Administrative Law

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Two University of Washington professors are taking the Washington State Executive Ethics Board to court, alleging that the Board’s policies regarding the use of state email accounts are unconstitutional and infringe on their First Amendment rights. The Ninth Circuit Court of Appeals has sided with the professors, reversing a lower court’s decision to dismiss the case.

The heart of the dispute lies in how the Ethics Board investigates professors who use their state email addresses. The professors, Abraham Flaxman and Amy Hagopian, are moderators of a faculty listserv, “Faculty Issues and Concerns,” used by over 2,000 instructors. The Board launched investigations after receiving complaints about the professors forwarding emails that allegedly contained political discussion and fundraising requests.

The Investigations and the Complaints

The Ethics Board’s investigations into the professors began with anonymous complaints. In one instance, Professor Flaxman was investigated for forwarding an email about a campaign to bring universal healthcare to Washington state. The Board, as part of its investigation, reviewed months of Flaxman’s emails, not just the one in question. Although the Board initially found reasonable cause to believe Flaxman had violated ethics laws, the case was later terminated in his favor.

Professor Hagopian faced a similar situation. She was investigated after forwarding an email about a strike by University of California researchers, which included a link to a “strike fund.” The Board reviewed over 2,000 emails from her account and ultimately found that she had improperly used state resources to solicit donations and for private benefit. As a result, the Board fined Hagopian $750.

The Professors’ Claims

Flaxman and Hagopian, along with a proposed class of listserv subscribers, filed a lawsuit in October 2023. They argue that the Ethics Board’s policies and practices violate the First Amendment. Specifically, they challenge the following Board practices:

* Allowing anonymous complaints.
* Conducting broad searches of professors’ emails during investigations.
* Treating incidental financial solicitations in emails as violations of state law.
* Levying allegedly excessive and disproportionate monetary penalties.

The professors contend that these policies chill the exercise of First Amendment rights by restricting the content of statements shared on the “Faculty Issues and Concerns” mailing list. They sought to have these policies invalidated by the court.

The District Court’s Initial Decision

The United States District Court for the Western District of Washington dismissed the professors’ lawsuit, claiming the claims were “unripe” under Article III of the U.S. Constitution. The court reasoned that the professors did not demonstrate that the Ethics Board’s policies had actually chilled their speech. Furthermore, the district court held that the professors’ emails were public records, meaning they had no First Amendment privacy interest in them. The court also determined the professors’ claims were “prudentially unripe” because the Ethics Board investigations against the professors were ongoing.

The Ninth Circuit’s Reversal

The Ninth Circuit Court of Appeals reversed the district court’s decision, stating that the lower court erred in dismissing the lawsuit. The appeals court found that the professors’ claims were ripe for several reasons.

Constitutional Ripeness

The Ninth Circuit determined that the professors’ claims were ripe under a “pre-enforcement challenge” framework. This framework applies when a plaintiff challenges a law or policy before it is enforced, arguing it will chill their speech. The court found that the professors met the requirements for a pre-enforcement challenge because:

* They remain affiliated with the University.
* They are moderators of the listserv.
* The Ethics Board’s policies are still in place.
* The Board’s history of enforcement shows a plausible fear of prosecution.

The court emphasized that the professors faced a “credible threat of enforcement,” particularly given the Board’s past actions against them and the possibility of investigations triggered by anonymous complaints.

The court also said that even if the professors were advancing a “retaliation theory” based on past events, their claim was ripe. Because they had already been penalized for their speech, the dispute was not abstract or premature.

The court rejected the argument that the professors’ claims were unripe because they hadn’t specifically alleged that the Board’s policies chilled their speech. The court found that the complaint sufficiently alleged chilling, pointing to the Board’s practices, like allowing anonymous complaints and conducting broad email searches.

Prudential Ripeness

The Ninth Circuit also held that the district court erred in concluding the professors’ claims were prudentially unripe. Prudential ripeness involves considering the “fitness of the issues for judicial decision” and the “hardship to the parties of withholding court consideration.” The court found that the issues in the case were primarily legal, involving the Ethics Board’s policies that had already been applied to the professors, and thus fit for judicial decision. The court also determined that withholding review would impose a substantial hardship on the professors, who had been investigated and punished for their speech.

Dissenting Opinion

Judge Bennett dissented, arguing that the professors’ complaint failed to establish an injury that would give them standing to sue. He believed the complaint didn’t adequately allege that the Board’s policies chilled the professors’ speech or that they intended to engage in conduct that would violate the policies. However, Judge Bennett also acknowledged that facts relevant to the case had changed since the complaint was filed and suggested the professors should be allowed to amend their complaint.

What Happens Next?

The Ninth Circuit has reversed the district court’s dismissal and sent the case back for further proceedings. This means the lawsuit will continue, and the professors will have the opportunity to argue their case against the Ethics Board. The court’s decision is a win for the professors, as it allows them to pursue their claims that the Ethics Board’s policies violate their First Amendment rights.

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The North Carolina Supreme Court has issued a ruling in a case challenging the constitutionality of executive orders issued by former Governor Roy Cooper during the COVID-19 pandemic. The case, *Howell v. Cooper*, centered on restrictions placed on bars and nightclubs, and whether these measures violated the business owners’ right to earn a living. The court’s decision, while modifying and affirming the lower court’s ruling, clarified the standards for such claims and set the stage for further examination of the case.

The Core of the Dispute

The crux of the lawsuit, brought by bar owners and related businesses, was that the Governor’s executive orders, implemented in response to the COVID-19 outbreak, excessively limited their ability to operate, thereby infringing upon their constitutional rights to earn a living. The orders, which included mandatory closures and restrictions on alcohol sales, were challenged under the “Fruits of Their Own Labor Clause” and the “Law of the Land Clause” of the North Carolina Constitution. These clauses protect individuals’ rights to conduct lawful businesses and ensure due process under the law.

Sovereign Immunity and “Corum Claims”

A key legal hurdle in the case was the doctrine of sovereign immunity, which generally protects the state from being sued. However, the court recognized an exception for what are known as “Corum claims.” These claims allow individuals to sue the state directly under the state constitution if they allege a violation of their constitutional rights by a state actor, causing injury for which there is no other adequate state remedy. The court found that the bar owners’ claims could potentially fall under this exception.

The Court’s Analysis: Is it a “Colorable” Claim?

The Supreme Court focused on whether the bar owners’ claims were “colorable,” meaning they presented facts that, if true, could support a violation of their constitutional rights. The court applied the standards set forth in the *Kinsley v. Ace Speedway Racing, Ltd.* case, which outlined the criteria for determining the validity of state actions that affect the right to earn a living.

The Pleading Requirements: What Must Be Alleged?

To have a viable claim, the bar owners needed to show:

* State Action: That the restrictions were imposed by the state (through the Governor’s executive orders). This was not in dispute.
* Colorable Constitutional Claims: That the executive orders violated their constitutional rights. This was the central issue.
* Absence of Other Remedies: That there was no other adequate state remedy available. This was also not in dispute.

The Court’s Findings

The court found that the bar owners had met the requirements for a “colorable” claim. It held that the complaint sufficiently alleged facts that, if proven, could demonstrate a violation of their rights to earn a living. The court emphasized that at the pleading stage, it must treat the factual allegations in the complaint as true and view them in the light most favorable to the plaintiffs. The court’s opinion highlighted the restrictions imposed on the bars, including closures and limitations on alcohol sales, as potentially imposing a significant burden on their businesses.

The “Reasonably Necessary” Standard

The court reiterated that for a state action that burdens the right to earn a living to be constitutional, it must be “reasonably necessary to promote the accomplishment of a public good, or to prevent the infliction of a public harm.” This involves a “fact-intensive analysis” that considers both the effectiveness of the state action and the extent of the burden it places on the businesses. The court will need to decide if the measures were reasonable, given all the available options, when it makes its final decision.

The “Least Intrusive Remedy” Argument Rejected

The court also addressed the defendants’ argument that the bar owners should have sought the “least intrusive remedy” available. The court rejected this argument, stating that the least intrusive remedy is a consideration that arises *after* a constitutional violation has been proven, not as a requirement for initially bringing a claim.

The Dissenting Opinion: A Different View

Justice Earls wrote a dissenting opinion, arguing that the majority was expanding the scope of the “Fruits of Their Own Labor Clause” and inviting meritless litigation. Justice Earls contended that the Governor’s actions were a reasonable response to the unprecedented COVID-19 pandemic, and that the restrictions, while impacting the bar owners, were not excessive. The dissent emphasized the uncertainty and urgency faced by the Governor during the pandemic and argued that the court should not second-guess those decisions with the benefit of hindsight.

Next Steps and Implications

The Supreme Court’s decision means the case will continue in the lower courts. The bar owners will have the opportunity to present evidence and argue their case, and the trial court will ultimately determine whether the executive orders were, in fact, unconstitutional. This case has important implications for the balance between public health measures and economic rights, particularly in times of crisis. The court’s decision provides some guidance on how to evaluate such claims, but the specific outcome of this case will depend on the evidence presented and the trial court’s application of the legal standards.