Category Archives: Miscellaneous

Whether they planned it this way since (or even before) they granted certiorari to both Janus v. AFSCME and National Institute of Family and Life Advocates v. Becerra, or whether things just fell into place, two of the three the crowning decisions from the last week of the current term of the U.S. Supreme Court will deal with the important and still-evolving “compelled speech” doctrine under the First Amendment.  And we predict these two cases will be decided in such a way as to advance this doctrine as a bulwark against state and local governments compelling certain speech from private citizens and enterprises.

The compelled speech doctrine

The compelled speech doctrine is that legislators, regulators and other government actors cannot require an individual or group to engage in certain expression. We typically think of the First Amendment as limiting the government from punishing someone because of  his speech.  The compelled speech doctrine also prevents those same government officials from punishing someone for refusing to advance the government’s approved messages.

In West Virginia State Board of Education v. Barnette (1943) SCOTUS advanced the compelled speech doctrine by ruling that a state cannot force a child to stand, salute the flag, and recite the Pledge of Allegiance.  The Court allowed school children who are Jehovah’s Witnesses (for religious reasons) to refuse to participate in the district-required speech. From the decision:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Just last decade, in  Rumsfeld v. Forum for Academic and Institutional Rights (2006), Chief Justice John G. Roberts Jr. stated the principle more directly:

Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.

And this doctrine has been advanced in other cases, such as Wooley v. Maynard (1977) (state officials could not punish a man for covering the state’s motto — “Live Free or Die” — on his license plate) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) (government actors violated the rights of parade organizers by requiring that they include a gay rights group and its messages).

Notably as to the Janus decision (discussed below), the court addressed this issue in Abood v. Detroit Board of Education (1977).  However, because that decision did not go as far as the Janus petitioners seek, the Janus case (we predict) will overturn the Aboud precedent.  In Aboud, the Court allowed states to mandate public union membership, but split the dues between collective bargaining activities (compulsion OK) and political activities (compulsion forbidden).

Roberts Court loves the First Amendment

Then, as we have expressed previously, if the Roberts Court stands for anything, it is advancing First Amendment protections, including into areas not previously sacrosanct.  We expect the Janus and NIF&LA cases will continue that trend, but in these cases in the specific area of compelled speech.

Janus

The Janus decision is the third try recently to overturn the “halfway” decision in Abood. Again, in Abood, the Court ruled that the Plaintiff could be forced by the Detroit School District to pay a “fair share” or “agency” fee to the labor union for collective bargaining services, reasoning that not to do so would allow them to be a “free rider” for those services.   The Janus decision directly challenges that hair-splitting, arguing that compelling union membership is indeed compelling support of all of those things the union supports, including their position in contract negotiations, with which a member may disagree.

In 2014, the high court decided Harris v. Quinn, a curve-ball case of the State of Illinois compelling payment of union “agency fees” for collective bargaining by home health care workers who were not direct employees of the state, or in the words of the court “full-fledged public employees.”  The court ruled “no.”  In doing so, however, it did not directly overturn Abood, but Justice Scalia invited Abood challenges by stating in his opinion that it had been incorrectly-decided.

That invited the case of Friedrichs v. California Teachers Association in the 2015-16 term, which certainly would have extinguished the Abood precedent, except that Justice Scalia — who started the firestorm — died after oral argument but before the case could be decided.  The Friedrichs case, which appears to be indistinguishable from Janus, was thus decided 4-4 with the Scalia-short court, upholding the 9th District opinion that was consistent with Abood.

Thus, this coming week we expect that the compelled speech doctrine will get a substantial shot in the arm, albeit by a 5-4 vote, by the Supreme Court in its Janus decision broadly preventing government actors from negotiating union contracts that compel union membership or union dues as a condition employment.

National Institute of Family and Life Advocates v. Becerra

And that brings us to NIF&LA v. Becerra which seeks to invalidate a California law requiring pro-life counseling centers that counsel against abortion (“crisis pregnancy centers”) to to provide patients with specific kinds of information, including, for some, the availability of low-cost or free abortions.

We believe the Court will again advance the compelled speech doctrine by striking the California law.

(This will then raise the further question about pro-life state legislatures who require abortion clinics to provide certain information to patients arguably advancing an anti-abortion message.)

So, a big week is expected for the First Amendment and the Compelled Speech doctrine

Thus, it appears to me that the Supreme Court has written the theme for the last week of the Court term by joining the timing of announcing these decisions (if not the decisions themselves)  for the same day or week.

Crescendoing the 2017-2018 term with these two decisions, the Roberts Court will firmly boost the compelled speech doctrine.

This morning the Ohio Supreme Court accepted our appeal from a Cuyahoga County Court of Appeals case questioning whether Ohio’s Open Meetings Act permits public bodies to vote by secret ballot.

A 2011 Ohio Attorney General’s Opinion Letter says no, as does a 2011 Hamilton County Common Pleas Court decision. But to date, the Ohio Supreme Court has not addressed this question. But the Cuyahoga County Courts disagreed.

This is an important case, meriting an amicus brief in support of jurisdiction from the Ohio Coalition for Open Government. Learn more about OCOG here.

The Ohio Supreme Court now has an opportunity to declare once and for all that secret ballot voting is not consistent with the demands of open government.

Case documents in State of Ohio ex rel. More Bratenahl et al. v. Village of Bratenahl et al.  are available on the Ohio Supreme Court’s website, here.

We will post updates as briefing is completed. Read more about this case here.

Today, attorneys for the City of Cincinnati filed the self-proclaimed “Gang of Five’s” answer to the April 9, 2018 Open Meetings Complaint (read the complaint here, read additional blog posts about the case here and here).

Surprisingly, the Gang of Five deny that they conducted meetings via telephone, email, and text message.  We say surprisingly, because the emails and text messages attached to the complaint make clear that the Gang of Five did conduct such meetings.

The councilmembers’  responses to interrogatories and requests for documents are due later this month, and depositions are set to begin shortly.

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As part of his political “house cleaning” when he first took office, Aftab Pureval paid severance packages to outgoing employees and required that they sign non-disclosure agreements. Local government watchdog Mark Miller asked for copies of these records, only to be ignored by Aftab Pureval.

Now, six weeks after Pureval received the request, and with no response whatsoever from Pureval, Finney Law Firm filed suit to force the release of the requested records.

It is expected that the records will show that Pureval used attorneys other than his official statutory counsel in drafting these agreements, and that the agreements are legally unenforceable; that they were simply a means of coercing former employees into silence as he prepared his run for higher office.

Read the complaint below or click here to view it on Scribd.

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Today, Finney Law Firm filed suit against the self-proclaimed “gang of five” – PG Sittenfeld, Chris Seelbach, Wendell Young, Tamaya Dennard, and Greg Landsman – seeking production of public records they are withholding in violation of Ohio’s Public Records Law.

On April 9, 2018, Finney Law Firm submitted a public records request on behalf of Mark Miller, to each member of the “gang of five” seeking production of all communications between each of them and any other member of council from March 1, 2018 to March 19, 2018 regarding Harry Black or John Cranley.

This morning, attorneys for the City produced 10 pages of group text messages between all five members, but made clear that they refuse to produce text messages or emails other than the group-messages. As Cincinnati Enquirer attorney, Jack Greiner, told the Cincinnati Business Courier, this is contrary to the requirements of the Public Records Law, R.C. 149.43:

Jack Greiner, an attorney at Graydon Head & Ritchey who represents other Cincinnati media organizations in public records and open meetings matters, said state law requires that public records be kept, that communications between officials are a public record and text messages qualify as communications.

“The format shouldn’t matter,” Greiner said. “The city has a records retention schedule that would cover those. The city has to figure out how they’re going to retain that information and archive it.”

You can read the complaint below or on Scribd here.

 

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