Five new opinions, including significant appeals involving campaign contributions and Title IX

Four Five opinions today, it feels like August in May.

Deon v. Barasch—civil / First Amendment—affirmance—Nygaard

When Pennsylvania legalized casinos and horsetrack betting in 2004, it barred political contributions to state candidates by casino and racetrack owners and others, to “prevent the actual or appearance of corruption that may result from large campaign contributions; ensure the bipartisan administration of this part; and avoid actions that may erode public confidence in the system of representative government.” Pennsylvania’s neighbor, New Jersey has a similar restriction, as so do two other states, and three others have narrower political-contribution bans. A large majority of states with legalized gambling have no such restriction.

Two casino-affiliated people filed a suit alleging that Pennsylvania’s bar on their contributing to state candidates violated their First Amendment free speech rights. The district court ruled in their favor, and today the Third Circuit affirmed. The court assumed that intermediate scrutiny applies and that the state’s interest in combating corruption was sufficient, but it held that the restriction was not “closely drawn” because most other states with legalized gambling do not have them:

Perhaps the Commonwealth is accurately asserting that, like New Jersey and Louisiana, the presence of the gaming industry within its borders creates the need for a law with the breadth of Section 1513. But the inescapable fact here is that the experience of nineteen other states with commercial, nontribal casinos has not generated a similar legislative judgment. And because these schemes place less of a burden on First Amendment rights, the Commonwealth—at a minimum—had the burden of showing why the experiences of New Jersey and Louisiana provide a better basis to assess the proportionality of Section 1513 than one of these other states. It relies on the histories and legislative judgments of two states with similar laws to make its case here. But it does so without reference to states that have taken different approaches less burdensome to First Amendment rights.

The Commonwealth’s implicit appeal to “common sense” as a surrogate for evidence in support of its far-reaching regulatory scheme is noteworthy in this evidence-based inquiry, particularly in light of the approach taken by most other similarly situated states. Our assessment of fit is meaningless unless we can be sure that it is fixed to a reasonable understanding of the real world that Pennsylvania faces. Ultimately, this dearth of evidence is why the Commonwealth falls well short of its burden to show that Section 1513 is closely drawn. Like the District Court, we do not conclude that it is impossible for the Commonwealth to defend the proportionality of its law. We only conclude that it has failed to give us enough information to assess it here. This failure is dispositive.

Joining Nygaard were Jordan and Bibas. Arguing counsel were Howard Hopkirk of the Pa. Attorney General’s office for the Commonwealth and John Hamill of DLA Piper for the would-be contributors.


Norman v. Elkin—civil—partial reversal—Jordan

When a court of appeals begins to lose its good humor with a long-running case, the opening sentence of its opinion reads something like this one:

This appeal, the second we have been asked to decide in this case, marks what is, one hopes, effectively the final chapter of a bitter dispute spanning more than 14 years and involving state and federal courts, two different district court judges, two jury trials, and seemingly innumerable procedural and dispositive motions, both pre- and post-trial.

In this round—Norman VII, improbably; Norman V, the “long and tortuous litigation trail” case, is discussed here—the Third Circuit largely upheld the district court’s conclusion that all but a subset of the plaintiff’s breach of contract claim was time-barred under the discovery rule.

Joining Jordan were Restrepo and Greenberg. The case was decided without oral argument.


U.S. v. Garner—criminal—affirmance—Hardiman

The Third Circuit rejected two defendants’ arguments that their traffic stop was unreasonably prolonged in violation of the Fourth Amendment, that the court violated Rule 404(b) by admitting a prior criminal conviction, and that the evidence was insufficient to convict for conspiracy to distribute drugs.

Joining Hardiman were Porter and Phipps. Arguing counsel were John Yaninek of Thomas Thomas & Hafer for one defendant, Keith Donoghue of the EDPA federal defender for the other, and Scott Ford for the government.


Eshleman v. Patrick Indus.—civil / disability—reversal—McKee

The Third Circuit reversed a district court’s dismissal of a fired employee’s suit under the Americans with Disability Act. The introduction explains:

Eshleman claimed that Patrick Industries regarded him as disabled in violation of the Americans with Disabilities Act of 1990 (the ADA)1 because he took two months of medical leave for a lung biopsy procedure and two vacation days for an upper respiratory infection. The District Court held that the ADA did not cover Eshleman’s “regarded as” claim because his impairment lasted less than six months and was therefore “transitory and minor.” As we explain in more detail below, because the District Court did not conduct an independent analysis into whether Eshleman’s impairment was minor, apart from whether it was transitory, we will reverse and remand for further proceedings.

Joining McKee were Smith and Phipps. Arguing counsel were Samuel Dion of Dion & Goldberger for the appellant and Theresa Zechman of Stevens & Lee for the appellee.


Doe v. Univ. of the Sciences—civil / Title IX—reversal—Porter

A male college student was accused by two female students at the school of having sexual intercourse with each of them without consent. One alleged that she passed out from drinking at a party and woke to him having sex with her, and the other alleged that, after prior consensual sex, she refused to have sex without a condom but he did so anyway. The university retained an attorney to investigate, the investigator concluded that the accused had violated the school’s sexual misconduct policy by engaging in intercourse without either woman’s affirmative consent, and the university expelled him.

In response, the student sued the university, alleging that it violated Title IX by discriminating against him on the basis of his sex and breached its contract with him by violating its student-handbook policy promising “fair” investigations. The district court dismissed, but today the Third Circuit reversed.

As to the Title IX claim, the court joined the Seventh Circuit against at least four other circuits as to the pleading standard, holding that a Title IX claim simply requires facts supporting a plausible inference that the school discriminated against the person on the basis of sex. The student met this standard through two groups of evidence combined: that the university succumbed to pressure from the Obama Department of Education in a 2011 Dear Colleague letter, and that it was motivated by his sex because it didn’t investigate allegations against his two accusers and a witness.

As to the breach of contract claim, the court held that the handbook’s promises of fair and equitable treatment for those accused of sexual misconduct “require at least a real, live, and adversarial hearing and the opportunity for the accused student or his or her representative to cross-examine witnesses—including his or her accusers.”

Joining Porter were Restrepo and Matey. Arguing counsel were Joshua Engel of Engel & Martin for the student and Leslie Greenspan of Tucker Law Group for the university.