Keeping Tabs on the Ninth Circuit
October 08, 2021 - This Week at the Ninth

This Week at The Ninth: Contractor Speech and Seized Cars

This Week at The Ninth: Contractor Speech and Seized Cars

This week, the Court confronted constitutional challenges to a California statute altering the test for determining whether workers are employees or independent contractors and an Arizona statute governing civil forfeitures.

The Court holds that California’s AB 5, which modified the test for determining whether a worker is an employer or independent contractor, does not violate the First Amendment as applied to freelance writers and similar professionals.

The panel: Judges Callahan, Forrest, and Seeborg (N.D. Cal.), with Judge Callahan writing the opinion.

Key highlight: “[T]he statute is aimed at the employment relationship—a traditional sphere of state regulation. See DeCanas v. Bica, 424 U.S. 351, 356 (1976). Such rules understandably vary based on the nature of the work performed or the industry in which the work is performed, and section 2778 is no different in this regard. But whether employees or independent contractors, workers remain able to write, sculpt, paint, design, or market whatever they wish.”

Background: In AB 5, California codified a new 3-part test for determining whether workers are employees or independent contractors. The law exempts certain “professional services” occupations from its scope, including certain freelance writers and photographers. For freelance writers, the exception applied to anyone who submitted fewer than 35 pieces of work to a single entity in a year (an exception that was then changed while the litigation was underway to turn on where freelancers work and whether they work for more than one entity). The exception for photographers applied to anyone not working on a “motion picture.”

The American Society of Journalists and Authors and the National Press Photographers Association brought suit to enjoin AB 5. They contended the law violated the First Amendment and the Equal Protection Clause because, by categorizing them as employees, it burdened the writers and photographers not covered by the “professional services” exception. The district court granted California’s motion to dismiss.

Result: The Ninth Circuit affirmed. First, the Court rejected the plaintiffs’ First Amendment argument, holding that AB 5 regulated economic conduct and not speech. As the Court explained, AB 5 does not “limit what someone can or cannot communicate,” or “restrict when, where, or how someone can speak,” but “instead governs worker classification” and “is aimed at the employment relationship.”  While AB 5’s application might, as the plaintiff organizations claim, conceivably reduce job opportunities for their members and thereby reduce their ability to practice their “speaking” professions, the Court concluded that “such an indirect impact on speech” does not implicate the First Amendment. Nor did AB 5 pose the First Amendment concerns raised by regulations that focus only on certain types of speech, as AB 5 applies “across California’s economy,” its exemptions “do not single out the press as an institution” or otherwise target particular speakers, and its applicability turns “not on what workers say” but “on the service they provide or the occupation in which they are engaged.” The Court held that was true even with respect to AB 5’s specific application to freelancers working on “motion pictures,” explaining that this statutory carveout “refers to an industry or medium through which content is conveyed,” and does not differentiate based on content itself.

The Court also rejected the plaintiffs’ Equal Protection Challenge. Because AB 5 did not implicate any fundamental right to speech, the court applied rational basis scrutiny. And, the Court held, AB 5 readily met that forgiving standard, as it was “certainly conceivable that differences between occupations warrant differently contoured rules for determining which employment test better accounts for a worker’s status.”

The Court holds that plaintiffs whose car was seized pursuant to Arizona’s civil forfeiture scheme had stated a claim for violation of their state-law due process rights.

Panel: Judges Tashima, Berzon, and Collins, with Judge Berzon writing the opinion, and Judge Collins concurring in part and dissenting in part.

Key Highlight: The Arizona civil forfeiture statute “on its face permitted the state’s attorney unilaterally to deny those who chose to contest forfeiture by filing a petition the procedural protections applicable in contested forfeiture proceedings.”

Background: Police stopped William and Maria Platts’ son while he was driving their car, found marijuana, and arrested him. The Platts’ car was seized pursuant to Arizona’s civil forfeiture statutes. Under those statutes, when property is seized, the owner may file either a claim with the court or a petition for remission or mitigation of forfeiture with the attorney for the state. If the property owner does not pursue either option, the state’s attorney may proceed with an uncontested forfeiture, in which case forfeiture is virtually assured. Although the Platts filed a petition for remission or mitigation, a Deputy Navajo County Attorney unilaterally treated the petition as defective, without giving them any notice of the defect or opportunity to correct it, and proceeded with an uncontested forfeiture. The vehicle was eventually returned to the owners, but only after it had been impounded for five months.

The Platts sued state and local officials and entities, alleging that the seizure of their car and the deprivation of its use for five months violated their rights to due process under the federal and state constitutions. The district court dismissed all the claims. The Platts appealed the dismissed of their state-law claims only. Arizona, which had intervened to defend the constitutionality of its civil forfeiture scheme, cross-appealed and sought a ruling that its statutory scheme governing forfeiture is facially valid under the federal and Arizona constitutions.

Result: The Ninth Circuit affirmed in part and reversed in part. The Court first held that the Platts’ state-law claims were not barred by Arizona’s notice of claim statute, which generally requires those asserting Arizona law claims against a public entity to file a notice of claim before filing suit. As interpreted by Arizona courts, the statute does not apply to claims for declaratory judgment. And the Court predicted that Arizona courts would likewise conclude that it does not apply to claims, like the Platts’ claims, for nominal damages.

On the merits, the Court held that the Platts had stated a claim based on the fact that the County Attorney, an individual with an alleged pecuniary interest in the forfeiture proceedings, had made an undisclosed determination that no timely petition had been filed.  Under Arizona’s scheme, that determination would have been unreviewable had the County Attorney pressed forward with forfeiture proceedings, and thus would have deprived the Platts of the procedural protections of a contested forfeiture proceeding. The Court also found that the Platts had Article III standing to bring this claim because being subjected to a constitutionally deficient forfeiture process was itself an injury even though their car had ultimately been returned. The Court agreed, however, that the Platts’ claim against the Navajo County Drug Task Force was properly dismissed because the Task Force was not amenable to suit under Arizona law.

As to Arizona’s cross-appeal, the Court concluded that Arizona was seeking an advisory opinion as to the validity of its forfeiture scheme in circumstances not before the Court, and thus declined to address the issue.

Judge Collins concurred in part and dissented in part. He agreed that the Navajo County Drug Task Force lacks capacity to be sued under Arizona law, but would have held that Plaintiffs lacked standing to pursue a claim based on the County Attorney’s biased adjudication of their petition because the County Attorney’s actions had not lengthened the forfeiture proceedings or prolonged the period during which the Platts were deprived of their car. Judge Collins also would have held that Arizona’s notice-of-claim statute does bar Arizona due process claims for nominal damages.