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The 4th U.S. Circuit Court of Appeals has issued several noteworthy opinions on constitutional issues during the first half of 2005. These opinions have addressed “hot button” issues such as abortion and the separation of church and state as well as important, albeit less sensational, topics such as the dormant commerce clause. Perhaps the most heated recent debate on the court occurred in a “partial-birth abortion” case, Richmond Medical Center for Women v. Hicks , 409 F.3d 619 (4th Cir. 2005). The 4th Circuit concluded that a Virginia statute criminalizing what it termed “partial birth infanticide” violated the 14th Amendment because it failed to contain an exception for the health of the mother. However, Judge M. Blane Michael’s majority opinion was criticized in a strongly worded dissent by Judge Paul V. Niemeyer as “a momentous step in disconnecting our law from accepted moral norms.” Id. at 645. In Hicks , the challenged statute prohibited the intentional killing of “a human infant who has been born alive, but who has not been completely extracted or expelled from its mother.” Born alive meant having some “evidence of life,” such as a beating heart, after being “substantially expelled” from the mother. The statute included exceptions “to prevent the death of the mother” and for certain specified abortion techniques. However, the statute effectively banned other abortion procedures in which the fetal skull is collapsed within the mother or in which fetal dismemberment occurs outside the mother’s body. A medical center and its medical director, who performed previability abortions using the prohibited techniques, challenged the statute. The federal district court enjoined Virginia from enforcing it and granted summary judgment for the plaintiffs. The 4th Circuit affirmed in an opinion by Michael that was joined by Judge Diana Motz. The court concluded that the U.S. Supreme Court “unequivocally held [in Stenberg v. Carhart , 530 U.S. 914 (2000)] that any ban on partial-birth abortion must include an exception for the health of the mother.” 409 F.3d at 622. In Carhart , the Supreme Court invalidated a Nebraska statute that banned certain abortion procedures, including ones challenged in Hicks . The Hicks majority also relied on Carhart to conclude that there is substantial medical authority for the proposition that a ban on the abortion procedures in question would create a significant health risk. In addition, the majority looked to Carhart to conclude that facial challenges of abortion statutes are not subject to the standard in U.S. v. Salerno , 481 U.S. 739 (1987), which required that, to prevail in a facial challenge, “the challenger must establish that no set of circumstances exists under which the Act would be valid.” 409 F.3d at 627. Niemeyer, accusing the majority of creating “bold, new law,” rejected the notion that any per se rule existed requiring a health exception in partial-birth abortion laws. Id. at 630. He distinguished Carhart on the ground that it dealt with a statute prohibiting abortion procedures, whereas the Virginia statute was expressly aimed at protecting the fetus. He also questioned the majority’s conclusion that health risks had been properly established, noting that Carhart was decided after a full trial, which did not occur in Hicks . The dissent also disagreed with the decision not to apply Salerno , arguing that the majority had ignored prior 4th Circuit precedent and disagreeing with the majority’s conclusion that the 4th Circuit had not previously addressed the issue squarely. Ultimately, Niemeyer sharply criticized the panel majority, accusing it of committing an “affront to Virginia’s sovereignty,” tarring liberty “with the color of political ideology” and mechanically applying reason without “accountability to the mind’s sense of right.” Id. at 645-46. ‘In God We Trust’ The 4th Circuit also returned to the First Amendment’s establishment clause, an area of the law that previously has exposed deep divisions among the circuit’s judges. In a 2003 case, the court broadly interpreted that clause’s proscriptions and found unconstitutional supper prayers at the Virginia Military Institute. See Mellen v. Bunting , 327 F.3d 355 (4th Cir. 2003). Recently, however, the court narrowly interpreted the establishment clause in two cases, one involving an “In God We Trust” inscription on a county government center and the other addressing whether a county board could exclude a practitioner of witchcraft from its invocation panel. In Lambeth v. Board of Commissioners of Davidson County, N.C. , 407 F.3d 266 (4th Cir. 2005), two attorneys alleged that an “In God We Trust” inscription recently installed on the fa�ade of the county’s government center violated the establishment clause. The attorneys claimed that, although the phrase is the national motto, its religious nature was emphasized at the county board meeting in which the inscription was approved. In an opinion by Judge Robert B. King, the 4th Circuit affirmed the dismissal of the action. Applying the three-prong test set forth in Lemon v. Kurtzman , 403 U.S. 602 (1971), the court first found that the plaintiffs did not sufficiently allege a lack of secular intent, since the complaint acknowledged that the phrase’s status as the national motto was discussed at the board meeting. Second, it found that the inscription did not have the principal or primary effect of advancing or inhibiting religion or have the effect of endorsing religion. Looking to uses of the motto on coins and in federal government buildings, the court concluded that a reasonable observer would not view the inscription as an endorsement of religion, given the motto’s traditional, patriotic uses. Finally, the court held that allegations regarding the inscription’s “political divisiveness” did not sufficiently allege excessive entanglement between government and religion. The court noted, for example, that-in contrast to the Virginia Military Institute prayer case-the inscription did not require any “continued and repeated government involvement with religion.” 407 F.3d at 273.
Controversial nominees Based in Richmond, Va., the 4th U.S. Circuit Court of Appeals includes Maryland, North Carolina, South Carolina, Virginia and West Virginia. The court was created in 1801 and encompasses a geographical area that was 80% Confederate territory during the Civil War. Thirteen judges sit on the 4th Circuit. There are two vacancies. The sitting judges are: Chief Judge William W. Wilkins, nominated by President Ronald Reagan, confirmed on June 13, 1986. H. Emory Widener Jr., nominated by President Richard Nixon, confirmed on Oct. 12, 1972. J. Harvie Wilkinson III, nominated by Reagan, confirmed on Aug. 9, 1984. Paul V. Niemeyer, nominated by President George H.W. Bush, confirmed on Aug. 3, 1990. J. Michael Luttig, nominated by George H.W. Bush, confirmed on July 26, 1991. Karen J. Williams, nominated by George H.W. Bush, confirmed on Feb. 27, 1992. M. Blane Michael, nominated by President Bill Clinton, confirmed on Sept. 30, 1993. Diana Gribbon Motz, nominated by Clinton, confirmed on June 15, 1994. William B. Traxler Jr., nominated by Clinton, confirmed on Sept. 28, 1998. Robert B. King, nominated by Clinton, confirmed on Oct. 8, 1998. Roger L. Gregory, initially a December 2000 recess appointment by Clinton, was confirmed by the U.S. Senate on July 20, 2001. Dennis W. Shedd, nominated by President George W. Bush, confirmed on Nov. 19, 2002 Allyson K. Duncan, nominated by George W. Bush, confirmed on July 17, 2003. There is one senior judge on duty: Clyde H. Hamilton, nominated by George H.W. Bush, confirmed in 1991. Judge Terrence Boyle of the Eastern District of North Carolina was renominated by George W. Bush this year for the third time for a seat on the 4th Circuit. The Senate Judiciary Committee approved him in June, over the objections of all Democrats on the committee; he awaits a confirmation vote of the full Senate. (His nomination did not move forward in the previous Congress because then-Senator John Edwards, D-N.C., from Boyle’s home state, opposed it.) Bush also renominated William Haynes II, the U.S. Department of Defense general counsel, this year. The committee has yet to consider his nomination. In his first term, Bush nominated Claude Allen, one of the president’s top domestic policy advisers, but the Senate Democrats blocked the nomination. No 4th Circuit judge has yet been elevated to the U.S. Supreme Court. President Richard Nixon nominated former 4th Circuit Chief Judge Clement F. Haynsworth Jr. in 1969, but the Senate rejected the nomination, 55-45.

In a more colorful case, the 4th Circuit also concluded that the county board for Chesterfield County, Va., could exclude a self-described witch from the board’s list of clergy available to give the invocation at board meetings. Simpson v. Chesterfield County Board of Supervisors , 404 F.3d 276 (4th Cir. 2005). The county board refused the request of the plaintiff, a member of the Reclaiming Tradition of Wicca, to be added to the list, which was open only to religious leaders who invoked a “divinity that is consistent with the Judeo-Christian tradition.” Id. at 280. The district court found that the county violated the establishment clause by engaging in an impermissible denominational preference, but that the plaintiff’s free speech rights were not violated. The 4th Circuit reversed the establishment clause holding and affirmed the decision with regard to free speech in an opinion by Judge J. Harvie Wilkinson III. In lieu of the Lemon test, the court applied the legislative invocation case of Marsh v. Chambers , 463 U.S. 783 (1983). Noting Marsh ‘s conclusion that nonsectarian legislative prayer does not violate the establishment clause, the court emphasized the county’s efforts at including diverse creeds, including Judaism and Islam, and at avoiding sectarian practices such as the use of Christ’s name. The court also rejected the plaintiff’s argument that, even if the invocations at the board meetings are constitutional, it was unconstitutional to exclude her. Looking to Marsh , which allowed the Nebraska Legislature to employ a single Presbyterian minister as its paid chaplain, the court noted that the county’s selection practices were more inclusive and “not only sought but achieved diversity.” 404 F.3d at 285. The “Judeo-Christian tradition,” broadened by the county board to include other monotheistic religions such as Islam, was sufficiently inclusive for the court, which warned against “judicial fine-tuning of legislative prayer policies.” Id. at 286. The 4th Circuit also agreed with the district court that the county did not violate the plaintiff’s rights under the free exercise or free speech clauses of the First Amendment or under the equal protection clause of the 14th Amendment. The 4th Circuit specifically agreed with the district court’s determination that the invocation was merely a brief pronouncement of “simple values” which was not intended as “public discourse” or the “exercise of one’s religion.” 404 F.3d at 288. Dormant commerce clause In the realm of business law, the 4th Circuit issued an important dormant commerce clause opinion, striking down a Virginia statute protecting motorcycle dealerships from new competition. See Yahama Motor Corp. v. Jim’s Motorcycle Inc. , 401 F.3d 560 (4th Cir. 2005). Virginia had a long-standing statute granting an existing motorcycle dealer the right to protest the establishment of a new dealership for the same brand in its market area, a region with up to a 20-mile radius. Upon a protest, the manufacturer would be required to show that the market could support another dealership. A 1997 addition to the statute, however, allowed a protest to the Department of Motor Vehicles by any existing franchise dealer located anywhere in the state. The DMV could refer the protest to a formal evidentiary hearing to determine the ability of the area in question to support a new dealership. This formal process, which could take years to resolve, could be initiated upon an informal showing that the protesting dealership serviced the market needs of the county, city or town in which the new dealership was to be located “in a not insignificant or insubstantial way.” Id. at 564. Based on this low threshold, an existing dealership could potentially delay or prevent the opening of a new dealership hundreds of miles away by demonstrating even a few sales in the area in which the new dealership was planned. In an opinion by Michael, the court reversed the district court’s decision that the new provision passed muster under the dormant commerce clause. Noting that the commerce clause implicitly limits the powers of states to erect barriers against interstate trade, the court applied the Supreme Court’s existing two-tier dormant commerce clause framework. First, the court inquired whether the new statutory provision clearly discriminated against interstate commerce. If such discrimination was present, the statute would be constitutional only if “demonstrably justified” by a state interest unrelated to economic protectionism. Id. at 567. The court quickly concluded that the provision-which the court found had the legitimate purpose of protecting Virginia dealers from unfair manufacturers-was neutral on its face and did not distinguish between in-state and out-of-state manufacturers. The court therefore applied the second step, known as the Pike balancing test. See Pike v. Bruce Church Inc. , 397 U.S. 137, 142 (1970). Under that standard, which applies if a statute imposes only incidental effects on interstate commerce, the court inquires whether its local benefits outweigh the burdens on interstate commerce. The 4th Circuit held that the Virginia statute was one of the rare state laws that failed the Pike balancing test. The court found essentially no additional benefit in the new provision allowing protest by any dealership in the state, given that before amendment, the statute allowed a protest by dealers in nearby markets. Meanwhile, the court concluded that the new provision imposed severe burdens on interstate commerce. The court also noted that the new provision had no counterpart in other states and created a virtual certainty that every new dealership would be opposed. While manufacturers can reasonably predict areas that are ripe for unopposed expansion in other states and plan accordingly, the court explained, the inevitable protests in Virginia would make expansions more burdensome there than anywhere else. The resulting redirection of the manufacturer’s expansion efforts to other states, along with the unwillingness of would-be franchisees to endure the lengthy and expensive protest process, combined to reduce competition. The 4th Circuit stressed that the burdens of the new provision fell predominately on out-of-state interests, since no motorcycle manufacturers are located in Virginia. It concluded that the excessive breadth of the provision, which failed to impose a rational geographic limit on protest rights, exceeded its benefits. The court suggested that its decision would prevent a “slippery slope” of “extend[ing] similar protection to automobile dealers and franchisees of other product lines, thereby turning Virginia into an island of economic protectionism.” 401 F.3d at 573. Finally, the 4th Circuit rejected the district court’s novel limitation of the Pike balancing test to cases in which there is a “compelling need for national uniformity in regulation.” Yahama Motor Corp. v. Smit , 276 F. Supp. 2d 490, 514 (E.D. Va. 2003). Consistent with the holdings of other courts, the 4th Circuit concluded that a court must apply the Pike balancing test whenever interstate commerce is burdened by a state law imposing barriers to market entry. Adam H. Charnes is a partner in the Winston-Salem, N.C., office of Atlanta’s Kilpatrick Stockton, where he practices appellate, constitutional and complex commercial litigation. Elliot A. Fus is an associate in that office who practices complex commercial and insurance coverage litigation.

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