John Locke Update / Research Newsletter

Missing Him (Justice Scalia) Already

posted on in Law & Regulation, Property Rights

Last September the John Locke Foundation joined other state policy organizations in an amicus brief supporting the petitioners in a case before the US Supreme Court, Friedricks v. California Teachers Association. As I explained at the time:

The California Teachers Association…wields enormous political power in the Golden State, and it uses its power to promote polices that many citizens, including many teachers, believe are harmful to students. Part of what makes the CTA so powerful is the fact that, under state law, all public school teachers are required to pay fees to the union, regardless of whether they are members and regardless of whether they agree with the policies it promotes….

The petitioners in Friedrichs v. California Teachers Association…argue that, especially in the education context, collective bargaining is inherently political because the issues involved — things like teacher tenure, merit pay, and school choice — are not simply contract details, they are matters of educational policy. On these and similar issues, the petitioning teachers are opposed to the policies being promoted by the union, and they object to being forced to pay for the union’s advocacy of those policies.

Prior to Justice Scalia’s death, the Court was expected to find (probably by a five/four majority) that forcing teachers to pay for union advocacy violates their rights to freedom of association and freedom of speech. But Scalia is gone, and on Tuesday the Court announced that it was “equally divided” on the issue, which means that the California law can stand, at least for now.

This is a disappointment for Ms. Friedrichs and her fellow petitioners, and for thousands of public employees across the country who are forced to support unions even when they deplore what those unions do, but it is not the end of the story. The split decision has no precedential force, and the petitioners’ lawyers have already indicated that they intend to request a rehearing by the full Court after the vacancy left by Scalia’s death has been filled.

Of course, if Scalia’s replacement is a liberal justice like, say, Merrick Garland, a rehearing might be a mistake. A majority opinion supporting mandatory public employee union fees would be much worse than yesterday’s result. All of which goes to show why Scalia will be so sorely missed, and why (assuming it is possible in the current political situation) it is so important to replace him with justice who is equally committed to textualism, originalism, and the rule of law.

That Didn’t Take Long

I have written previously about the Department of Justice’s shameful practice of using “equitable sharing” to encourage state and local law enforcement agencies to confiscate property from citizens without convicting, or even charging, them with crimes. In January I was happy to report a “small piece of good news,” namely, an announcement by the DOJ that, due to budget cuts, it was deferring equitable sharing payments “for the time being.”

The DOJ qualified the good news by adding, “We preserve our ability to resume equitable sharing payments at a later date should the budget picture improve,” and now, just three months later, the Washington Post reports that:

The Justice Department has announced that it is resuming a controversial practice that allows local police departments to funnel a large portion of assets seized from citizens into their own coffers under federal law…. 

“In the months since we made the difficult decision to defer equitable sharing payments…the financial solvency of the [asset forfeiture] fund has improved to the point where it is no longer necessary to continue deferring equitable sharing payments,” spokesman Peter J. Carr said in an email Monday.

When I first wrote about equitable sharing I noted that:

Under North Carolina state law forfeiture is generally permitted only when the owner of the property in question has been charged with and convicted of a crime. Unfortunately, many North Carolina law enforcement agencies have been using the DOJ’s equitable sharing program to evade the protection offered by these features of North Carolina state law.

The resumption of equitable sharing is, therefore, particularly bad news for ordinary citizens in North Carolina. On the other hand, for the North Carolina law enforcement agencies that had become accustomed to sharing federal asset forfeiture funds — and for their allies in Congress — it’s very good news indeed. In a press release on Tuesday, US Representative Mark Walker boasted:

This is a huge win, not just for North Carolina, but for law enforcement agencies across the country…. I am proud of our staff for diligently pursuing these measures.

Guilford County Sheriff B.J. Barnes expressed his gratitude:

The release of federal forfeiture funds back to local law enforcement by the Department of Justice is welcome news….Many law enforcement agencies, including the Guilford County Sheriff’s Office, count on these funds to buy equipment to allow them to continue our fight against the influx of drugs into our community. My thanks to Congressman Mark Walker and the other congressmen and senators who took a leadership role in making this outcome a reality.

And so did Alamance County Sheriff Terry Johnson:

The restoration of the Equitable Sharing Funds will serve as a boost to the morale of law enforcement professionals nationwide…. These monies were used by my agency in the past to purchase much needed equipment…. I would like to thank Congressman Mark Walker and all other elected officials for their efforts in restoring these funds.

Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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