I can't refrain from asking the snarky question as to whether anyone believes that the decision of the Supreme Court to decide or to dump the case will represent a "principled" elaboration of mootness doctrine, as against 1) a desire by Gorsuch and the other four to announce their solicitude for religious organizations in a comparatively easy case; 2) a prudential desire by the Court to wait a while before it so clearly illustrates the possible difference between a Justice Gorsuch and Justice Garland (contrary to my assertion that this is an "easy" case, which rests on its not being a 5=4 decision.
sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat Sent: Tuesday, April 18, 2017 5:36 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Is Trinity Lutheran Church moot? I am once again reminded why I refuse to teach the 11th Amendment :-). But of course you are all correct, I had forgotten about that line of cases. Ash Ash Bhagwat Martin Luther King, Jr. Professor of Law UC Davis School of Law (530) 752-8687 Find my papers at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880 ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> Sent: Tuesday, April 18, 2017 2:59 PM To: Law & Religion issues for Law Academics Subject: RE: Is Trinity Lutheran Church moot? Doh! Not sure why I forgot about Edelman; maybe because the focus there was on the line between prospective and retrospective relief. But that is the fundamental modern Eleventh Amendment case, and it squarely holds that § 1983 does not override sovereign immunity. Somewhat conclusory, but unambiguous. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Tuesday, April 18, 2017 5:53 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Is Trinity Lutheran Church moot? See, e.g., Quern v. Jordan, 440 U.S. 332, 340-41 (1979): "Mr. Justice BRENNAN in his opinion concurring in the judgment argues that our holding in Edelman that § 1983 does not abrogate the States' Eleventh Amendment immunity is 'most likely incorrect.' To reach this conclusion he relies on 'assum[ptions]' drawn from the Fourteenth Amendment, on 'occasional remarks' found in a legislative history that contains little debate on § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, on the reference to 'bodies politic' in the Act of Feb. 25, 1871, 16 Stat. 431, the 'Dictionary Act,' and, finally on the general language of § 1983 itself. But, unlike our Brother BRENNAN, we simply are unwilling to believe, on the basis of such slender 'evidence,' that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States. We therefore conclude that neither the reasoning of Monell or of our Eleventh Amendment cases subsequent to Edelman, nor the additional legislative history or arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a conclusion different from that which we reached in Edelman. - Jim On Tue, Apr 18, 2017 at 2:44 PM, Eric J Segall <eseg...@gsu.edu<mailto:eseg...@gsu.edu>> wrote: There's also language in other cases involving federal jurisdiction that Congress didn't intend 1983 to abrogate immunity. Will is only a state court case. Best, Eric Sent from my iPhone On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: Because the Court held that neither a state, nor a state official in his official capacity, is a "person" within the meaning of § 1983. It is a slightly round about way of saying that § 1983 does not override sovereign immunity. Will v. Michigan Dept. of State Police. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:(434)%20243-8546> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat Sent: Tuesday, April 18, 2017 5:31 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Is Trinity Lutheran Church moot? I may be completely wrong here, but if this is a section 1983 case enforcing the Religion Clauses as incorporated through the 14th Amendment, does that trump 11th Amendment immunity? What am I missing? Ash Bhagwat Martin Luther King, Jr. Professor of Law UC Davis School of Law (530) 752-8687<tel:(530)%20752-8687> Find my papers at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880&data=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771&sdata=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D&reserved=0> ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> Sent: Tuesday, April 18, 2017 2:21 PM To: Law & Religion issues for Law Academics Subject: RE: Is Trinity Lutheran Church moot? I haven't looked at the complaint, but that has to be right. Damages for delay could not be recovered from the state, or from any state official in his official capacity, because of sovereign immunity. And they could not be recovered from any state official in his personal capacity, because of qualified immunity. There is certainly no clearly settled law in favor of the church. So injunction or declaratory judgment against an official in his or her official capacity are the only possible remedies. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:(434)%20243-8546> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall Sent: Tuesday, April 18, 2017 5:13 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Is Trinity Lutheran Church moot? Doug, is the complaint seeking money as damages for wrongful denial? That seems to run into the 11th. I assumed plaintiffs can only ask for prospective relief in this case. Best, Eric Sent from my iPhone On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: Have they given the dollars? Or just said they will? The voluntary cessation doctrine is all about the just-said-they-will cases. They might change their mind, and here there would seem to be a very live threat that they will change their mind because they might be forced to. Maybe there are countervailing considerations of constitutional avoidance here. Maybe they should dig it. But they should not say it is moot unless the dollars are actually transferred. Of course as with any justiciability doctrine, they can make it moot by how they describe the facts. They can simply say there is no chance of a policy reversal, even if that is obviously false. With five votes you can do anything, as the saying goes. But I think that this case is not moot, at least until the church gets the money. I assume that no one could sue under Missouri law to force the state to reclaim the money after it's paid out, but I don't actually know that. They have been holding Douglas County Schools for Trinity Church. Douglas County presents more-or-less the same issue in the context of a school choice program. A reasonable prediction is either GVR or cert denied, depending on what happens on the merits in Trinity Church. But if Trinity Church is digged, or held moot, then it seems likely that those who voted to grant cert in that case will now vote to grant in Douglas County. Full disclosure: I am on the briefs in Douglas County. But I write about voluntary cessation under my Remedies hat. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:(434)%20243-8546> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, April 18, 2017 4:40 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Is Trinity Lutheran Church moot? But Doug, the relied requested was simply the ability to compete for the grant without the church disqualification -- and they've now received precisely that. It's also not simply a policy change -- it is, presumably, a conclusion that they are legally required not to exclude the church. Yes, it is true that if the agency gives the $$ to TLC, there might well be a state-court lawsuit by a taxpayer--one that might one day reach the SCOTUS. But why does that possibility make this case -- between the church and the agency -- justiciable, when both of those parties (there is no "other side") agree that the church should be eligible to compete, and the church is receiving the requested relief? On Tue, Apr 18, 2017 at 4:32 PM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: Giving the church the tires or the money would moot the case. But so far, they have only announced a policy change, and that does not moot the case-especially where, as here, the other side has a plausible claim and could immediately sue the state officials to prevent them from granting the money or the tires and to force them to reverse the policy change. A decision to that effect could be reviewed in a different lawsuit, but that is always true in voluntary cessation cases. If the policy is ever reversed, the court could decide about it then. But the voluntary cessation doctrine says that the plaintiff who has gotten this far is entitled to a decision now, in this case. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:(434)%20243-8546> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Marty Lederman Sent: Tuesday, April 18, 2017 3:31 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Is Trinity Lutheran Church moot? Answer: Probably, but it may depend upon some still-uncertain facts: https://balkin.blogspot.com/2017/04/is-trinity-lutheran-church-case-moot.html<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fbalkin.blogspot.com%2F2017%2F04%2Fis-trinity-lutheran-church-case-moot.html&data=02%7C01%7Cesegall%40gsu.edu%7C6dba6b66270549ffeb8708d4869e91c9%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281462987771054&sdata=xdC1a62HrN9Y7tHOw1J7GrwTR%2F3d8y8rJKTHnCVGw8s%3D&reserved=0> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=02%7C01%7Cesegall%40gsu.edu%7C6dba6b66270549ffeb8708d4869e91c9%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281462987771054&sdata=%2F%2Bu1EGTho3HUZKaZKHROOGqLnxwFI2bFrOW9ioaUwus%3D&reserved=0> Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=02%7C01%7Cesegall%40gsu.edu%7C6dba6b66270549ffeb8708d4869e91c9%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281462987781058&sdata=Epngd8mvGK8S8uRPH%2FgKhywXoWiu24p36XxRycT3N8g%3D&reserved=0 Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771&sdata=gv99skdRvAKZVFFhfRNzuBH%2FuIURXQgURXoYJZeABu8%3D&reserved=0 Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
