2017-05-02T02:48:50+00:00 May 2nd, 2017|
Ember Jade Garrett in a quiet moment.
On March 15th at 9:19pm, Kristy Garrett, a senior associate in the Anchorage office, welcomed her daughter Ember Jade Garrett into this world. Ember was born weighing 7 pounds, 7 ounces and measuring 19.5 inches. Ember was born at the exact same time as her older brother, Coal Jax. In addition to mom, her dad Paul, her brother Coal, and her dog Murphy are very excited to welcome this sweet girl into their family. Her extended family in Michigan, including her grandparents have plans to meet her in June and July. At 7 weeks old, Ember already visited her Birch Horton friends and is thrilled to be a part of this welcoming community.
There has been a critical development in the legal saga involving the challenge to the constitutionality of the Small Business Administration’s 8(a) Program that has the potential for broad-reaching implications for small disadvantaged businesses participating in this key sector of federal government contracting. Rothe Development Inc. has filed an appeal with the U.S. Supreme Court, asking it to review the U.S. Court of Appeals for the D.C. Circuit’s ruling that Section 8(a) of the Small Business Act is constitutional on its face. An amicus brief filed on behalf of the government in the D.C. Circuit case made a special argument about how Native American companies as a group are subject to a different legal review standard, but the Court never reached the merits of that argument. However, the issue would likely arise again should the case come before the Supreme Court. If the high court elects to consider the appeal, Alaska Native Corporations and Tribes should be prepared to engage in this case.
U.S. Supreme Court
Rothe, a non-minority-owned small business, is challenging Section 8(a) of the Small Business Act, which establishes a business development program for “socially and economically disadvantaged business concerns,” as facially unconstitutional because it provides race-based preferences in federal contracting. The D.C. Circuit’s September 2016 opinion affirmed the 2015 decision of the D.C. District Court that Section 8(a) of the Small Business Act is constitutional on its face. Ultimately, the Circuit Court held that because Rothe only attacked the Section 8(a) statute (not the SBA’s regulations implementing the 8(a) Program), and because it found that Section 8(a) itself is race-neutral, the statute did not have to pass the strict scrutiny analysis applied by the district court. Instead, the statute only needed to pass “rational basis” analysis, which only requires that the statute bears a “rational relation” to a “legitimate end.” This is a lower bar of analysis than applied by the district court, and the Circuit Court found that Section 8(a) easily passed this test.
After losing its case before the D.C. Circuit three-judge panel, Rothe filed a petition for rehearing en banc (by the full panel of judges) in the D.C. Circuit. The D.C. Circuit denied that petition in January 2017.
Rothe’s Petition for a Writ of Certiorari to the Supreme Court, docketed April 17, 2017, asks the Court to consider two legal questions:
Whether a statutory program that requires an agency to distribute benefits to “socially disadvantaged individuals,” and defines “socially disadvantaged” in terms of membership in certain racial minority groups, classifies on the basis of race and is thus subject to strict scrutiny.
Whether a statute that may not classify exclusively on the basis of race, but uses race as a factor in determining eligibility for benefits, is subject to strict scrutiny.
The government now has three options: it can agree the Court should review the case, it can waive its right to file a response, or it can file a brief in opposition. The government’s response is due May 17, 2017. Rothe would have an opportunity to reply. At the certiorari stage, amicus briefs are normally only filed by those who agree that the Court should review the case.
It is not a foregone conclusion that the Supreme Court will chose to take up the appeal. Of the 7,000 – 8,000 certiorari petitions filed each year, the Court only hears about 80. Four of the nine justices must vote to hear the case. Given the current makeup of the Court, it is difficult to predict if the Court will accept the case. However, it has been over 15 years since the Supreme Court has really considered an affirmative action case involving federal contracting.
Small disadvantaged businesses participating in this key program for federal government contracting should continue to closely monitor the progress of this petition at the Supreme Court. Due to the potential far-reaching consequences of an adverse decision for the 8(a) Program and for federal contracting generally, Alaska Native Corporations and Tribes should strongly consider and be prepared to engage in this case through the submission of an amicus brief to the Court – as they did in the previous stages of this case – if the justices decide to grant review.
If your business would like to participate in a potential amicus process, please contact Jon DeVore or Melinda Meade Meyers at (202) 659-5800.
On April 19, 2017, the U.S. Supreme Court heard oral arguments in Trinity Lutheran Church of Columbia v. Pauley, which presents the question of whether religiously affiliated schools can be constitutionally denied equal access to a government benefit, even if the benefit has nothing to do with matters of faith.
This case involves a program in Missouri that provides rubberized material for school playgrounds. In 2012, Trinity Lutheran Church applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground program, ranked Trinity Lutheran’s application 5th out of the 44 that were submitted. Despite its ranking, the department denied Trinity Lutheran’s application on the basis of a provision in the state constitution that prohibits allocation of money from the state treasury.
At the heart of this case is a provision in Missouri’s constitution that bars parochial schools from such public benefits, otherwise known as the “Blaine Amendment.” The amendment reads in part: “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination or religion.”
The church is challenging the Department’s decision arguing that its exclusion from a state program that provides grants to help nonprofits buy rubber playground surfaces discriminates against religious institutions and, therefore, violates the Constitution. The State argues that there is no constitutional violation because the church can still worship or run its daycare; in other words, the state’s decision in no way impedes the church’s ability to practice or worship. However, in a somewhat unorthodox move, Missouri’s newly elected Governor, Eric Greitens, changed the state’s policy by lifting the ban on state grants for religious organizations. Therefore, the first question the Court will address is whether the Governor’s policy change has rendered this case moot, or is no longer ripe for decision.
Assuming the Court permits the case to go forward, the decision could subject Alaska, as well as 35 other states with similar constitutional mandates, to the same type of challenge. Alaska’s Constitution, at least in its intent, essentially mirrors Missouri’s prohibition for allocating tax dollars to religious or private educational organizations. Specifically, the Constitution states that: “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.” The Constitution further restricts the use of public money for private or religious institutions by stating: “No tax shall be levied, or appropriation of public money made, or public property transferred, nor shall the public credit be used, except for a public purpose.”
If the Court agrees with the church that the constitutional mandate of separation of church and state is being taken too far because it is no longer being applied neutrally, it could result in taxpayer funds going to groups that discriminate based on sexual orientation or religion. Conversely, if the Court upholds the constitutional mandate, everything from school vouchers to fire and safety protection for private religious schools could be in jeopardy. One thing is for sure, many interested parties are anxiously awaiting the Court’s ruling in this case.
The great thing about practicing law in Alaska is that our clients generally do not fit a specific mold. In fact, some of them are downright quirky in their array of interests. I was lucky enough to get to spend some free time with one of our clients, Christine Roalofs, this past March. Christine is a Dentist by trade, but she is not your average Dentist. Christine is an entrepreneur and an adventurer. She owns her own dental practice (among other businesses including a start-up restaurant), but on this particular day, she met me at the Chugiak dog mushers club in Birchwood. You heard me right. This Dentist is also a bona fide, get-out-in-the-wilderness, brave-the-conditions, living-the-dream, dog musher!
Christine Roalofs running the 2013 Iditarod as a rookie.
After saying “hi” and shaking hands she handed me a shovel, thereby putting me in charge of dog poop (can’t have that lying around unabated in a parking lot used by multitudes of dogs). I gladly picked up after the dogs while watching Christine put the team and sled together. When they were ready, she showed me how to ride on the back of the sled behind her, how to use the foot brake, and told me to watch her feet, as she managed the sled’s speed and turns both with verbal commands and by the use of body weight by stepping on a mat connected to the sled between the runners where she stands.
After this initial instruction Christine asked if I was ready, told me to get on, cued up the dogs and we were OFF!
Dogs eagerly waiting to run.
Wow. I love living in Alaska! Where else would a client take me out to do something as cool as this? I watched the dogs happily running, I mean, JOYOUSLY running over the snow and through the woods. We went on a winding trail with several opportunities to loop back around for shorter or longer distances. Christine told me about the various dogs, some young and still in training. She told me how she watches the young dogs to see how their personalities best fit in with the team so she may put them in a position suited to their nature and strengths. She told me about falling in love with dog mushing and of the various races she and the dogs were training for. Among several other races, Christine has taken on and finished the Iditarod. Such an accomplishment puts her in a league with only a handful of other amazing women. And I was riding with her.
That is, until she pulled over and told me to drive. Oh boy. Okay. I can do this, I thought. And with a little help from the backseat driver, I did!
Christine Roalofs and dogs preparing for departure.
While it was a fairly short and sweet trip, it will go down as one of the coolest things I have ever done.
Thank you Christine. I will never forget it. Bucket list item, check.
For more information on Christine Roalofs, check out the below links:
BHBC is pleased to announce that Sarah Badten will appear on KSKA’s public radio show Justice Alaska on Hometown, Alaska on Wednesday, April 19, 2017 from 2pm-3pm. Kathleen McCoy hosts Hometown Alaska and began doing a series on legal issues and access to the court system, called Justice Alaska, co-hosted with Retired Judge Elaine Andrews. Ms. Badten, along with an attorney from Alaska Legal Services, will be discussing landlord-tenant relationships and related legal issues, as well as taking questions from listeners. This segment will focus on educating the public about popular landlord-tenant matters and how to navigate through potential disputes and legal issues. Potential topics include dispute resolution, early lease termination, withholding rent and eviction procedures.
Here are the details:
Show:Justice Alaska on Hometown, Alaska
Station: 91.1 FM, Alaska Public Media
Date: Wednesday April 19, 2:00 pm
Live: Show is conversational for one hour. Listeners can dial in or email questions. Hosts and guests have an ongoing conversation on different elements of the topic.
Hosts: Kathleen McCoy and Elaine Andrews
Other confirmed guest: Alaska Legal Services attorney, Goriune Dudukgian
For more information regarding the Justice Alaska show, see the below links. To listen to any of the shows, just click on the website for the topic / show you’re interested in listening to, then scroll down to the speaker icon and click the play button.
Can the Change of Administration in Washington DC Also Solve Your Company’s or Industry’s Regulatory Problem?
Hunting groups in Alaska and around the country, and many Native and non-Native residents of Alaska, strongly opposed a regulation adopted in the waning months of the Obama Administration that largely transferred management of public hunting on National Wildlife Refuges in Alaska from the State of Alaska’s Board of Game to the U.S. Fish and Wildlife Service. Several groups and individuals represented by Jim Lister and Zach Olson of BHBC, sued to overturn the regulation. The State of Alaska filed a similar lawsuit.
A large part of this regulatory issue was solved on March 21, 2017 when Congress, controlled by Republicans, passed a Resolution under the Congressional Review Act (CRA) rescinding the Alaska Refuges Rule. President Trump then signed the measure into law, thereby rescinding the rule. The CRA’s “magic” is that it reduces the normal 60 vote threshold needed to end debate in the Senate to 51 votes. This allowed the Senate to approve the bill on a 52 to 49 vote. The lawsuit will continue to challenge a similar rule regarding hunting on National Preserves in Alaska that was adopted too long ago to be repealed through the CRA.
On behalf of the same client group, the BHBC team wrote the Alaska Congressional delegation in January, 2017 to request introduction of resolution under the CRA disapproving the Rule. After Congressman Don Young of Alaska introduced the CRA resolution and shepherded it through the House of Representatives, Senator Dan Sullivan (with the strong support of Senator Lisa Murkowski) pushed the resolution through the Senate. To support this effort, the BHBC team conducted a dozen briefings of Senate offices from States other than Alaska, explaining this Alaska-specific issue, and the adverse precedent the challenged rule set, threatening state game management in all States.
Can the CRA similarly solve your regulatory problem dating from the tail-end of the Obama Administration?
Probably not, but the election has also made other agency-level remedies easier to use, and they may solve your problem. While there may well be exceptions for older rules that were never properly sent by the agency to Congress for review, the CRA window for repealing rules adopted at the end of the prior Administration that the agency properly sent to Congress expires soon, during May, 2017 (the exact date is debatable). Using the CRA is also a “heavy lift.” There is only so much time Congress can devote to one agency rule.
Most regulatory problems dating from the last Administration are better solved by agency-level remedies that are easier to use because of the election results:
Petitioning the agency, now coming under new political leadership, to rescind the problematic rule or other agency decision. If the agency action was a rule, the agency will likely need to seek public comment.
Petitioning the agency to stay enforcement of the problematic rule or other action while the agency reconsiders it. A stay of enforcement should not require the agency to first seek public comment. Showing the agency procedural defects in the adoption of the rule or other action is helpful, not essential.
Initiating a new agency proceeding. For example, in some circumstances, it may be better to submit a new permit application than to seek reconsideration of a similar application denied by the last Administration. Similarly, it may be better to petition to amend or clarify a bad rule than to petition for total repeal.
Filing a lawsuit for judicial review of the rule, permit denial/grant, or other action or decision of the prior Administration. The new Administration may be amenable to a compromise resolution in some cases. However, one must be careful, as the strong instinct of the permanent civil servants who make many of the decisions will be to defend their agency in court.