The United States Supreme Court started the Term off at a brisk pace. On October 6 it denied review of seven petitions seeking review of lower court rulings striking state bans on same-sex marriage, which cleared the way for same-sex marriages to begin or resume in those states. It also declined to get involved in the stay of the Texas voter ID law, Senate Bill 14, passed in 2011 and which took effect January 2012.
January 30, 2015
The Supreme Court: Argument Previews and Coming Attractions
Election Law Cases
These voting ID rules had been implemented for at least three prior elections, but were not challenged until June 2013. On October 9, 2014, the district court held the legislation unconstitutional. The state then filed an emergency notice for a writ of mandamus or an emergency motion for stay pending appeal. The district court entered a final judgment shortly after, and the Fifth Circuit heard the matter and granted a stay. Because the decision “substantially disturbs the election process . . . just nine days before early voting” was to begin, the value of preserving the status quo was “much higher” than it would be weeks or months before an election. Although the state had made out a case of success on the merits, timing ultimately proved to be the decisive factor: it was just too close to the election to give effect to the ruling.
On an application to vacate the stay, a majority of the United States Supreme Court denied the application on October 18, without reasons, but, given that the election machinery was already in motion and the election was imminent, the same desire to reduce confusion and preserve orderly elections likely played a role. Veasey v. Perry, No. 14-41127 (5th Cir. Oct. 14, 2014), review denied, 574 U. S. ____ (2014).
Other election-related cases will be heard this Term. Arizona State Legislature v. Arizona Independent Redistricting Comm’n, No. 13-1314, examines whether the power to prescribe congressional and legislative districts may be devolved from a state legislature to an unelected commission without violating the United States Constitution’s Elections Clause, Article I, section 4. Two Alabama appeals argued in November, Alabama Democratic Conference v. Alabama, No. 13-1138, and Alabama Legislative Black Caucus v. Alabama, No. 13-895, review the extent to which a state may rely on race in setting district boundaries and the Voting Rights Act.
Employment Cases
At least three employment law cases will be heard. In Integrity Staffing Solutions v. Busk, No. 13-433, from the Ninth Circuit, the question revolves around the Fair Labor Standards Act (FLSA) and uncompensated time spent by workers to undergo security screening. The plaintiff warehouse workers alleged that they often waited 25 minutes after the end of a shift to undergo a metal detector and other workplace searches aimed at reducing “shrinkage” (employee theft). They alleged this time was compensable under the FLSA, as amended by the Portal-to-Portal Act, and sought back pay, overtime, and double damages. Preliminary and postliminary activities to principal work are generally not compensable. The Ninth Circuit, in conflict with decisions from the Second and Eleventh Circuits, held that the screening was FLSA-compensable because it came within an exception for activity that was “integral and indispensable” to an employee’s principal work. Significantly, only the warehouse workers, not everyone on the premises, had to undergo the screening, and the screening was for the employer’s benefit.
In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, No. 14-86, Ms. Elauf, a Muslim who wore a “hijab” headscarf, applied for an Abercrombie sales job. The store markets its clothing through its staff (“Models”) and uses a detailed clothing policy, which prohibits “caps.” Elauf was aware of part of the clothing policy but never said anything at the interview about her hijab and needing an accommodation for that practice. Cooke, the woman interviewing her, saw the headscarf but did not ask about it or whether Elauf was Muslim (and was prohibited by the employer’s policy from doing so). She assessed Elauf using the “official interview guide,” which resulted in a favorable score. When Cooke asked her district manager about the hijab, however, he allegedly told her to downgrade the score because the hijab was not consistent with Abercrombie’s “Look Policy.” Elauf was not hired and sued under Title VII of the Civil Rights Act of 1964, citing a refusal to hire based on a “religious observance and practice.” The Tenth Circuit held that Abercrombie was entitled to summary judgment because there was no genuine dispute of material fact on a key point: Elauf had never informed Abercrombie that her headscarf was based on her religious beliefs and that she would need an accommodation because of a conflict between her practice and Abercrombie’s clothing policy. The question for the Supreme Court is whether an employer can be liable under Title VII for refusing to hire or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required, and that knowledge resulted from direct, explicit notice from the applicant or employee. The employer argues that the onus is on the applicant or employee to give explicit notice, particularly when the clothing is of a kind that is sometimes, but not invariably, associated with a particular religion.
Accommodations are also the issue in Young v. United Parcel Service, No. 12-1226, which examines an employer’s obligations under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (PDA), which mandates that pregnant women “be treated the same for all employment-related purposes” as nonpregnant employees “similar in their ability or inability to work.” Young, who was pregnant, was on doctor’s orders not to lift over 20 pounds, which interfered with her job as a UPS delivery driver, which required lifting up to 70 pounds. Under a collective bargaining agreement, UPS provided “light duty work” to some nonpregnant workers with similar limitations (injured on the job or ADA-disabled), but refused to accommodate Young because she was in the same position as an employee who sustained an off-the-job injury or condition. The Fourth Circuit concluded that the policy was pregnancy-neutral and that the PDA did not create a distinct cause of action or a different and preferential treatment mandate. Had it provided Young’s requested accommodation, UPS would have treated Young better, not the same, as off-duty-injured employees, because they were not eligible to receive an accommodation. The question for the Court is whether, and to what extent, an employer that provides accommodations to nonpregnant employees with work limitations must provide accommodations to pregnant employees who are “similar in their ability or inability to work.”
First Amendment
The members of the Good News Community Church have no permanent facility, so they place signs about their worship events that invite others to attend. The Town of Gilbert’s Sign Code requires permits for all except 19 types of signs, including ideological signs, political signs, and temporary directional signs for qualifying events, which are all subject to varying size, duration, and other restrictions. The church claimed its sign type was treated worse than other temporary signs, even though the impact was the same for any municipal interest in regulating safety and aesthetics. (An anti-religious sign with a directional arrow directing people away from the church’s services, would be an ideological sign subject to less restrictions.) The Ninth Circuit upheld the Code as content-neutral based on the “principal inquiry” test in Hill v. Colorado. Although officials had to inspect sign content, the town was distinguishing on the basis of the speaker’s identity and whether an event had occurred, and its interests in regulating temporary signs were unrelated to any disagreement with the viewpoint conveyed. Because the restrictions were not imposed out of disagreement with any particular message, the code was found to be content-neutral. This ruling conflicts with those in the First, Second, Eighth, and Eleventh Circuits, and the case, Reed v. Town of Gilbert, Arizona, No. 13-502, requires the Court to decide the proper test for determining whether a sign code is content-neutral.
Elonis v. United States, No. 13-983, is arguably the most interesting case this Term. (For starters, PETA has filed an amicus brief jointly with Operation Rescue and Defend Life in support of the petitioner, Elonis.) The case revolves around the felony offense of threatening another person in 18 U.S.C. § 875(c) and whether proof of a subjective intent to threaten is required, or whether it is enough to show that a “reasonable person” would regard the communication as a threat. After his wife and children left him, Elonis was fired for making inappropriate social media posts. These were posted on his own page, under a different “persona” and with disclaimers (e.g., that they did “not reflect the views, values, or beliefs of Anthony Elonis the person”). He posted about his wife (“I’m not going to rest until your body is a mess”), mass murder (“I’m checking out and making a name for myself . . . initiate the most heinous school shooting ever”), the FBI agent who came to his home (“Pull my knife, flick my wrist, and slit her throat/Leave her bleedin’ from her jugular in the arms of her partner”), the state police, and his co-workers and ex-employer. All were rap lyrics, he said, and none were subjectively intended to be threatening. (His estranged wife, however, had obtained a protective order and stated Elonis had shown no interest in rap during their marriage.) A jury, based on a “reasonable person” instruction, convicted Elonis. The Third Circuit upheld the conviction, finding that § 875(c) required proof that a reasonable person would foresee that the statements would be interpreted as a threat and rejecting the argument that Virginia v. Black, 538 U.S. 343 (2003), required constitutionally unprotected “true threats” to have a subjective intent.
A compelling aspect of this case is the impact of technology: the nature of the Internet and social network/audience control, digital clustering, and the changing social mores of online communication. One problem, as the petitioner’s brief notes, is that “online and electronic communications . . . eliminate the inflections and expressions that give meaning to words and reduce speakers’ ability to detect and correct misimpressions.”
The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) and a prison beard ban feature in Holt v. Hobbs, No. 13-6827. An Arkansas maximum-security prison banned prisoners from having beards, although inmates with verified dermatological problems were allowed to have facial hair up to a quarter of an inch long. The policy rationales were hygiene and security (minimizing disguise and the movement of contraband). Holt, a Muslim, wanted to keep a half-inch beard for religious observance. He claimed that the policy substantially burdened his exercise of religion and was not the “least restrictive means of furthering” prison security. (It appears, though, that Holt was “at war” with and threatened physical harm to a prison barber over trimming his beard.) The Eighth Circuit held that prison security was a compelling government interest and the Department of Corrections met its burden of establishing that the grooming policy was the least restrictive means of furthering that interest. (Incidentally, the oral transcript in this case was used for the popular Last Week Tonight with John Oliver, using dogs as Supreme Court Justices, including a Justice Alito poodle; see https://www.youtube.com/watch?v=fJ9prhPV2PI.)
Criminal Cases
A Los Angeles ordinance requires that hotel guest records containing detailed information “be made available to any officer of the [LAPD] for inspection” without a warrant. Failure to comply with an inspection demand is a misdemeanor, punishable by up to six months in jail and a $1,000 fine. The law is a nuisance abatement measure aimed at deterring drug-dealing and prostitution. Hotel operators challenged the provision, claiming it was facially invalid under the Fourth Amendment. The Ninth Circuit, en banc, held that the nonconsensual, on-site inspections involved both a physical intrusion on the hotel’s papers and an invasion of the hotel’s protected privacy interest in those papers, and triggered Fourth Amendment protection. Applying the more lenient Fourth Amendment principles governing administrative record inspections, that court found the law to be facially invalid because it lacked the essential procedural safeguard against arbitrary or abusive inspection demands, being the opportunity for pre-compliance judicial review of an officer’s demand. In City of Los Angeles v. Patel, No. 13-1175, the Supreme Court will have to decide whether facial challenges to ordinances are permitted under the Fourth Amendment; whether a hotel has an expectation of privacy, under the Fourth Amendment, in a guest registry when the law mandates the information and authorizes the police to inspect the registry; and whether the law fails unless it expressly provides for pre-compliance judicial review before any police inspection.
Two traffic-stop cases are on the docket: Heien v. North Carolina, No. 13-604, and Rodriguez v. United States, No. 13-9972. In Heien, the issue is whether a police officer’s mistake of law can provide the “reasonable suspicion” necessary for a traffic stop under the Fourth Amendment. Nicholas Heien had been pulled over because of a nonfunctioning brake light, but the officer suspected that Heien was transporting drugs. Heien consented to a search and cocaine was found. In his motion to suppress, the trial court reviewed the motor vehicle law and concluded that the references to “a lamp” required only that the vehicle have one brake light; accordingly, there was no violation of the law and the initial traffic stop was unconstitutional. On appeal, dealing only with the mistake of law question, the state appellate court ruled that a stop was permissible when an officer accurately witnessed a driver’s conduct but was mistaken as to whether the conduct violated the law, if the officer’s mistake of law was objectively reasonable. This rule is being questioned as undermining the very basis of investigatory stops (which require a reasonable suspicion of “criminal” activity) and as potentially removing an incentive for officers to understand the laws they are charged with enforcing. Commentators parsing the oral argument suggest, however, a likely unanimous affirmative decision in this case.
Rodriguez, an Eighth Circuit appeal, considers whether a police officer may extend an already completed traffic stop for a canine sniff without a reasonable suspicion or other lawful justification. Struble, a K-9 officer, stopped Rodriguez after seeing his vehicle swerving onto the shoulder. He asked for, and completed, a documents check on Rodriguez and issued him a warning. He then asked whether he could do a dog sniff of the vehicle and Rodriguez refused. Struble kept him waiting until another officer arrived before he walked the dog around the car. The dog alerted to drugs. Approximately seven or eight minutes elapsed between the time the stop was completed and the dog sniff. Rodriguez did not challenge the initial stop, but argued that after the stop was completed, Struble could not extend the stop for a dog sniff in the absence of reasonable suspicion or other lawful justification. The Eighth Circuit held the delay amounted to a de minimis intrusion on the defendant’s Fourth Amendment rights. Other federal courts have rejected the “de minimis” exception for suspicionless dog sniffs once the lawful stop has concluded, so this circuit split remains to be resolved.
Other
T-Mobile South, LLC v. City of Roswell, No. 13-975, is a Telecommunications Act of 1996 (TCA) case, addressing what the “in writing” provision in 47 U.S.C. § 332(c)(7)(B)(iii) mandates. T-Mobile had applied to locate a cell tower in the city. After a public hearing, the city provided T-Mobile with a brief denial letter that gave no reasons, but it indicated that the hearing minutes were available and provided contact information for city staff. T-Mobile claimed this was insufficient to satisfy the TCA’s “in writing and supported by substantial evidence contained in a written record” requirement because there was no explanation of why its application had been denied. The Eleventh Circuit relied on its earlier decision, T-Mobile South, LLC v. City of Milton, 728 F.3d 1274 (11th Cir. 2013), to conclude that the “in writing” requirement was met if the applicant had access to materials (minutes, a verbatim transcript) from which the reasons could be discerned, before the expiry of the time period for filing any appeals or lawsuits. T-Mobile’s brief alleges that the minutes were not published until 26 days after it received the letter, and nothing in the minutes identifies which of the various concerns raised were the “official” reasons for the denial. (The city, for its part, notes the minutes were available but adopted at the next meeting, and that T-Mobile had its own verbatim transcript of the proceedings and had never approached the city with any questions.)
The question of whether disparate-impact claims are cognizable under the Fair Housing Act (FHA) is up before the Court for the third time. Previously, Township of Mount Holly, New Jersey v. Mt. Holly Gardens Citizens in Action, Inc., 134 S. Ct. 636 (2013), cert. dismissed, had been settled by the parties, as was Magner v. Gallagher, 132 S. Ct. 1306 (2012), cert. dismissed, settled two weeks before the case was due to be argued. This year’s contender is Texas Dep’t of Hous. & Cmty. Affairs v. The Inclusive Communities Project, No. 13-1371. The plaintiffs alleging disparate impact need only show that a neutral practice has a disproportionate effect on some racial group, regardless of nondiscriminatory motive. Here, the Fifth Circuit, applying HUD-issued regulations regarding disparate-impact claims under the FHA, held that the allocation of Low Income Housing Tax Credits (LIHTC) by the Texas Department of Housing and Community Affairs (DHCA) in Dallas resulted in a disparate impact on African-American residents under the FHA. The specific allegation was that DHCA was disproportionately approving tax credit units in minority-concentrated neighborhoods and disproportionately disapproving tax credit units in predominantly white neighborhoods (purportedly, 92% of LIHTC units in Dallas were in areas with less than 50% white residents). Congress has used only disparate-treatment language in the FHA, and the provision at issue, 42 U.S.C. § 3604(a), prohibits only intentional discrimination, although different circuits have applied varying kinds of disparate impact analysis to the FHA. (Another FHA case is pending review: City of Newport Beach, Cal., v. Pacific Shores Properties, LLC, No. 14-56, on whether a disparate-treatment claim under the FHA and the Americans with Disabilities Act that challenges a facially nondiscriminatory law on the ground that the law nevertheless intentionally discriminates on the basis of disability can prevail absent proof of discriminatory effects.)
Pending Cases
Several petitions of considerable interest are awaiting action by the Court. These include Carroll v. Carman, No. 14-212 (whether a warrantless entry on a “knock and talk” requires the police to use the residence’s front door, even when it reasonably appears that another entrance is customarily used by visitors); Pregnancy Care Center of New York v. City of New York, No. 13-1504 (whether a law compelling a noncommercial pro-life facility/speaker to declare it lacks a medical license passes strict scrutiny, and whether a compelled speech law is unconstitutionally vague if the city can deem a facility as one needing to comply because of the facility’s medical “appearance,” without any ability for the facility to know whether it must comply); City and County of San Francisco, Cal., v. Sheehan, No. 13-1412 (whether the reasonable accommodation requirement of Title II of the ADA applies to law enforcement activities, including arrests); Hildebrand v. Allegheny County, No.14-363 (whether the Age Discrimination in Employment Act, prohibiting age-based discrimination against state and local government employees, precludes employees from bringing a § 1983 action to redress age discrimination that violates the Equal Protection Clause. This issue came up but was undecided last year in Madigan v. Levin, No. 12-872); and, of course, the Affordable Care Act, King v. Burwell, No. 14-114 (whether the IRS may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under the Affordable Care Act).
Coverage of these cases will continue as the Term unfolds, so stay tuned.