BLM movement yields Contracts Clause ruling

After the George Floyd murder in May 2020 and the Black Lives Matter protests that followed, municipalities around the country took action in the name of transparency and good government in recognition that some laws (and statues) were not in line with the new racial justice movement. The State Legislature in Connecticut was among the public bodies that took action, resulting in this ruling that probably deserves more attention.

The case is Connecticut State Police Union v. Rovella, issued on June 2. There are glamorous constitutional provisions and principles and there are provisions that no one thinks about. Guess where the Contracts Clause falls within that equation. That provision says the government cannot impair existing contracts through legislative or other action. When the Supreme Court issues a Contracts Clause case, only law professors and the select few who deal with these issues take notice. But this case involves the Contracts Clause and an issue that has reached the front pages: racial justice. So a constitutional provision that normally takes you on a one-way trip to snoozeville instead produces an interesting and timely opinion.

The police union had a collective bargaining agreement with the state. It included a provision stating that certain police records cannot be disclosed under the Freedom of Information Law. The State Legislature agreed to that provision. Following the George Floyd murder, however, the Legislature rescinded that provision without negotiating with the police union. Hence the Contracts Clause claim.

Few constitutional provisions are interpreted literally, even if they are written in absolute terms. Under that Clause, "no state shall ... pass any ... law impairing the obligation of contracts." Wouldn't that language strike down the new FOIL law? No, the Second Circuit (Lohier, Lynch and Bianco) says. The Supreme Court has said the Contracts Clause "is not ... the Draconian provision that its words might seem to imply." The government can breach existing contracts in the public interest, "a legitimate public purpose such as remedying a general social or economic problem." Judges decide what constitutes "a legitimate public purpose."

Fiscal emergencies can represent such a legitimate public purpose. The need to develop a waste management system also counts. As does the regulation of carting companies to deal with criminal-control and bid-rigging. The Second Circuit in this case says another legitimate public purpose is "ensuring the transparency and accountability of law enforcement and promoting FOIA's strong legislative policy in favor of the open conduct of government and free access to government records." 

To win the case, the government also has to show the legislation that impairs the contract was reasonable and necessary. Since the Legislature did not pass this law out of self-interest and wished to respond to the national outcry over police abuses prompted by the Floyd murder, the Court rejects the police union's contrary argument, which includes the claim that unsubstantiated complaints against the police need to be kept under wraps. The Court says the public has an interest in knowing about these complaints, as "unfounded" complaints of misconduct "does not necessarily mean that the allegations were false" but that there was not enough evidence to sustain the charge.   

The district court denied the union's motion for a preliminary injunction, and the Second Circuit ruling agrees with the district court. That means the case is not over, but the Second Circuit has already said the union is likely to lose the case once it winds through the courts more formally, i.e., following discovery and sworn testimony.