Weekly litigation report — November 12, 2016

November 12, 2016 | By JAMES BURLING
  • School choice in Montana
  • Discrimination in government contracting
  • Waters of the United States

School choice in Montana

We filed this reply brief in Armstrong v. Kadas, our challenge to the Montana Department of Revenue’s attempt to undercut a voter initiative to establish tax credits to be used to help parents send their children to schools of the parent’s choice. After the Department adopted a regulation to eliminate all parochial schools from the program, we sued.

Discrimination in government contracting

In Midwest Fence Corp. v. United States Department of Transportation the Seventh Circuit Court of Appeals rejected in this opinion Midwest Fence’s challenge to race-conscious contracting programs of the U.S. Department of Transportation and the Illinois State Toll Highway Authority. The Court joined other federal circuit courts holding that the federal DBE program is facially constitutional, and serves a compelling governmental interest by remedying a history of discrimination in highway contracting. The Court found that the Illinois state programs survive strict scrutiny because the State established a substantial basis in evidence to support the need to remedy the effects of past discrimination in the state, and the programs are narrowly tailored to serve that remedial purpose. The Court noted that the result may have been different if Midwest Fence had presented evidence that subcontractors were being frozen out of the market or bearing the entire burden of the DBE program.That would have required a trial. But Midwest Fence showed only that the Illinois program could yield that result, and that was not enough to create a factual question. For more on the run-up to this case, see our blog here.

Waters of the United States

In Washington Cattlemen’s Association v EPA we received a decision from the Minnesota District Court dismissing our WOTUS challenge because of the merits litigation will be heard in the Sixth Circuit Court of Appeals. You may recall that we filed our challenge to the WOTUS rule in both the district court and in the court of appeals. After the Sixth Circuit assumed jurisdiction to hear the challenge and consolidated all the appellate court cases, the government sought to dismiss the district court cases, including ours. Yesterday, in deference to the Sixth Circuit decision, the District Court of Minnesota dismissed our case in that court. This will have no impact on our ongoing challenge to the WOTUS rule because we are now litigating the case on the merits in the Sixth Circuit. And, we are awaiting a decision from the Supreme Court on whether it will address the question of venue.  If the Supreme Court ultimately decides that challenges to the WOTUS rule should have been brought in the district court, we are free to refile our case in Minnesota at that time.