Conflicts between the federal government and the states: who wins?

My good friend Joshua Marpet asked me on Facebook to compare the following two situations: 

Medical Marijuana is legal to states, but federally illegal. On the other hand, he cited an article where a state Representative in Texas was attempting to pass a state law which would seek to criminalize the public recording of police, or otherwise exempt only a defined set of news media from such criminalization.

These two issues are both related and different. Let's tackle the marijuana issue. Marijuana is a Schedule I drug under the Controlled Substances Act; and its manufacture, importation, possession, use and distribution is illegal by federal law. That some states have legalized marijuana for medical uses (or for recreational uses) does not change this fact. This is a Supremacy Clause issue. That clause reads:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

What this means is that when federal and state laws conflict, the federal law wins.  So the federal government could go into every state that has legalized marijuana in any way, and shut down their operations. People who otherwise would be permitted to use marijuana by their states could still be subject to federal criminal penalties for those uses.  Such actions would be fully consistent with the Supremacy Clause and the Constitution. The only difference here is that the federal government has largely chosen to acquiesce to the states on this issue (probably as a result of growing public acceptance). But this doesn't prevent the federal government from changing its mind regarding the enforcement of federal laws in the future. Another administration less tolerant of state marijuana laws could, consistent with the Supremacy Clause and the Constitution, enforce federal law in states that have otherwise legalized marijuana.

A good example of a proposed law that would likely fail on Supremacy Clause grounds (and for other reasons, such as separation of powers) is a proposed Utah law to cut off water to the new NSA facility in Bluffdale, Utah. Proposed laws like these, and others under the category of nullification (a long-ago discredited doctrine), simply don't pass muster.

The second issue involves whether a state can proscribe (or prohibit) conduct which is presumably legal under federal law. A short aside: the cited article suggests that criminalizing the recording of police "could be considered an act of defiance to mountains of legal precedent set forth by the Supreme Court of the United States." To be sure, the Supreme Court has never ruled on the specific issue of whether citizens have a legal right to film the police. The case that the article cites is Glik v. Cunniffe, which is a First Circuit case. The holding in this case only applies to the First Circuit; but for the purposes of this post, let's assume that indeed, the Supreme Court had affirmed the Glik decision.

In the area of individual rights, the federal government (or more precisely, the federal courts) set the minimum standard as to what is permitted. The states can provide more protection to individual rights, but not less; so long as those rights do not infringe on any federal constitutional rights. Here are two examples. First, in Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court held that DUI checkpoints were reasonable under the Fourth Amendment. Nonetheless, a number of states have found such checkpoints to violate the state constitutions or have otherwise outlawed them. Here, the states are providing more protection to individual rights of its citizens than the federal government, and as a result, this is permissible. Second, the Supreme Court has held that people generally do not have freedom of speech in private shopping centers; but on the other hand, California's constitution provides greater protection to speech than the First Amendment. So in California, people can exercise free speech even in a privately-owned shopping center. This too is permissible.

The proposed legislation in the cited article appears to do expressly the opposite: it purports to provide less protection to individual rights than is already permitted by federal law (again, assuming that Glik had been affirmed by the Supreme Court). When states attempt to restrict the rights of its people more than the federal government does, this rules afoul of--you guessed it--the Supremacy Clause. Even now--when there is no Supreme Court ruling affirming the right of people to film the police--I suspect a state law like the one proposed above would violate the First Amendment.

I hope this adequately answers the question!

Law in Plain English: McCullen v. Coakley

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Planned Parenthood's clinic in Boston, MA. The
yellow line on the sidewalk and street marks the
35-feet buffer zone. Image from Google Street View.

SCOTUSblog: McCullen v. Coakley

Argument: Jan 15 2014 (Aud.)

Discussion: The Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. In 2007, the legislature amended the statute to create a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. McCullen and other plaintiffs regularly engage in "sidewalk counseling" at abortion clinics, but argue that the buffer zones prevent close personal contact with their intended audience and, thus, impede their ability to communicate effectively. The District Court ruled that the statute is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others; and the First Circuit affirmed.

Planned Parenthood's Springfield, MA clinic has
white arcs painted on the street to represent the
buffer zone. Image from Google Street View.

Issue: The questions before the Court are (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents...acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

Holding:  In a 9-0 decision, the Supreme Court ruled that the Massachusetts law which makes it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility violates the First Amendment.

Planned Parenthood's Worcester, MA clinic has
white arcs painted on the street to represent the
buffer zone. Image from Google Street View.

Law in Plain English: United States v. Wurie

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: United States v. Wurie (see also Riley v. California)

Argument: Apr 29 2014 (Aud.)

Background: Following surveillance of a suspected drug deal, Wurie (who had just parked the car) was arrested by police. At the station, two cells phones (as well as keys and money) were taken from him. After he arrived but before he was booked, one Wurie's cell phones was repeatedly receiving calls from a number identified as "my house" on the external caller ID screen on the front of the phone. The officers were able to see the caller ID screen, and the "my house" label, in plain view. After about five more minutes, the officers opened the phone to look at Wurie's call log. Immediately upon opening the phone, the officers saw a photograph of a young black woman holding a baby, which was set as the phone's "wallpaper." The officers then pressed one button on the phone, which allowed them to access the phone's call log. The call log showed the incoming calls from "my house." The officers pressed one more button to determine the phone number associated with the "my house" caller ID reference. One of the officers typed that phone number into an online white pages directory, which revealed that the address associated with the number was on Silver Street in South Boston, not far from where Wurie had parked his car just before he was arrested. Suspecting that Wurie was a drug dealer, that he was lying about his address, and that he might have drugs hidden at his house, police took Wurie's keys and, with other officers, went to the Silver Street address associated with the "my house" number. One of the mailboxes at that address listed the names Wurie and Cristal. Through the first-floor apartment window, the officers saw a black woman who looked like the woman whose picture appeared on Wurie's cell phone wallpaper and a sleeping child who looked like the child in the picture on Wurie's phone. After obtaining the warrant, the officers seized from the apartment crack cocaine, a firearm, ammunition, marijuana, drug paraphernalia, in cash. Wurie was charged with possessing with intent to distribute and distributing cocaine base and with being a felon in possession of a firearm and ammunition. He filed a motion to suppress the evidence obtained as a result of the warrantless search of his cell phone. The district court denied Wurie's motion to suppress; but the First Circuit reversed the denial of Wurie's motion to suppress and vacated his conviction.

Issue: The question before the Court is whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.

Holding: In a 9-0 decision, the Supreme Court ruled that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Law in Plain English: Lawson v. FMR LLC

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Lawson v. FMR LLC

Argument: Nov 12 2013 (Aud.)

Background: Sarbanes-Oxley (SOX) has a whistleblower protection provision for employees of public companies. Lawson and Zang were employees of FMR LLC (and their subsidiaries), private companies working as an advisor or subcontractor to Fidelity, a public company organized under the Investment Company Act of 1940 and subject to reporting requirements of the Securities and Exchange Commission. Both alleged concerns about internal practices (Lawson resigned, alleging constructive discharge; and Zang was fired). The private companies filed a motion to dismiss, arguing that they were not covered under the whistleblower provision because they were not public companies. However, the District Court agreed with Lawson and Zang and found that SOX whistleblower protection provision extended to employees of private agents, contractors, and subcontractors to public companies. The First Circuit reversed, finding that the District Court's definition was too broad.

Issue: The question before the Court is whether an employee of a privately held contractor or subcontractor of a public company is protected from retaliation by the SOX whistleblower protection provision.

Holding: In a 6-3 decision, the Supreme Court ruled that SOX's whistleblower protection provision includes employees of a public company’s private contractors and subcontractors.

Law in Plain English: Ray Haluch Gravel Co. v. Central Pension Fund

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Ray Haluch Gravel Co. v. Central Pension Fund

Argument: Dec 9 2013 (Aud.)

Discussion: Ray Haluch Gravel Co. is a Massachusetts-based landscape supply company. Pursuant to a collective bargaining agreement (CBA), Haluch made contributions to Central Pension Fund on behalf of an employee. After an audit of Haluch's book, the Fund demanded additional remittances for previously unreported work allegedly covered by the CBA. Haluch objected, and the Fund sued Haluch seeking recovery of both unpaid remittances and attorneys' fees. After trial (June 17 order), the court awarded the Fund $26,897.41 for unpaid remittances. About a month later (July 25 order), it resolved the claim  for attorneys' fees, awarding the plaintiffs $34,688.15. The Fund was dissatisfied with the outcome of the case and filed their notice of appeal within thirty days (August 15) following the district court's entry of judgment with respect to the claim for attorneys' fees. This was, however, more than thirty days after the district court had entered its previous and separate judgment as to the claims for unpaid remittances (pursuant to the Federal Rules of Appellate Procedure, a notice of appeal must be filed within 30 days after entry of the judgment or order appealed from). The First Circuit ruled that the attorneys' fees must be considered an element of the plaintiffs' contractual damages; and as a result, when the district court entered judgment only for the unpaid remittances and explicitly left open the claim for attorneys' fees, the damages award was incomplete and the judgment was not final (pursuant to 28 U.S.C. § 1291, the appeals courts can only hear appeals from final decisions). As a result, according to the First Circuit, the Fund's appeal was timely even though it was more than thirty days after the district court had entered its previous judgment.

Issue: In Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), the Supreme Court held that a district court’s decision on the merits that left unresolved a request for statutory attorney’s fees was a “final decision” under 28 U.S.C. § 1291. The question before the Court is whether a district court’s decision on the merits that leaves unresolved a request for contractual attorney’s fees is a “final decision” under 28 U.S.C. § 1291, provides that courts of appeals have jurisdiction of appeals from final decisions of the district courts.

Holding: In a unanimous decision, the Supreme Court ruled that the appeal of the June 17 order was untimely. The Court found that whether a claim for attorney’s fees is based on a statute, a contract, or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal. As a result, the First Circuit's decision was reversed and Central Pension Fund's appeal cannot go forward.

Law in Plain English: UBS v. Union de Empleados

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: UBS v. Union de Empleados

Argument: N/A

Discussion: Union de Empleados ("UE") is a pension plan that own shares in closed-end investment funds ("the Funds") advised by UBS. UE brought a shareholder derivative action in federal district court against UBS. A shareholder derivative action permits a shareholder of a corporation to bring suit to enforce rights the corporation is unable or unwilling to enforce on its own behalf. UBS filed a motion to dismiss, and the District Court granted the motion because no pre-suit demand had been made on the Funds' boards of directors, and plaintiffs had failed in their complaint to state with particularity the reasons such a demand would have been futile. On appeal, the First Circuit reviewed the case de novo, and vacated the dismissal of the derivative claims. UBS argues that the proper standard of appellate review should be abuse of discretion. Abuse of discretion gives weight to the lower court's decision while de novo review considers the case as if it was being heard for the first time.

Issue: The question before the Court is whether, consistent with the standard of review employed by other Circuit Courts of Appeals, but in direct conflict with the decision below, the United States Court of Appeals for the First Circuit should have reviewed for abuse of discretion the District Court’s determination, pursuant to Rule 23.1, that the particularized facts alleged in a shareholder derivative complaint were insufficient to excuse a pre-suit demand on the corporation's board of directors.

Holding: N/A

Disposition: On August 26, the Supreme Court dismissed the case pursuant to Rule 46. According to Reuters, a July 9th ruling by a U.S. District Court judge in Puerto Rico indicated that the plaintiffs had sold their shares. As a result, they no longer had standing to pursue the claims at issue in the Supreme Court case and the judge dismissed the original lawsuit.

"I dare you to step over this line!"

Remember this one?

When Bugs Buggy dared Yosemite Sam to step over the line, I suspect he didn't think it would turn out to be a federal case. Nonetheless, two cases in the upcoming Supreme Court term quite literally involve lines in the sand, er, ground.

United States v. Apel: Dennis Apel is a frequent protester at the front gate of  Vandenberg Air Force Base. He was as subject to a pre-existing order barring him from the base, and was convicted of trespassing under 18 U.S.C. § 1382. After his conviction, the Ninth Circuit ruled in another case that a stretch of highway running through the base was subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," and as a result the federal government lacked the exclusive right of possession of the area on which the trespass allegedly occurred. Therefore, a trespassing conviction under § 1382 was not valid. In a per curiam decision, the Ninth Circuit reversed Apel's conviction. The Supreme Court will decide whether a federal law which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, may be enforced on a portion of a military installation that is subject to a public roadway easement. The protest area outside the front gate of the base is represented by the green line painted on the road in the image below.

McCullen v. Coakley: The Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. In 2007, the legislature amended the statute to create a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. McCullen and other plaintiffs regularly engage in "sidewalk counseling" at abortion clinics, but argue that the buffer zones prevent close personal contact with their intended audience and, thus, impede their ability to communicate effectively. The District Court ruled that the statute is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others; and the First Circuit affirmed. The Supreme Court will decide (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents...acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled. One of the clinic buffer zones is indicated by the painted white arc in the image below.

Law in Plain English: Mutual Pharmaceutical Co. v. Bartlett

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Mutual Pharmaceutical Co. v. Bartlett

Bartlett took a generic version of Clinoril (sulindac, manufacturered by Mutual Pharmaceutical) and suffered serious injuries associated with a rare side effect. Generally, products liability claims are not preempted for branded pharmaceuticals (Wyeth v. Levine), but are preempted for generic versions (PLIVA, Inc. v. Mensing), because branded manufacturers can make changes to the product's lablel, but generic manufacturers cannot. Bartlett's case is similar to PLIVA in all respects except that PLIVA was a negligence claim, and Bartlett's is a strict liability claim. Bartlett filed claims in New Hampshire state court, which Mutual removed to federal court. The federal jury found for Bartlett, and the First Circuit affirmed, holding that federal law does not preempt state law. The rationale was that the Supreme Court had adopted a general no-preemption rule in Wyeth (for both failure-to-warn and design defect claims), and that PLIVA was a narrow exception to that rule for failure-to-warn claims against generic manufacturers, but not necessarily for design defect claims. The question before the Court was whether the First Circuit Court of Appeals erred when it held that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products. In a 5-4 decision, the Supreme Court ruled that State-law design-defect claims that turn on the adequacy of a drug’s warnings are preempted by federal law under PLIVA. As a result, Bartlett's state law claim fails. The practical impact of this decision affirms that because federal law prevents generic manufacturers from changing their labels, they are prohibited from taking the remedial action required to avoid liability (and thus, can't be subject to such liability).