Thursday, October 14, 2010
http://courtlistener.com/ca9/UCM/human-life-of-washington-inc-v-chair-bill-brumsick/
I had not realized that the washington disclosure case also was a ruling on disclaimers. Rick Hasen blogged about it a few days ago, but I hadn't looked at the case until now.
The 9th circuit opinion is erroneous. It fails to apply strict scrutiny,and does not even mention the controlling precedents, Talley v California, McIntyre v Ohio, and Buckley v ACLF.
The complaint is somewhat defective, in that it fails to make claims under the Washington constitution, where it could have relied on the No on 119! case.
I haven't read the briefs yet. This case is similar to NOM v KcKee in Maine, in which I recently submitted an amicus brief to the First Circuit explaining how the district court had gotten the disclaimer issue wrong, and pointed to a controlling state constitutional decision.
Here it's the 9th circuit that has erred. I would have to check to see whether this is the case where the Supreme Court just denied interim relief - I think that was the other Bopp case from Washington. Might revise this post after a little homework.
I found this case using a new search tool from http://courtlistener.com.
OK, this is not that other case; this is a case that only came down a few days ago.
Here is the campaign legal center's press release bragging about having misled the court into applying the wrong standard of scrutiny.
Here (pdf) is the center's amicus brief; I will want to read it before saying more yet.
OK, the Center's brief does mention McIntyre in a footnote on page 14, just to point out that the term 'exacting scrutiny' has been used ambiguously. Then later, p.25, it misrepresents ACLF. The Center's brief and the Ninth Circuit opinion use the term 'disclosure' in an over-broad way. ACLF instead breaks down 'disclosure' into two different categories, reporting and disclaimers. ACLF subjects reporting requirements to Valeo-style intermediate scrutiny and disclaimers to strict scrutiny. The brief conveniently cites ACLF as to reporting requirements, but fails to mention that ACLF unanimously applied strict scrutiny to the disclaimer requirements.
I do not know what Human Life of Washington's next step will be; will it seek en banc review, head straight to the Supreme Court, or maybe bring a case in state court.
Commenting on the case to the election law list, Jim Bopp said "As Yogi Berra put it: 'It ain't over, until it is over.'"
My own next step should be to go find the HLW's briefs and see how we got here.
There's a few other things I need to go do today, so I might not get to that yet.
I did not find the appeal briefs online. A few of the earlier filings are, such as the state's reply to the motion for preliminary injunction.
http://www.jamesmadisoncenter.org/
http://www.jamesmadisoncenter.org/WA/Doc44-PI-Response.pdf
That filings reminds me that the current decision by a panel of the 9th circuit is incompatible with an earlier 9th circuit ruling, ACLU of Nevada v Heller.
For this reason, en banc review would be appropriate.
I had not realized that the washington disclosure case also was a ruling on disclaimers. Rick Hasen blogged about it a few days ago, but I hadn't looked at the case until now.
The 9th circuit opinion is erroneous. It fails to apply strict scrutiny,and does not even mention the controlling precedents, Talley v California, McIntyre v Ohio, and Buckley v ACLF.
The complaint is somewhat defective, in that it fails to make claims under the Washington constitution, where it could have relied on the No on 119! case.
I haven't read the briefs yet. This case is similar to NOM v KcKee in Maine, in which I recently submitted an amicus brief to the First Circuit explaining how the district court had gotten the disclaimer issue wrong, and pointed to a controlling state constitutional decision.
Here it's the 9th circuit that has erred. I would have to check to see whether this is the case where the Supreme Court just denied interim relief - I think that was the other Bopp case from Washington. Might revise this post after a little homework.
I found this case using a new search tool from http://courtlistener.com.
OK, this is not that other case; this is a case that only came down a few days ago.
Here is the campaign legal center's press release bragging about having misled the court into applying the wrong standard of scrutiny.
Here (pdf) is the center's amicus brief; I will want to read it before saying more yet.
OK, the Center's brief does mention McIntyre in a footnote on page 14, just to point out that the term 'exacting scrutiny' has been used ambiguously. Then later, p.25, it misrepresents ACLF. The Center's brief and the Ninth Circuit opinion use the term 'disclosure' in an over-broad way. ACLF instead breaks down 'disclosure' into two different categories, reporting and disclaimers. ACLF subjects reporting requirements to Valeo-style intermediate scrutiny and disclaimers to strict scrutiny. The brief conveniently cites ACLF as to reporting requirements, but fails to mention that ACLF unanimously applied strict scrutiny to the disclaimer requirements.
I do not know what Human Life of Washington's next step will be; will it seek en banc review, head straight to the Supreme Court, or maybe bring a case in state court.
Commenting on the case to the election law list, Jim Bopp said "As Yogi Berra put it: 'It ain't over, until it is over.'"
My own next step should be to go find the HLW's briefs and see how we got here.
There's a few other things I need to go do today, so I might not get to that yet.
I did not find the appeal briefs online. A few of the earlier filings are, such as the state's reply to the motion for preliminary injunction.
http://www.jamesmadisoncenter.org/
http://www.jamesmadisoncenter.org/WA/Doc44-PI-Response.pdf
That filings reminds me that the current decision by a panel of the 9th circuit is incompatible with an earlier 9th circuit ruling, ACLU of Nevada v Heller.
For this reason, en banc review would be appropriate.
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