Dilan Esper Profile picture
Apr 23 29 tweets 5 min read
OK, #appellatetwitter fans, let's walk you through Kensington Volunteer Fire Department v. Montgomery County, and why a lot of legal experts on Twitter may be wrong about the constitutionality of DeSantis' Revenge Bill. 1/

casetext.com/case/kensingto…
Some caveats:

1. As should be obvious from me calling it a Revenge Bill, I think as a policy matter that what DeSantis is doing is awful. I don't think governors should take legislative revenge on companies for saying things the government doesn't like. 2/
2. Kensington, as you will see, is a 4th Circuit case. There isn't an on point 11th Circuit case. So maybe the 11th Circuit won't follow Kensington. (Note, however, that Kensington relies on US v. O'Brien, a US Supreme Court case that is good law.) 3/
3. There are at least possible grounds to distinguish Kensington. I will cover them. However, this is a situation where Twitter requires some nuance (which I am sure I won't get). Just because a case is theoretically distinguishable doesn't mean it is inapplicable. 4/
Courts follow cases that arose on different facts all the time. Many cases, including, for instance, O'Brien itself, state general legal rules. They aren't 1 ride only tickets, but apply the rules for a whole area of cases. This is especially true of SCOTUS opinions. 5/
So, for instance, your local police department can't decide not to give you Miranda warning in a burglary case because the Miranda decision involved a kidnapping. That's not how "distinguishing cases" works. 6/
With all that out of the way, let's get to the facts of Kensington. 7/
In Kensington, the County had a budget shortfall and sponsored an "ambulance fee", i.e., a tax on ambulances, to close the shortfall. The volunteer firefighters of Kensington vocally opposed the ambulance tax. 8/
When the ambulance tax went down to defeat, the County officials blamed the volunteer firefighters and took their revenge, eliminating the budget line-item from previous years that paid for 20 volunteer firefighters. 9/
The volunteer firefighters sued, and the suit was dismissed. The 4th Circuit affirmed the dismissal in a published opinion. 10/
The 4th Circuit first held that when the government enacts legislation that is "facially valid" (i.e., that does not itself contain a speech restriction), courts are powerless to inquire into the motive of the statute, citing the O'Brien case. 11/
The O'Brien case is a very famous case. It involved a statute prohibiting the destruction of draft cards, which was challenged by a draft card burner protesting the Vietnam War. The Supreme Court ruled for the government in that case. 12/
SCOTUS held that because the government had legitimate administrative reasons to require citizens to retain their selective service cards, it did not matter that the statute was actually enacted for the purpose of criminalizing a mode of protest. 13/
SCOTUS was explicit about this: "this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive". O'Brien, in turn, cites 1904 and 1931 cases (the latter a Brandeis opinion) in support of this proposition. 14/
Applying O'Brien, the Kensington Court holds that because the County has the power to cut its budget and eliminate the compensation for volunteer firefighters, its motive in doing so cannot be considered. 15/
The firefighters made a counter-argument: they cited cases where mayors laid off employees or transferred them to punish them for exercising First Amendment rights. The court rejected this. 16/
The court said those cases did not involve "legislative" acts, a word the Kensington court italicized to indicate its importance. Legislation, the court implied, was different from an official taking action against an employee. 17/
Next, the firefighters argued that their claim could go forward under retaliation caselaw. The retaliation doctrine allows employees and contractors to sue governments who cancel their contracts in response to the exercise of First Amendment rights. 18/
The problem here was the firefighters aren't employees or contractors of the County. They were simply indirect recipients of an appropriation. The budget was cut, and as a result, the fire departments, not having money any more, terminated their employment. 19/
So the argument that DeSantis can make is as follows. Under O'Brien, the State of Florida has every right to terminate or disempower any improvement district anywhere in the state. And its motive for doing so is irrelevant and can't create a First Amendment violation. 20/
Nor can Disney make out a retaliation claim because it is neither an employee nor a government contractor. It is simply the recipient of some favored treatment in the form of a special governmental structure. 21/
Now as promised, there ARE grounds to distinguish Kensington if someone wants to. First, the budget in Kensington had some other line items that were cut as well as the firefighters. So the Court held this showed general applicability. 22/
Disney can argue that since the Reedy Creek Improvement District was a sweetheart deal created ONLY to benefit Disney, the legislation to repeal it was not generally applicable. That argument might work- but the lawyers would have to make Disney look bad in making it. 23/
The other thing is that on the retaliation claim, the Kensington court distinguished one of the contractor cases, the Umbehr case, by noting that in Umbehr the county commission terminated only the contractor's contract, and there was no generally applicable budget cuts. 24/
So, Disney can argue that they are more akin to the contractor in Umbehr than they are to the firefighters in Kensington. The thing is, they really aren't. Disney isn't a contractor. 25/
So at the end of the day, the only things Disney has are that (1) since the original RCID was created solely for Disney, the repeal is targeted solely at Disney, and (2) the retaliation analysis in Kensington is 4th Circuit law that may not be applicable in Florida. 26/
And I don't see how Disney gets around O'Brien on legislative motive.

Overall, I'd say that it's more likely than not that the Revenge Bill will be upheld. And that's before we get into the fact that the federal courts are pretty conservative right now. 27/
Again, I want to emphasize, my true distress here is with the Twitter Legal Hot Take. Just because something "feels" unconstitutional doesn't mean it is. And NOBODY should be out there saying "that's flagrantly unconstitutional" without having a controlling case in mind. End/
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More from @dilanesper

Apr 23
This isn't right. At least some of the culture war stuff they are doing is stuff that works as wedge issues against the Democrats.

I really think a lot of Dems don't realize how unpopular it is among suburban voters to be skeptical of parental authority.
This isn't to say there isn't Republican overreach. There surely is. There always is. That's what they do.

But Democrats are going to lose votes on this if they don't are unable, for coalitional reasons (teachers unions, LGBT groups), to take a more pro-parent position.
And more generally, Dems are going to have to re-learn the art of saying no to or cutting back on the demands of coalition groups. A lot of Dem thinkers and talkers have adopted a style of discourse where any saying no makes you the equivalent of MLK's dreaded "white moderates".
Read 4 tweets
Apr 23
I don't feel as strongly as Ham. There are counter-arguments (particularly re: safety of people who worked at school).

But absolutely (1) too many people poo-poohed the serious damage done to kids from closures, and (2) a big reason we kept schools closed was that we could.
And that second point infects the mask mandate story too. We kept a mask mandate on airplanes because we could. It wasn't because airplanes were uniquely unsafe (in fact, they are better ventilated than many places). It's because we could.
I'm not sure what we can do about this. Political constraints are real. We saw this from the start, when Nevada couldn't wait to get the casinos reopened while prohibiting worship in church. Bars and restaurants are powerful local lobbies.
Read 6 tweets
Apr 23
This.

Lawyers, like many other folks, are competitive. And one thing the competitive mindset does is make even minor things seem more serious and seemingly material than they are. This is why you see MLB players get ejected arguing a meaningless strike call.
I once had a case where my client was making a payment to a profit participant on a film and docked $10 out of a $1 million check for the wire transfer fee. It was petty, and the judge mocked it in court when he saw the document. That was funny.
But then opposing counsel- a highly respected big firm entertainment lawyer- spent the rest of the trial mocking the wire transfer fee and even referred to it in closing argument, like it was an actual material issue in the case rather than a silly thing my client did.
Read 4 tweets
Apr 23
This got a lot of likes, but why is it that we don't tell rich donors to pay less attention to elite private universities? Why is it we don't tell legacies to do it?

I'm NOT saying this is wrong (it's correct), but it requires implementation. 1/
Simply put, the basic problem here is that any rich parents know that if they can buy their kids into Harvard, they are set for life because it opens so many doors. So if you don't want to make the Harvard admissions system more fair, you have to close those doors. 2/
And doing that is in many ways even more radical than telling Harvard it has to change who it admits. You would have to tell employers throughout the country, and other people offering opportunities to young folks, to stop preferring Harvard grads. 3/
Read 7 tweets
Apr 22
This is a very interesting read: you should read it rather than the tangent I am going to go on.

But the central piece of evidence, a bugged police reporting of a post-murder conversation between alleged co-conspirators, reminded me of another case: the infamous Black Dahlia. 1/
Like in the Adelson case, LAPD investigators in the Black Dahlia case, which was officially unsolved and remains open even now, 75 years after the murders, bugged the conversations of one of the prime suspects, George Hodel. 2/
And like Adelson, Hodel never quite confesses to the murder in the taped recordings. But he says some mighty suspicious things! 3/
Read 6 tweets
Apr 20
There's a lot of people who have very sincere fears about the future of American democracy based on SCOTUS, the 2020 election, and other events.

This is going to be a depressing thread. Because I think the only way to really protect democracy is to reduce polarization. 1/
Here's the basic scope of the problem. Let's say that you believe that SCOTUS' shadow docket orders are interfering with President Biden's ability to exercise the authority that was conferred on him by the electorate. Now what do you do about it? 2/
Well, you might decide to pack the Court. But at some point, Republicans will win a presidential election and congressional majorities, and they will be very pissed off you packed the Court. So they will pack it back and all of those decisions you secured will get overturned. 3/
Read 13 tweets

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