July 3, 2013 4th Circuit published opinions

Greater Baltimore Center for Pregnancy Concerns, Incorporated v Mayor and City Council of Baltimore

Center sued Baltimore alleging an ordinance requiring certain disclosures be posted in limited service pregnancy centers violated its First Amendment rights. Without allowing Baltimore time for discovery, the district court granted Center summary judgment and permanently enjoined enforcement of the ordinance. A panel affirmed. Sitting en banc, the 4th Circuit, 8-4, reversed and remanded. The majority held that the district court erred in several ways in granting summary judgment to Center. It abused its discretion in denying discovery as discovery is allowed in facial challenges and is necessary to resolve as applied challenges as is the case here. The majority also held the district court erred in applying strict scrutiny without undertaking proper analysis of whether Center was engaged in commercial speech or fully protected speech. The majority also noted the district court failed to consider all of the legislative history for the ordinance contrary to circuit precedent and failed to view the facts in the light most favorable to Baltimore in violation of rule of Civil Procedure 56. The majority also held that the district court’s strict scrutiny analysis was flawed as it improperly evaluated whether any narrower approaches were possible. The majority rejected the dissents’ charges of being on a pro-choice crusade or being infatuated with procedure pointing out that in Centro Tepeyac, the en banc 4th Circuit upheld a carefully considered preliminary injunction issued after discovery and proper analysis. The majority finally affirmed the dismissal of center’s landlord as a plaintiff as there was no showing of harm and thus no standing. Judge Wilkinson dissented arguing that this case is about government compelled speech and the discovery and litigation process serve the end of vindicating rights. He further argued that the majority ahs now allowed a war of attrition to be waged against clinics like Center and the intrusion into their affairs will deter others form seeking vindication in courts. He also argued that the majority has now placed the weapon of compelled speech in the hands of pro-life legislative bodies and he anticipates a flurry of laws requiring Planned Parenthood to post disclosures in its waiting rooms. Judge Niemeyer, joined by three other judges also dissented. He argued that this case is a facial challenge to a compelled speech law which is per se content based and subject to strict scrutiny. The speech is not commercial as the ordinance applies to clinics which do not charge a fee and the ordinance is not narrowly tailored as it does not mention let alone target false advertising and Baltimore has alternative such as using its own voice. This alternative was found in Centro Tepeyec to be a less restrictive alternative and should be so found in this case. This dissent finally argued that the discovery ordered by the majority was irrelevant to the actual legal issues.

Centro Tepeyac v Montgomery County

County enacted an ordinance requiring limited services pregnancy centers to post that they did not have a medical provider on site and that Montgomery County’s health officer encouraged women who are or may be pregnant to consult a licensed heath care provider. Centro sued arguing the ordinance violated its first amendment right to free speech. The district court granted a preliminary injunction as to the second statement but not eh first. A panel held both statements violated Centro’s rights. En banc review was granted and the 4th Circuit, 11-3, affirmed. The majority held that the district court properly applied the factors for a preliminary injunction, properly found that the second statement is unneeded and thus unconstitutional, that Centro was irreparably harmed and balance of equities favored issuing the injunction. The majority affirmed the denial of the injunction as to the first statement as within the district court’s discretion as it properly concluded there was no likelihood of success as the first statement is literally true and there did not appear to be a less burdensome alternative. Judge Wilkinson added a concurrence arguing that the first statement here is small scrap of accurate information and it is within the state’s power to require it to allow pregnant women to make informed choices as to their care. He distinguished form Center above arguing that case was about the compelled imposition of ideology. Judge Niemeyer, joined by two other judges, dissented arguing that the first statement violated Centro’s right not to speak and that same alternatives identified by the district court which are less burdensome as to statement two, County using its own voice, posting a list of clinics without providers or prosecuting violations, also apply to statement one. Thus, the dissent argued that both part of the required statement should have been enjoined.

Hensley v Koller

Hensley adopted a special needs child. Their monthly adoption assistance benefits were reduced Koller’s predecessor as director of the states social services department. Hensley sued for a declaration that eth reduction in benefits violated 42 USC 673 and also sought class certification. The district court granted class certification and denied both sides motions for summary judgment. The panel reversed it held that 673 establishes a private right of action because the language shows Congress intended to create a federal right, the language is not vague and amorphous as concurrence means agreement and thus reductions in adoption assistance benefits require the agreement of adoptive parents and the language of 673 is mandatory. However, the panel reversed holding that Hensley did not demonstrate a violation as 673 caps the adoption assistance amount at the foster care amount and the record clearly shows that the reduction in 2002 was made to keep Hensley’s benefit the same as foster care payments.

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