (BC)
We are all here because we are sold on the transformative promise of The Cloud. But what good is all of this ephemeral, on-demand infrastructure if your usage doesn't actually improve the agility and speed of your business? How must Operations adapt in order to avoid stifling your Cloud initiative? In his session at DevOps Summit, Damon Edwards, co-founder and managing partner of the DTO Solutions, will highlight the successful organizational, process, and tooling patterns of high-performing c...
Nov. 23, 2014 02:00 AM EST Reads: 1,006
The definition of IoT is not new, in fact it's been around for over a decade. What has changed is the public's awareness that the technology we use on a daily basis has caught up on the vision of an always on, always connected world. If you look into the details of what comprises the IoT, you'll see that it includes everything from cloud computing, Big Data analytics, "Things," Web communication, applications, network, storage, etc. It is essentially including everything connected online from ha...
Nov. 22, 2014 10:00 PM EST Reads: 1,096
Software-driven innovation is becoming a primary approach to how businesses create and deliver new value to customers. A survey of 400 business and IT executives by the IBM Institute for Business Value showed businesses that are more effective at software delivery are also more profitable than their peers nearly 70 percent of the time (1). DevOps provides a way for businesses to remain competitive, applying lean and agile principles to software development to speed the delivery of software that ...
Nov. 22, 2014 08:00 PM EST Reads: 1,441
Docker offers a new, lightweight approach to application portability. Applications are shipped using a common container format and managed with a high-level API. Their processes run within isolated namespaces that abstract the operating environment independently of the distribution, versions, network setup, and other details of this environment. This "containerization" has often been nicknamed "the new virtualization." But containers are more than lightweight virtual machines. Beyond their small...
Nov. 22, 2014 06:45 PM EST Reads: 1,176
The move in recent years to cloud computing services and architectures has added significant pace to the application development and deployment environment. When enterprise IT can spin up large computing instances in just minutes, developers can also design and deploy in small time frames that were unimaginable a few years ago. The consequent move toward lean, agile, and fast development leads to the need for the development and operations sides to work very closely together. Thus, DevOps become...
Nov. 22, 2014 05:45 PM EST Reads: 1,287
Cloud Expo 2014 TV commercials will feature @ThingsExpo, which was launched in June, 2014 at New York City's Javits Center as the largest 'Internet of Things' event in the world.
Nov. 22, 2014 05:30 PM EST Reads: 1,299
ARMONK, N.Y., Nov. 20, 2014 /PRNewswire/ -- IBM (NYSE: IBM) today announced that it is bringing a greater level of control, security and flexibility to cloud-based application development and delivery with a single-tenant version of Bluemix, IBM's
An entirely new security model is needed for the Internet of Things, or is it? Can we save some old and tested controls for this new and different environment? In his session at @ThingsExpo, New York's at the Javits Center, Davi Ottenheimer, EMC Senior Director of Trust, reviewed hands-on lessons with IoT devices and reveal a new risk balance you might not expect. Davi Ottenheimer, EMC Senior Director of Trust, has more than nineteen years' experience managing global security operations and asse...
Nov. 22, 2014 05:30 PM EST Reads: 1,108
The major cloud platforms defy a simple, side-by-side analysis. Each of the major IaaS public-cloud platforms offers their own unique strengths and functionality. Options for on-site private cloud are diverse as well, and must be designed and deployed while taking existing legacy architecture and infrastructure into account. Then the reality is that most enterprises are embarking on a hybrid cloud strategy and programs. In this Power Panel at 15th Cloud Expo (http://www.CloudComputingExpo.com...
Nov. 22, 2014 07:00 AM EST Reads: 1,345
Explosive growth in connected devices. Enormous amounts of data for collection and analysis. Critical use of data for split-second decision making and actionable information. All three are factors in making the Internet of Things a reality. Yet, any one factor would have an IT organization pondering its infrastructure strategy. How should your organization enhance its IT framework to enable an Internet of Things implementation? In his session at Internet of @ThingsExpo, James Kirkland, Chief Ar...
Nov. 21, 2014 09:15 PM EST Reads: 1,270
Leysin American School is an exclusive, private boarding school located in Leysin, Switzerland. Leysin selected an OpenStack-powered, private cloud as a service to manage multiple applications and provide development environments for students across the institution. Seeking to meet rigid data sovereignty and data integrity requirements while offering flexible, on-demand cloud resources to users, Leysin identified OpenStack as the clear choice to round out the school's cloud strategy. Additional...
Nov. 21, 2014 08:45 PM EST Reads: 1,227
Technology is enabling a new approach to collecting and using data. This approach, commonly referred to as the "Internet of Things" (IoT), enables businesses to use real-time data from all sorts of things including machines, devices and sensors to make better decisions, improve customer service, and lower the risk in the creation of new revenue opportunities. In his General Session at Internet of @ThingsExpo, Dave Wagstaff, Vice President and Chief Architect at BSQUARE Corporation, discuss the ...
Nov. 21, 2014 08:00 PM EST Reads: 1,343
The security devil is always in the details of the attack: the ones you've endured, the ones you prepare yourself to fend off, and the ones that, you fear, will catch you completely unaware and defenseless. The Internet of Things (IoT) is nothing if not an endless proliferation of details. It's the vision of a world in which continuous Internet connectivity and addressability is embedded into a growing range of human artifacts, into the natural world, and even into our smartphones, appliances, a...
Nov. 21, 2014 08:00 PM EST Reads: 1,287
SYS-CON Media announced today that Aruna Ravichandran, VP of Marketing, Application Performance Management and DevOps at CA Technologies, has joined DevOps Journal's authors. DevOps Journal is focused on this critical enterprise IT topic in the world of cloud computing. DevOps Journal brings valuable information to DevOps professionals who are transforming the way enterprise IT is done. Aruna's inaugural article "Four Essential Cultural Hacks for DevOps Newbies" discusses how to demonstrate the...
Nov. 21, 2014 07:00 PM EST Reads: 1,268
"BSQUARE is in the business of selling software solutions for smart connected devices. It's obvious that IoT has moved from being a technology to being a fundamental part of business, and in the last 18 months people have said let's figure out how to do it and let's put some focus on it, " explained Dave Wagstaff, VP & Chief Architect, at BSQUARE Corporation, in this SYS-CON.tv interview at @ThingsExpo, held Nov 4-6, 2014, at the Santa Clara Convention Center in Santa Clara, CA.
Nov. 21, 2014 07:00 PM EST Reads: 1,225


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Damaso Marte expected to undergo shoulder surgery
Oct 12, 2010, 10:15 AM EST
Limited to 13 innings last season and 18 innings this year, Damaso Marte is now expected to undergo shoulder surgery after shutting down his rehab.
"We're going to pull the plug on Marte," general manager Brian Cashman told Mark Feinsand of the New York Daily News. "He's attempted to come back, but it just hasn't worked out. That was the conservative route that's been done, so now we'll have to do the more aggressive route, which is the invasive side of it. Doctors will have to make decisions and talk about it with the player."
Acquired from the Pirates along with Xavier Nady for Jose Tabata, Jeff Karstens, Daniel McCutchen, and Ross Ohlendorf in 2008, Marte signed a three-year, $12 million deal last winter. He's logged just 31 innings with a 6.39 ERA while making $8 million through the first two years of the contract and the Yankees still owe him $4 million in 2011, plus a $250,000 buyout or $4 million option in 2012.
- BC - Oct 12, 2010 at 10:32 AM
Have any of the guys in this trade done ANYTHING since? Ohlendorf was decent for a little while, but my god, what a lose-lose trade.
- fabs - Oct 12, 2010 at 11:05 AM
Marte was lights out in the playoffs last year. That's enough for me.
- SouthofHeaven - Oct 12, 2010 at 11:20 AM
Yeah he was! 9th inning of game 6, 2 strikeouts on 6 pitches. I was actually nervous when they pulled him for Mo.
- DGL - Oct 12, 2010 at 3:08 PM
Tabata put up a .299/.346/.400 slash line, for a 102 OPS+, which is not too shabby for a 21-year-old rookie.
Ohlendorf had a 100 ERA+ and an average game score of 50 before he got hurt, so basically league average production – you just have to look past the 1-11 W/L (due in no small part to an abysmal 2.9 run support per game).
Karstens and McCutchen were just about replacement level, so no great shakes there one way or the other.
On the other hand, Nady put up a .256/.306/.353 slash line (72 OPS+) as a $3.3M backup 1B/corner OF.
A 21YO corner OF playing at a league-average level, a 27YO starting pitcher playing at a league-average level, and two replacement-level pitchers, for a $12M 35YO relief pitcher who has pitched 35 innings (counting the postseason) and one year of a $10M league-average corner OF. The fact that this is seen by Yankee fans as "good enough for me", and by anyone as "lose-lose", only points up the imbalance in the MLB financial system…
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Directed by Jeff Tremaine
Reviewed by Graeme Tuckett
The idea is this: Take Johnny Knoxville's "old man" character, and send him out on a roadtrip across the Southern states to enact a bunch of Jackass-style pranks. But this time, rather than make the movie just a compilation of those pranks, give the character a backstory and a grandson, and tie the stunts together with scripted scenes, so that Jackass Presents: Bad Grandpa can stand as an actual film, with a plot, and characters, and y'know, stuff.
It's not a bad idea, as long as the film is any good. And that's where Jackass: Bad Grandpa fails.
Director Jeff Tremaine, with star and co-writer Johnny Knoxville, have dialled back on the trademark Jackass shenanigans, and seem to be making a bid to have Bad Grandpa accepted as a comedy drama in its own right. Albeit a comedy drama that happens to feature a man being catapulted through a plate-glass window.
Sacha Baron Cohen's Borat and Bruno have already trod these boards, and they delivered big time at the box-office, and even scored well with some of the critics. But where Cohen is utterly fearless, and jaw-droppingly inventive, Knoxville and co seem like no more than ageing frat-boys still giggling at fart jokes. In only one scene, in which Knoxville gate-crashes a black male strip review, and then joins in with a prosthetic scrotum dangling from his Y fronts, did I genuinely fear for his safety. The pivotal early scene, in which Knoxville stages a funeral for his "wife of many years" (a very game Catherine Keener), never gets to anywhere inventive, and the subsequent sub- plot, about transporting Keener's body in the boot of the car, is all but forgotten in the rush to the next setup.
Really, only two things stand out about Jackass Presents: Bad Grandpa. One is the performance of Knoxville's 9-year-old co-star Jackson Nicoll. The kid really is a fantastic talent, and as long as his astonishing precocity doesn't destroy his charm, he'll be worth looking out for in the future.
The other is a climactic scene in which Nicoll, dressed in drag, crashes and wrecks a children's beauty pageant. The scene is easily the funniest in the film. But it is also a blatant and unconscionable ripoff of the exact same setup in Little Miss Sunshine. I've never seen a film plagiarise another so shamelessly. In fact, that scene got me thinking that Knoxville's character, and half the plot of Bad Grandpa, are actually lifted wholesale from Sunshine.
Being "inspired by" is one thing, but stealing from another writer's work is quite another, and for that reason, despite the fact that Bad Grandpa has a few hard-earned laughs, it is still an absolutely lousy film.
- The Dominion Post
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New grocery store taking shape in Exeter
Exeter Township is moving closer to the opening of a new grocery store.
Construction of an ALDI is well underway at Perkiomen Avenue and DeMoss Road, across from the Exeter Commons shopping center.
The site was the longtime home of a Sunoco gas station, but that building was torn down to make way for the discount grocery store chain's newest location in Berks County.
The store is set to be completed in time for opening in December, according to township officials.
ALDI operates nearly 1,300 stores in 32 states across the country, including two others in Berks. One is in nearby Saint Lawrence; the other is in Cumru Township.
According to its website, ALDI sells more than 1,300 of the most frequently purchased grocery and household items, primarily under its exclusive brands.
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Dropkick Murphys
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Princess Diana and Prince Charles, 1981
Royal weddings set the bar pretty high for the rest of us mere mortals. Featuring a level of glamour seemingly only reserved for Greek gods, a royal wedding is like a classic Hollywood premiere times a thousand. Bejeweled taffeta gowns with trains as long as avenue blocks. Gaping onlookers lining the streets ten deep elbowing their way through for a glimpse of the couple. Photographers snapping for every little smile, and, of course, the climactic kiss on the palace balcony. It's a childhood fantasy made almost real.
"Almost" is the the operative word. With the royals, unfortunately, all of that pomp and circumstance has often been followed by scandal and divorce. But even those who saw Charles and Diana's marriage unravel in the tabloids look back at their crystalline 1981 wedding with great fondness. And there have been success stories – Queen Elizabeth II and her beau, the Duke of Edinburgh, are still arm-in-arm 63 years after their Westminster Abbey nuptials. Well-done, you two!
As we look forward to Prince William and Kate Middleton's wedding on April 29, let's take a glance backward at the royal wedding spectacles the modern monarchy has produced in the past seven decades. And let's hope William and Kate's marriage runs a bit more smoothly than those of some of our couples. All photos from the BBC archives.
Kevin Wicks founded BBCAmerica.com's Anglophenia blog back in 2005 and has been translating British culture for an American audience ever since. While not British himself - he was born and raised in St. Louis, Missouri - he once received inordinate hospitality in London for sharing the name of a dead but beloved EastEnders character. His Anglophilia stems from a high school love of Morrissey, whom he calls his "gateway drug" into British culture.
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