The Perils of Relying on the Wrong Clause—Grounding the Ministerial Exception at the Supreme Court

IRA C. LUPU, ROBERT TUTTLE

GW Law professors Ira C. Lupu and Robert W. Tuttle explain why the path the U.S. Supreme Court is taking in ministerial exception cases—relying on the Free Exercise Clause of the First Amendment—is dangerously misguided. Lupu and Tuttle argue that the ministerial exception rests primarily on the Establishment Clause and is strictly limited to employment decisions about who leads or controls a faith community, or who transmits a faith.

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Pakdel v. City and County of San Francisco

Docket: 17-17504

Opinion Date: March 17, 2020

Judge: Friedland

Areas of Law: Civil Rights, Constitutional Law, Real Estate & Property Law

The Ninth Circuit affirmed the district court's dismissal of a 42 U.S.C. 1983 petition raising an as-applied challenge to the Expedited Conversion Program. The Program allows property owners to convert their tenancy-in-common properties into condominium properties on the condition that the owners agree to offer any existing tenants lifetime leases in units within the converted property. The panel held that plaintiffs' takings challenge was unripe, because plaintiffs did not ask the City for an exemption from the lifetime lease requirement, and thus failed to satisfy the separate finality requirement in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The finality requirement survived Knick v. Township of Scott, 139 S. Ct. 2162 (2019), and consequently continues to be a requirement for bringing regulatory takings claims such as plaintiffs' in federal court. Furthermore, plaintiffs knowingly waived their right to seek an exemption and their arguments to the contrary were unpersuasive.

Lopez-Angel v. Barr

Docket: 16-72246

Opinion Date: March 17, 2020

Judge: Andrew David Hurwitz

Areas of Law: Immigration Law

The Ninth Circuit filed an order granting the government's motion to amend, and an amended opinion granting a petition for review of the BIA's decision and remanding. The panel wrote that the withdrawal sanction in 8 U.S.C. 1003.4 is triggered by an alien's "departure," from this country and that the regulation does not distinguish between volitional and non-volitional departures. The panel noted that the BIA has recognized that an unlawful removal does not a constitute a section 1003.4 departure, but has not addressed whether a lawful removal would withdraw an appeal. In the amended opinion, the panel held that an alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided. Rather, the panel held that section 1003.4 provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal. In this case, petitioner did not withdraw his appeal of the denial of his motions to reopen and reconsider when he was involuntarily removed from the United States.