Saturday, January 22, 2011

Pennsylvania School District Sued Over Truancy Fines; Other Legal News.

The heavy hand of government.  On Thursday, January 20, a federal lawsuit was filed in the U.S. District Court for the Middle District of Pennsylvania against the Lebanon (Pennsylvania) School District for imposing illegal fines on truant children and their families.  Truancy is any intentional, unauthorized absence from compulsory schooling.  Pennsylvania law allows penalties in the form of fines up to $300 per absence to be imposed on parents and/or children aged 13 and older after three unexcused absences.  The law even allows parents to be jailed for up to 5 days.  The lawsuit, which was filed by the Public Interest Law Center of Philadelphia, alleges that the school district exceeded its lawful authority and imposed hundreds of thousands of dollars in excessive fines in violation of state law and the equal protection and due process guarantees of the U.S. Constitution.  Rivera v. Lebanon School District, Case No. 11-CV-147 (YK) (M.D. Pa.). (AP)

Be careful who you decide to sue; sometimes they fight back.  A California appellate court has affirmed a lower court decision to allow a malicious prosecution case to go forward against a personal injury attorney who sued a bride and groom and one of their guests after his client, also a guest, was involved in a wedding-reception brawl.  The client's lawsuit was unsuccessful.  Now the defendants are suing the lawyer for hundreds of thousands of dollars.  (NLJ) 

When is political speech a crime?  Earlier this month former House Majority Leader Tom DeLay (R-TX) was sentenced on money laundering and conspiracy charges for allegedly funneling $190,000 in corporate campaign donations to various Republicans running for the Texas legislature in 2002, in violation of state law.  He was convicted by a jury in November.  DeLay was sentenced to three years in jail on the conspiracy charge and 10 years of probation on the money laundering charge.  DeLay's prosecution is unique in that, unlike numerous other politicians involved in high-profile corruption cases, he was not accused of accepting bribes or favors for himself.  There were no bundles of cash hidden in DeLay's freezer.  Another interesting aspect of the case is that last year the U.S. Supreme Court ruled in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), that corporations have certain First Amendment rights to engage in political speech.  (The Court's opinion is here.)  Citizens United involved federal restrictions on corporate spending for so-called independent political broadcasts, not state law restrictions on corporate donations to candidates. Nevertheless, DeLay's prosecution, which he alleges was politically motivated by a hostile Democratic state attorney, raises important First Amendment issues.  (WSJ)

When is office "bullying" illegal?  There is a new article in the New York Law Journal by Jason Habinsky and Christine Fitzgerald of the Hughes Hubbard & Reed law firm discussing recent legislative efforts nationwide and in New York "to protect employees from workplace bullying."  As the authors point out, currently there are limited legal protections in this area, especially if the bullying does not involve any invidious discrimination (e.g., based on race, sex, age, disability, or sexual orientation).  To address this situation (which may or may not be as serious a problem as advocates claim), several states have passed laws to treat bullying in a similar manner as discrimination claims.  An anti-bullying bill in New York was passed by the state senate but stalled in the state assembly.  What the authors do not make sufficiently clear, however, is that the real issue is whether the employer can be held liable for the bully's actions.  There are existing tort causes of action that usually allow an employee to sue the bully directly.  Indeed, the authors give some examples where an employee successfully sued a bully for assault (threatening someone with imminent bodily harm).  But employees want to be able to hold the employer liable, both because the employer usually has "deeper pockets" than the bully and because the employer has an obligation ot provide a reasonable working environment.

Federal government background checks for contract employees do not violate any constitutional right to informational privacy.  So ruled the U.S. Supreme Court this week in National Aeronautics and Space Admin. v. Nelson, No. 09-530 (Jan. 19, 2011) (slip op.).  (The Court's opinion is here.)  Specifically, the Court held that questions about an employee's use of illegal drugs are reasonably related to the government's interests "as proprietor and manager of its internal operations."  Moreover, the information collected is subject to the protections of the federal Privacy Act, which restricts the maintenance and disclosure of personal information by the government.  The Court's decision is uncontroversial and, frankly, uninteresting (it only was necessary because the U.S. Ninth Circuit Court of Appeals, a notorious "rogue" court, had ruled that portions of the government's background investigation were likely unconstitutional).  Justice Scalia concurred in the decision (there were no dissents), in an opinion joined by Justice Thomas.  Justice Scalia chastised the plaintiffs, rather amusingly, for not identifying the textual source of the alleged constitutional right they were asserting.  In his view, there is no such "right" to informational privacy.  As he wrote:  "Like many other desirable things not included in the Constitution, 'informational privacy' seems like a good idea -- wherefore the People have enacted laws at the federal level and in the states restricting the government's collection and use of information.  But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them.  A federal constitutional right to 'informational privacy' does not exist."  For Justice Scalia, that appears to be the end of the analysis.  Justice Scalia's brand of "originalism" is an important philosophy of constitutional interpretation.  But, unfortunately, it does not put enough teeth into the traditional American idea that the federal government is a government of limited, delegated powers, i.e., that the government cannot do what it has not been specifically authorized to do in the Constitution.  Justice Scalia's viewpoint runs the risk of devolving into the notion that the federal government can do whatever it wants, unless there is a specific constitutional basis for restricting its power.  This turns the American constitutional idea on its head.  See the next entry.      

Natural Law, Natural Rights, and American Constitutionalism.  The Witherspoon Institute has created "a nonpartisan, educational website" to serve "as an online resource center for students, teachers, and educated citizens to learn about the intellectual traditions of natural law and natural rights, particularly within American political and constitutional history."  The website is organized into five periods of thought:  Classical and Medieval, Early Modern, American Founding and Constitutionalism, Contemporary Theory, and Critics.  The website contains a significant collection of original documents, scholarly commentaries, and recommended readings.  It looks to be an invaluable resource for anyone interested in the philosphical foundations of the American political and legal systems.