DOMA down, but why?

The 1st Circuit today held that the Defense of Marriage Act’s denial of federal benefits to married same-sex couples is unconstitutional. Massachusetts v. US Department of Health and Human Services (1st Cir 05/31/2012).

The federal Defense of Marriage Act (DOMA) Section 3 prevents same-sex married couples from filing joint tax returns, prevent a surviving spouse from collecting Social Security survivor benefits, and prevents federal employees from sharing medical benefits with same-sex spouses.

The trial court held that DOMA Section 3 is unconstitutional; the 1st Circuit affirmed.

The court’s decision surveys equal protection and federalism issues and concludes that “governing precedents under both heads combine – not to create some new category of ‘heightened scrutiny,’ …, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.”

Thus the court gave less deference to, and “closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.”

The court concluded that denial of federal benefits to same-sex married couples “has not been adequately supported by any permissible federal interest.”

The court stayed its mandate, thus extending the trial court’s stay, in anticipation of the losing parties seeking certiorari in the US Supreme Court.

My view:

This is a decision, purportedly based on the US Constitution, that essentially avoids making an explicit connection to the text of the Constitution.

The idea is that states regulate marriage, the federal government may have something to say in this regard, but the reasons behind the federal government’s actions didn’t have enough oomph. No, there’s no 10th amendment violation, and no violation of the Spending Clause. And no, there’s no “strict scrutiny” going on. And no “new category of ‘heightened scrutiny.'” But wait, let’s give the legislation “closer scrutiny.”

I’m no fan of DOMA, but it’s not really clear to me what this court is doing.

[By the way, similar DOMA issues are pending in the 9th Circuit.]

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Source: http://www.lawmemo.com/blog/2012/05/doma_down_but_w.html

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Mid-year union dues increase: Hudson notice required, opt-in not opt-out

The US Supreme Court this morning held that “when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.”

Knox v. Service Employees Intl Union (US Supreme Ct 06/21/2012)

This is a remarkable decision for two reasons.

First, the Court has never before held that unions must issue a Hudson notice before changing the amount of dues. Hudson notices have always been based on an after-the-fact look-back based on the previous year’s audited accounts.

Second, the Court has never before held that unions cannot collect fees from nonmembers unless they affirmatively opt in. The Hudson notice system has always been based on the idea that nonmembers can get an after-the-fact refund.

The union representing California public sector employees has an agency shop agreement which requires nonmembers to pay an annual fee for “chargeable” expenses – nonpolitical costs related to collective bargaining. In June 2005 the union sent out its annual Hudson notice which estimated that chargeable expenses would be 56.35% of its total expenditures. After the 30-day period that nonmembers had to object, the union announced a 25% increase to fund a broad range of political expenses, but nonmembers were given no choice as to whether they would pay into this fund.

The US Supreme Court held (7-2) that

“when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.”

The Court described this case as one involving compelled funding of the speech of other private speakers or groups, which is akin to compelled speech and compelled association. Therefore, it is subject to “exacting First Amendment scrutiny.” In order to prevent the union from extracting a loan from unwilling nonmembers, the union must issue a fresh Hudson notice and must exempt nonmembers unless they opt in.

Two Justices, CONCURRING in the judgment, criticized the majority for adopting an opt-in system of fee collection which was “not contained in the questions presented, briefed, or argued.”

Two Justices, DISSENTING, pointed out that unions have always been allowed to calculate each year’s fee based on its expenses during the previous year. Although an imperfect system, it is not unconstitutional.

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Source: http://www.lawmemo.com/blog/2012/06/midyear_union_d.html

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Religious-Freedom Bills Proliferate in Statehouses

Arizona has become a flashpoint in the national debate over the boundaries between religious freedom and discrimination. But the state is hardly alone in mulling more explicit protections for religious business owners and individuals, whose objections to same-sex marriage have come into increasing conflict with newer laws expanding the rights of gays and lesbians.

Source: http://blogs.wsj.com/law/2014/02/25/religious-freedom-bills-proliferate-in-statehouses/?mod=WSJBlog

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Rachel Vitti: School superintendent’s wife making her own mark on educational and human rights issues (Florida Times-Union)

Arizona Gov. Brewer Vetoes Controversial Bill

The legislation would have allowed business owners to refuse service to gays and others if the customers offended their religious beliefs.

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Source: http://www.npr.org/blogs/thetwo-way/2014/02/25/282507942/arizona-gov-brewer-vetoes-controversial-bill?ft=1&f=1070

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The Best of the Plaintiffs Bar

These 19 firms are at the cutting edge of plaintiffs’ work — and are giving defense players a run for their money.

Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202624154645&rss=rss_nlj

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Higher Filing Thresholds for HSR Act Premerger Notifications Effective February 24, 2014

1. Higher Thresholds For HSR Filings

Higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 will become effective on February 24, 2014. The filing thresholds are revised annually, based on the change in gross national product.

The HSR Act notification requirements apply to transactions that satisfy the specified “size of transaction” and “size of person” thresholds. The key adjusted thresholds are summarized in the following chart:

key adjusted thresholds

While the filing thresholds have changed, the filing fees have not, but will be based on the new thresholds as follows: $45,000 for transactions valued at more than $75.9 million but less than $151.7 million; $125,000 for transactions valued at more than $151.7 million but less than $758.6 million; and $280,000 for transactions valued at more than $758.6 million.The above rules are general guidelines only and their application may vary depending on the particular transaction.

2. Higher Thresholds For the Prohibition Against Interlocking Directorates

Higher thresholds for the prohibition in Section 8 of the Clayton Act against interlocking directorates became effective on January 23, 2014. Section 8 prohibits, with certain exceptions, one person from serving as a director or officer of two competing corporations if two thresholds are met. Applying the new thresholds, competitor corporations are covered by Section 8 if each one has capital, surplus and undivided profits aggregating more than $29,945,000, with the exception that the interlock is not prohibited if the competitive sales of either corporation are less than $2,994,500. As with HSR thresholds, the FTC is required to revise Section 8 thresholds annually based on gross national product.

Source: http://www.corporatesecuritieslawblog.com/2014/01/higher-filing-thresholds-for-hsr-act-premerger-notifications-effective-february-24-2014/

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From Oscar Parties to ‘Inter Partes’

We range widely in this look at the state of intellectual property law, beginning with the legal complications attorneys need to consider when negotiating endorsement deals with the stars. We also investigate the renewed respect being paid to the “indefiniteness” defense against business-method patents. Finally, “inter partes” review — an attempt to streamline patent disputes — may in some cases make the process more difficult.

Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202642058806&rss=rss_nlj

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Mid-year union dues increase: Hudson notice required, opt-in not opt-out

The US Supreme Court this morning held that “when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.”

Knox v. Service Employees Intl Union (US Supreme Ct 06/21/2012)

This is a remarkable decision for two reasons.

First, the Court has never before held that unions must issue a Hudson notice before changing the amount of dues. Hudson notices have always been based on an after-the-fact look-back based on the previous year’s audited accounts.

Second, the Court has never before held that unions cannot collect fees from nonmembers unless they affirmatively opt in. The Hudson notice system has always been based on the idea that nonmembers can get an after-the-fact refund.

The union representing California public sector employees has an agency shop agreement which requires nonmembers to pay an annual fee for “chargeable” expenses – nonpolitical costs related to collective bargaining. In June 2005 the union sent out its annual Hudson notice which estimated that chargeable expenses would be 56.35% of its total expenditures. After the 30-day period that nonmembers had to object, the union announced a 25% increase to fund a broad range of political expenses, but nonmembers were given no choice as to whether they would pay into this fund.

The US Supreme Court held (7-2) that

“when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.”

The Court described this case as one involving compelled funding of the speech of other private speakers or groups, which is akin to compelled speech and compelled association. Therefore, it is subject to “exacting First Amendment scrutiny.” In order to prevent the union from extracting a loan from unwilling nonmembers, the union must issue a fresh Hudson notice and must exempt nonmembers unless they opt in.

Two Justices, CONCURRING in the judgment, criticized the majority for adopting an opt-in system of fee collection which was “not contained in the questions presented, briefed, or argued.”

Two Justices, DISSENTING, pointed out that unions have always been allowed to calculate each year’s fee based on its expenses during the previous year. Although an imperfect system, it is not unconstitutional.

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Source: http://www.lawmemo.com/blog/2012/06/midyear_union_d.html

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Supreme Court hears arguments on greenhouse gas cases

[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Monday on the federal government’s power to regulate certain greenhouse gases. In United Air Regulatory Group v. EPA [transcript, PDF], which was consolidated with six other cases, the court has limited the grant of review to the following issue: Whether the Environmental Protection Agency (EPA) [official website] permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air…

Source: http://jurist.org/paperchase/2014/02/supreme-court-hears-arguments-on-greenhouse-gas-cases.php

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