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Thanks to a recent post by Jonathan Adler at Volokh Conspiracy, I read with great interest last week Judge Sutton’s opinion for the Sixth Circuit in Platinum Sports Ltd. v. Snyder. The underlying claim was a First Amendment challenge to a Michigan ordinance restricting signs for sexually oriented businesses, but the opinion affirms dismissal on the non-merits ground of lack of standing. The decision addresses difficult issues surrounding “facial challenge” doctrine and standing to challenge a law that the relevant enforcement officials agree is unconstitutional and have agreed not to enforce. If this were a casenote outline, I would probably classify this decision as “right outcome; wrong reasoning.” But I’m not sure and it raises important questions worth considering, so here’s an analysis.

The basic situation consists of three cases: (1) Attorney A, representing Client X, files a complaint seeking declaratory and injunctive relief against Governor, alleging that a state law is unconstitutional–on its face and as applied–under the First Amendment; (2)  Attorney A, representing Client Y, files a second complaint seeking declaratory and injunctive relief against Governor and Attorney General, making the same constitutional challenge; and (3) Attorney A, now representing Client Z and seeking to represent a class of approximately 400 similarly situated businesses covered by the claim, files a complaint seeking declaratory and injunctive relief against Governor and Attorney General, making the same constitutional challenge as in the first two cases.

The timeline of relevant events in these cases is as follows:

  • April 25, 2011: Complaint in case (1) is filed.
  • July 14, 2011: Hearing in case (1) on motion for preliminary injunction and motion to dismiss.
  • July 20, 2011: Complaint in case (2) is filed.
  • July 26, 2011: District court is case (1) grants preliminary injunction and denies motion to dismiss.
  • August 25, 2011, Case (1) and case (2) are terminated by a final judgment in Plaintiffs’ favor, together with injunctions against enforcement of the statute.
  • October 21, 2011: Complaint in case (3) is filed.

The Sixth Circuit held in Platinum Sports, Inc. v. Snyder that the plaintiff business in case (3) lacked standing because it suffered no cognizable injury. I think that bottom-line conclusion is correct, but for a different reason than provided in Judge Sutton’s opinion for the court.

Let’s begin with common ground. The mere “on-the-books existence” of a statute is not enough to create legally cognizable injury. The statute must have some kind of injurious effect that a federal court is capable of redressing. Federal courts do not take statutes off the books. They enter judgments and remedies that prevent enforcement of laws. Judge Sutton’s statement of these relevant principles seems just right: “[T]he question is whether the claimant has an ‘actual and well-founded fear that the law will be enforced against them.’ Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). Absent some ‘credible threat’ of enforcement, no injury exists. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).”

The Platinum Sports opinion reasons that there was no credible threat of enforcement against the plaintiff in case (3) at the time the complaint was filed because the statute had already been declared facially unconstitutional and its enforcement had been enjoined in an order agreed to by the Governor and the Attorney General. The assessment that there was no credible threat of enforcement is probably right, but not for the reason given in the opinion.

The opinion’s analysis turns on an explication of facial challenge doctrine:

A party who brings a facial challenge to a law “seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question.” City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999). A successful facial challenge invalidates a law in all of its applications, “forbidd[ing]” any enforcement of it. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). The upshot is that a State may not enforce such a law against anyone.

But what constitutes a “successful facial challenge”?

Consider the order in case (2) (which is the same in all material respects as the order in case (1)): “IT IS HEREBY ORDERED that judgment declaring that M.C.L. 252.318a violates U.S. Const., Amend. I (the First Amendment to the United States Constitution) is entered for Plaintiff and Defendants are permanently ENJOINED from enforcing M.C.L. 252.318a.”

Suppose that the defendants believe that the district court’s understanding of the First Amendment in cases (1) and (2) is wrong. Do the judgments and injunctions in those cases protect all other SOBs in the state against enforcement of the law?

The Sixth Circuit found the answer to this question in facial challenge doctrine, stating: “[T]he district court’s orders [in cases (1) and (2)] declared the laws facially unconstitutional, necessarily prohibiting their enforcement against anyone, including the plaintiff [in case 3].” Judge Sutton’s opinion for the court appears to assume that the injunctions in these cases authoritatively prohibit enforcement against anybody else, but the reason for this assumption is unclear:

In this instance, the district court entered a stipulated final judgment declaring the two laws facially unconstitutional and enjoining the Governor and Attorney General from enforcing either law. Nor is there any reason to fear the Governor or Attorney General will sidestep these orders. They agreed to their entry. If any doubt remained about the point, the Governor and Attorney General eliminated it in this case. In their appellate brief, they have recognized the “provisions to be unconstitutional,” Br. at 22, and have promised that they “will not be enforced,” id. at 16. Anything in this world is possible, we suppose. But the legal possibility that this Governor or this Attorney General will enforce these laws in the face of these injunctions is: zero.

While the opinion states that the “legal possibility” of enforcement is “zero,” that is distinct from a claim about “legal permissibility.” The opinion appears to assume that facial challenge doctrine can somehow expand the binding legal effect of a judgment or remedy. But  facial challenge doctrine cannot expand the binding legal effect of a judgment or remedy because the theory of constitutional infirmity underlying a particular judgment does not itself bind except through embodiment in a remedy or through preclusion or precedent.  In order to know the binding legal effect of the district court’s ruling in cases (1) and (2), it is therefore necessary to know the preclusive effect of the underlying judgment and the terms and permissible reach of the injunction issued. The declaration of facial unconstitutionality can only reach as far as these other doctrines permit it to reach. (Another means by which judicial declarations of law can bind in courts is through stare decisis, but that doctrine has no application here because a district court ruling has no precedential effect for other cases.)

To see why this distinction is important, suppose that the AG (enjoined in cases (1) and (2) beginning in August 2011) had sent a letter in September 2011 threatening enforcement of the ordinance against Z (the plaintiff in case (3)). Would Z have had standing to file a federal lawsuit seeking declaratory and injunctive relief on October 21, 2011? Yes, Z would have had standing. The injunctions in cases (1) and (2) protect X and Y (the plaintiffs in those cases), but these injunctions do not themselves eliminate the threat of enforcement against Z. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (“[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute.”). (It may also be worth adding that, not only would Z have had standing, but that if Z had wanted a federal forum for its lawsuit, Z should have filed suit quickly after receiving the threat letter because the initiation of an enforcement action in state court can result in Younger abstention.)

There was no threat letter here, so why does any of this make a difference? The comparison reveals that the real legal basis for the absence of any threat of enforcement is not the “successful facial challenge” in case (1) or (2), but the defendants’ agreement that the statute is unconstitutional and their promise (rather than their legal obligation) not to enforce the statute. The fact that they made this agreement in connection with a stipulated judgment and an order to pay over $20,000 in attorneys’ fees makes their commitment to non-enforcement credible.

This discussion of the reasoning underlying the no-standing dismissal in Platinum Sports is not just idle nitpicking about a minor issue. The effectiveness of agreement about unconstitutionality to preclude standing by eliminating threatened enforcement goes to the very fundamentals of pre-enforcement adjudication of constitutional challenges to constitutionally questionable laws. Consider, for example, a pre-enforcement challenge to a State’s partial-birth abortion prohibition in which the sole theory of constitutional infirmity is that the statute is unconstitutional as applied to performance of the constitutionally protected D&E procedure. (Such a limited claim would be unusual but not completely implausible given the Supreme Court’s statement of a preference for as-applied challenges in this area.) Suppose the Attorney General’s position is that the statute does not criminalize the D&E procedure, but even if it did, the State would never use the statute to prosecute for the performance of a D&E because the Attorney General agrees that the statute would be unconstitutional as applied to D&Es. Suppose that no prosecutor can initiate a prosecution without the AG’s approval. If an agreement not to enforce precludes standing, then there would be no standing to bring this challenge. Or would there be?

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