Showing posts with label Gina Raimondo. Show all posts
Showing posts with label Gina Raimondo. Show all posts

Thursday, September 23, 2021

Legislative privilege shields Raimondo records against trucker subpoena in dormant Commerce Clause case

Toll gantry on a bridge in Washington
(Flickr by Wash. State DOT CC BY-NC-ND 2.0)
The First Circuit has quashed a subpoena against Rhode Island state officials, including now-U.S. Commerce Secretary Gina Raimondo, in a dormant Commerce Clause lawsuit over highway tolls supporting infrastructure.

Back in the 2010s, under the leadership of then-Governor Gina Raimondo (I'm a fan), my home state of Rhode Island was looking for cash to help with infrastructure needs.  The smallest state and an essential throughway for road and rail traffic in the vital I-95 corridor of America's Atlantic coast, "Ocean State" Rhode Island bears a burden in maintaining highway and bridge infrastructure that is disproportionately larger than the state's tax base.  The Raimondo administration installed a network of electronic truck tolls to beef up coffers.

My family travels often up and down the east coast to visit relatives, and the parade of tolls through the Atlantic states adds up to a significant expense.  But there are no passenger-car tolls in Rhode Island.  States that wish to impose tolls on federal highways had to strike a sort of deal with the devil, the devil being Uncle Sam, and Rhode Island, exemplifying founder Roger Williams's independent streak, opted out.  We held ourselves clear of Uncle Sam's sticky fingers, but then we found ourselves undermined by potholes and overrun with decaying bridges.

So when I heard about the Raimondo truck-toll plan, I admit, it sounded great to me.  The possible dormant Commerce Clause issue did gather in the dark recesses of my mind.  Anyone who tells you that we Rhode Islanders were not keen to have through-trucks pay their fair share for wear and tear on our roads and nerves as we circulate on our congested connectors is lying.  If the boon could be had without adding to my family's toll bills, I was willing to suppress any nagging concern I might have otherwise about a made-up constitutional rule.

Lawyers for the trade industry in trucking were not so generous of mind or pocket, and, after the tolls went live in 2018, they sued.  The plaintiffs argue violation of the dormant Commerce Clause, the constitutional theory that implies a federal prohibition on state action that excessively burdens interstate commerce even when Congress has not legislated a prohibition under its Article I power.

The First Circuit explained, "the Supreme Court has recently reiterated that the dormant Commerce Clause 'reflect[s] a "central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation"'" (quoting 2005 and 2019 precedents).

Flickr by Taber Andrew Bain CC BY 2.0
If the truckers can show that Rhode Island officials calculated the tolling program to burden out-of-state payers while sparing Rhode Islanders, the showing will strengthen—but significantly, not dispositively prove—the plaintiff position in the dormant Commerce Clause analysis.  I've kind of already admitted that burdening through-traffic was my reason for liking the toll program, but I'm just a taxpayer.  Unfortunately, there are some public statements by state officials indicating that they viewed the tolls the same way.

The plaintiff-truckers understandably want to dig deeper.  So they sent subpoenas to state officials, including the Office of the Governer and legislators, and to CDM Smith, a key private consultant to the state in the toll program, "RhodeWorks."  The First Circuit enumerated:

Specifically, the subpoenas sought materials relating to: (1) any efforts to mitigate the economic impact on Rhode Island citizens; (2) the expected or actual impact of the toll caps on in-state vs. out-of-state truckers; (3) the expected or actual impact of tolling only certain classes of trucks on in-state vs. out-of-state truckers; (4) the potential impact on interstate commerce; (5) alternative methods for raising funds; (6) drafts of RhodeWorks and related, failed bills, including mark-ups, comments, red-lines, revisions, etc.; (7) communications between the former Governor and legislators regarding RhodeWorks or other methods of raising funds; and (8) the public statements made by the movants and others.

State officials argued that legislative privilege required quashing of the subpoenas.  The district court was willing to override the privileges, ruling that the discovery interest outweighed officials' need of confidentiality in deliberative process.  On interlocutory appeal, the First Circuit disagreed and reversed.

The First Circuit began its discussion with the Speech or Debate Clause of the federal Constitution.  That's interesting, because the D.C. Circuit just recently applied the clause to thwart the efforts of Judicial Watch to probe the congressional investigation of the Trump Administration.  That decision made waves in the FOI community not so much for the result, but for a passionate concurrence in which U.S. Circuit Judge Karen LeCraft Henderson thoughtfully indulged the potential scope of common law access to the legislature.

However, the First Circuit opined:

Assertions of legislative immunity and privilege by state lawmakers stand on different footing. For starters, they are governed by federal common law rather than the Speech or Debate Clause, which by its terms applies only to federal legislators.... And the common-law legislative immunity and privilege are less protective than their constitutional counterparts....  That is because the separation-of-powers rationale underpinning the Speech or Debate Clause does not apply when it is a state lawmaker claiming legislative immunity or privilege.

In other words, the court recognized a constitutional constraint in horizontal separation of powers, but not, here, in vertical separation of powers, or federalism.  Nevertheless, the court reasoned that "federal common law" was constrained by the principle of comity, "[a]nd the interests in legislative independence served by the Speech or Debate Clause remain relevant."

The court was not impressed with the truckers' assertion that a federal interest in dormant Commerce Clause enforcement bolstered the private cause of action.

[Plaintiff's] argument suggests a broad exception overriding the important comity considerations that undergird the assertion of a legislative privilege by state lawmakers. Many cases in federal courts assert violations of federal law by state legislators who are not joined as parties to the litigation. Were we to find the mere assertion of a federal claim sufficient, even one that addresses a central concern of the Framers, the privilege would be pretty much unavailable largely whenever it is needed.

Here it mattered that the Governor's and lawmakers' alleged discriminatory intentions would not be dispositive of the constitutional question.  Rather, the court opined, the Supreme Court has emphasized the primacy of discriminatory effect over discriminatory purpose in dormant Commerce Clause analysis.  Intentions would prove only the latter and not necessarily amount to a constitutional offense.  Moreover, the court recited a familiar conundrum in the construction of legislative intent, that individual motives do not necessarily reveal the purpose of "the legislature as a whole."

In sum, even assuming that a state's legislative privilege might yield in a civil suit brought by a private party in the face of an important federal interest, the need for the discovery requested here is simply too little to justify such a breach of comity. At base, this is a case in which the proof is very likely in the eating, and not in the cook's intentions.

The court refused, however, to quash the subpoena against the private consultant, CDM Smith, even if state records might be revealed.  The provision of state records to a third party diminished the claim of privilege, the court reasoned, and thus rendered the question unripe for interlocutory appeal.

The case is American Trucking Associations, Inc. v. Alviti, No. 20-2120 (1st Cir. Sept. 21, 2021).  U.S. Circuit Judge William Kayatta wrote the opinion for a unanimous panel that also comprised U.S. Circuit Judge O. Rogeriee Thompson, a Rhode Islander, and, sitting by designation, U.S. District of Massachusetts Judge Douglas P. Woodlock.

Saturday, January 9, 2021

Confessions of a Gina Raimondo fanboy

R.I. Gov. Gina Raimondo (2017)
Photo by Kenneth C. Zirkel CC BY-SA 4.0
Well maybe there's not much to confess.  Searching this blog, I've ill disguised my affection for the Governor of the smallest American state, Rhode Island, my home of nine and a half years.  So I was thrilled to see Raimondo named as President-Elect Joe Biden's nominee to be the Secretary of Commerce.

A lot of Rhode Islanders are irritated that Raimondo previously denied that she would take the job, issuing the usual politician's disclaimer that her only focus was on Rhode Island.  But I get it.  You have to play these things cool, so if Pop-pop Joe doesn't pick you, you act like you didn't really want it anyway.

The same libertarianism that unites most Americans at the corner of conservative economics and social liberalism, yet seems an intersection where no Democrat or Republican dares to tread, characterizes Rhode Islanders and explains Raimondo's two-term appeal.  She is a social liberal only as much as we need her to be.  Her "Knock It Off" missive during the lockdown (I mentioned at the time) garnered national attention and is said to be one of the reasons she caught the eye of the Biden campaign.  On the civil rights front, she vetoed the first draft of a state "revenge porn" bill that tread too heavily on free speech.

At the same time, she's a fiscal conservative.  A finance aficionado by trade, she founded a venture capital firm and then entered public service as Rhode Island's General Treasurer.  The powers-that-were saddled her with an unfunded pension liability of more than $7bn, no less in the wake of a recession.  That was probably supposed to be a scapegoating when the problem proved intractable; Raimondo turned it into a pathway to the Governorship.  In the aftermath of Rhode Island's massive squandering of economic development funds on a software development firm, Raimondo championed fiscal accountability in seeking public disclosure of the grand jury investigation.

Raimondo is super smart: high school valedictorian, top economics honors at Harvard, a Rhodes Scholarship and Oxford doctorate, and, why not, a Yale law degree for good measure.  Some of those qualifications might smack of lefty elitism, but they come also with solid working-class bona fides and an Italian-immigrant heritage that complements Rhode Island's Federal Hill—the best "little Italy" on the East Coast by quality, if not size, and I've seen, and tasted, them all.  According to Raimondo's official biography (link as long it's still there), her grandfather immigrated from Italy at age 14 with no English; her father, a U.S. Navy veteran and butcher's son, went to college on the GI Bill; and her family suffered loss of livelihood when Bulova outsourced factory jobs and the Rust Belt was born.

For my immediate family, it meant a lot to have had Raimondo leading Rhode Island while our daughter was in grade school.  From the perspective of a parent, desirable role models seemed harder and harder to come by in our dawning age of social-media stars and normalized divisiveness.  I don't know whether the Commerce Department will be where Raimondo makes the most difference.  Certainly I have grave reservations about what President Biden will achieve, even aims to achieve, as talk of bringing back union jobs resonates to my ear as tone deafness to our crisis in American education.  But wherever the chips fall, I'll be in Gina Raimondo's corner.

Bon voyage, Governor.

Friday, May 15, 2020

Legal attacks on lockdown mount; R.I. Governor's time will run out, report warns

Persons entering Rhode Island remain subject to 14-day
quarantine in the present phase 1 of reopening. Photo by
Taber Andrew Bain CC BY 2.0.
A former Rhode Island Supreme Court justice and a libertarian think tank asserted this week that R.I. Governor Gina Raimondo is running out of rope in sustaining her emergency lockdown orders.

Earlier in the pandemic, we law types found ourselves with time on our hands to read up on, and sometimes write about, the legal landscape of emergency powers.  Report 98-505 from the Congressional Research Service (here from the Federation of American Scientists and updated March 23, 2020) and CDC public health emergency guidance (2009, updated 2017) suddenly became popular downloads.  The 50-state compilation of quarantine and isolation laws at the National Conference of State Legislatures was well visited.  Various guides to emergency powers have blossomed since.  Heritage published a "constitutional guide" as early as March.  The Brennan Center updated a 2018 report about three weeks ago.  At Lawfare, Benjamin Della Rocca, Samantha Fry, Masha Simonova, and Jacques Singer-Emery overviewed state authorities the week before last.

Wisconsin Supreme Court chamber (Daderot CC0 1.0)
This week brought news of the Wisconsin Supreme Court decision two days ago, striking down the Wisconsin governor's stay-home order.  Clarity around the scope of the ruling and guidance as to how it should be implemented was woefully lacking from the 4-3 fractured court, and public confidence in the decision was undermined by the participation of a lame duck conservative justice in forming the majority.  Against the backdrop of a state supreme court already badly tarnished by partisan politics, the decision has only aggravated America's White House-fueled ideological in-fighting over coronavirus public policy.

Rhode Island Governor Gina Raimondo
Personally, I've been happy with the leadership of Governor Gina Raimondo in responding to the crisis in my home state, Rhode Island.  But to be fair, I work in Massachusetts, and my job has been relatively secure.  There have been peaceful protests against lockdown in Rhode Island, and there is no doubt that the economic closure is devastating the small-business-heavy economy in the nation's smallest state.

On Wednesday, Robert Flanders, Matthew Fabisch, and Richard MacAdams published a legal analysis of Governor Raimondo's emergency orders.  The report came from the free-market think tank, the Rhode Island Center for Freedom and Prosperity.  The authors are all lawyers; Flanders is a former associate justice of the state supreme court and was once a Republican challenger to U.S. Senator Sheldon Whitehouse.  Flanders wrote a companion editorial for The Providence Journal.  (HT@ Gene Valicenti.)

The takeaway from the report in the news is that the Governor has overstepped her emergency authority and is ripe for a lawsuit.  That's an understandable but unfair oversimplification.  The report is a solid legal analysis that examines the scope of state executive authority from a range of angles, including the statutory framework and constitutional limitations such as takings.  The popular takeaway derives from just one thread of the analysis, if an important one: The Governor's emergency powers must be limited, and a key dimension of those limits is time.

Rhode Island State House (cmh pictures CC BY-NC 2.0)
The report does not purport to adjudicate the Governor's emergency response as wrong or right.  Rather, the authors opine, when the Governor's authority runs up against the reality that exigencies are, by definition, not perpetual, the General Assembly has a responsibility to step up and lead.  That might mean simply extending the Governor's authority to make the kind of spot decisions that will be required for subsequent phases of reopening.  Or the legislature may override executive-ordered closures and force the reopening of the economy.

Saliently, the legislature should take charge of public policy.  The most cumbersome branch of government in its populous operation, the legislature is to be excused in the throes of emergency.  But after enough time has passed, the most democratically responsive branch of government should be able to gather its wits, get on its feet, and make law.  Decisions such as whether K12 schools will reopen in the fall, for example, not just financial shortfalls, should be the subject of fact-gathering legislative hearings right now.

The inevitable logic of this ideal is subject to reproach on grounds that many of our state legislatures in the United States, Congress besides, have become dysfunctionally non-responsive to increasingly severe social and economic problems. This paralysis has many and complicated causes, including corporate capture and unbridled gerrymandering.

In the functionalist reality of our government of separated powers, if one branch abdicates its mantle, the others will fill the vacuum.  Thus, in the absence of legislative leadership, a governor may be expected to carry on with policy-making, and a state supreme court, especially a politicized one, may be expected to push back.  It's in this sense that the pandemic crisis is exposing yet another grave institutional weakness in the infrastructure of American government.

If a legislature remains paralyzed long enough, the people will become antsy.  Among the ultimate remedies for legislators who would shirk their duties, some are more palatable than others (video: Liberate Minnesota protest, April 17, by Unicorn Riot CC BY-NC 3.0).  Once upon a time in Rhode Island, residents took up arms to compel the legislature to expand enfranchisement through a constitutional convention.

Alas, one problem at a time.

Tuesday, March 31, 2020

COVID-19 stresses United States on domestic borders; war analog might foster state solidarity upon federal power

Rhode Island Governor Gina Raimondo was recently
threatened with a lawsuit by New York Governor Andrew
Cuomo.  U.S. Air National Guard Photo
by Master Sgt Janeen Miller (2016).
I have just published at the new blog, Law Against Pandemic. Here is the abstract:

The coronavirus pandemic is stressing not only our healthcare systems, but our political and legal systems.  The pandemic has challenged our sense of identity in humankind, pitching us back and forth between a spirit of global solidarity and a competition of human tribes for resources and survival.  That tension plays out in our political and legal responses to the pandemic, manifesting the natural human temptation to tribalism in both international and intranational dimensions.

As policymakers struggle to respond to the pandemic and to curb the outbreak of COVID-19, I have been struck by the emergence of interstate tensions in the United States.  The pressure of the pandemic, aggravated by a slow and uncertain governmental response at the federal level, has been a brusque reminder that the United States are a plural: a federation of states that famously endeavored “to form a more perfect Union,” but that, like human governance itself, remains a work in progress.


Read more at the new blog, Law Against Pandemic

 

Friday, November 8, 2019

Grand jury secrecy is not sacrosanct

Actors reenact the Moore's Ford lynchings every year or two, lest the public
forget.  (July 26, 2014, photo by artstuffmatters, CC BY-NC-ND 2.0.)
Georgia Public Broadcasting reported recently (via NPR; see also WaPo (pay wall)) that the U.S. Court of Appeals for the Eleventh Circuit will soon decide whether to unseal the grand jury records pertaining to a 73-year-old lynching case.  Meanwhile, the Rhode Island Supreme Court ponders whether to open contemporary grand jury records in the "38 Studios" economic development scandal.  Both cases remind us that grand jury secrecy is not sacrosanct and must yield to paramount public interests.

GPB reported more in August about the brutal murders of Dorothy Dorsey Malcom, her brother, George Dorsey, and his wife, Mae Murray Dorsey, at the hands of a mob of 20 to 30 assailants at Moore's Ford Bridge, outside Monroe, Georgia, in 1946.  As many people were there, the crime remains "unsolved," as GPB's Grant Blankenship explained:
The crime made national headlines. Over the course of a grand jury investigation, the FBI interviewed over 2,000 people—almost half of the county in 1946. A hundred people testified before the grand jury, but not a single indictment was handed down.
Now historians seek to unseal the grand jury records to find out more about what happened that day in 1946 and why the investigation was unyielding.  The Department of Justice and Federal Bureau of Investigation are resisting.

Incidentally but importantly, the definitive book on the Moore's Ford case is Fire in a Canebrake: The Last Mass Lynching in America, by Laura Wexler.  I went to secondary school with Wexler, so #BrushWithGreatness.

I welcome public reminders that grand jury secrecy is not sacrosanct.  Grand jury secrecy is a reasoned and historically derived common law inversion of the usual presumption of transparency in our judiciary.  As such, it's an odd nod, for our typically ruthless paradigm of all-or-nothing privacy, to the importance of protecting the reputations of persons who might be connected with investigations, but turn out not to be fairly implicated as witnesses or suspects.

However, an inverted presumption is still a presumption, which means it can be overcome, or rebutted.  Equally historically, common law has allowed challengers in the public interest to overcome grand jury secrecy, for example, after Watergate.  Transparency is a means to accountability, and when a gross miscarriage of justice has occurred, as seems indisputable in the Moore's Ford case, the public interest in learning what went wrong in the investigation, and possibly delivering some belated justice, may be ruled paramount.

R.I. Gov. Raimondo
(Kenneth C. Zirkel
CC BY-SA 3.0)
Meanwhile, Rhode Island Governor Gina Raimondo is feuding with the state Attorney General's Office over access to the records of grand jury proceedings in 2014 and 2015 over the "38 Studios" economic development scandal.

As The Providence Journal recalled, "The state’s $75-million loan guarantee to retired Red Sox pitcher Curt Schilling’s high-risk video game venture ended up costing taxpayers a bundle when the company went belly up."  Criminal investigation was, again, unyielding.  "The statewide grand jury sat for 18 months, ending in 2015 with no criminal indictments. State lawmakers, former state Economic Development Corporation board members and staff, and 38 Studios executives were among the 146 witnesses the grand jury interviewed."

The ProJo summarized the pro and con of unsealing.  On the Governor's side, the state's attorney told the Rhode Island Supreme Court, 38 Studios marks "'a seminal event in recent Rhode Island history. It has cost taxpayers tens of millions of dollars. It has brought threats to the State’s credit rating.  It spawned a massive civil litigation resulting in $61 million of settlements. It caused the Securities and Exchange Commission to file a complaint against a state agency.... It prompted a criminal probe that reportedly touched the entire membership of the 2010 General Assembly (save one former member serving a federal prison sentence).'"

Kingdoms of Amalur: Reckoning was the only game published by 38 Studios
(and partners, including EA) before the enterprise went bankrupt.
The AG's office responded: "'[N]o one was indicted, the grand jury only recently concluded, the participants are still alive, and ... the [10-year] statute of limitations has not expired.... Unlimited disclosure ... may also adversely affect future grand jury participants who will be unable to rely upon the long-established policy that maintains the secrecy of the grand jury proceedings.'"

Ongoing payments to bondholders will cost R.I. taxpayers, me included, "$446,819 this year and an anticipated $12,288,413 next year," the ProJo reported.  I'm with Raimondo.  The Superior Court was not.

The Rhode Island Supreme Court heard oral arguments yesterday, November 7, In re 38 Studios Grand Jury, No. SU-2017-0301-A, but puts precious little online.  The ACLU of Rhode Island filed as amicus on the side of the Governor.