What Does Same Sex Marriage Have To Do With Garbage?

By John Moore, Henn, Etzel and Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.


(PART I: What Does Proposition 8 Have To Do With Zero Waste?)

For one thing, both subjects have been examined by the Supreme Court in terms of their constitutionality (or lack thereof) under the Fourteenth Amendment. That amendment, ratified as a legacy of the Civil War to equalize the races of Americans, states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The recent Supreme Court case of Obergefell v. Hodges[i], decided with a 5-4 majority, prohibits discrimination against same sex couples in issuing marriage licenses, holds that same sex marriage is one of the “liberties” described in the 14th Amendment.

In 1905 the same Court held that garbage, as described in local ordinances, was not “property”, which the same amendment says cannot be taken without due process. There is no evidence to suggest that the drafters or ratifiers of the 14th Amendment ever considered either same-sex marriage or garbage. In his dissent in Obergefell, Justice Scalia eloquently frames the question that if the constitutional grant of the power to make laws is reserved to the “People”, what the five member majority of the Court did in Obergefell was to override that constitutional power.

When examining existing legal precedent relating to discard management, it is well to remember that 5 votes on the Supreme Court can make or change a law. It is also worth remembering that one person’s perception of a just change is another’s view that the same change is revolutionary.

The framers of the constitution left open to interpretation whether future acts of the republic were to be measured by the truths and values of 1793 or was legal interpretation to evolve with the republic. The fact that the power to make laws was reserved to the People and their elected legislators suggests the former. And since the constitution clearly reserves lawmaking power to the states unless the constitution provides otherwise[ii], an important question is which of those “unreserved powers” is federal in nature and enforceable by federal courts. Many Court decisions today applauded were required to navigate these conundrums.

For example, the 14th amendment does not say there is a federal power to enforce its premise of equal protection of the laws. Southern (former confederate) states long argued successfully that only the states had such enforcement power and they had no interest in enforcing it except in the manner they interpreted the Amendment. In 1873, a Supreme Court of Louisiana decision that a New Orleans exclusive franchise to maintain slaughterhouses was constitutional was upheld by the US Supreme Court on the ground that even if the franchise grant were a 14th Amendment violation, the federal judicial system had no power to enjoin it. [iii]

In another example, the southern states’ concept of “separate but equal” was sanctioned by the Supreme Court because it found that the framers and ratifiers of the 14th Amendment lived in a segregated society and the language of the Amendment does not suggest any intent to change that. The Court’s precedent holding that separate but equal satisfied the 14th Amendment lasted from 1896[iv] to 1954[v]. In those 60 years the 14th Amendment never changed, only the Court’s perception of what was right had changed. The 1954 decision in Brown v. Board of Education was unanimous, unlike the 5-4 majority in Obergefell.

For yet another example, in 1857, a 7-2 majority of the same Court decided that a slave named Dred Scott could not sue in federal court to have his freedom decreed because he was not a citizen of Missouri, but was rather “property” and property could not sue anyone in federal court. This decision, authored by Chief Justice Roger Taney, himself a slaveholder, rested its constitutional justification upon the view that the “People” described in the Constitution and the Declaration of Independence (the same “People identified by Justice Scalia in Obergefell) were intended by the drafters not to include African people or their descendants. Chief Justice Taney also believed that the states were not bound to a permanent union but rather had joined, and could leave, the union as they chose. Opposition to that premise led to the Civil War.

Abraham Lincoln made a revolutionary response to the Dred Scott decision: “If this important decision had been made by unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true, or, if wanting in some of those, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay even revolutionary to not acquiesce in it as precedent.

But when, as it true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.”

Lincoln’s Secretary of State William Seward expressed this view of Dred Scott more strongly, “Judicial usurpation is more odious and intolerable than any other among manifold practices of tyranny.” There are those who echo this sentiment about Obergfell and many other Court decisions.

Obergefell is an outgrowth of earlier court rulings about marriage rights under the 14th Amendment: In 1965, the Court struck down[vi] a Connecticut law prohibiting married couples from obtaining contraceptives. In 1967, the Court struck down[vii] a Virginia law prohibiting marriage between persons of a different race. For many people today those outcomes are just, and it is all right that the Supreme Court and not the People made those judgments. The Obergefell decision rests partly on the Court’s 1967 ruling in the Virginia case.

So let us examine garbage under the constitution. The Court decided two major cases in 1905, the first in Detriot and the second arising from San Francisco. In Gardner v. Michigan[viii] the Court affirmed a conviction of a man charged criminally with collecting garbage in violation of a Detroit city ordinance. Garbage was defined by the ordinance as: “The word ‘garbage’ shall be held to include every refuse accumulation of animal, fruit or vegetable matter that attends the preparation, use, cooking, dealing in or storing of meat, fish, fowl, food, fruit or vegetables, including dead animals and condemned foods found within the city limits.”

In California Reduction Company v. Sanitary Reduction Works[ix], San Francisco, by charter, provided for the exclusive franchise (which exists still 110 years later) for collection of garbage, which was challenged by a scavenging, would-be-competitor as a 14th amendment violation. While the definition of garbage under the Charter cannot be found in the opinion, the purpose of the Charter was to eliminate the then-prevalent noxious and disease-producing conditions when generators indiscriminately dumped their garbage into the public streets and waterways. The Court was satisfied that the City was justified by public health and safety concerns to pass this Charter.[x]

The Court in the 1905 San Francisco case recited two principles nowhere discussed in the 2015 Obergefell case and are quite inconsistent with the Obergefell outcome:

“…if a regulation, enacted by competent public authority avowedly for the protection of the public health, has a real, substantial relation to that object, the courts will not strike it down upon grounds merely of public policy or expediency.

“the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not an unrestricted license to act according to one’s own will.”

The Court’s viewpoint in the Detroit case that garbage was not property seems to be at odds with views of later Courts, composed of different justices, that: 1) garbage was an article of interstate commerce[xi], (without stating exactly what in the nature of garbage made it an article of commerce) and; 2) Justice Kennedy’s (who authored Obegefell) statement in 1994 [xii] that “what makes garbage a profitable business is not its own worth but the fact that its possessor must pay to get rid of it.”[xiii]

Justice (later Chief Justice) Rehnquist dissented from the holding that garbage is an article of commerce since prior court precedent[xiv] convinced him, “I simply see no way to distinguish solid waste, on the record of this case, from germ-infected rags, diseased meat, and other noxious items.” In other words, the same type of material that was considered “filth” by turn of the 20th century writers; not what can be found in source separated recyclables in 2015.

So what has same sex marriage to do with garbage? Maybe garbage is not an article of commerce. Maybe regulating the collection of garbage is no longer a proper subject of government regulation. If no legislative action is required to command these outcomes, maybe rights under the constitution are more ephemeral than the framers desired. And today’s just resolution of an important issue by the Courts is tomorrow’s tyranny. Just saying.

September 27, Annual Picnic
September 17, Board Meeting
September 28-30, Resource Recycling Conference, Indianapolis
October 15, Board Meeting
November 19, Board Meeting
# # #

[i] Obergefell v. Hodges 2015 WL 213646 (2015)

[ii] 10th Amendment, US Constitution

[iii] Slaughter-House Cases 16 Wall. 36 (1873)

[iv] Plessy v. Ferguson 163 US 537 (1896)

[v] Brown v. Board of Education 347 US 483(1954)

[vi] Griswold v. Connecticut 381 US 479(1965)

[vii] Loving v. Virginia 388 US 1(1967)

[viii] Gardner v. Michigan 199 US 325 (1905)

[ix] California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306 (1905)

[x] The Court and the cities enacting these laws were influenced by the then-seminal work of “Municipal Sanitation in the United States” by Charles Value Chapin. Chapin describes the need to regulate the disposal of what he called “filth”, which he characterized as “swill, brine, animal urine, stinking noxious liquid, butcher’s offal, and putrid animal or vegetable matter” (see p. 145-150

[xi] Philadelphia v. New Jersey 417 US 617 (1978)

[xii] C & A Carbone v. Town of Clarkstown, 511 U.S. 383 (1994)

[xiv] Asbell v. Kansas 209 U.S. 251 (1908).

Why You Need Lawyers

A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.
A few months back I reported about a 3-judge panel of the Ninth Circuit Court of Appeals decision rejecting the constitutional Commerce Clause challenge to Alameda County’s drug EPR program (BTW- Longs in uptown Oakland does not accept take-back). Big pharma had asserted that the County ordinance impermissibly regulated out of state conduct. Since the ordinance expressly only applies to companies that sell drugs in the county and applies even-handily to such companies whether based inside or outside the county and state, I thought to myself: pretty obvious and the Court got it right.

But this week an 11-judge panel of the same Court (not including any of the judges in the pharma case) came to an opposite conclusion involving sales of fine art in St. Francis Foundation v. Christie’s et al. A California statute imposes a 5% royalty, payable to the artist, when a work of fine art is re-sold. The purpose is so when someone who bought an Andy Warhol print of a soup can for $10 from the artist when young, re-sells it many years later for $10 million, the artist, now successful, is rewarded. The California statute expressly applies only when a seller resides in California or the sale transaction occurred in California. Like the pharma case, when applied within this structure, out of state and in-state art sellers are treated the same.

In this new case, the plaintiffs (artists or their estates) sued three large agents for resellers of fine art, Christies, Sothebys and Ebay for not making the required royalty payment. Plaintiffs claimed unpaid royalties on sales both in California and in other states. Without distinguishing the claims about the in-state sales from the out-of-state ones, the Court decided that the California statute does violate the Commerce Clause because the legislation can apply to out-of-state conduct, which the Commerce Clause precludes. What? How can that be?

So the Court made up a hypothetical: what if a California resident living part time in New York buys fine art in North Dakota? This transaction has no relationship to California other than the residency of the buyer is there. From this hypothetical – not the reported facts of this case, the Court summarily concluded, “We easily conclude that the royalty requirement, as applied to out-of-state sales by California residents, violates the dormant Commerce Clause.” Without further explanation.

The Court did not reveal how the transactions subject to this lawsuit were analogous to this hypothetical. The Court offered no further explanation about how the California law regulated conduct out of state. The remainder of the opinion is a discussion about how the part of the statute applicable to the residence of the seller is legally severable from the rest of the statute that regulates California sales transactions, so that the former is effectively stricken while the rest remains valid.

Appellate Court judges and justices tend to be more result-oriented and less objectively analytical than they might confess in public. The result is either popular or it is not. Roe v. Wade, for example, is founded on a constitutional principle not actually found in the constitution. As another example, the Supreme Court case establishing that the Commerce Clause applies to solid waste because solid waste is an “article of interstate commerce”, never explains why that might be so, or what law it was relying upon to so state. Why a Court protects artists and competing waste haulers but not drug companies is anybody’s guess. I mention this only to highlight the unpredictability of the outcome of disputes that are litigated. But I can’t really complain, it creates work for me.

Franchise Fee Is A Tax

A monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.
On February 26, 2015, the California Court of Appeal for the Second Appellate District, entered into the murky fray of Proposition 218 interpretation and attempted to clarify when a franchise fee is a tax requiring pre-approval by the electorate. Though the case arose in the context of an electrical service utility, the Court’s analysis might well apply to other municipal franchises, such as solid waste.

In Jacks v. City of Santa Barbara, the City, with PUC approval, imposed a 1% (of gross receipts) surcharge on the utility, Southern California Edison, to be collected by SCE from the ratepayers, making SCE a pass-through of the surcharge. A taxpayer group challenged this surcharge under the CA Constitution provision known as Proposition 218. Proposition 218, in short, is an outgrowth of Proposition 13’s limitation on government taxation power and requires voter approval before any new tax can be imposed.

As the Court in Jacks noted, Proposition 218 prohibits local governments from imposing “taxes” without voter approval but does not define what “taxes” means. According to the California Supreme Court in Sinclair Paint v. State Board of Equalization, “The term “has no fixed meaning, and . . . the distinction between taxes and fees is frequently ‘blurred,’ taking on different meanings in different contexts… In general, taxes are imposed for revenue purposes, rather than in return for a specific benefit conferred or privilege granted.”
Jacks also noted that the state high court, in contrast, has defined “franchise fee” since 1922 as a “charge which the holder of the franchise undertakes to pay as part of the consideration for the privilege of using the avenues and highways occupied by the public utility.”

Jacks took a very literal reading of this 1922 definition to decide that Santa Barbara’s surcharge was a tax and not a franchise fee because, the …”primary purpose is for the City to raise revenue from electricity users for general spending purposes rather than for SCE to obtain the right of way to provide electricity. This constitutes a tax under Proposition 218 and is subject to approval by the electorate.

In reaching this conclusion, Jacks again echoed the state high court’s 1997 analysis in Sinclair Paint, that if it quacks like a duck, it’s a duck: “if revenue is the primary purpose, and [compensation for the franchise] is merely incidental, the imposition is a tax, but if [compensation for the franchise] is the primary purpose, the mere fact that revenue is also obtained does not make the imposition a tax.”

The Sinclair Paint Court also stated that the definition of “taxes”, ” ‘does not embrace fees charged in connection with regulatory activities which fees do not exceed the reasonable cost of providing services necessary to the activity for which the fee is charged and which are not levied for unrelated revenue purposes.’

In the field of solid waste franchises, the Court of Appeal’s 1993 determination in City of Dublin v. County of Alameda, that Alameda County Measure D did not impose a tax, but was an enactment of regulatory power, has long held sway.

But the 1993 Measure D case was decided before Sinclair Paint and before the constitutional amendment of Proposition 218. In light of Jacks, local governments, franchised haulers, and ratepayers, may want to take another look at the applicability of Proposition 218 to solid waste franchise fees.

Recology Will Get New CRV Trial

By John Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to wasting and Zero Waste.

On June 17, 2014, a San Francisco jury found that Recology made a false claim for CRV funds to the City and County of San Francisco and owed it $1,366,938.45. In a new twist to the case, on October 30, 2014, Judge James McBride of the Superior Court in San Francisco, who presided over the trial, vacated the jury verdict in granting Recology’s motion for new trial.

Judge McBride ruled that there was insufficient evidence to support the jury verdict and explained that “[t]he claim required proof that some City money was part of the Diversion Incentive Account from which the false claim was paid. No such evidence was presented at trial nor was there any evidence presented from which a reasonable inference that the account included City money could be drawn.”

NCRA News attempted without success to obtain the court filings on this motion from plaintiff Brian McVeigh’s counsel. They are not available online. This author, having not observed the trial or being familiar with the evidence can offer no opinion on the result. As one who has tried many civil cases, it is very unusual for a judge to vacate a jury verdict.

Federal Court Upholds Alameda County Pharma EPR Ordinance

By John Moore, Henn, Etzel and Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

Not unexpectedly, a 3 judge panel of the Ninth Circuit Court of Appeal unanimously agreed that Alameda County’s pharma EPR ordinance is constitutional in the case of PRMA v. County of Alameda, rejecting claims by drug manufacturers and their allies that the ordinance violated the Commerce Clause. The Court affirmed a Judgment to the same effect by Judge Richard Seeborg of the Northern District of California.

According to the Court, “pursuant to the Ordinance, manufacturers must set up disposal kiosk sites throughout (Alameda County). The kiosks will consist of disposal bins located in areas ‘convenient and adequate to serve the [disposal] needs of Alameda County residents.’ Manufacturers must also promote the stewardship program to the public via ‘educational and outreach materials.’ After collection, the prescription drugs must be destroyed at medical waste facilities. The manufacturers are free to individually operate separate product stewardship programs or to jointly operate a program with one or more other manufacturers. If manufacturers choose to operate a program jointly, the Ordinance requires that the program’s costs be spread fairly and reasonably among the manufacturers. The manufacturers may run the stewardship program themselves, or they may pay a third-party to operate the stewardship program on their behalf. Assuming the manufacturers jointly operated a stewardship program, the start-up costs would approximate $1,100,000.”

County estimated that, “a total annual cost to each manufacturer between $5,300 and $12,000.” The Court accepted that County-wide sales of prescription drugs in 2010 were $965 million and that sales have not declined since then.

The Commerce Clause of the US Constitution has been the lynchpin of many cases involving flow control- the lawfulness of a local jurisdiction commanding that solid waste be disposed at specific facilities. The test for whether a law violates the Commerce Clause generally is “When a state statute directly regulates or discriminates against interstate commerce, or
when its effect is to favor in-state economic interests over out-of-state interests, [the Court has] generally struck down the statute without further inquiry.

When, however, a statute has only indirect effects on interstate commerce and regulates evenhandedly, [the Court has] examined whether the State’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the local benefits.”

The Ninth Circuit found that the Ordinance did not implicate either test. Although the Court analyzed each test carefully as applied to the Ordinance, most telling was the Court’s dismissal of most of the challengers’ arguments as not supported by any legal authority. Nor did the Court doubt that the Ordinance legitimately furthered the County’s interest in safe disposal of post-consumer prescription drugs. Interestingly, while prescription drugs sold across state lines clearly are part of interstate commerce under the Commerce Clause, the Supreme Court has never clearly stated why “solid waste” is an article of interstate commerce.

From the vantage of this author, this was a frivolously-filed case doomed from the start designed to impose cost and delay on the County. The Ninth Circuit should sanction the plaintiffs in this case and order them to pay all of the County’s fees and costs in this litigation.

Among the amici supporting the County were the League of California Cities and NRDC.