Washington Supreme Court Justice Charles K. Wiggins is retiring at the end of March 2020. In a prepared statement, Wiggins said he wished to spend more time with his wife, Nancy, and his family.
Wiggins was elected to the state supreme court in 2010 and re-elected in 2016. He was previously a Division 2 judge of the Washington Court of Appeals and served as a pro tem judge in the Jefferson County and King County superior courts and as a pro tem district court judge in Kitsap County. He also worked in private practice. Wiggins earned his undergraduate degree from Princeton University, where he graduated magna cum laude. He served in the Army Military Intelligence Corps for four years after graduating from Princeton. During that time, he obtained his master’s degree in business administration from the University of Hawaii. He then obtained his J.D. from Duke Law School in 1976.
In the event of a midterm vacancy, selection of state supreme court justices in Washington occurs through gubernatorial appointment. Wiggins’ replacement will be Governor Jay Inslee’s (D) third nominee to the nine-member court. Newly appointed justices serve until the next general election, at which point they may run to serve for the remainder of the predecessor’s term. Wiggins’ seat will appear on the ballot in a nonpartisan election on November 3, 2020. Candidates will run to finish the last two years of his term, set to expire on January 8, 2023.
The nine justices of the supreme court compete in contested elections without reference to party affiliation and must run for re-election when their terms expire. Supreme court justices serve for six years.
The Washington State Supreme Court is the state’s court of last resort. It currently includes the following justices:
• Charles Johnson – Elected in 1990
• Barbara Madsen – Elected in 1992
• Susan Owens – Elected in 2000
• Charlie Wiggins – Elected in 2010
• Sheryl Gordon McCloud – Elected in 2012
• Steven Gonzalez – Appointed by Gov. Christine Gregoire (D)
• Debra Stephens – Appointed by Gov. Gregoire
• Raquel Montoya-Lewis – Appointed by Gov. Jay Inslee (D)
• Mary Yu – Appointed by Gov. Inslee
In 2020, there have been six supreme court vacancies in five of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements. Three vacancies are in states where a Democratic governor appoints the replacement. The other three are in states where a Republican governor appoints the replacement.
On Jan. 20, an employee of the University of Washington filed a class-action lawsuit in U.S. District Court, alleging that her union, Service Employees International Union (SEIU) 925, had unconstitutionally barred her and other employees from opting out of union membership.
Who are the parties to the suit? The lead plaintiff is Charlene Wagner, a fiscal specialist for the state university system. She is represented by the Freedom Foundation, a nonprofit think tank and litigation firm whose self-described mission is “to advance individual liberty, free enterprise, and limited, accountable government.” The Freedom Foundation is currently involved in approximately 60 lawsuits concerning public-sector union practices in the aftermath of Janus v. AFSCME. The main defendant is Service Employees International Union (SEIU) 925, which represents about 17,000 education workers in Washington, making it one of the largest public-sector unions in the state. The University of Washington is also named as a defendant.
What is at issue? In October 2018, Wagner sought to opt-out of union membership and cancel her dues deduction authorization. SEIU 925 informed her that the membership agreement she had signed limited opt-outs to an annual two-week period (in this case, from April 29, 2019, to May 14, 2019).
Wagner and her attorneys argue that “dues are being seized under an unconstitutional [state] law that gives the union sole discretion over who the university – a state actor – is and isn’t authorized to deduct dues from.” They also allege that “a union cannot impose an irrevocability provision, containing a narrow opt-out window, on union nonmembers without a knowing First Amendment waiver.”
What are the reactions? In a press release, Freedom Foundation Senior Litigation Counsel James Abernathy said, “The whole point of Janus is to protect the First Amendment rights of public employees to not support a labor union. State laws that try to limit those rights are unconstitutional regardless of whether they were passed before or after Janus. … We shouldn’t have to keep relitigating the same issues, but SEIU 925 apparently believes it can disregard laws it doesn’t like.”
As of Jan. 24, neither SEIU 925 nor the University of Washington have commented publicly on the suit.
What comes next? The suit was filed in the U.S. District Court for the Western District of Washington. It has been assigned to Judge Barbara Rothstein. Rothstein was first appointed to the federal bench by President Jimmy Carter (D). The case name and number are Wagner v. University of Washington (2:20-cv-00091).
The United States Court of Appeals for the 10th Circuit on January 22 heard oral argument in Aposhian v. Barr, a case claiming that the U.S. Department of Justice (DOJ) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) violated Article I of the U.S. Constitution when they issued a 2018 rule redefining bump stocks as “machineguns.” By issuing a rule that rewrote federal statute, the plaintiffs argued, the department created a new criminal prohibition beyond the scope of its delegated authority.
DOJ and ATF issued the rule in response to a February 2018 presidential memorandum—an official document that allows the president to manage the federal government—signed by President Donald Trump (R). The memorandum directed the U.S. attorney general to propose a rule banning all devices that turn legal weapons into machineguns.
The New Civil Liberties Alliance (NCLA), a pro bono law firm with a focus on the administrative state, argued that the department lacked the authority to issue the rule because Congress had not delegated power to the attorney general to interpret the scope of the criminal prohibition on machinegun possession. NCLA further contended that the law defining machineguns is unambiguous and, therefore, not open to a new agency interpretation. Since Article I of the U.S. Constitution grants all legislative powers to Congress, argued NCLA, Congress itself must act to change the definition of machineguns to include bump stocks.
Delegate, in this context, means to entrust or hand over authority to another branch of government. Congress sometimes delegates questions requiring subject-matter expertise to agency administrators in order to implement the law. While some scholars support delegation, others argue that legislative authority is vested in Congress alone and cannot be delegated to other branches—a principle known as the nondelegation doctrine.
On January 17, the U.S. Supreme Court agreed to hear three new cases during its October 2019-2020 term: Ford Motor Company v. Montana Eighth Judicial District Court (consolidated with Ford Motor Company v. Bandemer), Chiafalo v. Washington (consolidated with Colorado Department of State v. Baca), and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (consolidated with Trump v. Pennsylvania). As of January 21, the court had agreed to hear 73 cases this term.
In the consolidated case of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania / Trump v. Pennsylvania, the Trump administration issued regulations allowing for exceptions to the federal mandate to include contraceptive coverage in health insurance plans, following several years of litigation including two U.S. Supreme Court decisions regarding regulatory accommodations for religious and moral objections to mandatory contraceptive coverage in Obamacare.
The U.S Court of Appeals for the Third Circuit upheld a nationwide injunction that kept the rules from going into effect. It held that the states challenging the rules were likely to succeed in proving that the Trump administration violated the Administrative Procedure Act (APA), that Obamacare did not allow the regulations, and that the Religious Freedom Restoration Act (RFRA) did not require them.
The Little Sisters of the Poor Saints Peter and Paul Home appealed to the U.S. Supreme Court, arguing that the 3rd Circuit was wrong to deny the organization standing to appeal its decision against the contraceptive mandate exemption rules, that the 3rd Circuit’s decision creates a regulatory environment that violates the RFRA, and that the agencies did not violate the APA when they crafted exemptions to Obamacare’s contraception mandate.
The issues in the case are:
1. Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court.
2. Whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.
In the consolidated case of Ford Motor Company v. Montana Eighth Judicial District Court / Ford Motor Company v. Bandemer, Ford vehicles were driven in car accidents. In Ford Motor Company v. Bandemer, a passenger sustained a severe brain injury and filed a claim against Ford for vehicle defects while alleging that the passenger-side airbag failed to deploy. In Ford Motor Company v. Montana Eighth Judicial District Court, a Ford vehicle’s tire experienced a tread/belt separation, the car lost stability and rolled into a ditch, and the driver died in the crash. A personal representative filed claims against Ford for liability and negligence.
Ford moved to dismiss both cases in their respective state district courts, citing a lack of personal jurisdiction. In both cases, Ford’s motions were denied. On appeal in both cases, the state courts of appeal affirmed the rulings of the district courts. Ford appealed the cases to the state supreme courts, which affirmed the rulings of the courts of appeal. On September 18, 2019, Ford petitioned the U.S. Supreme Court for review of both cases.
The issue in the case is: Whether the “arise out of or relate to” requirement of the Fourteenth Amendment’s due process clause permits a state court to exercise specific personal jurisdiction over a nonresident defendant under Burger King Corp. v. Rudzewicz when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.
In the consolidated case of Chiafalo v. Washington / Colorado Department of State v. Baca, state-appointed presidential electors voted contrary to their respective state’s laws requiring that they cast their electoral college ballots for the winner of the popular vote. The electors were then penalized by their respective states.
The electors appealed the penalties, challenging their constitutionality. In Colorado Department of State v. Baca, the federal circuit court affirmed in part and reversed in part the findings of the district court and remanded the case. In Chiafalo v. Washington, the state supreme court affirmed the ruling of the trial court.
In October 2019, the Colorado State Department and the appellants in Chiafalo v. Washington filed petitions for review with the U.S. Supreme Court.
The issues in the case are:
1. Whether enforcement of state laws threatening penalization for presidential electors who cast electoral college ballots contrary to how the law directs is unconstitutional because a state has no power to legally enforce how a presidential elector casts his or her ballot,
2. Whether a state penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment,
3. And whether Article II or the Twelfth Amendment forbids a state from requiring presidential electors to follow the state’s popular vote when casting electoral college ballots.
The Federal Trade Commission (FTC) on January 3 became the latest federal agency to face a constitutional challenge to its adjudication procedures, including the role of administrative law judges (ALJs). Axon Enterprises Inc. filed a complaint in the United States District Court for the District of Arizona arguing that the FTC’s adjudication procedures vest the agency and its ALJs “with the powers of prosecutor, judge, and jury in violation of the Due Process and Equal Protection guarantees of the U.S. Constitution.”
Axon, a police equipment manufacturer, filed the complaint in response to a December order from the FTC blocking the company’s acquisition of Vievu LLC, a competing manufacturer of police body cameras. The FTC claimed in part that Axon’s acquisition of Vievu eliminated competition in the police body camera market. Axon contested the claim and argued that the in-house adjudication procedures used by the FTC to pursue the action are unconstitutional because they subject the company to a “biased administrative proceeding with a preordained result.”
Axon claims that the ALJs of the FTC do not act as neutral decision makers during agency adjudication. Instead, the company argues that the ALJs jointly act as prosecutor, judge, and jury.
Axon’s constitutional challenge to the use of ALJs departs from previous challenges because it centers on due process claims rather than Appointments Clause questions, like the challenges faced by the Securities and Exchange Commission (SEC) and the Patent Trial and Appeal Board (PTAB) in recent years
In the 2018 United States Supreme Court case Lucia v. SEC, the court held that the SEC’s ALJs are inferior officers (rather than agency employees) who must be appointed by the agency’s commissioners as required by the Constitution’s Appointments Clause. In October, a three-judge panel of the United States Court of Appeals for the Federal Circuit stripped administrative patent judges—a position similar to ALJs that is specific to the Patent Trial and Appeal Board (PTAB)—of their for-cause removal protections in order to classify them as inferior officers in accordance with the Appointments Clause.
A group of states, the District of Columbia, and New York City filed a lawsuit on January 16 against the U.S. Department of Agriculture (USDA) in the U.S. District Court for the District of Columbia. The lawsuit argues that a December 2019 rule violated federal law and arbitrarily reversed decades of policies governing when states could seek waivers from Supplemental Nutrition Assistance Program (SNAP) work requirements.
The plaintiffs asked the court to apply the Administrative Procedure Act’s (APA) arbitrary-or-capricious test to block the USDA from implementing the rule. Under that test, courts reviewing agency actions must throw out any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The plaintiffs also argued that the USDA failed to allow stakeholders to comment on the rule during the planning process—a potential violation of informal rulemaking requirements.
The USDA rule grants state waivers to SNAP work requirements for able-bodied adults without dependents only if the unemployment rate is higher than six percent. In the past, the USDA granted waivers to states with areas of average unemployment 20 percent above the national average. The rule also prevents states from combining areas of high and low unemployment to receive waivers for larger geographic areas.
The USDA proposed the rule in response to President Trump’s Executive Order 13828, which directed agencies to strengthen work requirements for work-capable individuals receiving benefits from public assistance programs. The executive order instructed agencies to review regulations and guidance documents to see whether they increased self-sufficiency, well-being, and economic mobility.
To learn more about the Administrative Procedure Act or the arbitrary-or-capricious test, click here.
Twas the night before arguments, and all through the court, not a brief was stirring, not even about tort; the robes were hung by the bench with care, in hopes that the justices soon would be there…
Welcome to the December 9 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. While you settle your brains for a long winter nap, follow us on Twitter or subscribe to the Daily Brew to catch up on the latest political news.
We #SCOTUS, so you don’t have to
The Supreme Court will hear arguments in six cases this week. Click here to read more about SCOTUS’ current term.
Click the links below to read more about the specific cases SCOTUS will hear this week:
In Guerrero-Lasprilla v. Barr, Pedro Pablo Guerrero-Lasprilla, a Colombian national living in the United States, was deported in 1998 after being convicted of aggravated felonies. In 2016, Guerrero-Lasprilla petitioned to reopen his removal proceedings. An immigration judge denied the petition on the grounds it was untimely. The Board of Immigration Appeals denied the appeal. The 5th Circuit Court of Appeals also dismissed the petition for lack of jurisdiction. The case is consolidated with Ovalles v. Barr. The issue: (1) Is a request for equitable tolling—in which a plaintiff can bring a claim if they did not discover an injury until after the statute of limitations had expired—judicially reviewable as a “question of law?” (2) Whether the criminal alien bar, 8 U.S.C. §1252(a)(2)(C), tempered by §1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a petitioner lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.
In Thryv Inc. v. Click-To-Call Technologies, LP, Inforocket.com, Inc. sued Keen, Inc. in 2001 for infringement of U.S. Patent No. 5,818,836 (the “836 Patent”). In 2003, the companies merged and the charges were dropped. The companies later became Dex Media, Inc. In 2011, Click-To-Call Technologies, LP (“CTC”) acquired the 836 Patent. In 2012, CTC filed charges of patent infringement against Dex Media. The Patent Trial and Appeal Board (“Board”) allowed for an inter partes review (IPR) of the patent challenge. An IPR is a procedure that allows a third party to both challenge a patent claim and request a review of the challenge before the Patent Trial and Appeal Board as long as the challenge is filed within a statutory time limit. CTC challenged the IPR, arguing it was barred from time limitations under Title 35 U.S.C. § 315(b). The Board rejected CTC’s time bar challenge and ruled in favor of Dex Media. On appeal, the U.S. Court of Appeals for the Federal Circuit issued a split decision vacating the Board’s grant of IPR. Dex Media petitioned the U.S. Supreme Court to review the case. In July 2019, Dex Media changed its name to Thryv, Inc. The issue: Whether 35 U.S.C. § 314(d) permits appeal of the Board’s decision to institute an IPR upon finding that § 315(b)’s one-year time bar did not apply. Title 35 U.S.C. § 314(d) reads, “The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.”
In Maine Community Health Options v. United States, as part of Section 1342 of the 2010 Patient Protection and Affordable Care Act (ACA), the federal government established a program to lessen the risk of insurers entering the new health insurance marketplace. Under the program, the government agreed to pay a portion of the costs to insurers who experienced higher-than-expected costs. In 2014, Congress included appropriations riders, or provisions, barring the U.S. Department of Health and Human Services from using its appropriations toward Section 1342 payments. Insurer Maine Community Health Options sued the federal government to recover nearly $57 million in unpaid debts. Maine Community Health Options believed the government was legally obligated to pay the debts under Section 1342 of the ACA. On appeal, the U.S. Court of Appeals for the Federal Circuit held the government was not obligated to distribute payments under Section 1342 because of Congress’ appropriations provisions. The case was consolidated with Moda Health Plan Inc. v. United States and Land of Lincoln Mutual Health Insurance Co. v. United States. The issue: According to Amy Howe from SCOTUSblog, “U.S. Supreme Court precedent disfavors allowing Congress to use appropriations acts to repeal laws by implication. In this case, the court will decide whether an appropriations rider may block an agency from using funds to fulfill a statutory requirement without explicitly repealing that underlying requirement.”
In Holguin-Hernandez v. U.S., Gonzalo Holguin-Hernandez pleaded guilty to violating his supervised release by committing a new offense. The U.S. District Court for the Western District of Texas revoked his term of supervised release and sentenced him to one year in prison to be served consecutively with the sentence from his new conviction. Holguin-Hernandez challenged his one-year sentence as greater than necessary under 18 U.S.C. § 3553(a). On appeal, the 5th Circuit affirmed the district court’s judgment. The issue: Whether a formal objection after the pronouncement of a sentence is necessary to invoke an appellate reasonableness review of the length of a defendant’s sentence.
Monasky v. Taglieri concerns the standard of review for “habitual residence” and how to establish “habitual residence” for purposes of the Hague Convention on the Civil Aspects of International Child Abduction. Domenico Taglieri, an Italian, and Michelle Monasky, an American, were a married couple living in Italy when they had a daughter, A.M.T. Both parents began applications for Italian and U.S. passports for their daughter. In 2015, Taglieri revoked his permission for A.M.T.’s U.S. passport. Two weeks later, Monasky took A.M.T. to the United States. Taglieri petitioned the U.S. District Court for the Northern District of Ohio for A.M.T’s return to Italy under the Hague Convention. The district court granted Taglieri’s petition. On appeal, the 6th Circuit Court of Appeals, sitting en banc, affirmed the district court’s ruling. The issue: (1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo—without deference to a prior or lower court’s findings—as seven circuits have held; under a deferential version of de novo review, as the First Circuit has held; or under clear-error review, as the Fourth and Sixth Circuits have held. (2) Where an infant is too young to acclimate to her surroundings, whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.
In McKinney v. Arizona, James McKinney was convicted of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed the sentence after an independent review. A federal district court denied McKinney’s petition for habeas corpus. On appeal, the 9th Circuit Court of Appeals instructed the district court to grant the habeas corpus petition. After another independent review, the Arizona Supreme Court affirmed the death sentence. The issue: (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted. (2) Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.
Upcoming SCOTUS dates
Here are the upcoming dates of interest in December:
SCOTUS will release orders.
SCOTUS will hear arguments in two cases.
December 10: SCOTUS will hear arguments in two cases.
December 11: SCOTUS will hear arguments in two cases.
December 13: SCOTUS will conference. A conference is a private meeting of the justices.
On the Supreme Court’s traditional seal, how many stars are beneath the eagle’s claws?
Four Republican-appointed judges, and five Democrat-appointed judges.
Overall, the Senate has confirmed 172 of President Trump’s judicial nominees—120 district court judges, 48 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.
President Trump has not announced any new Article III nominees since our December 2 edition.
The president has announced 234 Article III judicial nominations since taking office Jan. 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018. For more information on the president’s judicial nominees, click here.
The federal judiciary currently has 97 vacancies. As of publication, there were 58 pending nominations.
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.
Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.
In each issue of Bold Justice, we highlight a federal court you should know more about. Right now, we’re taking a closer look at the 94 U.S. District Courts. The district courts are the general trial courts of the U.S. federal court system.
There is at least one judicial district for each state, and one each for Puerto Rico and the District of Columbia.