Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

I would just say Sandy, that when it comes to standing, ripeness and mootness, 
the only way the Court could act in a principled manner would be to shelve all 
prior cases and start over.

e

Sent from my iPhone

On Apr 18, 2017, at 6:45 PM, Levinson, Sanford V 
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote:

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> 
[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<mailto: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<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C714646cdacde479b914908d486aca2bb%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281523408998610=PqE5ZqjlSfdE5cshEYOIhkB0a6MORELMKhWpuUOSUpA%3D=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 2:59 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 stat

RE: Is Trinity Lutheran Church moot?

[Levinson, Sanford V]

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:religio

Re: Is Trinity Lutheran Church moot?

[Ashutosh A Bhagwat]

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 <religionlaw-boun...@lists.ucla.edu> 
on behalf of Laycock, H Douglas (hdl5c) <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] On Behalf Of James Oleske
Sent: Tuesday, April 18, 2017 5:53 PM
To: Law & Religion issues for Law Academics <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=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=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
T

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

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] On Behalf Of James Oleske
Sent: Tuesday, April 18, 2017 5:53 PM
To: Law & Religion issues for Law Academics <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=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=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

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

That Will arose in state court is probably why the Court wrote it in terms of 
who is a person. They had not yet held that the Eleventh Amendment applies in 
state court (that’s Alden v Maine, in 1997 I think). So they said that § 1983 
doesn’t create a cause of action. The metastasizing of sovereign immunity 
reaches every where.

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] On Behalf Of Eric J Segall
Sent: Tuesday, April 18, 2017 5:45 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?

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

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

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=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=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



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 descri

Re: Is Trinity Lutheran Church moot?

[James Oleske]

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> 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> 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 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu <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>
> *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
>
> 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=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=0>
>
>
> --
>
> *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists.
> ucla.edu> on behalf of Laycock, H Douglas (hdl5c) <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 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu <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>
> *Subject:* Re: Is Trinity Lutheran Church moot?
>
>
>
> Doug, is the complaint seeking money as damages for wrongful denial

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

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

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

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=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=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



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 

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

But the whole point of the voluntary cessation doctrine is that a promise to 
comply in the future is not enough.

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] On Behalf Of Eric J Segall
Sent: Tuesday, April 18, 2017 5:28 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?

Well if that is true, and I think it is, the state's promise to treat their 
grant applications in the future equally with all others is all they can get 
(admittedly they'd rather have an injunction) but that seems a slender reed.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:22 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
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

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

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

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

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

From: 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>
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

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 2:21 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



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



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 Chur

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

Section 1983 is not abrogation of 11th Amendment Immunityas crazy as that 
is.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:33 PM, Ashutosh A Bhagwat 
<aabhag...@ucdavis.edu<mailto:aabhag...@ucdavis.edu>> wrote:


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

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 2:21 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



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



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 th

Re: Is Trinity Lutheran Church moot?

[Ashutosh A Bhagwat]

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

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880



From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Laycock, H Douglas (hdl5c) <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



From: 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>
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



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

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

Well if that is true, and I think it is, the state's promise to treat their 
grant applications in the future equally with all others is all they can get 
(admittedly they'd rather have an injunction) but that seems a slender reed.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:22 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

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

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

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 reve

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

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

From: 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>
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

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

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

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

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=02%7C01%7Cesegall%40gsu.edu%7C6dba6b66270549ffeb8708d4869e91c9%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281462987771054=xdC1a62HrN9Y7tHOw1J7GrwTR%2F3d8y8rJKTHnCVGw8s%3D=0>

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

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

From: 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>
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

___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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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 
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Pleas

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

I don't think there was a claim for damages (and it would be barred by 11th 
Amendment anyway) so I agree with Marty that the plaintiff has received all the 
relief it sought. The State is saying that from now on, the church's requests 
for funding under the program will be treated like all other requests. The fact 
that the state may change its mind later seems hardly a sufficient basis to 
decide a major constitutional case.

Best,

Eric

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Marty Lederman <martin.leder...@law.georgetown.edu>
Sent: Tuesday, April 18, 2017 4:39:32 PM
To: Law & Religion issues for Law Academics
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=02%7C01%7Cesegall%40gsu.edu%7C434532a9dae947c41d3408d4869b2879%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281448335456816=bwAZFeYvS4YHo%2BGzTUd31HXO3pSxFPO090xmp3%2FXpo0%3D=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=02%7C01%7Cesegall%40gsu.edu%7C434532a9dae947c41d3408d4869b2879%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281448335456816=V6%2F00%2B2zgO4uxe3ugWViDiFGaylMT9YKSJN%2BHloCNFI%3D=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
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.

Re: Is Trinity Lutheran Church moot?

[Marty Lederman]

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> 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 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Tuesday, April 18, 2017 3:31 PM
> *To:* Law & Religion issues for Law Academics 
> *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
>
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RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

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

From: 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 
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
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