The latest news from CIR
February 6, 2014 -- On behalf of a group of Senators and Congressmen, CIR today filed an amicus brief in Halbig v. Sebelius, a case in the DC Circuit Court of Appeals meant to overturn an Obama administration interpretation of the Affordable Care Act that rewrites the law in order to "save" it. As written, the Act clearly states that those who buy health insurance in "exchanges" established by a state qualify for subsidies, and it contains no provision for subsidies to those who buy health insurance in exchanges the federal government established in states that refused to establish their own. Yet Obama’s IRS "reads" the statute to provide subsidies for the latter group, as well.
The DC District Court, which first heard this case, upheld the IRS interpretation as consistent with congressional intent to give subsidies to both groups. In our brief, we argue that Congress in fact intended to pass a cobbled-together, even incoherent law, because after the election of Scott Brown to the Senate it could make no changes to the draft it had, and chose to pass that incoherent mess rather than nothing. We also show that the lack of subsidies for those in federally-established exchanges was a deliberate compromise reached in the Senate to secure crucial votes, and should not be overturned by the IRS or the courts.
January 29, 2014 -- Today a three-judge panel of the District of Columbia Court of Appeals heard oral argument in CIR's appeal of its motion to quash a subpoena issued by prominent attorney Susan Burke to the Wikimedia Foundation. Burke issued the subpoena to discover the identity of our client, an anonymous Wikipedia editor with the screen name "Zujua." When Zujua edited the Wikipedia page of Burke, who had sued U.S. contractor Blackwater for its role in controversial shooting deaths of Iraqi civilians in 2007, he mistakenly linked her case with a federal prosecution of Blackwater security guards for those same shootings, and noted that the judge in that case had dismissed it because of prosecutorial misconduct. Without notifying Zujua of his error (the two cases were distinct) Burke sued him for defamation and sought his identity with a subpoena.
CIR's purpose in representing Zujua is to protect the right to anonymous speech on the internet. Generally, without anonymity, ordinary people would stop posting on the internet, and that medium would be dominated even more than it is by a few big media conglomerates.
December 31, 2013 -- CIR's long-running battle on behalf of school building superintendents in New York City reached a milestone today, when U.S. District Court Judge Frederic Block granted preliminary approval of a class-action settlement providing monetary compensation to a class of superintendents headed by CIR clients. The seniority rights of these superintendents had been reduced when New York City, to end a lawsuit against it by the federal Justice Department, agreed to give "retroactive seniority" to a group of women and minority superintendents because of their sex and race.
Previously in the case, CIR set important precedent when the Second Circuit Court of Appeals ruled that before giving benefits because of sex or race, employers had to have a strong basis in evidence that each beneficiary likely had been a victim of discrimination. Rather than produce such evidence here, both the City and the Justice Department settled with CIR's class.
Santa Ana, CA, December 5, 2013 -- United States District Judge Jospehine Staton granted CIR's request to enter judgment on behalf of the defendant unions in Friedrichs v. CTA, CIR's challenge to compulsory union dues. The decision means the case can proceed to the Court of Appeals for the Ninth Circuit without discovery or a trial, both of which would have delayed the case significantly. All the parties agreed that the case raises a pure issue of law that can only be decided by the Supreme Court and today's decision speeds the case along to the next stage.
November 27, 2013 -- Together with lead counsel Michael Carvin, CIR today filed an amicus brief in Harris v. Quinn, a case challenging an Illinois statute that requires home healthcare workers to be represented by a union even though the terms of employment are set by statute and not subject to collective bargaining. The purpose of the compelled union representation in that case appears to be to force home health care workers to accept the services of a union for the purpose of lobbying state and federal legislators. The brief argues that compelled unionization violates the free speech and association rights of individuals under the First and Fourteenth Amendments. The case could be an important precursor to CIR's challenge of compulsory union dues in Friedrichs v. CTA.
November 21, 2013 -- Today CIR filed a brief in the Sixth Circuit Court of Appeals on behalf of our client Kathryn Miller, an Amish woman convicted under the federal hate crimes law for forcibly cutting the beards and hair of other Amish in an effort to shame them and thus help save their eternal souls.
Highlights of the brief include proof positive that if the government's view of the Commerce Power is right, the federal government has virtually unlimited authority to criminalize all manner of purely local activities, and a demonstration that if the government's view of the Hate Crimes Act and the Religious Freedom Restoration Act is right, it has already made many ritual circumcisions illegal.
San Francisco -- November 18, 2013 -- Fox News aired a segment about Friedrichs v. CTA, CIR's case challenging compulsory union dues, over the weekend of November 16-17. The segment can be viewed on the Fox News website:
November 5, 2013 -- A case that could save this country from future runaway globalism was argued in the Supreme Court today. The case, Bond v. United States, concerns a woman in Pennsylvania, Carol Anne Bond, who was accused of having planted dangerous chemicals on objects likely to be touched by her best friend, who was also her husband's paramour. Rather than let the state of Pennsylvania deal with Mrs. Bond's actions through its criminal laws and procedures, the federal Justice Department prosecuted her under a federal criminal statute, one that implements a multilateral treaty, the Chemical Weapons Convention.
Even if the federal government cannot reach Mrs. Bond's conduct through the Commerce Clause, the government's lawyer insisted today, it can still do so through the Treaty Power and Congress's power to pass laws implementing treaties. Many of the justices seemed skeptical, pointing out that this expansionist view of the Treaty Power would allow the president and the Senate to confer on Congress a general police power --authority that in our federalist system is reposed only in the states.
October 24, 2013 - This morning a three judge panel of the US Court of Appeals for the Second Circuit reversed an earlier district court decision denying CIR's motion for a preliminary injunction barring enforcement of New York's unconstitutional limits on contributions to independent campaign committees. Today's ruling means that CIR's client, the New York Progress and Protection PAC can run advertisements in support of Joe Lhota, one of the candidates in the current New York City mayoral race.
October 18 --The US Court of Appeals for the Second Circuit held a hastily scheduled hearing today to consider CIR's appeal of District Court Judge Paul Crotty's denial of CIR's earlier motion for a preliminary injunction barring enforcemeent of New York's unconstitutional contribution limits on independent campaign committees. CIR's client, the New York Progress and Protection PAC, desires to run adverntisements in favor of NYC mayoral candidate Joe Lhota, but is limited in the funds it can raise due to the campaign limits. With the election three weeks away, CIR asked the Second CIrcuit to expedite its appeal, filed yesterday. The court granted that motion and convened today's hearing one day later. Every court that has considered the issue has concluded that state's may not limit contributions to independent campaign committees.
October 15, 2013 -- Today the U.S. Supreme Court is hearing oral argument in the case Schuette v. BAMN, in which the Court will decide whether to uphold or reverse a decision of the Sixth Circuit Court of Appeals to strike down Michigan's Proposal 2, which bans racial discrimination by the government of that state. The Sixth Circuit had found that Proposal 2's ban on preferential treatment because of race violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. CIR is representing Michigan resident Eric Russell in the case.
October 7, 2013 -- Today CIR filed a brief "on the merits" in the District of Columbia Court of Appeals on behalf of an anonymous Wikipedia editor. The editor, who goes by the screen name "Zujua," has been sued for defamation by Susan Burke, an attorney who has garnered considerable public attention because of her crusading lawsuits against the military and U.S. contractors such as Blackwater.
A portion of Burke's Wikipedia page was about her famous lawsuit against Blackwater over the shooting deaths of Iraqi civilians. In editing this portion of her page, Zujua mistakenly linked her civil case against Blackwater with a federal criminal case against Blackwater employees, over the very same events, that had been dismissed because of prosecutorial misconduct. The error was corrected a month later.
Still, Burke launched her defamation suit against Zujua, an action CIR characterizes as a SLAPP suit (a Strategic Lawsuit Against Public Participation) that is calculated to make others hesitate to criticize Susan Burke. In the trial court we moved to quash subpoenas Burke had issued to Wikipedia to learn Zujua's identity so she could serve him with her legal complaint and force him to go to court. The trial court erroneously denied the motion, made under DC's new anti-SLAPP statute, and we appealed.
In our brief we argue that Burke would have no chance of proving defamation against Zujua, since Burke is a public figure for the purpose of her Blackwater suit and she would be unable to show that Zujua made his confused edit with the knowledge that it was false.
CIR hopes its defense of Zujua will result in a precedent that will strengthen the anti-SLAPP statute and thus protect the free discussion of public issues on the internet.
October 4, 2013 -- CIR filed suit on behalf of behalf of the New York Progress and Protection PAC ("NYPPP"), an independent election committee that wants to run ads in support of conservative candidates in New York, including Republican candidate Joe Lhota in New York City’s current mayoral campaign. Inexplicably, New York limits "contributions" -- including spending by independent campaign committees -- to $150,000 per year. The Supreme Court has consistently held that the state cannot regulate independent election speech. Every other court that has considered this question has ruled that the limits don’t apply to independent committees, and we have moved for a preliminary injunction so that NYPPP can participate in the current New York City mayoral campaign.
September 5, 2013 -- Today CIR filed an amicus brief in the Supreme Court in the case of Martin v. Blessing. We are urging the Court to grant review of, and overturn, a federal judge's order that the lawyers representing a class in a class action case before that judge be chosen to reflect the racial and gender make-up of the class. CIR argues that such court-mandated racial- and gender-balancing in attorney staffing decisions is discrimination that serves no legitimate governmental interest, and therefore flatly violates the Constitution.
September 5, 2013 -- Today CIR filed a brief in the Ninth Circuit Court of Appeals on behalf of our client Arnold Davis, a retired U.S. Air Force officer and resident of the U.S. territory of Guam. We are asking the court to reverse a decision by the U.S. District Court in Guam dismissing Davis's claim that he was denied the right to register to vote in a plebiscite meant to determine Guam's political future on account of his race. Guam officials had barred Davis from registering because he was not a "native inhabitant of Guam."
The district court dismissed the case on the ground that since the plebiscite has not yet been scheduled, Davis does not face imminent injury, and therefore the case is not ripe for adjudication. Taking strong issue with that ruling, CIR argues before the Ninth Circuit that by barring Davis from registering because of his race, Guam already is inflicting a continuing injury on him. CIR also argues that because Guam's violation of equal protection is so clear, and no significant facts are in dispute, the Ninth Circuit should decide the case on the merits now, without remanding it to the district court.
July 9, 2013 -- CIR is representing former law-school applicant Eric Russell before the Supreme Court in the case of Schuette v. BAMN, in which the radical group By Any Means Necessary (BAMN) is seeking to have Michigan's Proposal 2 struck down as unconstitutional. In our brief we argue on Russell's behalf that Proposal 2, which bans preferential treatment based on race in admissions to public universities in Michigan, does not violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
Remarkably, BAMN won in the lower court; the Sixth Circuit Court of Appeals held that Proposal 2 does violate equal protection. Basing its ruling on the Political Process Doctrine, the Sixth Circuit argued as follows: when the people of Michigan passed Proposal 2, and thus enshrined equal treatment in the Michigan Constitution, they made it more difficult for minorities in that state to obtain preferential treatment for themselves through the political process than it is for others, such as veterans or legacy applicants, to pursue such treatment for their own, non-racial groups through the same process. The Sixth Circuit held that by thus making it harder for minorities to obtain preferences, the people denied minorities the equal protection of the laws.
The Political Process Doctrine first appeared in Supreme Court decisions many decades ago and has been little heard of since. In our brief, CIR takes square aim at this doctrine, arguing that it easily produces absurd results (the present case being no exception) and makes the Equal Protection Clause work like Chinese handcuffs: the more a state tries to guarantee equal protection, the more it will violate it. We argue that such absurdities -- and also the false presumption that preferential treatment for minorities is a "minority interest," sought by all minority individuals and opposed by all non-minorities -- mean that the Court should retire the Political Process Doctrine and uphold Proposal 2.
June 25, 2013 - CIR asked federal district court judge Josephine Staton Tucker to enjoin the state of California from collecting agency fees from its ten California teacher clients while their suit challenging the constitutionality of compulsory union dues is pending. Today’s motion for a preliminary injunction argues that CIR’s clients are entitled to immediate relief because of the ongoing and irreparable injury to their First Amendment rights.
The motion is an effort to move Friedrichs v. CTA quickly through the lower courts. It points out that prior cases upholding state closed-shop laws are irreconcilable with basic First Amendment principles and subsequent decisions and thus likely to be overruled. The motion therefore asks the Court to promptly deny today’s request (as a lower federal court must) but to do so without argument so that the plaintiffs can obtain prompt relief from the appellate courts, and ultimately the Supreme Court.
June 25, 2013 -- Today the Supreme Court issued its decision in Shelby County, Alabama v. Holder, in which Shelby County challenged the requirement in the Voting Rights Act that it must "preclear" all proposed changes in voting procedures with the federal government before making them. Under the Act, only some jurisdictions, mostly in the South, had to preclear their voting changes. The Court, finding this differential treatment an infringement of equal state sovereignty not justified under current conditions, found the "coverage formula" in the act unconstitutional and thereby struck down preclearance, at least until Congress creates (if it can) new coverage criteria.
June 24, 2013 -- Today the Supreme Court issued its decision not to decide Fisher v. University of Texas, in which Abigail Fisher was denied admission to that public university because of her race. The Court found that the lower courts that had ruled in the university's favor had inappropriately deferred to the university's "expertise" when deciding whether the racial discrimination it practiced was narrowly tailored to advance the "compelling" governmental interest of securing the educational benefits that come from a racially-diverse student body. Accordingly, the Court remanded the case with orders to the lower courts to apply "strict scrutiny" of a less-deferential form.
Justice Thomas wrote a blistering concurrence, arguing that the "diversity rationale" itself, in light of longstanding precedent, is wholly inadequate to justify racial discrimination in higher education admissions decisions.
May 15, 2013 -- Today CIR filed an amicus curiae brief in the United States Supreme Court in one of the most important cases the Court will hear this year, Bond v. United States. In this case, the petitioner, a woman from Pennsylvania named Carol Anne Bond, tried to poison her husband's paramour using dangerous chemicals. Instead of merely allowing the state of Pennsylvania to prosecute Bond for assault or attempted murder for her acts, federal prosecutors elected to prosecute her in federal court for violating the federal Chemical Weapons Act. The government contends that even if it lacks the power to criminalize Bond's conduct under the Commerce Clause, it still has that power here because the Chemical Weapons Act implements a treaty, the Chemical Weapons Convention, to which the United States is a party.
In other words, the government contends that when it ratifies a treaty with a foreign power, it can expand Congress's authority beyond the limits set in the enumeration of such powers as the Commerce Power. In its brief, CIR argues that this Expansionist View of the Treaty Power, in light of various existing treaties, would swiftly erase the federalist system of a limited national government clearly found in the structure of the Constitution, and bestow on the federal government a generalized police power capable of enforcing "global norms" directly on American citizens.
April 30, 2013 - Los Angeles, CA -- CIR today filed a lawsuit in the United States District Court for the Central District of California on behalf of 10 California teachers and the Christian Educators Association International, challenging the constitutionality of California’s “agency shop” law, which violates the First Amendment by forcing public school teachers who are not members of the union to nonetheless pay annual dues. The suit was filed against the lead defendants, the California Teachers Association (CTA) and the National Education Association (NEA), as well as ten affiliated local teachers’ unions, and local school officials. Michael Carvin, a partner at Jones Day, is serving as lead counsel.
March 3, 2013 --Today CIR filed a notice of appearance in the Court of Appeals for the Sixth Circuit on behalf of our client Kathryn Miller, who was sentenced to serve one year and one day in prison for her part in Amish hair cutting incidents that took place in 2011. The Obama Justice Department charged Miller --along with five other women and ten men, each members of a small Amish community in Bergholz, Ohio -- under a federal hate crimes statute for cutting the hair and beards of several other Amish.
The Amish believe that the Bible commands men to begin growing beards once they are married and the women to wear long hair. The hair cutting “attacks” were meant to shame their victims for failing to adhere to strict religious standards. Following a jury trial, the defendants were convicted, and the court sentenced them to federal prison for periods of up to seven years.
CIR will argue in Miller's appeal that the prosecution of her and her fellow defendants was unconstitutional because Congress lacks the authority under the Commerce Clause to criminalize conduct that is connected to interstate commerce only in the most tenuous way. Here, the government argued that a sufficient nexus existed with interstate commerce merely because the hair cutters 1) used implements that had moved across state lines before the defendants even purchased them and 2) traveled to the sites of the "attacks" in vehicles that may have crossed state lines in the past.
January 31, 2013 -- Today CIR filed a notice of appeal from a ruling by the U.S. District Court for the District of Guam dismissing our client Arnold Davis's case challenging Guam's race-exclusive voter referendum on whether Guam should cease to be a U.S. protectorate. By Guam law, Davis, a retired U.S. Air Force major who resides in Guam, is not allowed to register to vote in the referendum because he is not a so-called "native inhabitant" of Guam. The district court ruled that since it is unclear when the referendum will be held, the denial of Davis's right to vote in it because of his race is unimportant, and the case is not "ripe" for adjudication.
From the beginning this case was destined to go up to the Ninth Circuit Court of Appeals, and then likely the Supreme Court. The district court's dismissal and CIR's appeal will allow it to do so faster than otherwise would have been possible.
January 4, 2013 -- Today CIR filed its reply papers in its motion to quash a subpoena issued to the Wikimedia Foundation in a lawsuit that will have the effect of chilling free speech on the internet. The suit was brought by the attorney Susan Burke, who is seeking the identity of our client, an anonymous Wikipedia editor who edits under a screen name.
Wikipedia is an open forum, and editors of its pages typically are anonymous. Burke has sued our client, as "John Doe No. 1," for defamation over an edit he made to a page about her. Burke, famous for her lawsuits against the U.S. military and its civilian contractors such as Blackwater, seeks our client's identity so she can serve papers on him in her lawsuit and hale him into the District of Columbia Superior Court.
The problem is, our client merely made an honest mistake in his edit, and it was soon corrected. Burke's lawsuit, CIR contends, is a so-called "SLAPP" suit (a Strategic Lawsuit Against Public Participation), with the effect of silencing other anonymous editors and internet bloggers who will fear to speak freely about her well-publicized and politically-oriented lawsuits lest Burke sue them, uncover their identities with subpoenas, and subject them to the burdens of litigation.
Fortunately for our client, the District of Columbia recently passed an anti-SLAPP statute under which subpoenas such as Burke's are to be quashed, unless the party issuing the subpoena can show a likelihood of success on the merits of the lawsuit. CIR argues that Burke is very unlikely to succeed in her suit against our client over his speech on a public issue, and so the subpoena should be quashed, and the important First Amendment right to speak anonymously on such issues protected.
UPDATE: In a very brief order containing little argument, Judge Maurice Ross of the DC Superior Court denied CIR's motion to quash the subpoena on January 30, 2013. Fortunately, CIR was able to persuade the Wikimedia Foundation (at the eleventh hour) not to comply with the subpoena and reveal our client's personal information before the First Amendment issues are settled, and we filed a notice of appeal to the DC Court of Appeals the day after the lower court ruled.
December 27, 2012 -- Together with lead counsel Michael Carvin, CIR has filed an amicus brief in the Supreme Court in Shelby County v. Holder, another constitutional challenge to Section 5 of the Voting Rights Act. In the Shelby case, CIR represents John Nix, Anthony Cuomo (both CIR’s clients in Nix v. Holder), and Abigail Thernstrom (Vice Chair of the United States Commission on Civil Rights). CIR argues that Congress exceeded its constitutional authority to enforce the reconstruction amendments because Section 5’s coverage formula cannot be justified by any current discrimination in the targeted jurisdictions; that the coverage formula is no longer aimed at areas where case-by-case litigation under Section 2 of the Voting Rights Act would be inadequate; and that Congress’s amendments in 2006 expanded the reach of Section 5 so broadly that it is no longer directed at eliminating discrimination, but rather at prohibiting any change that for any reason diminishes minority voters’ ability to elect their preferred candidates.
December 5, 2012 -- CIR filed a motion to intervene in New Hampshire v. Holder on behalf of our client Peter Heilemann, a New Hampshire resident. CIR is asking the court to dismiss New Hampshire v. Holder, a case in which the state is seeking to bail out of coverage under Section 5 of the Voting Rights Act. Section 5 requires certain covered jurisdictions to preclear all changes in voting procedure with the Attorney General before implementing them. In its papers filed today, CIR contends that New Hampshire cannot meet the statutory conditions for "bailing out" of Section 5 in light of its long history of failing to file for preclearance for its voting changes. CIR believes that permitting New Hampshire to bail out of Section 5 not only violates the express conditions for bail out, but creates a false impression that the bailout provisions minimize the unconstittuional burden imposed on states by Section 5. CIR is pressing for Section 5 to be struck down in its entirety in Shelby County v. Holder, a case now before the Supreme Court. CIR believes the constitutional problems with Section 5 cannot be minimized by arbitrarily setting aside the requirements for bailout on the eve of the consideration of Section 5's constitutionality by the Supreme Court.
November 15, 2012 -- Today a deeply divided U.S. Court of Appeals for the Sixth Circuit, in an 8 to 7 ruling, declared Michigan's Proposal 2 unconstitutional. This decision conflicts with an earlier decision by the Ninth Circuit upholding California's similar constitutional amendment. The good news: the split between the two circuits makes it likely that today's decision will be reviewed by the Supreme Court.
Prop. 2 amended Michigan's constitution to end the use of racial preferences in state contracting, employment, and school admissions. It passed by a margin of 58% to 42% in November, 2006. Following passage, a group called "Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary," together with a group of minority students, filed suit claiming that an amendment prohibiting racial preferences violates federal constitutional guarantees against racial discrimination. In their view, an amendment that makes it more difficult to lobby for racial preferences illegally discriminates against members of minority groups.
Together with lead counsel Charles J. Cooper (Cooper & Kirk, PLLC), CIR continues to represent Eric Russell, a then-applicant to the University of Michigan law school and now an employee of a Michigan state school, who intervened in the case to ensure implementation of the race-blind policies required by the amendment.
November 13, 2012 - The Supreme Court today denied CIR's petition for certiorari in Nix v. Holder, CIR's case challenging Section 5 of the Voting Rights Act. Though disappointing, the decision follows the Court's decision last week to grant certiorari in Shelby County v. Holder, a case that also challenges the constitutionality of Section 5. Though the facts in Nix are stronger than the facts in Shelby County, the Obama Justice Department dealt Nix what turned out to be a mortal blow when, just days before the Court of Appeals was to hear the case, it reversed itself and decided to grant preclearance of the non-partisan voting system in dispute in the case. This "retreat" by the Obama DOJ was transparently designed to make Nix moot and block it from getting to the Supreme Court. Unfortunately, the tactic worked.
October 22, 2012 -- On August 15, CIR achieved a significant victory against race preferences in federal contracting when the DC federal district court ruled that the Small Business Administration's Section 8(a) program favoring minority-owned businesses was unconstitutional as applied to the training similator industry, in which CIR's client, Dynalantic Corp., competes for defense contracts. The court based its ruling on the government's failure to show any history of anti-minority discrimination in that industry.
As of last Thursday, both the government and Dynalantic have notified the DC Circuit Court of Appeals that they intend to appeal the district court's ruling. Appealing has risks for both sides. The government risks reversal of the district court's finding that the Section 8(a) program in general, as opposed to its application to the training similator field, is constitutional. And CIR and Dynalantic risk losing their as-applied victory in the district court. But for CIR, at least, the gamble is worthwhile, for our purpose always has been to have the entire Section 8(a) program struck down as an unconstitutional race preference.
October 11, 2012 -- In an interview with ABC News and in her new book, Mugged: Racial Demagoguery from the Seventies to Obama, deservedly-famous CIR alumna Ann Coulter discusses her time at CIR and her work on our seminal case U.S. v. Morrison.
October 10, 2012 -- Today the U.S. Supreme Court heard oral argument in a university applicant's challenge to race preferences in admissions at the University of Texas. Abigail Fisher, who is white, claims she was denied an equal chance of admission to that public university because of her race.
Supporters of race preferences tried to influence the Court's deliberations both inside and outside the courtroom. Outside, the Reverends Jesse Jackson and Al Sharpton (along with CIR's nemesis BAMN) showed up, brandishing signs. Inside, lawyers for both sides faced a barrage of questions from the justices. Some highlights: When Justice Ginsberg asked the university's lawyer, Greg Garre, about Texas's so-called "ten percent plan" -- in which the university admits all applicants in the top ten percent of their high school classes -- Garre replied that most underrepresented minorities so admitted come from high schools that are largely black or Hispanic. Texas, he claimed, needs to use extra race preferences to admit more minorities who went to integrated schools, even though such minorities tend to be more privileged than those admitted under the ten percent plan. When Justice Alito then asked why an underrepresented minority from a very well-off family should receive more favorable treatment than an Asian or white applicant from a more modest background, he did not get a clear answer.
October 9, 2012 -- Today CIR filed its reply on its petition to the Supreme Court to hear Nix v. Holder, its case challenging Section 5 of the Voting Rights Act as an unconstitutional race preference in voting. Section 5 requires some, mostly Southern, jurisdictions to "preclear" all voting changes, such as redistricting changes, with the federal Justice Department. In our challenge we argue that Section 5, among other things, has the effect of concentrating minority voters into their own congressional districts -- a good outcome for minority officeholders who want safe seats, but not for minority voters, who lose the ability to form coalitions with other voters and thus influence the political process more broadly than they can when confined to Section 5 "concentration districts."
The Court looks set to decide on October 26 whether it will take the case.
September 21, 2012 -- Today, in Mueller v. Auker, CIR filed a petition for rehearing by the full Court of Appeals for the Ninth Circuit, in which we seek to reverse a ruling by a three-judge panel denying a new trial. CIR is representing Corissa and Eric Mueller, whose five-week-old daughter Taige was seized by police in a Boise, Idaho, emergency room and given a forced spinal tap in 2002. Among other errors, CIR is challenging the admissibility of testimony by defendants' medical expert witness, who could not explain how he came to his opinion (which contradicted the Muellers’ expert as well as every medical study on the subject). Specifically, CIR is challenging the three-judge panel's holding that medical experts can offer opinions based merely on instinct or intuition.
September 14, 2012 - As we wait to see if the Supreme Court will take up one of the cases challenging Section 5 of the Voting Rights Act, ABC News explores the issues underlying this controversial law.
September 13, 2012 - Today's online forum about Section 5 of the Voting Rights Act features a contribution by the Heritage Foundation's Hans von Spakovsky, who suggests that the Supreme Court should take Nix v. Holder this term.
August 16, 2012 -- After a seven year wait, U.S. District Court Judge Emmet Sullivan finally ruled in favor of CIR’s client Dynalantic on its challenge to the Section 8(a) set aside program. The court held that the Section 8(a) program, as applied in the military simulation and training industry, failed to satisfy strict scrutiny, and enjoined the Small Business Administration and the Department of Defense from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so.
July 30, 2012 -- Today Samuel Mullet and other Amish men and women the United States Justice Department accuses of hate crimes rejected a plea offer that included jail sentences many times shorter than the decades-long sentences they could face if found guilty. The Amish chose instead to go to trial on the government's charges that they forcibly cut the hair and shaved the beards of other Amish with whom they were having an intra-faith dispute. They deny they were motivated by anti-Amish bias or committed any "hate crimes."
Earlier in the case, CIR filed an amicus brief in which we argued in favor of dismissing the indictment on the ground that the acts charged, which all took place in Ohio, had so little connection with interstate commerce that the indictment failed to charge an offense reachable by Congress under the Commerce Clause.
The judge hearing the case disagreed. He ruled that because scissors and hair clippers used in the alleged attacks had once traveled in interstate commerce (before the defendants purchased them in Ohio), and because the alleged perpetrators traveled within Ohio to the sites of the attacks in hired vehicles (which might have crossed state lines in the past), the charged acts had enough of a "nexus" with interstate commerce to make the indictment valid under the Commerce Clause.
CIR intends to challenge this ruling later in the case.
July 24, 2012 -- Today a panel of the Ninth Circuit Court of Appeals sitting in Boise, Idaho, heard oral argument in CIR's appeal of the case Mueller v. Auker. In that case, a Boise police officer, without consulting a judge or a court, seized custody of the five-week-old daughter of CIR clients Eric and Corissa Mueller because the officer took an emergency room doctor's side in a medical dispute. The Muellers -- who lost custody for thirty-six hours, during which doctors determined that their daughter merely had a cold -- are appealing the district court judge's grant of summary judgment to the police officer. They also are seeking a new trial of the City of Boise and the emergency room doctor because of irregularities in the way the first trial was conducted.
July 20, 2012 -- Together with lead counsel Michael Carvin, CIR today filed a petition for a writ of certiorari in Nix et al. v. Holder, its case challenging the constitutionality of Section 5 of the Voting Rights Act. The petition argues that the increasingly aggressive use of Section 5 to prevent implementation of voter ID laws and other nondiscriminatory state and local election laws requires a prompt determination of whether Section 5 remains a constitutional exercise of Congress's authority. The petition notes that Nix v. Holder is the only pending challenge that raises problems with the 2006 amendments to Section 5, which require that proposed voting changes be evaluated exclusively in terms of their ability to maximize the ability of minority voters to elect minority candidates. The petition notes that this type of race conscious decision making is severely at odds with the Constitution's prohibition of racial discrimination.
July 16, 2012 -- Attorney General Holder arrived on Guam today, but refused to take questions from the press. In the linked National Review Online article, John Fund speculates that Holder's elusiveness might be because he doesn't want to answer awkward questions about CIR's lawsuit challenging a race-exclusive referendum on that U.S. possession. Whatever the cause of Holder's silence, it's too bad; we would like to know, for example, why, after CIR client Arnold Davis lodged a complaint with the federal Justice Department about how he was excluded from registering to vote in the referendum because of his race, Holder's DOJ decided to take no action on it.
June 28, 2012 -- Today the United States Supreme Court, in a 5 to 4 decision, ruled that the Patient Protection and Affordable Care Act is constitutional. In an opinion by Chief Justice Roberts, the Court (agreeing with CIR) did not find that the Commerce Clause granted Congress the power to require Americans to buy health insurance. Rather, the Court upheld the penalty that the Act imposes for noncompliance with this requirement under Congress's taxing power.
June 7, 2012 -- CIR has filed an amicus brief in the case Fisher v. University of Texas. In that case, the Supreme Court is considering whether the University of Texas committed unconstitutional racial discrimination by giving minority applicants to the university preferential treatment based on race.
In our brief, authored by CIR's President Terry Pell and General Counsel Michael Rosman, CIR argues that the Court should take into account the harm that race preferences do to their supposed beneficiaries. When the Supreme Court was considering CIR's 2003 case Grutter v. Bollinger, the University of Michigan Law School assured the Court that important educational benefits would come from increasing student-body "diversity." Deferring to this "expert" educational judgment, the Court permitted state universities to discriminate based on race in order to increase such diversity. But since Grutter was decided, Richard Sander and other social scientists have compiled rock-solid data showing the devastating educational damage such discrimination in fact causes. Citing that evidence, CIR argues in its brief in Fisher that because race preferences actually result in disproportionately high drop-out rates, disproportionately low grades, and other bad outcomes for minorities who receive them, the Court should give Texas's race preferences a higher level of strict scrutiny than the deferential "soft strict scrutiny" the Court applied in Grutter.
May 31, 2012 -- Today a federal district court judge in Ohio, in the case of U.S. v. Mullet, denied a motion by Samuel Mullet, Sr., and other Amish to dismiss the Obama Administration's charges against them under the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act. The defendants are accused of forcibly shaving the beards and cutting the hair of other Amish as a means of enforcing religious discipline.
CIR had filed an amicus brief in the case, in which we argued that the indictment exceeded the federal government's authority under the Commerce Clause because the government failed to allege a sufficient connection between the acts charged (which occured entirely in the state of Ohio) and interstate commerce.
The court disagreed, holding that the hair-cutters' use of scissors that had once traveled in interstate commerce, and the alleged perpetrators' transportation within Ohio to the sites of the attacks in hired vehicles (which previously might have traveled across state lines), created a sufficient nexus with interstate commerce to support the indictment.
CIR has every intention of challenging the court's decision later in the case.
May 18, 2012 -- CIR will seek Supreme Court review of today’s decision by the U.S. Court of Appeals dismissing LaRoque v. Holder, its case challenging Section 5 of the Voting Rights Act.
Earlier today, a three-judge panel ruled that LaRoque must be dismissed as moot as a result of a February 2012 decision by the Attorney General, which purported to withdraw the government's objection to the nonpartisan voting system that gave rise to the case. According to the panel, LaRoque, Nix and the other plaintiffs “have ‘obtained everything that [they] could recover’ from this lawsuit, and...the case is thus moot.”
Today’s decision overlooks the central issue raised by LaRoque and other plaintiffs, which was not the Attorney General’s specific decision to deny preclearance for Kinston’s 2008 decision to implement nonpartisan voting, but rather the ongoing harm the citizens of Kinston will suffer every time the Attorney General exercises his authority to preclear any and all voting changes in Kinston and Lenoir County.
April 27, 2012 -- Today CIR General Counsel Michael Rosman will speak at Catholic University in Washington, DC. He is to be one of several speakers at a conference titled "Child Abuse, Family Rights, and the Child Protective System (CPS): Law and Public Policy in Crisis," co-sponsored by the Society of Catholic Social Scientists and the Catholic Social Workers National Association. With CIR's Mueller case in mind -- in which police seized a five-week-old infant from her mother at a Boise, Idaho, hospital after taking an emergency room doctor's side in a medical dispute -- Rosman will expound on the topic, "Nonjudicial Interference in Family Relations."
April 23, 2012 -- Even as the Supreme Court considers whether Congress exceeded its power under the Commerce Clause when it passed the Affordable Care Act, the Obama Justice Department, in a case in Ohio, is exceeding the bounds of that clause itself in its prosecution of several Amish for a purported federal "hate crime": forcibly shaving the beards and cutting the hair of other Amish as a means of enforcing religious discipline. Today the federal district court hearing that case, United States v. Mullet, allowed CIR to file an amicus brief pointing out DOJ's overreaching.
Never mind that the alleged actions already appear to violate state law against assault and battery. They violate the Hate Crimes Act, too, the Obama DOJ charged, because the alleged perpetrators hired drivers (whether drivers of cars or buggies the government doesn't always say) to take them from one part of Ohio to another to engage in their religiously-motivated acts, and also used a pair of scissors that had once travelled in interstate commerce. CIR argues that by claiming such things as these, the government failed to allege enough of a connection between the alleged crimes and interstate commerce for the indictment to charge an offense under relevant federal law (which of course includes the Constitution).
April 19, 2012 -- CIR's spring Docket Report covers recent developments in CIR's litigation. Featured topics include our move to discourage defections by conservative Supreme Court justices in the Obamacare battle; the frantic efforts of the U.S. Justice Department to short-circuit CIR's case challenging a massive federally-mandated race preference in voting; the compatibility of stupidity and evil in bipartisan legislation setting up that mandate; and the fact that what happens in Guam -- for example, a race-exclusive referendum on independence -- won't stay in Guam, but will affect the rest of America, too.
April 17, 2012 -- Inevitably, the Obamacare litigation in the Supreme Court has occasioned much discussion, and no doubt much understandable confusion, on the web and elsewhere. For the perplexed, CIR General Counsel Michael Rosman makes it all perfectly clear on this Point of Law podcast.
April 12, 2012 -- This January CIR fired off an amicus brief in Blessing v. Sirius XM Radio, Inc. That case is a class action, and U.S. District Court Judge Harold Baer, the federal judge hearing the case, came up with an unusual requirement: the lawyers appointed to represent the plaintiff class had to have a gender and racial makeup that "fairly reflects" that of the class members.
Judge Baer indicates that this order will make the class representation "better." But if that's true, it would seem to follow that there is better representation when a white client has a white lawyer rather than a black lawyer, or when a female client has a female lawyer rather than a male lawyer, or when an Asian client has an Asian lawyer rather than a white lawyer. Quite simply, no one believes this.
Judge Baer has issued such race- and gender-balancing orders in class actions before -- the only federal judge ever to do so -- and has never explained his basis in any detail. In its brief, CIR points out the obvious: these orders violate the equal protection principles of the Constitution because appointing lawyers based on their race or sex is governmental racial or gender discrimination that does not serve any governmental interest, let alone a compelling one.
April 2, 2012 -- Today, in BAMN v. Brown, the Ninth Circuit Court of Appeals reaffirmed an earlier CIR victory in that Court that established the constitutionality of Proposition 209, which bans the State of California and its state universities from discriminating based on race. The Court ruled that the earlier CIR-created precedent remained good law, and shot down a challenge to it by the radical group "By Any Means Necessary."
CIR filed an amicus brief in the case decided today, in which we argued, quite persuasively, that the plaintiffs had no standing to ask the Ninth Circuit to do something it has no authority to do: overrule the California Supreme Court, which also has upheld Proposition 209. As we had hoped, the Court spared itself any need to wade into the issues raised in our brief by simply deciding to uphold the referendum.
CIR is currently fighting in the Sixth Circuit Court of Appeals to uphold Michigan's similar Proposal 2. That case is now before the full, en banc Court, which is considering whether to agree or disagree with a prior decision of a Sixth Circuit three-judge panel striking down Proposal 2 as violating the Equal Protection Clause of the Constitution. If the full Sixth Circuit agrees with the panel, the next stop is the Supreme Court -- a destination made all the more likely by what would be a circuit split, preserved today, between the Ninth and Sixth Circuits on this vital constitutional question.
February 21, 2012-- Together with lead counsel Michael Carvin, CIR today filed a brief challenging a last ditch effort by the Department of Justice to prevent the Court of Appeals from ruling on the merits of CIR's facial challenge to the constitutionality of Section 5 of the Voting Rights Act. Earlier this month, the Attorney General purported to withdraw his 2009 objection to Kinston's proposed non-partisan voting system. Shortly thereafter, the Attorney General moved to dismiss LaRoque v. Holder on grounds that it now was moot.
CIR's brief notes that the Attorney General's letter, filed after two years of litigation and just days before oral argument before the Court of Appeals, is a pretext: although it emphasizes that blacks "were a majority of the electorate in 2011," the 2011 data is virtually indistinguishable from the 2009 data. More important, the Attorney General must prove that judicial relief is not needed to prevent recurrence of the violation.
However, absent judicial relief, there are three ways Nix, LaRoque and Cuomo are likely to continue to suffer injury from the unconstitutional application of Section 5 to Kinston voting: First, the Attorney General's withdrawal of his previous objection is not authorized by Section 5 and likely is ineffectual; second, it is likely that other voting changes already being contemplated will force Kinston to seek preclearance again before 2013; and third, unless Section 5 is struck down, Nix cannot move to have a new election to remedy his injury from the 2011 election.
The court has scheduled oral argument on February 27 to consider both the Attorney General's late claim that the case is moot as well as the merits of CIR's appeal.
UPDATE No. 1: On February 24, the Court of Appeals cancelled the oral argument scheduled for the following Monday, which would have considered both the question of mootness and the substantive appeal.
UPDATE No. 2: On February 27, CIR co-counsel Michael Carvin filed a letter with the Court of Appeals advising it that the Lenoir County Board of Elections voted on February 15 to change current election procedures by adopting a practice known as "Sunday Voting" for the upcoming primary. This change must be precleared by the Attorney General pursuant to Section 5, a circumstance that makes clear why the legal dispute concerning the constitutionality of Section 5 is very much alive notwithstanding the Attorney General's sudden and late effort to make it seem moot: John Nix and other Kinston candidates and citizens will in the near future again be subjected to Section 5's unconstitutional preclearance procedures.
February 21, 2012--The Supreme Court announced today that it granted the petition for certiorari filed by the plantiffs in Fisher v. University of Texas, a case which challenges the use of racial preferences in UT's undergraduate college. The case is an opportunity for the Court to revisit its 2003 ruling in CIR's case, Grutter v. Bollinger. In Grutter, the Court ruled that schools may take race into account in order to achieve the educational benefits of diversity. After Grutter, the University of Texas re-instituted the use of race in admission to supplement the racial diversity it already was achieving through use of the so-called "Ten Percent Plan," which provided for near-automatic admission of every applicant who graduated in the top ten percent of their Texas high school class. In addition, UT began to take race into account as a plus factor in evaluating individual applicants. The plaintiffs are asking the Supreme Court to rule that the additional use of race to evaluate individual applicants over and above the the Ten-Percent plan to achieve racial diversity was unconstitutional.
February 14, 2012 -- The Department of Justice today filed a motion to dismiss LaRoque v. Holder, CIR's case challenging Section 5 of the Voting Right Act, on grounds that it is moot. Today's motion is not unexpected -- it follows the Attorney General's decision on February 10 to purportedly withdraw his 2009 denial of preclearance of Kinston's plans to implement a nonpartisan voting system. CIR does not believe the Attorney General's late effort to reverse his 2009 decision moots the case, which raises a facial challenge to the constitutionality of Section 5 as a whole.
February 13, 2012 -- Together with former Solicitor General Theodore Olson, CIR filed an amicus brief in Florida v. HHS, now pending before the Supreme Court. Today's brief was filed on behalf of a group of former Attorneys General and officials of the Justice Department, including Attorney General John Ashcroft, Attorney General William P. Barr, Assistant Attorney General Timothy E. Flanigan, Attorney General Edwin Meese III, and Attorney General Michael B. Mukasey.The brief challenges the government's view that Congress's power to regulate interstate commerce includes the power to compel individuals to engage in intersate commerce for the purpose of purchasing health insurance. The brief explains that constitutional text and history, 18th Century usage, and early Supreme Court cases all make clear that the power to regulate interstate commerce was understood to mean the power to regulate existing interstate commerce, not compel the creation of new commerce. The brief notes that the government's expansive view of Congress's Commerce Clause authority would convert that clause from a grant of a limited, enumerated power into limitless authority to address any inactivity that in the aggregate creates a national problem.
February 13, 2012 -- Late Friday night, the Department of Justice filed with the Court of Appeals a copy of a letter informing Kinston, North Carolina officials that it had reversed its 2009 decision denying preclearance to the nonpartisan voting system passed by voter referendum in 2008. As noted in the update below, CIR believes its clients are entitled to a judgement on the merits of their challenge to the constitutionality of the Section 5 preclearance requirements as a whole, notwithstanding the Attorney General's reversal of the specific decision that gave rise to their suit. Otherwise, Kinston's election procedures will continue to be governed by Section 5's unconstitutional preclearance standards.
January 30, 2012 -- Attorney General Eric Holder sent a letter to the Court of Appeals for the DC Circuit advising that he is going to reconsider his denial of preclearance for the Kinston nonpartisan voting system on the basis of “new” information he recently received about racial voting patterns in Kinston. The letter suggests that he may now preclear the nonpartisan system and implies that CIR's challenge would then be moot.
However, LaRoque v. Holder challenges the constitutionality of the preclearance procedure as a whole, not the specific decision the Attorney General made in this case. That is, plaintiffs LaRoque, Nix, and the others argue that requiring Kinston to preclear election law changes is unconstitutional. And they argue that Section 5's requirement that any such changes maximize the electoral advantages of certain racial groups is also unconstitutional.
CIR's clients are entitled to a determination of these constitutional challenges on their merits lest some new change to Kinston's voting procedures subject them to the same unconstitutional preclearance procedure all over again. CIR's clients' right to a determination on the merits is strengthened by the fact that the the supposedly “new” information cited in the Attorney General's letter isn’t really new; minority voting strength in Kinston has been high for a number of years. This suggests that the Attorney General's letter was caused not by a change in voting patterns in Kinston so much as a desire to avoid judicial resolution of the constitutional claims raised in LaRoque v. Holder.
January 27, 2012 -- Today the Michigan Supreme Court, in the case In re Mays, agreed with CIR and reversed the termination of a Michigan father's parental rights. In the trial court that heard the case initially, the termination of the father's rights had stemmed from the neglectful conduct of the children's mother; she had left the children home unattended. At the time, the father did not live with the mother, and he had nothing to do with the mother's neglect. Nevertheless, despite the lack of any finding that the father himself was an unfit parent, the trial court terminated his rights.
CIR filed an amicus brief before the Michigan Supreme Court in the case. We argued that one parent's rights should never be terminated based solely on the conduct of the other parent. Today, in a victory for CIR, the Court held that the trial court's termination of the father's rights was clear error.
January 19, 2012 The Court of Appeals for the DC Circuit granted CIR's motion for expedited appeal as well as its motion to assign such appeal to the same merits panel hearing Shelby County v. Holder. The court ordered that briefing be complete on February 23 and set oral argument for February 27. This means CIR will have an early opportunity to appeal District Court Judge John Bates's December ruling upholding Section 5 against CIR's challenge.
January 10, 2012 -- In early December, the Government of Guam moved to dismiss CIR's case challenging its Chamorro-only plebiscite on grounds that plaintiff Dave Davis cannot possibly have been harmed by being excluded from a plebiscite that is advisory in nature. According to Guam, the plebiscite is intended to solicit the opinion of a group of voters, which will then be transmitted to US officials. Because the outcome of the plebiscite cannot change Guam's relation to the US directly, Guam contends the courts lack jurisdiction to review Davis' complaint of race discrimination.
In its brief filed in late December, CIR contends that the constitution and federal laws prohibit Guam from excluding any citizen from any election for any purpose based on race. It does not matter whether the election in question is designed to tabulate public opinion or whether it is intended to directly settle the question of Guam's future. In either event, Davis has been excluded from participating in an official election based solely on race. Because the plebiscite denies Davis the right to vote in violation of the constitution and federal statute, he has suffered a harm that the courts have jurisdiction to consider.
The next step in the case will be a ruling by the Federal District Court of Guam on Guam's motion to dismiss.
December 22, 2011 -- U.S. Federal District Court Judge John Bates issued a ninety-six page opinion today in LaRoque v. Holder, CIR's challenge to Section 5 of the Voting Rights Act. The court upheld Section 5 against CIR's challenge following the reasoning in another recent case, Shelby County v. Holder. In addition to claims raised in Shelby County, LaRoque challenged the constitutionality of several amendments to Section 5 that require the Attorney General to preclear voting changes only if they maximize the ability of minority voters to elect their candidate of choice. Despite the requirement that the Attorney General favor the electoral interests of particular racial groups, the court concluded that the amendments do not exceed Congress enforcement powers nor do they violate due process or equal protection limits on Congress' authority. The ruling means LaRoque v. Holder can move quickly to the Court of Appeals for the District of Columbia Circuit where CIR will appeal today's decision.
November 21, 2011 -- The Center for Individual Rights filed suit today against Guam, the Guam Election Commission and seven named Guam officials for discrimination on the basis of race and ethnic heritage under Guamanian laws that prohibit individuals who are not “native inhabitants of Guam” from voting on a plebiscite concerning Guam’s future relationship to the United States.
In holding a “Chamorro-only” election (or any racially discriminatory election), Guam and its officials are acting in plain violation of the U.S. Constitution, the Voting Rights Act of 1965, the 1950 Organic Act of Guam, and other federal and Guamanian laws that prohibit discrimination on the basis of race or ethnic heritage. The suit seeks to enjoin the further illegal use of racial or ethnic restrictions on who may vote in the plebiscite.
CIR is representing Arnold Davis, a longtime resident of Guam who was told he could not register for the referendum because he is not descended from a "native inhabitant." Though Davis apprised the U.S. Department of Justice in 2009 that Guam’s discriminatory voting laws facially violate the Voting Rights Act of 1965 (among other statutes), the Department declined to investigate. The Department did not explain its refusal to enforce federal law in Guam, and Davis was forced to file today’s suit in order to protect his right to vote on the same terms as all other citizens of Guam, regardless of race.
November 14, 2011 -- Today the U.S. Supreme Court granted numerous petitions for review of various appellate-court rulings in cases challenging the Affordable Care Act, or "Obamacare." Among the petitions granted were those of both the government and the private plaintiffs (represented by former CIR board member Michael Carvin) in Florida v. HHS. In that case, the Eleventh Circuit Court of Appeals, relying heavily on the CIR-set precedent U.S. v. Morrison, struck down the individual mandate portion of Obamacare. As expected, the Supreme Court granted the government's petition for review of that decision. The Court also granted the private plaintiffs' petition for review of the Eleventh Circuit's further decision to "sever" the individual mandate part of Obamacare from the rest of the law, thus leaving the parts of the law other than the individual mandate standing.
In granting the petitions, the Court alloted a highly-unusual five-and-a-half hours for oral argument, to take place over two days in March 2012.
October 26, 2011 -- Today a judge of the U.S. District Court for the District of Columbia heard oral argument in CIR's historic challenge to Section 5 of the Voting Rights Act. CIR claims that Section 5, which requires many Southern and other jurisdictions to maximize the voting strength of minorities, is an unconstitutional federally-mandated racial preference in voting.
The same district judge who heard argument today had dismissed the case almost a year ago, ruling that only governmental entities, rather than the individual voters and candidates CIR represents, had standing to challenge Section 5. The D.C. Circuit Court of appeals later overturned that ruling and returned the case to the district court. Whichever way the district court rules this time, the case will be appealed again to the D.C. Circuit.
September 28, 2011 -- Today the Obama administration filed a petition for Supreme Court review of this summer's decision by the Eleventh Circuit Court of Appeals in Florida v. HHS, one of the major challenges to the Affordable Care Act, or "Obamacare." Relying heavily on CIR's 2000 Commerce Clause victory U.S. v. Morrison, the Eleventh Circuit had ruled that the act's requirement that citizens buy health insurance exceeded Congress's power under the Commerce Clause and was unconstitutional. CIR had filed an influential amicus brief in the Eleventh Circuit in this case.
Earlier this week, the private plaintiffs in the case, represented by former CIR board member Michael Carvin, filed a petition in the Supreme Court seeking review of other parts of the Eleventh Circuit's decision, and the state plaintiffs subsequently filed their own petition for review.
Because another Court of Appeals has upheld Obamacare, and the Supreme Court has a strong interest in resolving inconsistent appellate-court rulings, the odds are high that the Supreme Court will grant the petitions and hear the case.
September 16, 2011 -- CIR's fall Docket Report covers recent developments in CIR's litigation. Featured topics include CIR’s outsized role in the national fight against Obamacare; our lawsuit challenging Section 5 of the Voting Rights Act to prevent race-based redistricting before the 2012 elections; CIR’s major victory that shuts down the power of the Justice Department to make employers institute race preferences; our fight to defend James O’Keefe and the rights of citizen journalists to tape record public officials conducting public business; and CIR’s defense of blogger Ted Frank’s free speech rights on the currently-free medium of the internet.
The issue also highlights CIR’s Monthly Giving Club, which offers supporters the ease and simplicity of a monthly giving program. This method of support makes CIR more efficient, too, at the same time as it provides CIR a stable source of funding to advance individual rights and limited government.
September 9, 2011 -- The full Sixth Circuit Court of Appeals decided today that it will consider the constitutionality of Michigan's Proposal 2. A provision of the Michigan Constitution enacted by voters in a referendum in 2006, Proposal 2 bans the state government from giving preferential treatment based on race. Today's decision by the full, en banc court voids July's aberrant ruling by a three-judge panel of that court that Proposal 2 violates the Equal Protection Clause of the U.S. Constitution. The question now will be taken up by the full court.
August 12, 2011- The U.S. Court of Appeals for the Eleventh Circuit today struck down the "individual mandate" portion of Obamacare, ruling that Congress may not require individuals to purchase health insurance pursuant to its power under the Commerce Clause. The court relied on CIR's 2000 victory in U.S. v. Morrison, one of the leading Supreme Court cases on the subject of Congress' Commerce Clause authority. Today's opinion cited Morrison 89 times. The court's opinion made much of the argument CIR advanced in its amicus brief: the individual mandate is overbroad in purporting to cover individuals who decline to purchase health insurance for non-economic reasons as well those who decline to do so for economic reasons.
July 15, 2011 -- Today CIR filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in the case of BAMN v. Brown, in which the same organization that is challenging Michigan's Prop. 2 is seeking to have California's Prop. 209 declared unconstitutional. Ward Connerly has championed both successful ballot initiates, which ban those respective state governments from giving preferential treatment based on race. In 1997, CIR successfully defended Prop. 209, and its constitutionality was affirmed by the California Supreme Court in 2000.
In its brief, CIR makes a unique argument: since only the U.S. Supreme Court, and no lower federal court, has the power to reverse the California Supreme Court's ruling that Prop. 209 is constitutional, the plaintiff can achieve nothing by a Ninth Circuit ruling in its favor. Accordingly, BAMN lacks standing to bring its challenge in federal court, and its case should be dismissed.
July 8, 2011 -- A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued a decision holding that CIR plaintiffs Stephen LaRoque, John Nix and others have standing to pursue their challenge of Section 5 of the Voting Rights Act. The decision is a big step forward in CIR's effort to strike down Section 5, which requires some twenty Southern jurisdictions to pre-clear changes in voting procedures, including the drawing of voting district lines. Under Section 5, the Justice Department will not clear changes in voting procedure unless they maximize the ability of minority voters to elect their "candidate of choice."
July 1, 2011 -- A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today ruled that Michigan's Proposition 2 violates the United States Constitution. In 2006, by voting 58% to 42% to pass Prop. 2, better known as the Michigan Civil Rights Initiative, the people of Michigan amended their state constitution to prohibit “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin.” But the panel ruled that because Prop. 2 makes it more difficult than before for racial groups to secure racial preferences through ordinary legislation and other political efforts, it violates the federal Equal Protection Clause.
The panel's reasoning is hard to comprehend. According to it, the Equal Protection Clause -- which guarantees equal treatment without regard to race -- requires the states to be open to efforts by racial advocacy group to secure special, race-based benefits. Every other appeals court that has ruled on the question has upheld the constitutionality of state ballot initiatives designed to end racial preferences. CIR expects that the Michigan Attorney General will ask the full Sixth Circuit to set aside the panel's decision, and, if necessary, appeal to the U.S. Supreme Court. Unless and until the U.S. Supreme Court strikes down the amendment, it remains the law in Michigan and any state institution that reverts to the use of racial preferences would face immediate suit in state court.
May 26, 2011 -- Today the U.S. Supreme Court issued a decision in Camreta v. Greene, in which an Oregon policeman and a state child protection worker interrogated a nine-year-old girl in her public school for over an hour, not stopping until she was willing to say (untruthfully, according to her) that her father had acted inappropriately toward her sexually. CIR had filed an amicus brief in the case, arguing that her detention and interrogation violated the Fourth Amendment to the U.S. Constitution, because the officials acted on mere suspicion of the father and lacked a warrant.
Unfortunately, the Court did not reach this constitutional issue, instead holding that the case was now moot because even if the officials had violated the girl's Fourth Amendment rights, she since had moved to Florida and was near her eighteenth birthday, and thus could no longer be subjected to such detentions in a state within the jurisdiction of the Ninth Circuit Court of Appeals.
After today's ruling, resolution of whether it violates the Fourth Amendment for public officials to detain and interrogate school children based on mere suspicion of parental wrongdoing awaits another case with similar facts.
May 23, 2011 -- Today U.S. District Judge M. James Lorenz denied both James O'Keefe's and Hannah Giles's motions to dismiss former ACORN employee Juan Carlos Vera's suit against them at the pleadings stage. The lawsuit by Vera, who is featured in a video by O'Keefe filmed in San Diego's ACORN office, is based solely on the alleged violation of a California statute banning the recording of a person's "confidential communications" without consent.
O'Keefe had moved to dismiss the case on the ground that the California statute bans citizens from exercising their First Amendment right to record public officals performing their duties in public settings, such as roadside traffic stops. In his opinion, Judge Lorenz did not rule that such recording is not a First Amendment-protected right. Rather, he seemed to suggest that such recording by citizens actually is seldom or never banned under California's anti-recording law. By making this motion, O'Keefe has preserved the issue of the statute's unconstitutional overbreadth for appeal.
CIR's defense of O'Keefe in this lawsuit now enters the discovery phase.
May 11, 2011 -- CIR filed a brief today in the Eleventh Circuit Court of Appeals in support of the State of Florida's challenge to the constitutionality of the Obamacare legislation. Judge Roger Vinson of the Northern District of Florida had struck down the legislation as unconstitutional, on the ground that Congress had no authority under the Commerce Clause to require individuals to buy health insurance. The Department of Health and Human Services then appealed this decision to the Eleventh Circuit.
In the district court, Judge Vinson relied heavily in his ruling on a CIR-set Supreme Court precedent, United States v. Morrison. That case is one of the two major Supreme Court precedents so far that put real limits on Congress's power to regulate people's lives under the Commerce Clause of Article I of the U.S. Constitution. In Morrison, the Court held that Congress's authority under that clause to regulate interstate commerce did not include the power to regulate an activity that was non-economic.
Building on its success in Morrison, CIR argues in its amicus brief filed today that Obamacare's requirement that individuals buy health insurance also is beyond Congress's power under the Commerce Clause because, to a substantial degree, deciding not to buy health insurance is not an economic activity.
The case is undoubtedly headed for the Supreme Court, which will then have its own opportunity to apply the test of Morrison to Obamacare.
May 6, 2011 -- Today a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit heard oral argument in CIR's appeal from a lower court's dismissal of our lawsuit challenging the Voting Rights Act's Section 5, which requires states to maximize the voting strength of some racial groups but not others. The lower court had dismissed the suit on standing grounds, holding that only governmental entities, and not the voters and nonpartisan candidates CIR represents, could challenge the constitutionality of Section 5.
The issue most discussed was the crucial one of whether CIR's clients suffered injury because of Section 5. CIR co-counsel Hashim ("Hash") Mooppan of the law firm Jones Day argued that when the referendum the voters of Kinston, North Carolina, had passed to take party politics out of their elections was suspended by Section 5, that created hardships for CIR client John Nix. Nix is a candidate who is unaffiliated with any party and who would have preferred to run in the nonpartisan system the referendum established, because it had much less onerous signature requirements for unaffiliated candidates than the party system does. In the same vein, Judge David S. Tatel made the point from the bench that when Section 5 annulled the referendum, it deprived candidates like Nix of a state-created right.
When the lawyer for the Justice Department seemed to argue that Nix could have avoided his injury simply by running as a Democrat or a Republican, Judge Tatel seemed unimpressed. He suggested that there might be "constitutional problems" with forcing people give up their state-created right not to affiliate with a political party they do not want to belong to.
If the appellate court reverses the lower court's dismissal, next to be considered will be CIR's central contentions that Congress exceeded its authority in reauthorizing Section 5 in 2006 and that Section 5 violates the Constitution by preferring some voters over others based on race.
May 5, 2011 -- CIR's long-running battle on behalf of New York City school building superintendents discriminated against by an agreement entered into by the City and the federal government reached a milestone today, but by no means its final one. The Second Circuit Court of Appeals issued a 139-page ruling that settles one large point in CIR's favor, but leaves a number of crucial questions to be decided later in the litigation.
The point settled in our favor is that the Supreme Court's recent holding in the New Haven firefighters case, Ricci v. DeStefano, applies to the preferential treatment the City gave, at the expense of our clients, to minority and female superintendents on account of their race and sex. That ruling paves the way for favorable findings in the district court, to which the Second Circuit remanded the case for further proceedings.
One issue the Second Circuit avoided answering was whether the City's preferential treatment violated not just Title VII (a federal statute) but the U.S. Constitution. The answer to that question will require a second (or rather third) visit to the Second Circuit after the remand proceedings in the district court are over. Our ultimate aim in this case, which involves nearly every aspect of employment discrimination law, is to bring the many constitutional questions it raises before the Supreme Court, and achieve a precedent that goes even further beyond Ricci.
April 28, 2011 -- Today a federal judge of the United States District Court for the Southern District of California heard oral argument on CIR's motion, on behalf of James O'Keefe, to invalidate California's law that bans citizens from recording what police officers say to them at traffic stops.
O'Keefe is being sued by Juan Carlos Vera, a former ACORN employee featured in a video O'Keefe filmed in San Diego's ACORN office. On O'Keefe's behalf, CIR attorney Christopher Hajec argued at the hearing today before Judge M. James Lorenz that the law Vera is basing his suit on -- a statute making it illegal to record so-called "confidential" communications without consent -- is unconstitutional. Since nearly everyone today has cell phones that can record sound, Hajec argued, most people who might violate this statute are ordinary citizens who have no desire to invade anyone's privacy, but rather wish to engage in such First Amendment-protected activity as recording public officials -- for example, police officers -- performing their duties in public. CIR maintains that because the statute threatens those who wish to make such recordings with jail time, it is an overbroad restriction on speech under the First Amendment and should be struck down.
Judge Lorenz said he would take the motion under advisement and issue a decision "relatively soon."
March 15, 2011 -- Representing filmmaker James O’Keefe, CIR today filed a motion in federal court to strike down a California anti-tape recording statute that CIR contends violates the First Amendment. In that statute, California has made it a criminal offense for a person not affiliated with law enforcement to record his own “confidential” conversation with any other person, unless that person consents to being recorded.
In 2009, O’Keefe filmed a series of videos that induced Congress to withdraw federal funding from the “anti-poverty” group ACORN -- which ceased to exist shortly thereafter. One of these videos, made in San Diego, featured Juan Carlos Vera, then an ACORN employee. Now Vera is suing O’Keefe (and also Hannah Giles, who played a “prostitute” in the video) for civil damages, with his sole basis being the anti-recording statute.
On behalf of O'Keefe, CIR argues in the brief filed today in the U.S. District Court in San Diego that the statute violates the Constitution and should be struck down, because it sweepingly bans speech and speech-related activity that is protected by the First Amendment, even threatening citizens with serious criminal penalties if they monitor public officials in public settings. For example, the statute makes it a crime (punishable by substantial jail time) for a citizen to record what a police officer says to him during a traffic stop.
January 6, 2011 -- Today, CIR filed a motion for expedited review of Judge Bates' December 20 ruling dismissing CIR's challenge to Section 5 of the Voting Rights Act. The motion argues that there is an overwhelming public interest in the
December 20, 2010 -- CIR will appeal a ruling today that CIR clients Stephen LaRoque, John Nix, Klay Northrup, Lee Rainor, and Tony Cuomo -- individual candidates and referendum sponsors in Kinston, North Carolina -- lack standing to challenge the constitutionality of Section 5 of the Voting Rights Act. According to federal District Judge Bates's written decision, the plaintiffs do not have a sufficient personal stake in the way Section 5 regulates voting procedures in the City of Kinston. According to Judge Bates's ruling, only the City can challenge the constitutionality of Section 5’s invalidation of the nonpartisan voting plan passed by a majority of Kinston voters.
The judge’s ruling leaves the decision to challenge Section 5 solely in the hands of local party-affiliated politicians with a vested interest in the partisan system Section 5 preserved when it invalidated the nonpartisan plan. It does so even though unaffiliated candidates such as Nix and Northrup are directly harmed by that invalidation, which was based on the explicit and unconstitutional favoritism Section 5 shows toward one racial group of voters at the expense of other racial groups. CIR will appeal this decision to the U.S. Court of Appeals for the District of Columbia Circuit on an expedited basis.
November 12, 2010 – Today U.S District Judge John D. Bates set December 3, 2010, as the date he will hear the Justice Department’s motion to dismiss Laroque v. Holder, CIR’s lawsuit challenging Section 5 of the Voting Rights Act. The judge wrote that he expects to “resolve the motion promptly thereafter.”
Representing Stephen LaRoque and other individuals in Kinston, North Carolina, CIR claims that Section 5 violates the Constitution because it discriminates against some voters, and in favor of others, based on race. The Justice Department is attempting to convince the court to dismiss the suit on the ground that only governmental jurisdictions, not individuals, have standing to challenge Section 5.
In his order today, Judge Bates also set an accelerated briefing schedule for LaRoque, synchronizing it with that of its companion case, Shelby County, Alabama v. Holder, in the event he denies the DOJ motion to dismiss.
CIR's fall Docket Report covers recent developments in CIR's litigation. Featured topics include CIR’s protection of James O’Keefe’s and Anita MonCrief’s right to free speech (even if it’s about ACORN); our lawsuit challenging the Voting RIghts Act's imposition of race-based voting on the mostly Southern jurisdictions covered by Section 5; CIR summer school for California bureaucrats; and Peekaboo’s corrective surgery.
September 24, 2010 -- Today CIR filed a reply brief in its motion for a new trial In the Mueller family-rights case. One of the grounds for the motion is that the testimony of the only expert witness to give an opinion adverse to the Muellers at trial was scientifically unreliable and should have been excluded.
In June, the jury in Boise, Idaho, found that a police officer did not violate the Muellers' parental rights when he transferred custody of their five-week-old daughter to the state so a doctor could perform a spinal tap on her. Mrs. Mueller had not decided to authorize that procedure yet for her baby.
In addition to moving for a new trial, we also plan to appeal the case to the Ninth Circuit Court of Appeals.
September 16, 2010 -- Today U.S. District Court Judge John D. Bates stayed LaRoque v. Holder, CIR's challenge to Section 5 of the Voting Rights Act. Proceedings -- including consideration of our motion for summary judgment -- are stayed until the court decides the Justice Department's motion to dismiss the case. In that motion, DOJ contends that Stephen LaRoque and his fellow Kinston citizens and candidates lack standing to challenge the constitutionality of Section 5, even though DOJ is using Section 5 to block their ability to benefit from a nonpartisan voting plan passed by 63% of Kinston residents.
Also today, Judge Bates ordered the Justice Department to respond to a motion for summary judgment in Shelby County, Alabama v. Holder, the companion case to LaRoque. Filed after LaRoque, the Shelby County case also challenges the constitutionality of Section 5, but on narrower grounds. Both cases contend Section 5 violates the Fourteenth Amendment because it imposes preclearance requirements selectively on Southern jurisdictions on the basis of elections data now forty years old. In LaRoque v. Holder, we argue in addition that Section 5 violates the Fifteenth Amendment because it requires Southern states to maximize the ability of minority voters to elect their “candidates of choice” -- a federally-mandated preference for one racial group at the expense of other racial groups.
Assuming Judge Bates agrees that the LaRoque plaintiffs have standing, both cases will proceed together through the courts as companion cases -- in time, we hope, to prevent the unconstitutional use of Section 5 to distort the nationwide redistricting that will take place in 2011-2012.
August 18, 2010 -- Today Lead Counsel Michael Carvin filed a motion for summary judgment in CIR’s case on behalf of citizens of
Section 5 requires "covered" jurisdictions (mostly in the South) to "preclear" any changes in voting procedures with the federal Department of Justice. When the town of
As explained in our brief, Section 5 was enacted originally, in 1965, as an emergency response to Southern exclusion of blacks from voting based on race -- exclusion so severe that Congress felt it could not be addressed adequately through lawsuits under other parts of the Voting Rights Act. But as the Supreme Court itself noted recently, Southern discrimination against blacks in voting is largely a thing of the past; thus, we contend, it can no longer be used to justify special federal preclearance for Southern jurisdictions. In addition, Section 5 requires covered jurisdictions to maximize the ability of protected groups to elect their candidates of choice -- a mandate for race-based decision making in the one area above all that should be free of it, election law.
July 7, 2010-- The North Carolina State Conference of Branches of the NAACP and several Kinston, NC residents moved to intervene as defendants in LaRoque v. Holder, CIR's case challenging Section 5 of the Voting Rights Act. The proposed Defendant-Intervenors seek to defend the constitutionality of the preclearance provisions of Section 5, which the Justice Department used to prohibit Kinston from implementing a nonpartisan voting system favored by 63% of Kinston residents. The Proposed Defendant-intervenors argue that their interest in protecting minority voting rights will not be adequately protected by the Department of Justice and so seek to intervene as additional parties in the case.
July 1, 2010 -- CIR filed papers today responding to the Department of Justice's motion to dismiss CIR's case challenging Section 5 of the Voting Rights Act, LaRoque v. Holder. DOJ contends that neither citizens, candidates, nor voters have standing to challenge the constitutionality of Section 5 because (to speak very generally), individuals do not have a constitutional right to this, that, or any other voting scheme in particular. Authored by CIR's co-counsel Michael Carvin and Hashim Moopan, CIR's brief argues that under well-settled law, the plaintiffs in this case clearly have standing to challenge a voting scheme forced upon them by unconstitutional means.
June 30, 2010 -- CIR's six-year fight to vindicate the constitutional rights of the Mueller family suffered a setback on June 30. After deliberating for five days, an Idaho jury found that neither the City of Boise nor an emergency room doctor violated the Muellers' constitutional rights when, at the doctor's behest, a Boise, Idaho, police detective seized custody of the Muellers' five-and-a-half-week-old baby, Taige, and transferred that custody to the state, all so the doctor could perform unwanted medical procedures on the infant. And it found the hospital where the doctor worked not liable for various state torts alleged against it.
June, 28, 2010 -- Today the U.S. Supreme Court ruled that the Public Company Accounting Oversight Board (PCAOB, nicknamed "Peekaboo") was unconstitutional as originally conceived. Before so ruling (and as a necessary step to doing so), the Court agreed with CIR that Peekaboo was not protected from judicial review, but could be sued by accounting firms affected by its decisions. CIR had filed an amicus brief in the case.
The Court also found that because of Peekaboo's unprecedented two layers of "good-cause" removal protection for its members, it was too insulated from the will of the people to exercise the sweeping authority it has over the accounting industry.
June 10, 2010 -- CIR clients Eric and Corissa Mueller's fight to protect the right of parents to make medical decisions on behalf of their minor children took a major step forward in early June when their case went to trial in federal District Court in Boise, Idaho. Since the case was filed six years ago, federal Judge B. Lynn Winmill has ruled that parents have a constitutional right to make medical decisions in difficult cases that pose risks either way. Left open to be decided by a jury are such factual questions as whether doctors and law enforcement personnel had a reasonable basis to believe that the Mueller's child was in imminent danger. The trial is expected to last several weeks.
May 20, 2010 -- California resident Julie Waltz' long fight for free speech for opponents of state subsidized housing policies came to a victorious conclusion today, when the California Department of Fair Employment and Housing agreed to implement the "Julie Waltz First Amendment Policy." The new policy prohibits the Department from investigating citizens for housing discrimination solely on the basis of free speech activity, including speaking at public meetings, writing and displaying flyers, signs, or newspaper articles critical of public housing projects, even if they appear to advocate discriminatory policies or positions.
May 12, 2010 -- U.S. District Court Judge John Bates today released a memorandum opinion denying CIR's motion to have LaRoque v. Holder heard by a special three-judge panel. Judge Bates ruled that a suit challenging the constitutionality of Section 5 is not a suit "under" Section 5 because it involves "the application of provisions of the Constitution to Section 5 not the application of the provisions of Section 5 to specific state or local voting...procedures." Today's ruling means that Judge Bates will hear CIR's challenge, which then can be appealed to the Court of Appeals and ultimately the Supreme Court. Had the case been heard by a three-judge panel, the panel's decision could have been appealed directly to the Supreme Court without first being appealed to the Court of Appeals.
April 29, 2010 -- Lead counsel Michael Carvin today filed a reply to the Department of Justice's objection to a three-judge court being appointed to hear CIR's challenge to the constitutionality of Section 5 of the Voting Rights Act, LaRoque v. Holder. Today's filing challenges DOJ's assertion that the District Court is precluded from appointing a three-judge court and argues that the "clash of federal and state power and potential disruption of state government" inherent in a challenge to the basic constitutional validity of Section 5 requires a three-judge court.
April 27, 2010 -- Shelby County, Alabama, today filed a challenge to the constitutionality of Section 5 of the Voting Rights Act and asked that it be deemed a "related case" to LaRoque v. Holder, CIR's constitutional challenge filed on April 7. If deemed a "related case," Shelby County v. Holder will be assigned to the same judge as LaRoque.
Both cases assert that Section 5's preclearance procedures, as amended in 2006, are no longer an appropriate means to enforce nondiscrimination in the covered jurisdictions. LaRoque v. Holder also asserts that Section 5 favors certain racial groups at the expense of others in violation of the 5th, 14th and 15th Amendments. The filing of a second, related case enhances the prospects that the Supreme Court will resolve the overall constitutionality of Section 5. Shelby County is represented by the Washington, DC firm of Wiley Rein and supported by the Project on Fair Representation.
April 7, 2010 -- CIR filed suit today against Attorney General Eric Holder and in so doing challenged the constitutionality of Section 5 of the Voting Rights Act of 1965.
The suit grows out of a refusal last year by the Department of Justice to "preclear" the implementation of a non-partisan voting system approved by voters in Kinston, North Carolina. The voters had adopted the non-partisan system by a 2 to 1 margin. But because Kinston -- along with many other Southern jurisdictions --is "covered" by Section 5 of the Voting Rights Act, it must obtain pre-clearance from DOJ before implementing any change in voting procedure. And in a letter, DOJ officials opined that Democratic voters would be less likely to vote for black candidates unless they ran as Democrats.
Today's suit challenges the continued use of Section 5, which was enacted in 1965 as a short-term measure necessary to prevent some jurisdictions from interfering with the right of individuals to vote because of their race. As the Kinston case illustrates, by now Section 5 has become an unconstitutional intrusion into the right of state and local jurisdictions to make routine decisions about voting procedures.
April 6, 2010 -- Today a federal judge, pursuant to a stipulation by the parties, ordered the claims in Project Vote's suit against CIR client Anita MonCrief dismissed in their entirety. The dismissal is "with prejudice," meaning Project Vote may not revive the action.
MonCrief, a former employee of Project Vote, had become a vocal critic of it and ACORN, appearing on television and in state court proceedings, among other places, to recount what she regards as corruption in these organizations. Project Vote then sued her, demanding $5 million in damages and alleging she committed trademark infringement and other torts in connection with her blogging and emailing about the intertwined groups.
CIR and MonCrief fired back, countersuing Project Vote and ACORN for abuse of process. Before discovery had gone very far, however, Project Vote agreed to drop its suit completely. The purpose of MonCrief's counterclaim having been served, she in turn has agreed to drop it.
December 23, 2009 -- After an unusually long delay in setting a date for oral argument in CIR's long-running school building superintendents' case, the Second Circuit Court of Appeals has finally set one: February 1, 2010. In this case CIR is challenging an instance of intergovernmental collaboration -- a joint project of the federal government and the New York City schools to discriminate against a class of superintendents based on their race and sex.
On the first, the court will hear arguments and ask questions of lawyers for the United States, John Brennan and other school superintendents (represented by CIR), and two other sets of intervenors represented, respectively, by the NAACP Legal Defense Fund and the Women's Rights Project of the ACLU. At issue is the propriety of an agreement the United States and New York City made to give "retroactive seniority" to a group of minority superintendents. Even though the members of this group already had benefited from a ferocious program of race discrimination in their favor by the City, the joint US-NYC agreement expressly discriminates in their favor yet again. It also harms other minority, and white, superintendents who had been hired the old-fashioned way, by passing a race-blind civil service test.
Given the importance of the case -- due to its potential to expand the Supreme Court's recent decision in Ricci v. DeStefano, the New Haven firefighters' case -- CIR General Counsel Michael Rosman will be traveling to New York to conduct the argument personally.
December 10, 2009 -- Today CIR filed a petition for writ of certiorari in the United States Supreme Court on behalf of our client Timothy Pope, seeking review of the question of whether flawed judicial consent decrees from the distant past can be used to shield government agencies from liability for having violated constitutional rights.
In 2002, Pope, a correctional officer working for the State of Alabama, was denied a promotion because he was white. Under the terms of a consent decree that a federal court had entered in a case in 1970, the state was required to favor black applicants. The federal district court hearing Pope's own lawsuit found this judicial order violated the equal protection clause of the Fourteenth Amendment and dissolved it. But it also held Pope was not entitled to damages, because the agency's discrimination was required by the court order in that other case. The court's logic? However misguided, outmoded, or downright illegal a given consent decree may be, it still gives government a "compelling interest" in discrimination -- and thus safe harbor from the commands of the Constitution. On appeal, the Eleventh Circuit Court of Appeals affirmed the decision of the district court.
Numerous consent decrees, often dating from the heady judicial activist days of the 1970s, continue to mandate that states apply unconstitutional employment preferences. We think the Eleventh Circuit's view of their legal effect clearly runs counter to prior Supreme Court pronouncements and the holdings of other circuits. We are asking the Court to resolve the circuit split and broadly hold that a discredited and dissolved consent order from the days of polyester and paleoliberalism (or any other time, for that matter) should not shield a state from liability for violating the Constitution.
December 7, 2009 -- On August 3, 2009, CIR filed the final set of briefs in its mammoth case on behalf of New York City school custodian (school building superintendent) John Brennan. The next step is oral argument before a three-judge panel of the Second Circuit Court of Appeals.
The case began some years ago, when the U.S. Justice Department sued the City of New York because there were not "enough" school building superintendents in its employ who were not white males. Despite the lack of evidence that this "imbalance" resulted from discrimination, the city quickly agreed to a settlement with the federal government under which temporary female and minority superintendents would get permanent status and retroactive seniority -- at the expense of white male custodians such as soon-to-be CIR client John Brennan. Represented by CIR, Brennan moved to make himself a party in the case in order to challenge the idea that race discrimination is a permissible response to mere numerical imbalances. We have hopes this case will go to the next level, becoming the vehicle by which the Supreme Court will fill in some significant blanks it left in its recent Ricci firefighters decision.
Perhaps a measure of the importance of this case (or just its breadth and difficulty) is that the Second Circuit has been unusually slow in setting a date for oral argument. Every week we expect the order setting that date, and every week (so far) we've been disappointed. Never mind; whenever the court is ready, so are we.
December 1, 2009 -- CIR's case on behalf of ACORN whistleblower Anita MonCrief moved forward with a decision by U.S. District Court Judge Richard W. Roberts to grant MonCrief's motion to dismiss the trademark claims against her on grounds related to the First Amendment. It was not a violation of trademark law, the judge ruled, to use another's "mark" (here, the name "Project Vote") to express a point of view rather than for any commercial purpose. The case currently is in pretrial discovery.
November 17, 2009 -- A three-judge panel of the Sixth Circuit today heard oral argument in BAMN v. Granholm, the case that threatens the Michigan Civil Rights Initiative.
Thanks to CIR, that initiative of Ward Connerly and Jennifer Gratz to ban race preferences by the government of Michigan got on the ballot in 2006, and thanks to the voters of Michigan it passed that November and became part of the Michigan Constitution. So -- that means no more "reverse" race discrimination by the state of Michigan (including its state universities, such as the big one in Ann Arbor), right?
Not if the ACLU, a group called BAMN (short for the Malcolm X phrase "By Any Means Necessary"), liberal Harvard Law professor Laurence Tribe, and the blue-chip New York law firm Cravath, Swaine & Moore have their way. They (among many others) are the opponents of lone law school applicant Eric Russell, represented by CIR, and they're doing everything they can to get the new state constitutional amendment declared in violation of the United States Constitution. Yes, that's right: they want a provision banning race discrimination struck down as unconstitutional.
CIR General Counsel
September 24, 2009 -- Federal District Judge B. Lynn Winmill today set a trial date in CIR's long-running case on behalf of the Muellers, a family whose five-week old daughter was unlawfully seized by police and state child protection officials in a Boise, Idaho, emergency room.
Corissa Mueller had brought her daughter Taige to the ER with a slight fever. After discussing her treatment with an ER doctor, Mrs. Mueller elected to wait and see how Taige was doing before deciding whether to authorize a spinal tap. The doctor didn't like this decision (even though it's considered reasonable by eminent pediatricians), and he got social workers and the police involved. The police physically seized Taige from Mrs. Mueller (and held the latter in a room for an hour without letting her use the phone) and the doctor did his spinal tap -- which a few hours later came back negative for meningitis. Doctors now figured Taige had a cold. The social workers held onto Taige for another day, though, and also administered the baby unnecessary steroids--a treatment to which Mrs. Mueller would not have consented. And nobody bothered to phone father Eric Mueller (at home taking care of the couple's other child) and tell him what was in store for his daughter until it had been done.
CIR sued on behalf of the Mueller family, and in February 2007, Judge Winmill found that social workers and the police detective who seized Taige violated the family's constitutional rights relating to who should make decisions about Taige's medical treatment. The judge reserved the main factual question of whether Taige was in imminent danger when seized for trial. Following an appeal by the police detective on a minor issue, today the judge set a date for that trial: June 7, 2010.
CIR's fall Docket Report covers recent developments in CIR's litigation, including three cases now at the Courts of Appeals. Any one of them could go the Supreme Court in the next few years. Read how CIR's strategic litigation could change the constitutional landscape for years to come.
August 18, 2009 -- Today federal Judge Stephen G. Larson set a trial date of March 16, 2010, in CIR's case on behalf of California grandmother Julie Waltz, whom state housing officials made the subject of an investigation solely because she expressed her objections to the placement in her neighborhood of a group home for emotionally troubled persons.
The facility was put right next door to Waltz, and she worried (not without reason) that not just the emotionally disabled, but eventually sex offenders, too, would move in. She assumed she had a basic First Amendment right to join in protests of the placement, and she did so by means of signs in her own yard. In response, state officials investigated Waltz for "housing discrimination" against the disabled, and even accused her of it in the media. Unsurprisingly, after this the protests that had been ballooning against government decisions to place group homes in residential neighborhoods died off. Mission accomplished for the state housing officials? At CIR we hope not. We've sued the officials on Waltz's behalf under the First Amendment. In fact, we're suing them for damages in their personal capacities, which is the best way to hold them accountable for using intimidating investigations of citizens to squelch debate about favored government policies.
July 31, 2009 -- Today CIR filed a brief in the U.S. Supreme Court in a lawsuit organized by former CIR board member Mike Carvin against the federal Public Company Accounting Oversight Board (PCAOB). The suit seeks the dissolution of this powerful agency on basic constitutional grounds, including the separation of powers.
The PCAOB (nicknamed "Peekaboo") is all the rage in statist policy circles, for it has been designed both to have vast power over private enterprises (which it may even tax to fund its own budget) and to be shielded from accountability to officials elected by the people. In our brief, CIR takes issue with Peekaboo's further assertion that it need not even answer to the courts -- which it claims have no jurisdiction to hear such cases as the one now brought against it.
June 30, 2009 -- In Ricci v. DeStefano, the Supreme Court ruled 5-4 that employers may not jettison the results of an otherwise fair promotion test solely because minority applicants score lower than non-minority applicants. The decision was a victory for New Haven firefighters, who challenged that city's decision to throw out the results of a civil service exam for fire department promotions because of political pressure from groups dissatisfied with minority performance on the test. CIR General Counsel Michael Rosman discussed the ruling in various newspaper articles and on television:
CIR General Counsel Michael Rosman will speak at the American Constitution Society's 2009 National Convention on June 19, 2009 in Washington, DC. He will appear on a panel, "Race and the Law in the Wake of the 2008 Election" at 11:15 am. More information can be found at the ACS website: www.acslaw.org.
February 26, 2009 -- CIR filed an amicus brief before the Supreme Court in a case brought by New Haven firefighters challenging a decision by city officials to jettison a hiring test due to political pressure from individuals and organizations advocating greater hiring of minority firefighters. CIR previously filed an amicus brief urging the Supreme Court and the Second Circuit to review lower court decisions in this case. At issue are so-called race neutral efforts undertaken for clearly racial motives. In this case, city officials claimed to be interested only in avoiding litigation even though evidence showed they were more specifically concerned to satisfy noisy interest groups trying to boost minority hiring. The case could have effects on facially race neutral efforts in other areas, including college admissions. CIR filed this latest brief on behalf of itself, the Center for Equal Opportunity and the American Civil Rights Institute.
December 11, 2008 -- U.S. District Court Judge David Lawson denied the ACLU's motion (made on behalf of the "Cantrell Plaintiffs") to amend or modify his March 2008 ruling upholding the right of Michigan citizens to amend the Michigan constitution to forbid the use of race in most state programs. The ACLU argued that Judge Lawson had misapplied prior Supreme Court precedent, including the Hunter/Seattle line of cases. Judge Lawson's decision means that the case now goes to the Sixth Circuit.
December 10, 2008 -- U.S. District Court Judge Dora L. Irizarry approved a stipulated settlement agreement that brings to a successful conclusion CIR’s suit challenging the use of a quota against Asians in New York City’s Specialized High School Institute. Pursuant to the settlement, the New York City Department of Education agreed to eliminate the use of race in awarding admission to the Institute -- which is an enrichment program designed to help students pass demanding admission exams to elite City high schools -- and pay attorneys’ fees and damages to CIR client Stanley Ng. The Stipulation requires the defendants to notify CIR of any changes to the criteria for admissions to the Institute, and the court retains jurisdiction to enforce the terms of the agreement for a period of three years.
Last November, Ng sued to end the school policy of prohibiting Asian middle school students from applying for the enrichment program on the illegal ground that there already were “too many” Asians in elite City high schools. Documents CIR obtained in pretrial discovery confirmed that, with slight variations across the ten educational regions of the city, DOE had applied explicitly racial admissions criteria for the Institute, and used these to exclude Asian and white students from the program.
November 4, 2008 -- Voters in Nebraska voted by a wide margin to end preferential treatment based on skin color or gender in public education, contracting and employment. Initiative 424 passed 58% to 42%. A similar measure in Colorado narrowly failed to pass, garnering 49% support.
The Nebraska Civil Rights Initiative is patterned after the Michigan Civil Rights Initiative, which voters of that state approved in 2006. CIR client Eric Russell’s timely intervention in December of that year derailed legal efforts by opponents designed to delay implementation of the new amendment. CIR continues to represent Russell in the ongoing litigation, one of the most strategically important civil rights cases pending in the country. Last spring, federal district judge David Lawson dismissed the suit, concluding that the amendment did not violate the federal Constitution. That decision has been appealed to the Sixth Circuit.
October 20, 2008 -- CIR filed appeals in United States v. New York City Board of Education and several related cases. The cases have been called "notorious" by Sen. Kennedy. The trial judge termed them a "veritable tour de force of every aspect of affirmative action law in the employment arena....a legal juggernaut [for which]...many of the issues...have yet to be passed on the Supreme Court."
The cases challenge the controversial federal tactic of settling employment discrimination charges with a consent decree that strips employees of relative seniority without allowing them an opportunity to contest the original allegations of discrimination. Last spring, U.S. District Judge Frederic Block agreed with CIR that many of the minority and female building superintendents who were slated to get increased seniority were not victims of the discrimination alleged in the case.
The next stop for CIR is the Court of Appeals for the Second Circuit where CIR will argue that mere numerical disparities do not constitute adequate proof of discrimination and that a consent decree of this kind must be limited to providing relief to actual victims of alleged discrimination.
September 29, 2008 -- U.S. District Court Judge Stephen G. Larson denied the defendant’s motion to dismiss CIR’s claim for injunctive relief against California housing officials who used a lengthy housing discrimination investigation to silence CIR client Julie Waltz in her efforts to protest the placement of former sex offenders in adult living facilities located in residential neighborhoods. The case now proceeds to discovery.
State housing officials decided to make an example of Mrs. Waltz by launching a yearlong investigation of her for state housing discrimination, utilizing the news media to portray her as a law breaker and discriminator. CIR’s suit seeks to enjoin the use of such investigations and to protect Waltz’s exercise of her rights of free speech under the First Amendment.
September 15, 2008 -- CIR General Counsel Michael Rosman travelled to Idaho to urge a panel of Ninth Circuit judges to hold state officials liable in their personal capacities for the arbitrary seizure of minor children from perfectly competent parents.
CIR is representing Idaho residents Eric and Corissa Mueller who had their five-week-old daughter removed from their custody during a late-night visit to the emergency room in 2003 because an emergency room physician interpreted the mother’s questions over the proper treatment of a high fever as child endangerment.
The Ninth Circuit currently is reviewing an appeal from a police officer who was found liable for failing to inform the father (who was at home with the couple’s other children) of the impending decision by state officials to remove custody. After the question of the officer’s immunity is decided, the case will return to the District Court.
The Mueller's case could turn out to be one of the decade’s most important family law cases. It promises to strengthen the fundamental constitutional right of families to make important medical decisions on their own.
April 7, 2008 -- The National Association of Scholars website has posted an article authored by CIR president Terence Pell about recent CIR efforts to force three Michigan universities to disclose data showing the harmful effects of racial preference on the academic performance of minority students. Preliminary data (summarized in declarations made by expert witness Richard Sander) suggests that University of Michigan expert testimony in Grutter v. Bollinger may have been faulty. CIR requested the data pursuant to court ordered discovery in litigation brought by several advocacy groups challenging Michigan's new amendment barring the use of racial preferences (BAMN v. Granholm).
April 1, 2008 -- CIR filed suit against officials of the California Department of Fair Employment and Housing charging that they willfully violated the First Amendment rights of California citizen Julie Waltz. Despite clear evidence that Waltz had done nothing more than post signs in her yard critical of state housing policies regarding the placement of sex offenders in residental neighborhoods, officials allowed a housing discrimination investigation to go on for most of a year. During that time, officials told Waltz that her speech violated state fair housing laws, requested that she remove the signs, threatened her with prosecution and used the public media to characterize her as a discriminator and a violator of fair housing laws.
March 18, 2008 -- U.S. District Court Judge David Lawson ruled that Michigan’s Prop. 2 does not violate the U.S. Constitution.
Lawson’s decision was a victory for CIR client Eric Russell who intervened in a legal challenge brought by a Michigan advocacy organization called “BAMN.” BAMN, later joined by the ACLU and the NAACP Legal Defense Fund, Inc., claimed that it was unconstitutional to prohibit the use of racial preferences across the board.
Russell contended that an amendment that prohibited racial discrimination across the board cannot violate the U.S. Constitution. Earlier in the case, Russell successfully petitioned the Sixth Circuit to reinstate Prop. 2 after Judge Lawson had enjoined its enforcement against Michigan colleges for six months.
February 22, 2008 -- In a hearing to consider CIR's suit to rid Mark Twain Intermediate school of illegal racial quotas in admissions, U.S. District Judge Jack Weinstein terminated the 1974 desegregation order that New York officials believed mandated the use of racial quotas at the prestigious magnet school. School officials must now purge the admission system of the unconstitutional consideration of race.
February 12, 2008 -- The New York City Department of Education today joined CIR in asking Federal District Court Judge Jack Weinstein to terminate the 1974 desegregation decree that imposes racial quotas on admissions to Mark Twain Intermediate School. CIR challenged the quotas in a lawsuit filed January 14, 2008.
In its motion, the Department asked the court to immediately order the end of race based admissions requirements to District 21 gifted and talented programs for the 2008-2009 school year, including those at Mark Twain.
February 6, 2008 -- CIR co-counsel Charles J. Cooper urged U.S. Federal District Court Judge David Lawson to reject all pending legal challenges to Prop. 2 as a matter of law. Together with CIR, Cooper is representing Eric Russell, a Michigan resident who moved to intervene in the case in December 2006.
Russell contends that the U.S. Constitution does not prevent the citizens of Michigan from amending their constitution to forbid the use of racial preferences in state programs such as admission to the state universities.
Separately, Cooper and CIR are representing Jennifer Gratz in a motion to intervene in the litigation as an interested party. Gratz seeks to ensure that her interests remain adequately represented in the event that the Cantrell Plaintiffs succeed in dismissing Russell from the case, either in a pending motion (see update below) or in future such attempts.
January 14, 2008 -- CIR filed suit to end a racial quota at prestigious Mark Twain Intermediate School, a New York City magnet school. The relic of a 30-plus-year-old desegregation decree, the 60% white - 40% minority quota at the school now limits the number of minority students who can attend the school. Due to populations shifts, the district now must lower entrance examination scores for white applicants in order to meet the quota.
CIR is representing Anjan Rau and Kanchan Katapadi, Asian Indian parents of three children. Their eldest child, Nikita Rau, was denied admission to Mark Twain last year. White students were admitted that year with scores as low as 77. Nikita and other minority students were required to score 84.4 or better to be admitted.
After months of silence, New York officials announced shortly after the case was filed that they would move to lift the 1974 desegregation order. We await the motion.
November 19, 2007 -- The Center for Individual Rights filed a class action lawsuit against the New York City Department of Education challenging the Department’s policy of excluding Asian American and white students from a test preparation course because of their race. CIR is representing three Chinese American parents in Districts 20 and 21 (Brooklyn) whose children were denied admission to the City’s “Specialized High School Institute,” a fifteen-month course designed to prepare students to take the admissions exam for such elite New York schools as Manhattan’s Stuyvesant High School, Brooklyn Technical High School, and the Bronx High School of Science.
February 25, 2007 -- Federal District Court Judge B. Lynn Winmill issued a 62 page ruling finding that city and state officials in Boise, Idaho violated the constitutional rights of members of the Mueller family when they assumed custody of 5 week-old Taige Mueller in 2002 in order to forcibly administer a spinal tap. The ruling points to numerous shortcomings in city and state procedures and finds that state officials violated Eric Mueller's constitutional right to be notified both before and after the state assumed custody of his infant daughter. Judge Winmill's ruling deferred certain issues for trial, including the question of whether Taige was in imminent danger when officials assumed custody.
November 5, 2004 -- A Stanford Law Review article by Prof. Richard H. Sander presents a devastating critique of law school preferences. Sander shows that the use of double standards in the top tier law schools has a cascading effect that forces lower tier law schools to also use preferences. As a result, many minority law students have difficulty competing academically. According to Sander:
"At American law schools that use large racial preferences, half of all black students end up in the bottom tenth of their first-year class...[T]his performance gap has nothing to do with race per se; whites who attend law schools where their credentials are far below most of their peers have pretty much the same types of troubles. The performance gap is a function of preferences."
Last revised: February 20, 2014