Wake Forest Law Review

By Samuel Gilleran

In a sweeping, 357-page ruling released yesterday afternoon, a three-judge panel of North Carolina Superior Court judges unanimously held that partisan gerrymandering violates multiple provisions of the North Carolina Constitution,[1] including the Equal Protection Clause,[2] the Free Elections Clause,[3] and the Freedom of Speech and Freedom of Assembly Clauses.[4]

The panel then proceeded to enjoin the use of the maps in the 2020 primary and general elections, ordered the General Assembly to enact new maps within two weeks, and forbade the use of “[p]artisan considerations and election results data.”[5] The panel further decreed that the General Assembly could not use the current map “as a starting point for drawing new districts, and no effort may be made to preserve the cores of invalidated 2017 districts.”[6] The panel forbade the use of outside consultants without Court approval and demanded that “the entire remedial process” must occur “in full public view. At a minimum, this requires all map drawing to occur at public hearings, with any relevant computer screen visible to legislators and public observers.”[7] Finally, the panel “retain[ed] jurisdiction” to adjust the dates of the 2020 primary elections in the event that such an adjustment was “necessary to provide effective relief in this case.”[8]

The panel noted that the allegations of partisan gerrymandering were essentially uncontested.[9] After all, in the related redrawing of the congressional district lines, Rep. David Lewis (R-Harnett), a leader in the Republican redistricting effort, plainly stated his belief that a “political gerrymander [was] not against the law” in urging the adoption of a map that would “give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”[10] The real question at issue was whether such gerrymandering was both proscribed under the North Carolina Constitution and justiciable by the North Carolina courts. The panel answered both questions affirmatively.

Before the panel expounded its holdings under the state constitution, it first explained why the Supreme Court’s opinion in Rucho v. Common Cause[11] did not control. As the panel noted, the Supreme Court explicitly reserved the issue of partisan gerrymandering for state review. It quoted the high court’s assertion that its opinion in Rucho did “not condone excessive partisan gerrymandering” and did not “condemn complaints about districting to echo into a void.”[12] “Rather, the Supreme Court held, ‘[t]he States . . . are actively addressing the issue on a number of fronts,’ and ‘[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.’”[13] The panel held that such provisions were present in North Carolina’s constitution.

First, the panel examined the Free Elections Clause. It noted that this clause “is one of the clauses that makes the North Carolina Constitution more detailed and specific than the federal Constitution in the protection of the rights of its citizens.”[14] The panel traced the evolution of the Free Elections Clause throughout the history of North Carolina’s legal system and concluded that it provides a justiciable right to North Carolinians; it is not merely hortatory or aspirational language.[15] It specifically pointed to a 1971 revision of the state constitution in which the wording of the clause was changed from “all elections ought to be free” to “all elections shall be free.”[16] “This change was intended to ‘make [it] clear’ that the Free Elections Clause and the other rights secured to the people by the Declaration of Rights ‘are commands and not mere admonitions’ to proper conduct on the part of the government.”[17]

The panel went on to hold that “[t]he partisan gerrymandering of the 2017 Plans strikes at the heart of the Free Elections Clause. . . . Elections are not free when partisan actors have tainted future elections by specifically and systematically designing the contours of the election districts for partisan purposes and a desire to preserve power. In doing so, partisan actors ensure from the outset that it is nearly impossible for the will of the people—should that will be contrary to the will of the partisan actors drawing the maps—to be expressed through their votes for State legislators.”[18]

In holding that North Carolina’s Free Elections Clause proscribed partisan gerrymandering, the panel’s logic tracked that of the Pennsylvania Supreme Court, which in 2018 held that a similar clause in that state’s constitution forbade partisan gerrymandering.[19] In that case, the court overturned a Republican gerrymander of Pennsylvania’s congressional districts; in the ensuing election, Democrats flipped three seats and came within 11,239 votes in three more.[20] Were it not for Pennsylvania’s political geography, in which there are 260,000 excess Democratic votes in the 3rd Congressional District (Philadelphia), Democrats could have won even more seats.[21]

Second, the panel examined North Carolina’s Equal Protection Clause.[22] The panel noted that the state version of the clause has been interpreted more broadly than the federal courts have interpreted the federal clause.[23] And so the panel relied on previous state supreme court precedents to explicate that North Carolina’s Democratic voters were being treated unequally and that because the fundamental right to vote was implicated, strict scrutiny applied.[24]

Third, the panel turned to the Free Speech and Free Assembly claims. The panel held that “the 2017 Plans discriminate[d] against . . .  Democratic voters based on their protected expression and association” and that “[d]iscriminating against citizens based on their political beliefs does not serve any legitimate government interest.”[25] The panel also held that the 2017 plans were unconstitutional under a retaliation theory of the Free Speech and Free Assembly Clauses; because Democratic voters had past protected political activity (i.e., voting for Democratic candidates) and because Republican mapmakers had chosen Democrats for negative treatment based on their protected activity, a retaliation claim was successful.[26]

Finally, the panel had to decide whether the claims were justiciable. After all, the Supreme Court had essentially held just a few months prior that while partisan gerrymandering was bad behavior, it was powerless to stop it due to a lack of judicially manageable standards. The panel held that the question of partisan gerrymandering did not fall within the political question doctrine; it is justiciable.[27] The panel specifically noted that one of the main purposes of the judicial branch of government was to be a check on the legislature’s desire to aggrandize power to itself. Citing a case from 1787, dating all the way back to the founding of the Republic, the panel declared:

“If unconstitutional partisan gerrymandering is not checked and balanced by judicial oversight, legislators elected under one partisan gerrymander will enact new gerrymanders after each decennial census, entrenching themselves in power anew decade after decade. When the North Carolina Supreme Court first recognized the power to declare state statutes unconstitutional, it presciently noted that absent judicial review, members of the General Assembly could ‘render themselves the Legislators of the State for life, without any further election of the people.’ Those legislators could even ‘from thence transmit the dignity and authority of legislation down to their heirs male forever.’ Extreme partisan gerrymandering reflects just such an effort by a legislative majority to permanently entrench themselves in power in perpetuity.”[28]

Notably, the panel rejected the argument that because gerrymandering had a long history, it was therefore constitutional. Citing to the seminal voting rights case Reynolds v. Sims, the panel stated that “widespread historical practices does not immunize governmental action from constitutional scrutiny.”[29] Merely because a practice was longstanding – and even, as in this case, engaged in by one of the Plaintiffs (i.e., the North Carolina Democratic Party) during the many years when it was in power – does not somehow eliminate the rights reserved by North Carolinians under the state constitution. The panel also rejected the idea that it needed to find a bright-line rule for how much partisan gerrymandering was too much, the question that so plagued the Supreme Court in Rucho. Instead, the panel stated the obvious: “[t]his case is not close.”[30] In essence, the panel held that, wherever the line is, this set of facts is so far past that line that Plaintiffs’ entitlement to relief is indisputable.

The reaction to the panel’s decision was swift. Sen. Jeff Jackson (D-Mecklenburg) tweeted that the ruling was “the single best news [he] ha[d] ever heard” during his time in the legislature,[31] while Rep. Graig Meyer (D-Orange) called the ruling “a big win for democracy and a game changer for 2020.”[32] But the biggest news came from Republican Senate Majority Leader Phil Berger (R-Rockingham), who announced that Republicans would not appeal the decision to the state Supreme Court. Although castigating the panel’s decision, Sen. Berger stated that “[n]early a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point. It’s time to move on. To end this matter once and for all, we will follow the court’s instruction and move forward with adoption of a nonpartisan map.”[33] Election law scholar Rick Hasen suggested a few reasons why Republicans elected not to appeal, including the simple facts of sure loss in the North Carolina Supreme Court and the greater precedential value of the inevitable negative decision from that court.[34]

What are the practical ramifications of this decision? For the first time in a long time, Democrats truly believe they can win back majorities in each house of the legislature.[35] Republicans currently maintain a 65-55 margin in the state house, and given the sheer number of districts identified in the decision as unconstitutionally gerrymandered, Democrats have to feel good about the prospects of taking back at least that chamber. Democrats carried a majority of the two-party vote in 2018,[36] and it is historically likely that the electorate in 2020, a presidential year, will be younger and more racially diverse than in 2018, a midterm year.[37]

Judging from the simulations run by political scientists and adjusting for a 2020 political environment, Democrats have a strong chance at flipping House seats in Columbus County,[38] Cumberland County,[39] Franklin County,[40] Pitt County,[41] Guilford County,[42] Forsyth County (possibly two)[43], New Hanover County,[44] Onslow County,[45] Anson County,[46] and Alamance County.[47] If Democrats were able to flip even six of these eleven targets, it would give them a 61-59 majority in the state house, all other things being equal.

Similarly, on the Senate side, Republicans retain a 29-21 majority, so the Democrats would have to flip five seats. The panel’s ruling gives Democrats a reasonable chance at flipping seats in Mecklenburg County[48] and Wake County,[49] but in other gerrymandered districts that would be unwound by the ruling, such as in Guilford County and New Hanover County, Democrats managed to defeat the gerrymander in 2018. That said, unwinding the gerrymander makes the playing field different and, in a good year, could allow Democrats to take Senate seats that they ordinarily would not. In addition, when decennial redistricting occurs in 2021 after the 2020 census, it could be that a few seats will shift from rural to suburban and urban areas, thereby helping Democratic chances moving forward.


[1] Common Cause v. Lewis, No. 18-cv-14001, slip op. at 352–53 (N.C. Super. Ct. [Wake] Sep. 3, 2019), https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf.

[2] N.C. Const. art. I, § 19.

[3] N.C. Const. art. I, § 10.

[4] N.C. Const. art. I, §§ 12, 14.

[5] Common Cause, slip op. at 353–55.

[6] Id. at 355.

[7] Id. at 356.

[8] Id. at 357.

[9] Id. at 23.

[10] Hearing Before the J. Comm. on Redistricting, Extra Sess. 48, 50 (N.C. Feb. 16, 2016) (statement of Rep. David Lewis, Co-Chair, J. Comm. on Redistricting), redistricting.lls.edu/files/NC%20Harris%2020160216%20Transcript.pdf.

[11] 139 S. Ct. 2484 (2019) (holding partisan gerrymandering non-justiciable under the federal Constitution).

[12] Common Cause, slip op. at 299 (quoting Rucho, 139 S. Ct. at 2507).

[13] Id. (emphasis added in Common Cause).

[14] Id.

[15] Id. at 303–04.

[16] Id. at 304 (emphasis added in Common Cause) (quoting N.C. Const.  art I, § 10) (comparing 1868 version to 1971 version).

[17] Id. (quoting N.C. State Bar v. DuMont, 304 N.C. 627, 635, 639, 286 S.E.2d 89, 94, 97 (1982)).

[18] Id. at 305.

[19] See League of Women Voters of Pa. v. Commonwealth, 178 A.3d 737, 804 (Pa. 2018).

[20] Pennsylvania Election Results, N.Y. Times (last updated Dec. 19, 2018, 5:12 PM), https://www.nytimes.com/interactive/2018/11/06/us/elections/results-pennsylvania-elections.html.

[21] Id.

[22] Common Cause, slip op. at 307.

[23] Id. at 308–09.

[24] Id. at 315–16.

[25] Id. at 328.

[26] Id. at 329–31.

[27] Id. at 334.

[28] Id. at 333 (quoting Bayard v. Singleton, 1 N.C. 5, 7 (1787)).

[29] Id. (citing Reynolds v. Sims, 377 U.S. 533, 582 (1964) (invalidating Alabama’s malapportioned legislative districts despite a history of malapportionment that dated back to the founding). North Carolina itself engaged in such malapportionment, which has been documented as early as 1792. See Thomas Rogers Hunter, The First Gerrymander?: Patrick Henry, James Madison, James Monroe, and Virginia’s 1788 Congressional Districting, 9 Early Am. Stud. 781, 819 (2011) (discussing a 1792 map that “severely overpopulated” congressional districts in the northeast corner of the state).

[30] Common Cause, slip op. at 341.

[31] Jeff Jackson (@JeffJacksonNC), Twitter (Sep. 3, 2019, 4:40 PM), https://twitter.com/JeffJacksonNC/status/1168987115637682176.

[32] Graig Meyer (@GraigMeyer), Twitter (Sep. 3, 2019, 4:44 PM), https://twitter.com/GraigMeyer/status/1168988126200705026.

[33] Nick Ochsner (@NickOchsnerWBTV), Twitter (Sep. 3, 2019, 5:27 PM), https://twitter.com/NickOchsnerWBTV/status/1168998919885508608.

[34] See Rick Hasen, North Carolina Republicans Won’t Appeal Gerrymandering Ruling, Promise “Nonpartisan” Map. What’s the End Game?, Election L. Blog (Sep. 3, 2019, 3:13 PM), https://electionlawblog.org/?p=107179.

[35] See Jeff Jackson (@JeffJacksonNC), Twitter (Sep. 3, 2019, 7:03 PM), https://twitter.com/JeffJacksonNC/status/1169023123938824194 (“With fair maps, we have a genuine shot at electing a state legislature that actually reflects the political will of our state.”).

[36] Common Cause, slip op. at 233.

[37] See, e.g., Matthew Yglesias, The 2018 Electorate Was Older, Whiter, and Better Educated Than in 2016, Vox (Nov. 12, 2018, 10:00 AM), https://www.vox.com/policy-and-politics/2018/11/12/18083014/2018-election-results-turnout

[38] Common Cause, slip op. at 153.

[39] Id. at 157–58.

[40] Id. at 161–64.

[41] Id. at 164–69.

[42] Id. at 170–75.

[43] Id. at 181–85.

[44] Id. at 194–99.

[45] Id. at 199–203.

[46] Id. at 203–08.

[47] Id. at 209–15.

[48] Id. at 109–17.

[49] Id. at 117–23.

By Jason Wiener

Karen J. Williams was born in Orangeburg, South Carolina on August 4, 1951.[1] After receiving her B.A. from Columbia College in 1972, she taught social studies and English in local public schools.[2] She returned to school as a law student and received her J.D. from the University of South Carolina in 1980, graduating at the top of her class.[3] Before taking the bench, Judge Williams practiced in Orangeburg at Williams & Williams, where she worked alongside her husband Charles H. Williams and her father-in-law Senator Marshall B. Williams.[4]

On January 27, 1992, Karen Williams was nominated by President George H. W. Bush to serve on the Fourth Circuit Court of Appeals.[5]Upon confirmation, she became the first female to sit on that Court’s bench.[6]She made history again in 2007 when she served as the first female Chief Judge, a position she held until her resignation in 2009.[7]

Judge Williams took an active role on the bench and fearlessly addressed controversial appellate cases, which ultimately helped clarify the parameters of our Mirandarights. In 1966, the Supreme Court attempted to safeguard Fifth Amendment rights in the famous Mirandadecision.[8] In 1968, Congress passed 18 U.S.C. § 3501, an act that sought to expand the admissibility of voluntary confessions during federal prosecutions.[9] Although the Department of Justice had been reluctant to enforce that law, Judge Williams had to contend with the constitutionality of § 3501 in United States v. Dickerson.[10]

After Charles Dickerson voluntarily confessed to robbing several banks, he later sought to suppress the confession due to a technical violation of Miranda.[11] Reasoning that Congress had the authority to pass § 3501 pursuant to its authority to establish rules of procedure and evidence for the federal courts, and that the act allowed confessions to be admissible in evidence if they are voluntarily given, Judge Williams reversed the district court’s suppression of the evidence.[12] However, the Supreme Court reversed in Dickerson v. United States and held that Miranda was a constitutional decision that cannot be effectively overruled by Congress.[13] Although the New York Times chided Judge Williams’ opinion, her deference to the legislature on this issue was understandable given the unclear complexities of Miranda.[14]

Fourth Circuit Judge J. Harvie Wilkinson III noted that Judge Williams “brought warmth, refinement, dignity, and grace to the judicial process, which can sometimes be perceived as hard and cold.”[15]After she was diagnosed with Alzheimer’s disease, Judge Williams retired in 2009.[16]On November 2, 2013, the Honorable Karen J. Williams died at her home in Orangeburg at the age of 62.[17]She was survived by her husband and four children.[18]She is remembered daily at the University of South Carolina Law School, where a courtroom bearing her name honors her legacy. 


[1]Williams, Karen J., Fed. Jud. Ctr., https://www.fjc.gov/history/judges/williams-karen-j (last visited Apr. 15, 2019).

[2] Court Mourns the Passing of Former Chief Judge Karen J. Williams, U.S. Ct. of Appeals for the Fourth Cir. (Nov. 5, 2013),  http://www.ca4.uscourts.gov/news-announcements/2013/11/05/court-mourns-the-passing-of-former-chief-judge-karen-j.-williams.

[3]Id.

[4]Hon. Karen J. Williams 1951 – 2013Obituary, Dukes-Harley Funeral Home and Crematory, https://www.dukesharleyfuneralhome.com/obituary/2312344(last visited Apr. 15, 2019). 

[5]Id.

[6]Id.

[7]Id.

[8]Miranda v. Arizona, 384 U.S. 436 (1966). 

[9]18 U.S.C.A. § 3501.

[10]United States v. Dickerson, 166 F.3d 667, 671 (4th Cir. 1999).

[11]Id.

[12]Id.at 672. 

[13]Dickerson v. United States, 530 U.S. 428, 431 (2000).

[14]For the NYT’s take on Judge Williams and the Dickerson decision, see Deborah Sontag, The Power of the Fourth N.Y. Times (Mar. 9, 2003), https://www.nytimes.com/2003/03/09/magazine/the-power-of-the-fourth.html.

[15]Court Mourns the Passing of Former Chief Judge Karen J. Williamssupranote 2. 

[16]Id.

[17]Id.

[18]Hon. Karen J. Williamssupranote 4.

By Cole Tipton

SummitBridge National v. Faison

In this bankruptcy action, SummitBridge National (“National”) appeals the district court’s holding that it is barred from claiming attorney’s fees incurred after a bankruptcy petition was filed.  The contract between National and Ollie Faison (“Faison”) stated that Faison would pay “all costs of collection, including but not limited to reasonable attorneys’ fees.”  The Fourth Circuit reversed the district court’s holding and stated that the Bankruptcy Code does not preclude contractual claims to attorney’s fees that were guaranteed by a pre-bankruptcy contract.  The determination of the district court was reversed and remanded for further proceedings.

US v. Pratt

In this criminal action, Samual Pratt (“Pratt”) appeals his conviction of various counts of sex trafficking and child pornography due to evidentiary errors.  Pratt contends the district court should have suppressed evidence from his cellphone and should not have admitted certain hearsay statements.  First, the Fourth Circuit held that it was reversible error to admit evidence from Pratt’s cellphone because the phone was seized without consent and the government waited thirty-one days before obtaining a search warrant.  The Court stated that such a delay was unreasonable.  Second, the Fourth Circuit held that an unavailable witness’s hearsay statements were admissible because Pratt had procured the witness’s unavailability through phone calls and threats.  Accordingly, the Fourth Circuit vacated Pratt’s convictions on the two counts prejudiced by the cell phone evidence, vacated his sentence, and remanded.

Parker v. Reema Consulting Services, Inc 

In this civil action, Evangeline Parker (“Parker”) appeals the district court’s dismissal of her complaint against her employer, Reema Consulting Services, Inc. (“Reema”).  The central issue of the appeal was whether a false rumor circulated by Reema that Parker slept with her boss for a raise could give rise to liability under Title VII for discrimination “because of sex.”  The Fourth Circuit held that because the complaint alleged Reema spread the rumor and acted on it by penalizing the employee, a cognizable claim for discrimination “because of sex” was alleged.  The district court’s dismissal was reversed.

US Dep’t of Labor v. Fire & Safety Investigation

In this civil action, Fire & Safety Investigation Consulting Services, LLC (“Fire & Safety”) appealed the district court’s determination that they violated the Fair Labor Standards Act (“FLSA”) for failing to pay overtime compensation.  Fire & Safety uses an alternative work schedule for its employees in which an employee works 12 hours per day for 14 days and then receives 14 days off.  Because employees under this plan will work 88 hours in one work week, Fire & Safety pays its employees a blended rate for all 88 hours that is supposed to account for the 48 hours of overtime worked, rather than paying 40 hours of standard pay plus 48 hours of overtime.  The Fourth Circuit held that this blended rate fails to observe the formalities required by the FLSA which requires all overtime hours be recorded and paid at one and one-half times the standard rate of pay for all hours worked over 40.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, including over $1.5 million in back wages and liquidated damages.

Trana Discovery, Inc. v. S. Research Inst.

In this civil action, Trana Discovery, Inc. (“Trana”) brought a fraud and negligent misrepresentation action against Southern Research Institute (“Southern”).  Trana alleged that Southern had provided false data in research reports of a new HIV medication it was researching.  The district court granted summary judgment for Southern on both claims.  The Fourth Circuit upheld the grant of summary judgement, stating that there was no genuine dispute of material fact due to an insufficiency of evidence regarding damages and the standard of care Southern was exacted to.  Accordingly, summary judgement was affirmed.

Jesus Christ is the Answer v. Baltimore County, Maryland

In this civil action, Jesus Christ is the Answer Church (“Church”) brought an action alleging violation of the First Amendment’s Free Exercise Clause, the Fourteenth Amendment’s Equal Protection Clause, the Maryland Declaration of Rights, and the Religious Land Use and Institutionalized Person Act.  Church alleged that Baltimore County, Maryland (“Baltimore”) had infringed upon their State and Federal rights by denying their modified petition for zoning variances to establish a church.  Several neighbors, who had expressed open hostility towards Church, opposed the petition.  After the petition was denied, Church filed an action in district court which was dismissed for failure to state a claim.  On appeal, the Fourth Circuit reversed and remanded because Church’s complaint contained facts sufficient to state a claim that was “plausible on its face.”  The Fourth Circuit held that the neighbors apparent religious bias towards Church was sufficient to plead a plausible Constitutional claim and violation of the Religious Land Use Act. 

Curtis v. Propel Property Tax Funding

In this civil action, Garry Curtis (“Curtis”) brought a suit on behalf of himself and similarly situated individuals against Propel Property Tax Funding (“Propel”), alleging violations of the Truth in Lending Act, the Electronic Funds Transfer Act, and the Virginia Consumer Protection Act.  Propel was engaged in the practice of lending to third parties to finance payment of local taxes.  The district court denied Propel’s motion to dismiss and certified two interlocutory questions.  Propel appealed, asserting that Curtis did not have standing and that he failed to state a claim for relief.  The Fourth Circuit upheld the district court’s ruling, finding that: 1) Curtis had standing because he was personally subject to the harms these consumer protection statutes were designed to protect against; and 2) Curtis had sufficiently pled violations of the lending acts because Propel was conducting consumer credit transactions.

US v. Charboneau

In this civil action, Blake Charboneau (“Charboneau”) challenges the determination that he is a “sexually dangerous person” under the civil commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006.  The district court held that Charboneau was a “sexually dangerous person” within the meaning of the act and committed him to the custody of the Attorney General.  On appeal, Charboneau raised two issues: 1) whether he must be diagnosed with a paraphilic disorder to be committed under the act; and 2) if the record supported the district court’s findings.  The Fourth Circuit affirmed the district court’s judgment, holding that an actual diagnosis was not necessary under the act and the record was sufficient under a clear error standard of review.

US v. Johnson

In this criminal action, Willie Johnson (“Johnson”) appealed a district court’s order to resentence him for bank robbery under the sentencing recommendation in his original plea agreement.  Johnson argued that the government’s original agreement not to seek a mandatory life sentence under the federal three-strikes law was not beneficial because his prior state crimes should not be counted for federal three-strikes treatment.  The Fourth Circuit held that state crimes are encompassed by the three-strikes program and the district court’s decision to honor the original sentencing recommendation was affirmed.

Mountain Valley Pipeline, LLC v. 6.56 Acres of Land

In this civil action, owners of 6.56 acres of land appealed a district court judgement granted Mountain Valley Pipeline, LLC (“Pipeline”) a preliminary injunction for access and possession of property it was acquiring through eminent domain.  The Fourth Circuit reviewed the district court’s application of the test set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) for preliminary injunctions.  In doing so, the Court found that Pipeline had established it was likely to succeed on the merits, would suffer irreparable harm, the balance of equities was in its favor, and that an injunction served the public interest.  Accordingly, the district court was affirmed.

Booking.com B.V. v. US Patent & Trademark

In this civil action, Booking.com and the U.S. Patent and Trademark Office (“USPTO”) appeal the district court’s grant of summary judgment protecting the trademark BOOKING.COM.  Booking.com appeals the district court’s grant of attorney’s fees to the USPTO, and the USPTO appeals the court’s decision that BOOKING.COM is protectable.  The Fourth Circuit held that BOOKING.COM is not generic and can be registered as a descriptive mark with secondary meaning.  Moreover, the Court upheld the grant of USPTO’s expenses because the Lanham Act requires a party to pay “all the expenses of the proceeding” when a USPTO decision is appealed to the district court.  Thus, the district court’s judgment was affirmed.

US v. Jones

In this criminal action, James Eric Jones (“Jones”) appeals the district court’s denial of a motion to vacate, set aside, or correct his sentence.  Jones was originally sentenced under the Armed Career Criminal Act (“ACCA”) which requires a mandatory fifteen-year minimum sentence for defendants with at least three prior violent felony convictions.  However, Jones claims that he does not qualify for sentencing under the act because his South Carolina conviction for assaulting, beating, or wounding a police officer is not a violent conviction as defined by the ACCA.  The Fourth Circuit held that assaulting, beating, or wounding a police officer does not qualify under the ACCA because it includes conduct that does not involve violent physical force. Therefore, the district court’s judgment was vacated and remanded.

By Kayla West and Jim Twiddy

Mark Lawlor v. David Zook

In this criminal case, the Appellant sought a review of his death sentence. A Virginia state court sentenced the Appellant to death after his conviction for capital murder. During his sentencing, the sentencing jury found that the Appellant would likely continue to commit criminal acts of violence, making him a continuous threat to society. The state court had excluded relevant testimony of a qualified witness who would have explained that the Appellant represented a low risk for committing acts of violence while incarcerated. The Appellant filed the instant federal petition for review of his death sentence which was dismissed by the district court. The Fourth Circuit granted certificate of appealability on three issues, including whether it was a constitutional error for the trial court to exclude expert testimony about the Appellant’s risk of future violence in prison. The Fourth Circuit concluded that the state court’s exclusion of the expert testimony was an unreasonable application of the established federal law because the evidence was potentially mitigating, and such evidence may not be excluded from the sentencer’s consideration. The Fourth Circuit relied on the Supreme Court’s long recognized principle that a capital sentencing body must be permitted to consider any admissible and relevant mitigating information in determining whether to assign the defendant a sentence less than death. Thus, the district court’s decision was reversed and remanded.

 

Sierra Club v. U.S. Army Corps of Engineers

In this civil case, petitioners asked for the Court to set aside respondent’s verification and reinstated verification that construction of the Mountain Valley Pipeline can proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 (“NWP 12”), rather than an individual permit. The 42-inch diameter natural gas Pipeline proposes to run 304 miles through parts of Virginia and West Virginia, crossing several federal water bodies. Because the construction of the Pipeline will involve the discharge of fill material into federal waters, the Clean Water Act requires that Mountain Valley Pipeline, LLC (certified to construct and operate the Pipeline) obtain clearance from the U.S. Army Corps of Engineers’ before beginning construction. Mountain Valley elected to pursue the general permit approach to obtain Corps clearance under NWP 12 which requires that all terms and conditions are satisfied before valid authorization occurs. Additionally, Mountain Valley must provide the Corps with a certification from the state in which the discharge originates. Under NWP 12, West Virginia’s certification imposes additional “special conditions” which the Corps must make regional conditions. However, the Corps decided to substitute its Special Condition 6 “in lieu of” NWP 12’s Special Condition C (imposed by West Virginia). The Fourth Circuit held that the Corps lacked the statutory authority to substitute its own special conditions “in lieu of” West Virginia’s special conditions. Further, the State Department for West Virginia waived Special Condition A, imposed as part of its certification of NWP 12. However, the Fourth Circuit held that a state cannot waive a special condition previously imposed as part of a nationwide permit absent completion of the notice-and-comment procedures required by the Clean Water Act under Section 1341(a)(1). Accordingly, the Fourth Circuit vacated, in their entirety, the verification and reinstated verification authorizing the Pipeline’s compliance with NWP 12.

 

US v. Terry

In this criminal case, Terry appealed his conviction of possessing methamphetamine with the intent to distribute. The key issue in this appeal was whether the district court erred in denying Terry’s motion to suppress evidence seized during a traffic stop. The stop was conducted through the illegal use of a GPS search. The district court asserted that because Terry relinquished control over the car, he lacked standing to challenge the GPS search. The Fourth Circuit concluded that the government agents committed a flagrant constitutional violation when they secretly placed a GPS on Terry’s car without a warrant, and that the discovery of the evidence seized during the traffic stop was not sufficiently attenuated from the unlawful GPS search to purge the effect of the unlawful search because the GPS and discovery of evidence were so closely tied. Additionally, the Fourth Circuit concluded that Terry did not lose his standing to assert a constitutional violation because when the tracker was placed, he was legitimately in possession of the vehicle. The Fourth Circuit reversed the holding of the district court, and vacated Terry’s conviction.

 

US v. Brown

In this criminal case, Brown asserted that a district court erred in calculating his criminal history category because the court added two points to Brown’s criminal history score based on a prior Virginia state conviction for which Brown received a suspended sentence. Brown’s suspended sentence was conditioned on a period of good behavior for ten years upon release from the prior Virginia State conviction. He was released in July of 2009, meaning that at the time of the present case, Brown had not completed his period of ten years good behavior. The district court concluded that a period of good behavior constitutes a criminal justice sentence, making it relevant to a defendant’s criminal history score. Brown asserted that a period of good behavior is not a criminal justice sentence because it lacks a custodial or supervisory component. The Fourth Circuit concluded that during a period of good behavior, Brown was still subject to the authority of the state. This operated as a supervisory component significant enough to constitute a criminal justice sentence. Because Brown committed the present offense while under a criminal justice sentence, the additional two points to his criminal history score were correctly added. The Fourth Circuit affirmed.

Fourth Circuit Weighs in on Constitutional Challenges to Airport Metro Service Project

By Agustin Martinez and Ashley Oldfield

Facts

In Kerpen v. Metropolitan Washington Airports Authority,[1] the Fourth Circuit addressed numerous constitutional and statutory challenges to the Metropolitan Washington Airports Authority’s (“MWAA”) use of toll revenues to build and fund a metro service project. Beginning in 1962, Dulles Airport and an access road linking Dulles to the Washington, DC, area operated under the management of the Federal Aviation Administration (“FAA”).[2] However, when the need for capital improvements at Dulles and its sister airport, National, became apparent in the early 1980s, the government sought to transfer operation of both airports to an authority with the ability to raise the necessary funds.[3] Subsequently, Virginia and the District of Columbia passed legislation “to create an interstate compact for the management of Dulles and National” which resulted in MWAA.[4] The legislation granted MWAA the authority to acquire the airports and “to operate, maintain, and improve” them.[5] The following year, the Transfer Act (“Act”) authorized the lease of the airports (“Lease”) to MWAA and “the transfer of the airports’ ‘access highways and other related facilities.’”[6] The Act required MWAA to only use the property for “airport purposes” and to “assume responsibility” for the federal government’s Master Plan for the airports, which “contemplated” eventual metro service to Dulles.[7] To facilitate the metro service project, Virginia transferred operation of a toll road to MWAA, and MWAA agreed to use the resulting revenues to finance the metro service’s construction.[8]

Procedural History

Plaintiffs, users of the toll road, brought a putative class action suit challenging MWAA on various constitutional and statutory grounds.[9] They asserted that “MWAA is a federal instrumentality” and that it “violated Article I, Article II, and the Guarantee Clause of the Constitution”; the Administrative Procedures Act (APA); and “the terms of the Transfer Act and the Lease.”[10] In response, MWAA, the District of Columbia, the Secretary of Transportation, and the U.S. Department Of Transportation (collectively, “Defendants”) filed Motions to Dismiss for Failure to State a Claim.[11] The district court granted the Motions and dismissed all of Plaintiffs’ claims.[12] Upon appeal, the Fourth Circuit considered whether MWAA was subject to limitations under the Constitution and APA and whether its collection and use of tolls violated the terms of the Transfer Act and Lease.

Plaintiffs’ Arguments

On appeal, Plaintiffs argued that MWAA is a federal instrumentality under the four-factor Lebron standard.[13] First, Plaintiffs asserted that MWAA was created in pursuit of federal policy goals because “the Federal Government has a strong and continuing interest in the efficient operation of [MWAA’s] airports.”[14] Second, they argued that the federal government initiated MWAA’s creation because the Secretary of Transportation appointed the commission that recommended MWAA and Congress conditioned the airports’ transfer on meeting several requirements.[15] Third, Plaintiffs observed that three of MWAA’s directors are federally appointed and suggested that the remaining directors were also “beholden to federal interests . . . .”[16] Finally, they asserted that MWAA is subject to significant congressional oversight because Congress has established several “oversight mechanisms” for MWAA, including its previous Board of Review and current Board of Directors, and has subjected MWAA to oversight by the Department of Transportation.[17]

Plaintiffs further argued that, even if MWAA is not a federal instrumentality, the federal, government, and legislative powers delegated to it violate the nondelegation principle.[18] Plaintiffs listed a “vast panoply” of federal powers granted to MWAA by Congress and the FAA[19] and compared the present case to previous litigation involving MWAA in which the court held that “MWAA’s prior Board of Review was exercising federal power . . . .”[20] Plaintiffs also asserted that MWAA’s clear exercise of governmental power violated the Guarantee Clause because MWAA acts independently and without political accountability.[21] Additionally, Plaintiffs argued that MWAA exercised various legislative powers and particularly noted that its collection of tolls is an improper exercise of the legislative power to tax.[22]

Finally, Plaintiffs argued that the Transfer Act prohibited MWAA’s financing and construction of the Silver Line, a metro line connecting Dulles to Washington, DC, because the Act requires that airport revenues only be spent on the “capital and operating costs of the . . . Airports.”[23] Plaintiffs asserted that construction of the Silver Line could not be a capital cost of the airport because the Silver Line is largely “for the use of non-airport customers, on non-airport property” and will be turned over to its operator, the Metropolitan Washington Area Transit Administration (“WMATA”), upon completion.[24] Plaintiffs noted that a proper construction of the statute “required MWAA to leave space for a potential Metro line,” but prohibited MWAA from building the line itself.[25]

Defendants’ Arguments

Meanwhile, Defendants argued that operating commercial airports is not a core federal power reserved to the federal government by the Constitution.[26] They noted that, other than Dulles and National, the federal government has neither owned nor operated other commercial airports.[27] They asserted, therefore, that the Transfer Act did not violate separation of power principles, including the nondelegation doctrine, because the Act did not entail the delegation of a reserved core federal power.[28] Defendants also argued that, even if the Transfer Act did implicate a core federal power, the Act still satisfied the “intelligible principle” that is required when the federal government delegates a core power.[29] Defendants asserted that the Act’s strict statutory requirements for the Lease with MWAA sufficiently satisfied this broad “intelligible principle.”[30]

Next, Defendants argued that MWAA is not a federal instrumentality.[31] They emphasized that no court has previously held that an interstate compact, like MWAA, is a federal instrumentality that is subject to the Appointments Clause of the Constitution.[32] Defendants further asserted that MWAA was not created by the federal government; that the Transfer Act’s purpose was to transfer the operation and funding of Dulles and National to Virginia and the District of Columbia; and that the federal government did not control MWAA’s day-to-day operations or its governance and management decisions.[33] Defendants maintained, therefore, that the federal government neither created nor controlled MWAA, and thus it is not a federal instrumentality under the Lebron framework.[34]

In addition, Defendants argued that the Transfer Act did not violate the Guarantee Clause of the Constitution because the Act did “not remotely threaten Virginia’s republican form of government.”[35] Specifically, Defendants noted that Virginia and the District of Columbia established MWAA by virtue of statutes that were enacted by their respective legislative bodies and that MWAA’s appointed Board members are accountable to elected officials.[36] They also asserted that the Transfer Act limits MWAA’s authority to operating, maintaining, and improving Dulles and National, thus preventing the Act from running afoul of the Guarantee Clause.[37]

Finally, Defendants asserted that MWAA’s financing and construction of the Silver Line is permitted under the Transfer Act.[38] Defendants first argued that, as matter of law and statutory interpretation, Plaintiffs were barred from bringing an action to enforce the Transfer Act against MWAA.[39] Defendants then asserted that MWAA’s use of toll revenues for the Silver Line project was “reasonably related to improving passenger and cargo access to Dulles,” and thus was consistent with the Transfer Act’s legislative intent.[40]

The Fourth Circuit’s Analysis and Holding

The Fourth Circuit affirmed the district court’s dismissal of Plaintiffs’ claims. As an initial matter, the Court rejected Plaintiffs’ arguments that MWAA is a federal instrumentality.[41] Under Lebron, an entity is a federal instrumentality when it is (1) created and (2) controlled by the federal government.[42] The Court held that MWAA did not meet this definition.[43] First, the Court noted that the Transfer Act did not create MWAA because Virginia and the District of Columbia, with congressional pre-approval, had created MWAA through their own statutes.[44] The Transfer Act “simply specified the minimum powers MWAA must have in order to lease Dulles and National,” while also recognizing that Virginia and the District of Columbia were the sources of those powers.[45] Second, the Court explained that MWAA is not controlled by the federal government, as evidenced by the fact that only three of MWAA’s seventeen Board members are appointed by the federal government.[46] Although these three Board members have some influence on MWAA’s decisions, they alone cannot control MWAA.[47]

Moreover, the Court declined to adopt Plaintiffs’ instrumentality arguments because doing so would implicate other constitutionally permissible arrangements, including federal contractor agreements and interstate compacts like the Atlantic States Marine Fisheries Commission.[48] Thus, the Court held that Plaintiffs’ Appointments Clause and APA challenges failed because MWAA is not a federal instrumentality.[49] As the Court noted, the Appointments Clause and APA only apply to federal entities.[50]

The Court also rejected Plaintiffs’ claim that MWAA had been unconstitutionally delegated legislative power, government power, or federal power. “The principle of non-delegation requires that ‘core governmental power must be exercised by the Department on which it is conferred and must not be delegated to others in a manner that frustrates the constitutional design.’”[51] The Court held that MWAA’s structure did not violate the nondelegation doctrine.[52] First, the Court explained that MWAA only exercised those powers that originated from the Virginia and District of Columbia statutes; however, the plain text of those statutes did not transfer any legislative power from the federal government to MWAA.[53] Further, the Transfer Act recognized that those statutes had conferred non-legislative powers on MWAA.[54] The Court also indicated that, even if MWAA derived some of its power from the federal government, “[t]he strictures of the Transfer Act are sufficiently detailed as to more than satisfy the requirement of an ‘intelligible principle.’”[55]

Second, the Court noted that the Supreme Court has made it clear that it is unconstitutional for the government to delegate core government power to a private entity.[56] Therefore, the Court reasoned that there was “no unlawful delegation of ‘government power’ to a private entity in this case for the simple reason that MWAA is not a private entity”[57] Rather, MWAA is an interstate compact that is subject to the authority of elected officials.[58] Third, the Court adopted Defendants’ argument that operating a commercial airport is not an inherent federal power, and thus it rejected Plaintiffs’ claim that MWAA had been delegated a federal power.[59]

The Court then addressed Plaintiffs’ contention that MWAA’s establishment violated the Guarantee Clause. The Guarantee Clause states that the U.S. “shall guarantee to every State in this Union a Republican Form of Government.”[60] The Court concluded that there was no violation of the Guarantee Clause because “MWAA does not deny any state a republican form of government.”[61] Specifically, Virginia and the District of Columbia retained their republican governments, and MWAA is accountable to elected officials.[62] Finally, the Court analyzed whether MWAA’s collection and use of tolls violated the terms of the Transfer Act and Lease. Consistent with case law from its sister circuits, the Court gave significant deference to the Secretary of Transportation’s previous determination that MWAA’s construction of the Silver Line and use of toll revenues to finance the project was permissible under the Act and Lease.[63] The Court also indicated that the Secretary was entitled to such deference because, under the Transfer Act, it is the Secretary who is authorized to determine the scope of an “airport purpose.”[64] Therefore, the Court adopted the Secretary’s determination, noting that the Transfer Act and Lease had required MWAA to adopt the Master Plan for Dulles and National, which had envisioned extending metro service to Dulles.[65] Moreover, the Act and Lease recognized that MWAA could exercise eminent domain powers, indicating that the federal government “must have imagined that MWAA would make improvements to land that is not owned or controlled by [MWAA].”[66] In sum, the Court rejected all of Plaintiffs’ claims.

Conclusion

Plaintiffs raised several constitutional and statutory claims to challenge MWAA’s collection and use of toll revenues for the Silver Line project. However, none of those claims persuaded the Fourth Circuit to decide the case in Plaintiffs’ favor. As to the constitutional claims, the Court declined to subject MWAA to the constraints of Article I, Article II, and the Guarantee Clause of the Constitution. Further, the Court gave significant deference to the Secretary of Transportation’s interpretation of the Transfer Act and Lease, which weighed in favor of Defendants. The Court’s decision was guided by its own precedent, as well as precedent from the Supreme Court and sister circuits. Notably, the Court also made it clear that its decision was influenced by the prospect of “throw[ing] longstanding airport expansion arrangements into turmoil.”[67]

  1. No. 17-1735, 2018 WL 5117169 (4th Cir. Oct. 22, 2018).
  2. Id. at *1.
  3. Id.
  4. Id.
  5. Id.
  6. Id. (citations omitted).
  7. Id. at *1–2 (citations omitted).
  8. Id. at *2.
  9. Id.
  10. Id.
  11. Kerpen v. Metro. Wash. Airports Auth., 260 F. Supp. 3d 567, 570 (E.D. Va. 2017).
  12. Id. at 571.
  13. Opening Brief of Plaintiff-Appellants (Corrected) at 31, 33, Kerpen v. Metro. Wash. Airports Auth., No. 17-1735, 2018 WL 5117169 (4th Cir. Oct. 22, 2018) (citing Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 397–400 (1995)).
  14. Id. at 26, 33 (quoting MWAA v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 266 (1991)).
  15. Id. at 22–23, 35.
  16. Id. at 37–38.
  17. Id. at 38–39.
  18. Kerpen, 2018 WL 5117169, at *4.
  19. Opening Brief of Plaintiff-Appellants (Corrected), supra note 13, at 19–22.
  20. Id. at 22.
  21. Id. at 42–45.
  22. Id. at 50–53.
  23. Id. at 56.
  24. Id. at 56.
  25. Id. at 63–64.
  26. Brief for the Federal Appellees at 17, Kerpen v. Metro. Wash. Airports Auth., No. 17-1735, 2018 WL 5117169 (4th Cir. Oct. 22, 2018).
  27. Id. at 18.
  28. Id. at 21.
  29. Id.
  30. Id. at 23–24.
  31. Id. at 24–25.
  32. Id. at 25.
  33. Id. at 26–31.
  34. Id. at 31.
  35. Id. at 34.
  36. Id. at 32–33.
  37. Id. at 33.
  38. Id. at 34.
  39. Id. at 35–37.
  40. Id. at 39–43.
  41. Kerpen, 2018 WL 5117169, at *2.
  42. Id.
  43. Id. at *3.
  44. Id.
  45. Id.
  46. Id.
  47. Id.
  48. Id. at *3–4.
  49. Id. at *4.
  50. Id. at *4.
  51. Id. at *4 (quoting Pittston v. United States, 368 F.3d 385, 394 (4th Cir. 2004)).
  52. Id.
  53. Id.
  54. Id.
  55. Id.
  56. Id. at *5.
  57. Id. at *5.
  58. Id.
  59. Id.
  60. Id. at *6 (quoting U.S. Const. art. IV, § 4).
  61. Id.
  62. Id.
  63. Id. at *7.
  64. Id.
  65. Id.
  66. Id.
  67. Id. at *8.

By: Jason Wiener

Francis Dominic Murnaghan, Jr. was born in Baltimore, Maryland on June 20, 1920.[1]  After he received an undergraduate degree from Johns Hopkins University in 1941, he served his country during World War II as a U.S. Naval Reserve Lieutenant from 1942 to 1946.[2]  Upon graduating from Harvard Law School in 1948, he went into private practice in Pennsylvania until 1950 and then served as a staff attorney for the U.S. Department of State’s High Commission on Germany from 1950 to 1952.[3]  Before taking the bench, Judge Murnaghan was a partner at Venable, Baetjer and Howard and served as the Assistant Attorney General for the State of Maryland.[4]

From 1967 to 1970, Judge Murnaghan was president of the Baltimore City School Board.[5]  He served as president and then chairman of the Walters Art Gallery from 1963 until being named chairman emeritus in 1985.[6]  Known for his participation in the public and political spheres in Baltimore, he assisted in the successful campaigns of Senator Paul Sarbanes in 1976 and Governor Harry Hughes in 1978.[7]

On May 8, 1979, he was nominated to the U.S. Court of Appeals for the Fourth Circuit by Jimmy Carter.[8]  While on the bench, Judge Murnaghan wrote over 500 opinions and more than half as many concurrences and dissents.[9]  Known for his compassion and professionalism, his opinions had great impacts in the areas of civil rights, labor, First Amendment law.[10]

Although it is rare for a circuit to reverse a district court finding on a clearly erroneous standard of review, in United States v. Gregory, Judge Murnaghan reversed the lower court’s finding that the Sheriff of Patrick County, Virginia, was not discriminating against women in the hiring of deputies.[11]  Judge Murnaghan stated that the district court erred in its factual findings and found that the record indicated that Sheriff Gregory routinely engaged in discriminatory practices against women in violation of Title VII.[12]

In a notable dissent, Judge Murnaghan alone argued against the constitutionality of a Virginia statute that allowed the Commonwealth to collect the DNA of all convicted felons for a law enforcement data bank.[13]  Judge Murnaghan believed that the Commonwealth did not justify the statute with an important state interest that outweighed non-violent felons’ reasonable expectations of privacy.[14]  He went on to warn of his “deep, disturbing, and overriding concern that, without a proper and compelling justification, the Commonwealth may be successful in taking significant strides towards the establishment of a future police state, in which broad and vague concerns for administrative efficiency will serve to support substantial intrusions into the privacy of citizens.”[15]

Judge Murnaghan’s contributions helped strengthen the foundations of democracy and equality, and he will be remembered for his devotion to civil rights.[16]  On August 31, 2000, the Honorable Francis Dominic Murnaghan, Jr. died at the age of 80.[17]  Upon his death, the Baltimore Sun avowed, “Judge Murnaghan was one of the most admired figures in the legal establishment for his urbane scholarship, legal knowledge, and public spirit.”[18]

 

[1] Francis Dominic Murnaghan, Jr., Fed. Jud. Ctr., https://www.fjc.gov/node/1385506 (last visited Oct. 14, 2018).

[2] Id.

[3] Id.

[4] Biography of Judge Murnaghan, Francis D. Murnaghan Appellate Advocacy Fellowship, http://www.murnaghanfellowship.org/judge_murnaghan (last visited Oct. 14, 2018).

[5] Longtime Federal Appellate Judge Francis D. Murnaghan Dies at 80, Wash. Post (Sept. 1, 2000),  https://www.washingtonpost.com/archive/local/2000/09/01/longtime-federal-appellate-judge-francis-d-murnaghan-dies-at-80/d1be1771-8f0b-4d10-b094-77d7ac3820ba/?noredirect=on&utm_term=.1823226946fb.

[6] Id.

[7] Id.

[8] Fed. Jud. Ctr., supra note 1.

[9] Biography of Judge Murnaghan, supra note 4.

[10] Id.

[11] United States v. Gregory, 871 F.2d 1239, 1241 (4th Cir. 1989).

[12] Id. at 1247.

[13] Jones v. Murray, 962 F.2d 302, 311 (4th Cir. 1992).

[14] Id. at 312.

[15] Id. at 315.

[16] Biography of Judge Murnaghan, supra note 4.

[17] Fed. Jud. Ctr., supra note 1.

[18] Confirmation Hearing on the Nomination of Claude A. Allen, of Virginia, to be Circuit Judge for the Fourth Circuit; and Mark R. Filip, of Illinois, to be District Judge for the Northern District of Illinois Before the S. Comm. on the Judiciary, 108th Cong. 5 (2003) (statement of Sen. Paul S. Sarbanes).

By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM), https://www.newsobserver.com/news/local/article170309727.html.

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017), http://www.law.unc.edu/news/2017/08/29/remembering-dean-james-dickson-phillips-jr-48/.

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., http://phillips.law.unc.edu/judicial-service/(last visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017), https://perma.cc/LN44-Z97N.

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

By Hayley Degnan

Facts

In 2015, Ross Abbott (“Abbott”), a student from the University of South Carolina (“USC”) met with USC’s director of campus life to approve a “Free Speech Event” hosted by two student groups, intending to draw attention to free speech threats across college campuses.[1] After its approval, the event proceeded on November 23, 2015, during which time, Abbott and other students circulated handouts detailing incidents of censorship at USC and on other college campuses, and displayed posters, including a “large red swastika” and the word “wetback.”[2] Directly following the event, the University’s Office of Equal Opportunity Programs (“EOP Office”) received three written complaints, including accusations that students involved in hosting the event made sexist and racist remarks.[3] The next day, Carl Wells (“Wells”), USC’s Assistant Director of the EOP Office, sent Abbott a letter that (1) instructed him to contact the office to appear for a required meeting, (2) stated the University may move to investigate and impose sanctions, and (3) claimed to have a “Notice of Charge” attached, although this notice was later revealed to be a clerical error.[4] Two weeks later, Wells had the mandated meeting with Abbott to discuss the complaints; he explained that this meeting was standard practice under USC’s “Student Non-Discrimination and Non-Harassment Policy” following the receipt of student complaints, and he offered Abbott the opportunity to explain Abbott’s own understanding of what transpired at the event. On December 23, 2015, two weeks after their meeting, Wells informed Abbot that the University found no cause for further investigation or sanction.[5]

Procedural History

In February 2016, Abbott and the two student groups involved in hosting the “Free Speech Event” (“Plaintiffs”), filed suit against multiple USC officials, alleging violations of their First Amendment rights. Plaintiffs made two claims: (1) that the University’s investigation procedures in connection with the discrimination and harassment complaints impermissibly chilled their free expression under the First Amendment, and (2) the University’s harassment policy on its face violated the First Amendment because it was overly broad and exceedingly vague.[6] Both parties moved for summary judgment on the first claim, and the district court granted summary judgment to the members of the university (“Defendants”). The district court also found in favor of the Defendants on the second claim, without reaching the merits due to the Plaintiffs’ lack of standing.[7]

The first issue considered by the district court involved whether the Plaintiffs’ speech had been so restricted as to constitute a First Amendment injury when Defendants required Abbott to attend a meeting in conjunction with the University’s “Student Non-Discrimination and Non-Harassment Policy.”[8] The court held that the Plaintiffs’ had suffered such an injury in the form of a “chilling effect” on their speech because the Plaintiffs could have reasonably feared discipline and self-censored otherwise protected speech during the investigation process.[9] However, the court ultimately held that the temporary chill on plaintiffs’ First Amendment speech, while present, was constitutional given USC’s narrowly drawn investigation practices under the “Student Non-Discrimination and Non-Harassment Policy” to achieve its compelling end of upholding the rights of its students to be free from illegal discrimination and harassment.[10]

The second issue considered by the district court was whether Plaintiffs had standing to bring a facial challenge and seek injunctive relief against Defendants’ policy. The court held that plaintiffs lacked the standing necessary to seek an injunction because they could not point to a non-speculative claim of future injury.[11] The Fourth Circuit Court of Appeals addressed both issues on appeal, first determining whether the district court erred in granting Defendants’ summary judgment motion on the as-applied First Amendment challenge, considering both (1) whether a First Amendment harm befell the plaintiffs, and (2) whether the Defendants’ “Student Non-Discrimination and Non-Harassment Policy” and related investigation practices survived under strict scrutiny review. 

Plaintiffs’ Arguments

The Plaintiffs advanced two major arguments in support of their claim that the University’s “Student Non-Discrimination and Non-Harassment Policy” violated their First Amendment rights by requiring Abbott to participate in a meeting with Wells.[12] First, they asserted that the investigation practices of the University used in accordance with the policy “chilled” their ability to exercise protected speech. In support, they explained that the inquiry process, which the University undertook to abide by its own policy, caused them to “reasonably fear” disciplinary action if they chose to sponsor other events.[13] Thus, they decided to cancel an annual Marijuana Legalization Rally, avoided putting on any additional events, and generally shied away from engaging in student discourse, which was a major part of their operations on campus. Furthermore, plaintiffs suggested that the “Notice of Charge” referenced in the letter and the mandate of a meeting, which came from an authoritative figure at the University would reasonably make any college student of “ordinary firmness” self-censor his or her expression out of fear.[14] Additionally, the Plaintiffs relied on Fourth Circuit authority to relay this “ordinary firmness” standard for self-censorship impeding on First Amendment rights.[15] Plaintiffs also suggested that this chilling effect extended from the date Wells sent Abbott the letter to the date when the action was filed, which is when Plaintiffs contended they first felt comfortable reengaging in their full First Amendment rights.

In addition, Plaintiffs argued that the investigative practices used by the Defendants in conjunction with the “Student Non-Discrimination and Non-Harassment Policy” violated their First Amendment rights because the process was not the least restrictive means to meet the University’s goal of protecting student rights.[16] Plaintiffs did not dispute that the University has a compelling interest in ensuring students are free from illegal discrimination and harassment at school; yet, they contested the University’s means of carrying out that end via their investigation under the “Student Non-Discrimination and Non-Harassment Policy.”[17] They argued that the University’s inquiry process was neither “necessary nor narrowly drawn” because the University was able to handle the student complaints without involving the Plaintiffs. To further this argument, Plaintiffs stressed that Defendants should have “weeded out” any insubstantial or frivolous complaints before resorting to the inquiry process.[18] Additionally, Plaintiffs contended that even if the Defendants rightfully resorted to investigating following some sort of screening, the defendants commenced the incorrect form of inquiry; they should have spoken to the complaining students or witnesses of the accused discriminatory or harassing behavior first.[19] Then, following this independent investigation, the Defendants could have contacted Abbott and determined how to proceed.

Defendants’ Arguments

In general, Defendants argued that they did not violate the First Amendment as a matter of law and that qualified immunity protected them from damages liability for any claimed harm by the Plaintiffs.[20] To further this argument, Defendants pointed out that they did not choose to take any action against the Plaintiffs in relationship to the “Free Speech Event” or ask them to refrain from exercising their full First Amendment rights during the time between the event and the letter from Wells or the letter and the meeting with Wells to lead them to self-censor. Furthermore, the Defendants noted that even after the meeting between Wells and Abbot that occurred as a result of its “Student Non-Discrimination and Non-Harassment Policy, the University did not impose any sanctions or restrictions on the Plaintiffs that may have harmed their abilities to express their First Amendment rights in this context.[21] As a more direct response to the Plaintiffs’ arguments about experiencing a “chilling” effect as a result of the letter from Wells, the Defendants argued that the Plaintiffs failed to establish that they actually experienced any such “chilling” or harm. None of the Plaintiffs identified any specific events they wished to sponsor and refrained from sponsoring during the time in question.[22]

In response to the second argument, the Defendants alleged that their inquiry procedure under the “Student Non-Discrimination and Non-Harassment Policy” survived at strict scrutiny. First, the Defendants argued that it was necessary to investigate these complaints as non-frivolous because although the event was approved, USC’s director of Campus life who approved the event, was not physically present at the time the event took place. Thus, she could not see the context within which it occurred and could not know that it was being carried out in the manner or for the purposes that the Plaintiffs articulated.[23] Second, it is not clear that meeting with Abbott was a more “restrictive” form of inquiring about the nature of what transpired, and in fact, giving individuals the opportunity to present their positions is often beneficial to them.[24]

Court’s Holding 

The Fourth Circuit Court of Appeals ultimately affirmed the district court’s ruling on both claims. To begin its discussion of the first issue embedded in the Plaintiffs’ as-applied challenge, the court recognized the Defendants’ qualified immunity unless Plaintiffs could show both “(a) the violation of a constitutional right, and (b) that the right was “clearly established” at the time of the First Amendment violation.”[25] The court first considered whether plaintiffs’ contention that their speech was chilled amounted to a harm under the First Amendment that would entitle them to damages.[26] Although noting some of the irony and novelty associated with the specifics of this case, the court recognized a precedential case in this area of First Amendment claims where it was previously willing to find the Plaintiff entitled to damages for a past chilling of his rights.[27] The court found that the standard articulated in that case and by the district court below was that a chilling of speech is only recognizable as a First Amendment harm “if it is objectively reasonable.”[28] In defining “objectively reasonable,” the court held that the action which purportedly caused the chilling must be “likely to deter a person of ordinary firmness from the exercise of the First Amendment.”[29] The court agreed with the Plaintiffs’ argument on this point, holding, “we do not doubt that a college student reasonably might be alarmed and thus deterred by an official letter from a University authority referring to an attached ‘Notice of Charge.’”[30]

However, the Court rejected the Plaintiffs’ proposed timeline for when this chilling effect took place, which Plaintiffs argued extended from the time Abbott received the letter to the time of this action. It found that following the meeting between Wells and Abbott, Defendants explained that it would not take further action against the Plaintiffs, thus no student of ordinary firmness would continue to self-censor.[31] In fact, the court suggested that had the University taken the opposite approach following the meeting between Wells and Abbott, the students may have continued to be deterred from exercising their rights and had a stronger claim. Following this point, the court recognized that the “more difficult question” involved in the case at hand is whether the Plaintiffs experienced such a chilling during the time between the letter announcing the potential for a full investigation and the meeting.[32]

While the court expressed that it was willing to recognize that a student of ordinary firmness may have been chilled during this more difficult timeframe to distinguish, it suggested in order for the Plaintiff to recover damages for such a chilling “it is not enough to establish that a person could have engaged in self-censorship as a result of the University Defendants’ actions.”[33] Here, the Court appeared to find the Defendants’ argument that the Plaintiffs could not articulate a specific intended expression that was chilled as a result of this incident compelling.[34] Further, based on the Plaintiffs’ testimony, this time period appeared to overlap with the Thanksgiving holiday, final exam period, and start of winter vacation, suggesting that no such self-censorship kept them from activities on campus.[35] Thus, in relation to this first issue, the Court held that the University’s inquiry into the complaints under “Student Non-Discrimination and Non-Harassment Policy” did not actually amount to a “cognizable restriction on Plaintiffs’ speech.”

Despite finding for the Defendant on this issue, which defeated the Plaintiffs’ First Amendment claims, the court went on to consider whether any restriction on the Plaintiffs’ free speech survived under the strict scrutiny standard of review. Here, the court recognized that had the University’s procedure lead to actual self-censorship, Plaintiffs would have had to show that the investigation practice under the “Student Non-Discrimination and Non-Harassment Policy” was “necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end.”[36] Since both parties had conceded that upholding a school environment that is free from illegal discrimination and harassment is a compelling end, the only part of the issue left to consider was whether the procedure was narrowly tailored to meet that end.[37] Ultimately, the court found that the investigative process under “Student Non-Discrimination and Non-Harassment Policy” was so tailored.[38]

The court rejected the Plaintiffs’ argument that the University should have screened these discrimination and harassment complaints as frivolous matters because there was allegedly harassing behavior and speech that occurred at the event, which a University cannot dismiss.[39] Furthermore, by contacting Abbott and not resorting to meeting with the complainants or other witnesses first, the court reasoned that the University not only afforded Abbott with greater due process, but also created a standard procedure under its “Student Non-Discrimination and Non-Harassment Policy,” which it could enact with ease and efficiency.[40] Therefore, the court agreed with the district court’s finding that the investigative process adopted by the University represented a “minimally invasive” narrowly tailored to the compelling end of prohibiting discrimination and harassment.

The Court also affirmed the district court’s ruling on the second claim on appeal, rejecting the Plaintiffs’ facial challenge to the “Student Non-Discrimination and Non-Harassment Policy” and request for injunctive relief based on their lack of standing.[41]

Conclusion

Although admittedly an “unusual First Amendment claim,” this case addresses the issue of free speech on college campuses, which as Plaintiffs’ “Free Speech Event” highlighted is a pertinent issue in today’s society.[42] While the Fourth Circuit appeared willing to recognize students’ claims that a chilling or self-censoring of First Amendment protected speech may amount to an actionable harm, it ultimately found that the Plaintiffs failed to establish such a chilling actually occurred in this case. Yet, by focusing much of the opinion on the Plaintiffs’ arguments on this issue and citing to Fourth Circuit precedent on the matter, it leaves open the opportunity to address the “chilling” effect University policies have on free speech again. Thus, despite its ultimate holding for the Defendants in this case, the Fourth Circuit presented some willingness to recognize First Amendment protections against campus policies, perhaps to a different result when not within the peculiarities of a case of this sort.

[1] Abbott v. Pastides, No. 17-1853, 2018 WL 3910682 at *1, *6 (4th Cir. Aug. 16, 2018).

[2] Id.

[3] Id. at *7.

[4] Id. at *7–*8.

[5] Id. at *9.

[6] Id. at *10.

[7] Id.

[8] Id. at *11.

[9] Id.

[10] Id. at *12.

[11] Id. at *12–*13.

[12] Id. at *14.

[13] Id.

[14] Id. at *17.

[15] See Cooksey v. Futrell, 721 F.3d 226, 236 (holding that a state regulatory board chilled plaintiff’s speech by taking actions that would reasonably deter or self-censor an individual from exercising his or her First Amendment rights fully).

[16] Abbott, 2018 WL 3910682, at *21.

[17] Id.

[18] Id. at *22.

[19] Id. at *23.

[20] Id. at *10.

[21] Id. at *16–*17.

[22] Id. at *19.

[23] Id. at *21–*22.

[24] Id. at *23.

[25] Id. at *13.

[26] Id. at *14.

[27] See Reyes v. City of Lynchburg, 300 F.3d 449, 455 (holding that a plaintiff may be entitled to damages under a First Amendment claim for a period, during the past where the plaintiff has alleged his rights were chilled).

[28] Abbott, 2018 WL 3910682, at *15.

[29] Id. (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)).

[30] Id. at *18.

[31] Id. at *17–*18.

[32] Id. at *18.

[33] Id. at *19; see also Reyes, 300 F.3d at 455 n. 8 (holding that because the plaintiff could not show he was deterred from a specific expression, he was not entitled to damages for a First Amendment claim based on a past chilling effect).

[34] Id.

[35] Id.

[36] Id. at *21 (citing Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, 393 (E.D. Va. 2008)).

[37] Id. at *20; see e.g. Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (holding that strict scrutiny applies to content-based speech regulated under the First Amendment).

[38] Id. at *24.

[39] Id. at *22 (citing S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 76–77 (4th Cir. 2016)) (holding that a school may be found liable for a decision to not address student-on-student harassment).

[40] Id. at *24.

[41] Id. at *34.

[42] Id. at *14.

By: Adam McCoy & Shawn Namet

On April 13, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion in Association for Accessible Medicines v. Frosh.  The Court reversed the district court’s dismissal of the dormant commerce clause challenge brought by the Association for Accessible Medicines (“AAM”) to a Maryland statute intended to prohibit price gouging in the sale of prescription drugs. The Court held that the statute violates the dormant commerce clause because it directly regulates transactions that took place outside of Maryland.

Facts and Procedural History

During the 2017 legislative session Maryland’s legislature passed HB 631, “An Act concerning Public Health – Essential Off-Patent or Generic Drugs – Price Gouging – Prohibition” (“The Act”).  Maryland’s governor refused to sign the bill, but the bill was enacted over his refusal. The Act prohibits manufacturers or wholesale distributers from “engag[ing] in price gouging in the sale or an essential off-patent or generic drug.”  Md. Code Ann., Health-General § 2-802(a).  The Act prohibited the “unconscionable increase” in the price of drugs, defined as price increases that are “excessive and not justified by the cost of producing the drug or the cost of appropriate expansion of access to the drug to promote public health” such that consumers are left with “no meaningful choice about whether to purchase the drug at an excessive price” due to the drug’s “importance . . . to their health” and “[i]nsufficient competition in the market.”  Id. § 2-801(f).  “Essential” drugs are those “made available for sale in [Maryland]” included “on the Model List of Essential Medicines most recently adopted by the World Health Organization” or are “designated . . . as an essential medicine due to [their] efficacy in treating a life-threatening health condition or a chronic health condition that substantially impairs an individual’s ability to engage in activities of daily living.”  Id. § 2-801(b)(1).

Violations of the Act could carry a penalty of $10,000 per violation.  The Act also authorized actions to enjoin the sale of a given medication at the increased price.  To assist with enforcement, the Act permitted the Maryland Medical Assistance Program to bring potential violations to the attention of the Maryland Attorney General.  The Medical Assistance Program was authorized to notify the Attorney General in the event prices rose above thresholds provided by the Act.

AAM, an organization of pharmaceutical companies including drug manufacturers and distributors, challenged the statute in the United States District Court for the District of Maryland.  Only one of the manufacturers in AAM covered by the statute was based in Maryland.  These manufacturers sold their products to wholesale distributors, none of which are based in Maryland, and the majority of these sales took place in states other than Maryland.  AAM challenged the statute on the grounds that it violated the dormant commerce clause and that it was unconstitutionally vague.  The district court granted Maryland’s motion to dismiss the dormant commerce clause claim but denied the motion as to the vagueness claim. 

The Act Violates the Dormant Commerce Clause

AAM asks the Fourth Circuit to overrule the district court decision dismissing AAM’s claim that the Act violated the dormant commerce clause by directly regulating wholly out-of-state commerce.  The Fourth Circuit outlines the Supreme Court precedent that governs the existence and application of the dormant commerce clause.  Implicit in the power given to Congress through the textual commerce clause is a corollary power to constrain states from enacting legislation that interferes with or burdens interstate commerce.  This doctrine is known as the dormant commerce clause and is designed to prevent state economic protectionism and to prevent states from enacting “regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” Brown v. Hovatter, 561 F.3d 357, 362 (4th Cir. 2009).

Within the dormant commerce clause is the principle against extraterritoriality that “a State may not regulate commerce occurring wholly outside of its borders.” Star Sci., Inc. v. Beales, 278 F.3d 339, 355 (4th Cir. 2002).  The Fourth Circuit walks through several Supreme Court cases that established the elements of the principal against extraterritoriality, but there are essentially three restrictions from the principal against extraterritoriality.  (1) State statutes may not regulate commerce that takes place wholly outside the state’s borders, whether or not the commerce has effects within the state; (2) State statutes that directly control commerce occurring wholly outside the legislating state’s boundaries are invalid; (3) Courts may invalidate a state statute if the statute may interact with legitimate regulatory schemes of other states to cause inconsistent legislation arising from projection of one state regulatory regime into the jurisdiction of another state.

The Fourth Circuit first rejects a reading of Supreme Court precedent offered by Maryland that the principle against extraterritoriality is limited to the context of price affirmation statutes.  The Fourth Circuit rejects Maryland’s interpretation, which was shared by two other circuits, and holds the principle against extraterritoriality is violated if the state law “regulates the price of any out-of-state transaction, either by its express terms or by its invariable effect.” Pharmaceutical Research & Manufacturers of America v. Walsh, 538 U.S. 644, 669 (2003).

Next, the Fourth Circuit agrees with AAM’s argument that the district court was wrong in upholding the Act and agrees that the Act violates the dormant commerce clause by directly regulating prices for prescription drugs in out-of-state transactions, even though the provisions are not triggered until the drugs are offered for sale in Maryland.  The Fourth Circuit holds the Act violates the dormant commerce clause because the Act is not triggered by any conduct that takes place in Maryland and the price controls apply outside of the state.  Additionally, the Act has the potential to create a significant burden on the interstate commerce of prescription drugs.

The Fourth Circuit focuses on the plain language of the statute to find it regulates conduct that takes place outside of Maryland and does not even require that conduct actually occur within Maryland.   The Act applies to price gouging of “essential off-patent or generic drug[s]” but only requires they be made available for sale in Maryland, not that any sale actually occur.  The Act specifically targets the gouging of prices that occur outside of Maryland.

The impact on transactions outside of Maryland also causes the Act to violate the dormant commerce clause.  The Act is not concerned with the price Maryland consumers pay for the drugs, but instead focuses on the price the manufacturer or wholesalers charge at the initial sale of the drug.  It then measures that price against the price increase to determine if it is an “unconscionable” increase because it is not justified by the cost of product the drug or expanding access to the drug.  The Fourth Circuit found this compelled manufacturers and wholesalers to comply with Maryland law outside of Maryland since the majority of the initial sales of the drug take place outside of Maryland.  It violates the dormant commerce clause for the Act to attempt to penalize a manufacturer or wholesaler based on what they charge for a drug outside of Maryland.

The Fourth Circuit was also concerned by the burden this type of legislation would create on interstate commerce if it was enacted by other states.  The Fourth Circuit relies on Healy v. Beer Inst., 491 U.S. 324, 335–36 (1989) to support that it must consider how the statute would interact with legitimate regulatory schemes of other states and what effect would arise if other states implemented similar statutes.  Particularly concerning is the possibility that similar restrictions imposed by other states could cause drug manufacturers and wholesalers to be subject to conflicting price requirements.  The pricing of the drug in one state could be illegal based on laws, such as the Act in Maryland, of another state.  The Fourth Circuit found this was precisely the type of conflict the dormant commerce clause exists to prevent.

Conclusion

The Fourth Circuit reversed the district court’s decision and found the Act is an unconstitutional violation of the dormant commerce clause.  The Fourth Circuit remanded the case to the district court to enter judgment for AAM.

 

By: Hailey Cleek & Mike Garrigan

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that seventeen-year-old Trey Sims used his cell phone to send sexually explicit photographs and video recordings of himself to his fifteen-year-old girlfriend.[1] Detective Abbott obtained a search warrant authorizing photography of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. Detective Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate.

Suspect Sims brought a 42 U.S.C. § 1983 action[2] against the administrator of Detective Abbott’s estate, alleging that this search violated his Fourth Amendment right of privacy and that, as result of search, he was victim of manufactured child pornography. Traditionally, public officials are granted either absolute or qualified immunity from lawsuits when performing their official duties.[3] Qualified immunity is generally extended to police officers or other officials. Yet, actions taken by these officials with a “deliberate indifference” may impose liability.[4] The district court determined that the administrator was entitled to qualified immunity on the § 1983 claims. The Fourth Circuit heard arguments on whether a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.

Plaintiff’s Arguments

Plaintiff argued that while the Fourth Amendment does at times protect sexually invasive searches, Detective Abbott clearly violated personal privacy rights. In examining sexually invasive searches under the Fourth Amendment, courts balance “the invasion of personal rights caused by the search against the need for that particular search.”[5] Factors to determine this balance are: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed.[6] Courts have described such sexually invasive searches, including strip searches, as humiliating and demeaning.[7] In  King v. Rubenstein,[8] the Fourth Circuit previously held that sexually invasive searches relate to deep “interest[s] of bodily integrity,” which “involves the most personal and deep-rooted expectations of privacy.”[9]

Using these factors, Plaintiff-Appellant Sims illustrated the severe Fourth Amendment violations by Detective Abbott. Although Detective Abbott sought to obtain photographs of Sims’ erect penis for an evidentiary purpose, the Commonwealth ultimately agreed not to use the photographs of Sims’ body as evidence.[10] There was no need to take these photographs. Instead, Detective Abbot executed the search warrant by ordering teenager Sims to masturbate to obtain an erection in the presence of three armed officers.[11] Such alleged conduct would necessarily invade Sims’ bodily integrity, regardless if Sims’ body was not penetrated or physically harmed.[12] Plaintiff was humiliated throughout the reckless disregard of his bodily privacy; he deferred applying for college, despite his outstanding academic and extracurricular records.[13] Throughout the investigation and prosecution, he was mortified to face his peers.[14]

Plaintiff strongly asserted that Detective Abbott was not entitled to qualified immunity. Qualified immunity only protects public officials from constitutional violations when resulting from “reasonable mistakes.”[15] It does not protect “the plainly incompetent or those who knowingly violate the law.”[16] A Virginia police detective is properly charged with knowledge of laws criminalizing the creation of child pornography.[17] There is no exception for police officers. While there were fortunately no other related cases on point to illustrate a lack of exception, the Fourth Circuit has previously held that some facts of abuse are so clear that they do not require case law justification.[18] Beyond a passive excuse of following orders, Detective Abbott had no reason to believe that this search was reasonable. Yet, even with a warrant, Detective Abbott was not bound to seek or execute a plainly unconstitutional warrant.[19] The request of a prosecutor for a search is not nullifying to the responsibility to act reasonably. An officer cannot receive the protections of qualified immunity when asking a teenager to masturbate in front of three armed guards.

Defense’s Arguments

Labowitz asserted that Sims failed to state enough facts to support a Fourth Amendment violation.[20] Here, Labowitz argued that Abbott’s search neither placed Sims at risk of bodily harm nor physically invaded Sims’ body,[21] and therefore fell outside of Fourth Amendment protection. The defense used four arguments to assert that this search fell outside of Fourth Amendment protection. First, Labowitz cited several cases where valid search warrants were issued in similar circumstances–namely involving identifying scars, moles, and/or tattoos on a suspect’s genitalia.[22] Second, Labowitz observed that Abbott took no action that aimed to bring about an erection by Sims.[23] Third, Labowitz cited multiple cases that validate warrantless custodial strip searches of juveniles.[24] Finally, Labowitz argued that a photograph is not invasive, but even if it were, case law supports warrantless searches of a defendant’s physical person in certain circumstances.[25]

Labowtiz also argued that the district court properly recognized Abbott’s immunity. Qualified immunity protects government officials from civil liability as long as their conduct does not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[26] Here, the key question was whether Abbott “acted as an objectively reasonable police officer would have acted under similar circumstances.”[27]  Labowitz offered three reasons why Abbott behaved as a reasonable police officer.[28] First, a reasonable officer would rely on a warrant an attorney directed him to seek. Second, a reasonable officer would conclude that strip search conducted at a detention center under a warrant is appropriate. Third, no reasonable officer would have thought that he was producing child pornography when acting under a search warrant.

Sexually Intrusive Search Jurisprudence Addresses Questions for Immunity

While the majority for the Fourth Circuit strongly condemned Detective Abbott’s actions and held that such alleged conduct necessarily invaded Sims’ bodily integrity and privacy rights,[29] Judge King, in a dissenting opinion, notes that the case raises distinct questions for qualified immunity.[30] He notes that Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order.[31] It is a foundational rule to the legal system and independent judiciary that court orders should be respected, complied with, and obeyed among law enforcement officers.[32] Court orders ensure compliance with the rule of law in society, and public officials are bound by both the cultural and institutional weight afforded to judge’s decisions.[33] When a judicial officer, Judge King suggests, has issued a search warrant upon probable cause, it is “unreasonable to require the officer charged with executing the warrant to reject the judicial decision and disobey the court’s directive.”[34] Generally, citizens want officers to comply and follow court orders in respect for the rule of law

Although the rule of law encourages officers to comply with and follow warrants accordingly, an entire body of sexual search jurisprudence has emerged to establish limits on sexually invasive searches. In Illinois v. Lafayette,[35] the Supreme Court held that an officer cannot disrobe an arrestee publicly without justifying factors. In United States v. Edwards,[36] the Fourth Circuit held that an officer’s sexually invasive search was unlawful because the dangerous manner in which he removed the contraband outweighed the interest in retrieving contraband. Likewise, in Amaechi v. West,[37] the Fourth Circuit found no justification for an officer’s pat-down search to include touching arrestee’s buttocks and penetrating her exposed genitalia. While these cases involved warrantless searches, they highlight the plainly unreasonable nature of the present case, as sexually invasive searches generally only happen in exigent circumstances.[38] Officers are encouraged to follow the boundaries of the search warrant, yet citizens cannot be expected to tolerate an officer acting beyond the guided parameters of sexual search warrants. Here, the warrant did not authorize Abbott’s conduct of requiring Sims to masturbate in the presence of the officers.[39] There was neither an evidentiary justification nor valid reason to demand Sims to masturbate in the presence of others.[40]

Conclusion

A little over a month after the Fourth Circuit heard Sims v. Labowitz, the Children’s Justice Fund (“CJF”), a nonprofit organization dedicated to aiding victims of child sex abuse, filed an amicus brief in support of a rehearing.[41] CJF argued that the Fourth Circuit panel erred by defining “sexually explicit conduct” in a way that could have “potentially profound implications for this case and future plaintiff victims.”[42] The Court, CJF argued, eschewed four objective terms for a subjective term. “Sexual intercourse,” “bestiality,” “masturbation,” and “sadistic or masochistic abuse” are more or less objective while “lascivious exhibition of the genitals or pubic area” relies on subjective “Dost factors.”[43] CJF contended that masturbation is per se explicit conduct under 18 U.S.C. § 2256(2)(A) and bringing Dost factors into the analysis was “unnecessary and unwarranted.”[44]

On March 14, 2018, the Fourth Circuit granted the motion for rehearing. While the rehearing will likely only correct the definitional scope of “sexually explicit conduct,” Sims reinforces the limits of police immunity. Moving forward, public officials in Maryland, South Carolina, North Carolina, West Virginia, and Virginia are officially on notice that such unreasonable sexual search conduct is not permissible. In line with previous sexual search jurisprudence, the Fourth Circuit has reaffirmed the bodily integrity of individuals.

 

 

 

[1] Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017).

[2] This refers to lawsuits brought under Section 1983 of Title 42 of the United States Code. See 42 U.S.C. § 1983. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations.

[3] Janell M. Byrd, Rejecting Absolute Immunity for Federal Officials, 71 Cal. L. Rev. 1707, 1713 (1983).

[4] See Farmer v. Brennan, 511 U.S. 825, 843 (1994).

[5] Bell v. Wolfish, 441 U.S. 520, 559 (1979).

[6] Id.

[7] See, e.g., Mary Beth v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).

[8] 825 F.3d 206 (4th Cir. 2016).

[9] Id. at 215.

[10] Brief for Appellant at 10–11, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[11] Id. at 8.

[12] Id. at 38 (“Manifestly, this amounts to ‘state intrusion[] into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’”)(quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).

[13] Id. at 12.

[14] Id.

[15] Saucier v. Katz, 533 U.S. 194, 206 (2001).

[16] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[17] Brief for Appellant at 36, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[18] Clem v. Corbeau, 284 F.3d 543, 553 (4th Cir. 2002) (“[W]hen the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance . . .  closely analogous pre-existing case law is not required to show the law is clearly established.”).

[19] See Graham v. Gagnon, 831 F.3d 176, 183 (4th Cir. 2016)(“I]f no officer of reasonable competence would have requested the warrant… [t]he officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.”).

[20] Sims v. Labowitz, 877 F.3d 171, 177 (4th Cir. 2017).

[21] Id.

[22] Response Brief for Appellee at 10, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[23] Id. at 11.

[24] Id. at 12.

[25] Id. at 13.

[26] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[27] Defendant Estate of David Abbott’s Memoradum in Support of Motion to Dismiss Second Amended Complaint at 17, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[28] Response Brief for Appellee at 30, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[29] Sims v. Labowitz, 877 F.3d 171, 178 (4th Cir. 2017).

[30] Id. at 183 (J. King, dissenting).

[31] Id.

[32] Id.

[33] See Stephen G. Breyer, Judicial Independence in the United States, 40 St. Louis U. L.J. 989, 994-96 (1996)

[34] Sims v. Labowitz, 877 F.3d 171, 184 (4th Cir. 2017) (J. King, dissenting).

[35] 462 U.S. 640 (1983).

[36] 666 F.3d 877 (4th Cir. 2011).

[37] 237 F.3d 356 (4th Cir. 2001).

[38] Sims v. Labowitz, 877 F.3d 171, 182 (4th Cir. 2017).

[39] Id. at 182, n. 3.

[40] Id. at 180.

[41] Under Federal Rule of Appellate Procedure 27(b)(2), “[t]he United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.”

[42] Amicus Brief of the Children’s Justice Fund and Child USA in Support of the Plaintiff-Appellant Trey Sims at *4, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[43] Id. at *3.

[44] Id. at *8.

By: Adam McCoy and Shawn Namet

Kenny v. Wilson

In this civil case, plaintiff-appellants, Kenny, argued the district court incorrectly dismissed their 42 U.S.C. § 1983 claim for lack of standing for failure to state an injury in fact.  The plaintiff-appellants challenge two South Carolina statutes as unconstitutionally vague that criminalize any person, including students, from disturbing any school or college.  The district court found fear of future arrest and prosecution under the vague statutes was not an injury sufficient to provide standing.  The Fourth Circuit overturned the district court decision and found the plaintiffs did have standing to challenge vagueness where they had been previously charged under the statute and did not know what future actions would be interpreted as violations.  The Fourth Circuit also found standing for claims that the statutes chill First Amendment speech because they were too vague to constitute what may be considered a violation.

Hodgin v. UTC Fire & Security Americas Corp., Inc.

In this civil case, the plaintiff-appellants, Hodgin, sued UTC Fire & Security Americas Corp., Inc., and Honeywell International, Inc., claiming they were vicariously liable for illegal calls made by telemarketers in violation of the Telephone Consumer Protection Act.  The district court granted summary judgment to UTC and Honeywell after denying plaintiffs’ motion to postpone the ruling on summary judgment until after the close of discovery.  The Fourth Circuit affirmed the district court’s denial of the motion to postpone because the plaintiffs failed to show the discovery allowed was not sufficient to allow them to find evidence to oppose summary judgment.  The plaintiffs had sufficient opportunity to depose the defendants and failed to identify what information they could have discovered to defeat summary judgment.

Sims v. Labowitz

In this civil case, the plaintiff-appellants, Sims, sued under 42 U.S.C. § 1983 alleging police detective Abbot’s search of his person violated the Fourth and Fourteenth Amendments by trying to force seventeen-year-old Sims to recreate a sexual explicit image he had sent a fifteen-year-old girl.  The district court dismissed the complaint based on Abbot’s qualified immunity.  The Fourth Circuit overturned the district court because a reasonable officer would have known that attempting to force a minor to recreate the sexually explicit image would invade the minor’s right to privacy.  Abbot would not be entitled to qualified immunity because a reasonable officer should have known the that action violated the constitution.

Sky Angel U.S., LLC v. Discovery Communications, LLC

This case involved a contract dispute between television distributor Sky Angel U.S. and media company Discovery Communications.  Discovery terminated its contract granting distribution rights to Sky Angel upon discovering that Sky Angel’s IPTV distribution system delivered content to consumers over the “public internet” without using a closed dedicated pathway.  The Fourth Circuit affirmed the District Court of Maryland’s finding that the contract was ambiguous on this point, and found that the District Court therefore properly considered extrinsic evidence.  The Fourth Circuit further agreed with the District Court that the extrinsic evidence established that Sky Angel had no reasonable expectation that it could distribute Discovery programming over the public internet because Discovery made its internal policy disallowing the distribution model clear to Sky Angel.

Int’l Brotherhood Local 639 v. Airgas, Inc.

In this labor dispute, the Fourth Circuit affirmed the District Court of Maryland’s issuance of a preliminary injunction preventing Airgas, Inc. from relocating some operations to nonunion facilities until the arbitrator in the case had issued a final decision regarding whether the relocation violated the collective bargaining agreement.  On appeal, however, the Fourth Circuit found the case to be moot because the arbitrator made a final decision in favor of the Union while Airgas’s appeal was pending.  The Fourth Circuit rejected Airgas’s argument that the case was still “live” because it would be entitled to damages in the event that the Fourth Circuit held the District Court had no jurisdiction to issue the injunction. Instead, the Fourth Circuit held that Airgas would not be entitled to damages because it had only been prevented from taking action it had no legal right to take under the collective bargaining agreement.  The Fourth Circuit added that while federal courts generally lack jurisdiction to issue injunctions in labor disputes, the case fell within the exception for cases in which the arbitrator would otherwise be unable to restore the status quo ante.

The dissent argued that the district court’s exercise of jurisdiction dangerously broadened a narrow exception.  According to the dissent, the case would set a precedent allowing courts to unduly interfere with labor disputes, noting that the extensive litigation surrounding the injunctive relief in this case was contrary to the purpose of the parties submitting to mandatory arbitration in the first place.  Further, the dissent argued that the case was not moot, as the district court’s lack of jurisdiction should have at least entitled Airgas to the $5,000 injunction bond paid by the Union.

U.S. v. Savage

In this criminal case, Defendant Savage appealed his convictions for banking fraud and identity theft on the basis that the district court did not conduct an in camera review of the prosecutor’s notes to determine whether information was being withheld that could impeach his accomplice’s testimony against him.  Savage enlisted an accomplice employed by the targeted bank to provide him with identifying information in customer’s accounts.  The accomplice agreed to testify against Savage.  Before the court is required to conduct in camera inspection under the Jencks Act, a defendant must establish a foundation for the request by stating with reasonable particularity a basis for his belief that material subject to required disclosure under the act exists.  Under the rule set forth in Brady v. Maryland, a defendant must show that “the non-disclosed evidence was favorable to the defendant, material, and that the prosecution had the evidence and failed to disclose it.”  373 U.S. 83 (1963).  The Fourth Circuit rejected Savage’s argument that the existence of some inconsistent statements properly disclosed by the prosecution required the district court to conduct in camera review of the prosecutor’s personal notes to determine if additional inconsistent statements were made.  Similarly, the existence of the disclosed inconsistent statements was insufficient to establish that the prosecution had additional material information it failed to disclose.

The Fourth Circuit rejected Savage’s argument that the district court erred in denying his requested jury instruction that would have instructed the jury to closely scrutinize accomplice testimony.  The jury found no error in refusing to distinguish accomplice witnesses from all witnesses and that the district court properly instructed the jury to closely scrutinize all witness testimony when determining credibility.

Savage also argued that the district court erred in permitting the jury to receive written jury instructions regarding aiding and abetting after declining to provide written copies of all jury instructions.  The Fourth Circuit rejected Savage’s argument, citing the strong deference afforded to trial courts in the use of jury instructions, finding no abuse of discretion.

U.S. v. Bell

This appeal arose from the district court’s order finding Respondent Kaylan Bell to be a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006, thereby civilly committing him to the custody of the Attorney General upon his release from prison.  Bell had a long history of numerous sexual offenses involving children, beginning in 1999, which were predominantly for repeatedly exposing himself to minors.  He challenged the district court’s finding that he would have serious difficulty refraining from child molestation upon release because it had been eighteen years since his last “hands-on” child molestation offense.  The Fourth Circuit affirmed the district court’s findings that, despite the time lapse, Bell’s repeated offenses established an inability to control his impulses.  The Fourth Circuit also found that the district court properly credited an expert who had twice prior declined to reach the conclusion that Bell was a sexually dangerous person as defined by the act because she had changed her position only after Bell reoffended just two weeks after his last release.

 

By: Ashley Collette and Evan Reid

On October 12, 2017, the Fourth Circuit issued a published opinion in the civil case Siena Corporation v. Mayor and City Council of Rockville, Maryland. In its colorfully-worded decision, the court affirmed the dismissal of the “garden-variety zoning dispute recast in constitutional terms.”

Facts and Procedural History 

In 2013, Siena Corporation set out to construct an “ezStorage” self-storage facility in Rockville, Maryland. The property on which it chose to build was located down the block from an elementary school. Parents at the school expressed fears that the storage facility would lead to safety concerns for the elementary-aged students, including an increase in traffic and “U-Haul-style trucks” driven by inexperienced drivers, the storage of illegal or hazardous materials, and the potential release of asbestos. In response to these concerns, the City Council proposed the Planning Commission adopt a new zoning amendment that prohibited self-storage facilities within 250 feet of public schools. The Planning Commission recommended that the amendment be denied and held a public hearing on the proposed amendment.

While this was taking place, Siena obtained conditional site plan approval from the Planning Commission for their proposed “ezStorage” facility. However, this was conditional approval awaiting Siena’s full compliance with nineteen additional conditions as well as reviews by numerous local agencies.

The Rockville City Council ultimately adopted the zoning amendment prohibiting self-storage facilities in February of 2015. Siena brought suit against the City Council, the Mayor and two Councilmembers who had supported the amendment, and a Rockville resident who had urged its adoption (collectively “the Council”) seeking judicial review of the adoption of the zoning amendment in State court. Siena alleged in its complaint that the amendment violated its due process and equal protection rights under the Fourteenth Amendment and that the newly adopted zoning amendment targeted them specifically.

The Council removed the case to federal court and then moved to dismiss. The federal district court dismissed Siena’s federal due process claim, concluding that “Siena lacked a protected property interest in the ezStorage facility’s construction because it had not applied for a building permit.” Regarding Siena’s equal protection claim, the court held the zoning amendment had a rational basis and was thus constitutional. Siena appealed the district court’s decision to the Fourth Circuit, which reviewed the court’s decision de novo.

Due Process

To prevail on its claim that it was denied due process, Siena needed to show “(1) that it possessed a ‘cognizable property interest, rooted in state law,’ and (2) that the Council deprived it of property interest in a manner ‘so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency.’” The Court found that Siena failed to meet either prong of the test. As to the first prong, Siena had not satisfied the conditions necessary to file for a building permit. But even if it had, the Court explained that zoning issues are local matters that should be decided at the local level. The Fourth Circuit noted that “[e]ven if Siena had a protected property interest here, the enactment of the zoning text amendment would fall short of a substantive due process violation.” Under its analyses of the second prong, the Court held that the action taken by the Council (the passing of an amendment barring self-storage businesses within 250 feet of public schools) was inside the limits of legitimate governmental action. The support for that conclusion was based on evidence that the Council heard testimony about the negative effects of self-storage sites and could have reasonably believed that testimony.

Equal Protection

The Fourth Circuit quickly disposed of Siena’s claim that the amendment violated the equal protection clause by pointing out that the action in question did not involve any rights protected by a higher level of scrutiny than rational basis. The Court stated that “the zoning text amendment is rationally related” to “the state interest in protecting schoolchildren.” Additionally, the Court noted that legislatures have great discretion in drafting statutes that involve economic matters, and this statute did not target Siena but rather applied equally to all self-storage businesses.

Conclusion

This case reaffirms the deference given to local authorities in zoning matters. The Fourth Circuit is hesitant to intervene absent a fundamental right at stake or targeting language.