July 22, 2018

Colorado Supreme Court: 42 U.S.C. § 1988 Damages Not Properly Awarded Under Colorado Election Code

The Colorado Supreme Court issued its opinion in Frazier v. Williams, Colorado Secretary of State on Monday, September 11, 2017.

Election Proceedings under C.R.S. § 1-1-113—42 U.S.C. § 1983—Supremacy Clause.

The Colorado Supreme Court held that claims brought under C.R.S. § 1-1-113 are limited to those alleging a breach or neglect of duty or other wrongful act under the Colorado Election Code. The language of C.R.S. § 1-1-113 limits claims that may be brought to those alleging a breach or neglect of duty or other wrongful act under “this code,” meaning the Colorado Election Code. The court emphasized that Colorado courts remain entirely open for adjudication of 42 U.S.C. § 1983 (2012) claims, including on an expedited basis if a preliminary injunction is sought, and therefore C.R.S. § 1-1-113 does not run afoul of the Supremacy Clause. To the extent that Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006), holds to the contrary, it is overruled.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Preliminary Injunction Enjoining Implementation of Legislation That Restricted Federal Funding to Two Kansas Planned Parenthood Facilities Vacated

The Tenth Circuit Court of Appeals published its opinion in Planned Parenthood of Kansas and Mid-Missouri v. Moser on Tuesday, March 25, 2014.

The federal government subsidizes the cost of family-planning services for low-income individuals through Title X of the Public Health Service Act, codified at 42 U.S.C. §§ 300–300a-6. Although Title X  authorizes direct federal grants to service providers, most Title X funds flow initially to state and local  governmental agencies. Nonprofit organizations function as intermediaries that distribute the funds to subgrantees who administer the programs. Kansas is one such state.

If a grantee or subgrantee materially fails to comply with any term of an award, the awarding agency may temporarily withhold payments, disallow funding to cover the cost of the noncomplying activities, terminate the award, withhold further awards, or pursue other legally available remedies.

In May 2011, Kansas Governor Sam Brownback signed into law appropriations bill § 107(l) restricting the classes of entities eligible for Title X subgrants. It limited the recipients to public entities, hospitals, and federally qualified health centers (FQHC) that provide comprehensive primary and preventative healthcare services. This restriction disqualified two family-planning clinics operated by Planned Parenthood of Kansas and Mid-Missouri (Planned Parenthood). These Planned Parenthood facilities performed abortions. Planned Parenthood sued Governor Brownback and Robert Moser, MD, in his capacity as the Secretary of the Kansas Department of Health and Environment (KDHE) for declaratory and injunctive relief, challenging the legislation on the grounds that (1) it violated Title X and was unconstitutional under the Supremacy Clause; (2) it violated Planned Parenthood’s First Amendment rights by penalizing it for associating with providers of abortion and for its advocacy of access to abortion services; and (3) it violated the Fourteenth Amendment by imposing an unconstitutional burden on the rights of women to choose abortion (a claim not raised on appeal).

Ruling that Planned Parenthood had established a likelihood of success on the merits of the first two claims and had otherwise satisfied the requirements for a preliminary injunction, the district court granted the preliminary injunction and enjoined KDHE from implementing the legislation. Accordingly, it enjoined any further enforcement or reliance on Section 107(l) and ordered Moser to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l).

Moser challenged the injunction in the Tenth Circuit on several grounds, most of which the Tenth Circuit did not address. As to the Supremacy Clause claim, the court held that Planned Parenthood could not  establish a likelihood of success on the merits because there was no private cause of action for injunctive relief for the alleged violation of Title X under the Supremacy Clause. The court held that when actual or threatened state action is allegedly contrary to a federal statute, the Supremacy Clause does not necessarily authorize an injunction against the state action when four conditions are all satisfied: (1) the statute does not specifically authorize injunctive relief, (2) the statute does not create an individual right (which may be enforceable under 42 U.S.C. § 1983), (3) the statute is enacted under the Constitution’s Spending Clause, and (4) the state action is not an enforcement action in adversary legal proceedings to impose sanctions on conduct prohibited by law.  The Tenth Circuit concluded that Planned Parenthood had no cause of action under Title X to enjoin the application of § 107(l). The court held Title X simply did not contemplate enforcement through private suits for injunctive relief.

The court noted that § 107(l) does not prohibit Planned Parenthood from doing anything. It does not say that all health-care providers must offer comprehensive care. It does not even prohibit those who do not offer comprehensive care from providing family-planning services. Planned Parenthood can continue to do so. The statute says only that the State will not subsidize family-planning services provided by those who do not offer comprehensive care.

As to the First Amendment claim, the court stated that the challenge would be rejected unless retaliation against the protected conduct was a substantial or motivating factor for taking the action and the official would not have taken the same action in the absence of the protected conduct. The court held that neither of these contexts was present in this case. The first was absent because nothing in § 107(l) prohibited Planned Parenthood from advocating abortion rights or associating with abortion providers. Second, the Tenth Circuit expressed reluctance to invalidate a law because of the process by which it was enacted. Planned Parenthood could not establish a likelihood of success because the legislation did not restrict the rights of speech or association of Planned Parenthood and the motives of individual lawmakers in enacting § 107(l) were irrelevant.

The court VACATED the preliminary injunction, REVERSED and REMANDED for further proceedings.