July 01, 2015 Urban Lawyer

Case Notes

Red River Freethinkers v. City of Fargo

764 F.3d 948 (8th Cir. 2014). An ordinance allowing a Ten Commandments monument to remain displayed on a civic plaza, but disallowing further monuments of any kind to be erected on the site in the future, does not violate the Establishment Clause of the First Amendment because (1) the display of the monument on public land is “passive” in that it merely represents the religious and historical significance of the community; (2) the city is “not adopt[ing] a religious point of view” or endorsing any specific meaning of the monument; and (3) an Establishment Clause dispute itself cannot render a monument impermissible. Appellants, Red River Freethinkers (“Organization”), appealed from a judgment entered in the United States District Court for the District of North Dakota that granted summary judgment to the city of Fargo (“City”). Following a petition of over 5,000 signatures, the city adopted an ordinance that kept the monument in place and prevented additional ones from being placed on the civic plaza, despite the Organization’s offer to replace the monument with another, secular monument. The Organization alleged that the ordinance violated the Establishment Clause because it exclusively endorsed Christian principles by allowing the monument to remain on public land and preventing others from being built at the site. The United States Court of Appeals for the Eighth Circuit ruled in favor of the City and employed the standard set forth in Van Orden v. Perry, 545 U.S. 677 (2005). In Van Orden, the United States Supreme Court found that a Ten Commandments monument sitting on the Texas Capitol grounds was permissible under the Establishment Clause because the monument, along with the others erected at the site, “represent[ed] the several strands in the State’s political and legal history” and had “a dual significance, partaking of both religion and government.” Id. at 691-92. Thus, the Court reasoned, because no active endorsement of religious principles occurred, the display was “passive” and constitutionally permissible. Id. at 690-91. The Eighth Circuit upheld the Van Orden standard in ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d. 772 (8th Cir. 2005). In ACLU, the court found that a Ten Commandments monument made “passive — and permissible — use of the text of the Ten Commandments to acknowledge the role of religion in our Nation’s heritage.” Id. at 776-77. Here, the Eighth Circuit found the City’s actions permissible under Van Orden and Plattsmouth and noted that while the City ultimately adopted the ordinance proposed by community members in support of keeping the monument in its original place, this action did not necessarily mean that the City endorsed any one, specific meaning of the monument. See Pleasant Grove City v. Summum, 555 U.S. 460 (2009). The dissent, however, would have limited Van Orden and Plattsmouth to their unique and distinguishable facts: the disputed monument in Van Orden was displayed among other, secular monuments, thus allowing for the representation of diverse ideals at the Texas Capitol grounds; in Plattsmouth, the monument at issue was erected a significant distance from the nearest government building, which weakened any argument that the city government itself was endorsing the monument or the messages that it may evoke. Here, the monument was the sole monument displayed on the civic plaza, while others were prevented from being built. As such, the dissent argued that the Van Orden standard was inapplicable and that the Organization raised issues of material fact, rendering summary judgment inappropriate.
(Tara Moreland)

Int’l Soc’y for Krishna Consciousness. v. City of Los Angeles

764 F.3d 1044 (9th Cir. 2014). A city administrative code banning continuous or repetitive solicitation for the immediate receipt of funds at an international airport, a nonpublic forum, is a reasonable restriction of the speech rights granted under the First Amendment of the United States Constitution because (1) it promotes the dual government interests of controlling pedestrian congestion and protecting travelers from fraud, and (2) it is limited in scope and leaves open other means of raising funds. The appellants were the International Society for Krishna Consciousness of California and its president (collectively, “Organization”). The appellees were the city of Los Angeles and the Los Angeles International Airport’s (“LAX”) manager and police chief (collectively, “City”). The Organization challenged the L.A., Cal. Admin. Code § 23.27(c) (“Ordinance”), which bans solicitations at LAX that are continuous, repetitive, and for the immediate receipt of funds. The Organization’s religion requires its members to proselytize, solicit donations, and distribute and sell religious literature to the public. The Organization appealed from the grant of summary judgment by the United States District Court for the Central District of California, which held that Organization failed to raise a genuine issue of material fact as to whether the Ordinance is a reasonable restriction on protected speech. In a nonpublic forum, a restriction must be viewpoint-neutral and reasonable. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985). A “reasonable” restriction promotes a legitimate government interest in preserving the property’s intended use. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 50–51 (1982). Both the Organization and the City agreed that LAX is a nonpublic forum, that the challenged Ordinance is viewpoint-neutral, and that the intended use of LAX is to facilitate the “safe, secure, convenient, and efficient” movement of travelers throughout the airport. The sole remaining legal question was whether the Ordinance promoted government interests facilitating that movement. In a strikingly similar case, the United States Supreme Court held that face-to-face solicitations for funds at airports can detrimentally impact two legitimate government interests: controlling pe- destrian congestion and protecting travelers from fraud. Lee v. Int’l Soc’y for Krishna Consciousness, Inc., 505 U.S. 672, 683-84 (1992). The City provided expert testimony that the face-to-face solicitation of funds jeopardizes those same interests at LAX, while the Organization failed to raise any issue of material fact controverting the City’s findings. Thus, the Ordinance’s restriction of protected speech is reasonable because it facilitates the “safe, secure, convenient, and efficient” movement of travelers throughout the airport by reducing passenger congestion and the threat of fraud. Organization argued that the Ordinance unreasonably limits its ability to raise money. The United States Court of Appeals for the Ninth District, however, found that the Ordinance was reasonable because it was narrowly tailored: it barred only solicitation for the immediate receipt of funds that are done in a continuous and repetitive manner. Additionally, there remained myriad means and venues through which the Organization could still raise money. The Organization also argued that Lee re- quired airport sidewalks to remain available for solicitation. The court rejected this argument, stating that in both the Lee decision and the present case, the government interests of preventing pedestrian congestion and fraud in its crowded terminals would be equally strong on narrow and oft-crowded sidewalks. In affirming the district court’s grant of summary judgment, the Ninth Circuit found that the City had legitimate interests in restricting protected speech at LAX, and that those restrictions were reasonable.
(Kris Siriwangchai)

Frank v. Walker

769 F.3d 494 (7th Cir. 2014). A Wisconsin statute requiring the presentation of photo identification (“I.D.”) in order to vote in elections is unlikely to be held unconstitutional because: (1)      the photo I.D. requirement does not place an undue burden on Wisconsin voters; and (2) the statute is unlikely to disfranchise a substantial number of would-be voters. The appellant is Wisconsin Governor Scott Walker, representing the state in support of the statute. The appellees are voters and voting rights advocacy organizations (“voters”). The focus of the voters’ argument was the potential chaotic impact of implementing altered election procedures in such a short time frame before the upcoming election. The consequence, argued by the appellees, was an undue burden to voters and election officials. The voters reasoned that per the statute, Wisconsin voters would be re- quired to obtain photo I.D., and the difficulty in obtaining one would result in an undue burden. Further, the voters asserted that under the circumstances presented, this difficulty would stem from factors such as: (1) the inconvenience of gathering required materials (such as a birth certificate) in order to obtain a state issued I.D.; (2) the cost of the process; and (3) the short timeframe prior to the next election. The state argued that, under the ruling in Crawford v. Marion County Election Board, 553 U.S. 181 (2008) — which held constitutional Indiana’s requirement of photo I.D. in order vote — the burden of obtaining any acceptable forms of I.D. required to vote is nowhere near substantial enough to infringe on constitutional voting rights. As discussed in Crawford, the inconvenience of going to the department of motor vehicles with the required documents and having your photo taken for an I.D. does not (1) increase the general burdens of voting or (2) qualify as a substantial burden on the voting rights of would-be voters. In the present case, the Court of Appeals found that the state would likely succeed on the merits of the case, thus finding it appropriate to lift an injunction ordered by the lower court, which prohibited the state from implementing the law. Relying on the ruling in Crawford for support, the court found that the state would likely succeed on the merits because the lower court was mistaken in finding that eligible voters without an acceptable form of I.D. would be unduly burdened if they were required to obtain such I.D. Further, the court found that it was unable to infer that a substantial number of Wisconsin voters would be negatively impacted by the photo I.D. requirements because past statistics demonstrated that, while 90% of eligible voters currently possess photo I.D., only 78% of those voters were registered to vote and roughly 74% of registered voters actually cast votes in elections, therefore, both of those figures fall within the 90% of voters who will not be impacted. The court found no need for federal control of a function that should be left to the states to govern because the actions taken by the state here did not exceed those actions deemed constitutional in Crawford. The dissent argued that the altered voter I.D. requirements would substantially injure eligible voters without qualifying photo I.D. and to disregard the voting rights of 9% of Wisconsin voters would be contrary to constitutional principles.
(Blake Butner)

Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm’n

768 F.3d 183 (2d Cir. 2014). A Connecticut land use regulation is subject to the substantial burden provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA) because it requires local commissions to accept or deny applications based on subjective standards with potential for discrimination against religious exercise prohibited under the First Amendment. The appellants, Rabbi Joseph Eisenbach and Chabad Lubavitch of Litchfield County Inc. (“Chabad”), serve a congregation in Litchfield County, Connecticut. The appellees are the Litchfield Historic District Commission, the Borough of Litchfield, Connecticut, Glenn Hillman, and Kathleen Crawford (“HDC”), representing the state in support of the land use regulations. A building may be altered within a historic district only after an application for a certificate of exterior architectural feature appropriateness has been submitted to, and approved by, the HDC. CONN. GEN. STAT. §7-147d(a)(2015). Chabad was denied approval after sub- mitting an application to expand its existing building, located in the historic district. Chabad alleged the land use regulation system was in violation of CONN. GEN. STAT. §§7-147c, 7-147e(2015) because it allowed HDC to assess applications by weighing vague and ambiguous factors. Moreover, Chabad asserted that this system, as implemented according to the regulation, was a violation of the First Amendment, under the Religious Land Use and Institutionalized Per- sons Act (“RLUIPA”). Chabad supported their assertions by arguing that the zoning law scheme violated RLUIPA in three different ways: (1) it imposed a substantial burden on appellants by permitting individualized assessments of the proposed religious uses for the property involved, (2) it treated the religious institution unequally from a nonreligious institution in its manner of implementing the regulation, and (3) it implemented the regulation in a way that discriminated on the basis of religion. A substantial burden is a substantial government interference with a land use applicant’s religious exercise in the absence of a compelling justification. 42 U.S.C. §2000cc(a)(1)(2014). The provision is intended to combat “subtle forms of discrimination” by land use authorities. Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005). The United States Court of Appeals for the Second Circuit stated that the “substantial burden provision” applies when a substantial burden is imposed in the implementation of a system of land use regulations, under which a government makes individualized assessments of the proposed uses for the property involved. 42 U.S.C. §2000cc(a)(2) (2014). The court determined that “individualized assessment” is proved when the government “take[s] into account the particular de- tails of an applicant’s proposed use of land when deciding to permit or deny that use.” Guru Nanak Sikh Soc’y v. Cnty. of Sutter, 456 F.3d 978, 986 (9th Cir. 2006). The court ruled that because individualized evaluations of land use applications may permit potentially discriminatory denials, the “substantial burden provision” applies. Because almost all general land use zoning laws implicate such an individualized review, implementation of such systems justifies application of the “substantial burden provision.” The court remanded the substantial burden claim to the district court to determine whether the denial of appellants’ application in fact imposed a substantial bur- den on appellants’ religious exercise and consequently violated the First Amendment. The Second Circuit granted appellees’ Motion for Summary Judgment on appellants’ second claim, that appellees’ system violated RLUIPA’s “equal terms provision,” because appellants had only offered evidence to show different treatment, not unequal treatment. Chabad’s third claim was remanded for consideration because the district court erred when it did not look beyond religious comparators in weighing appellants’ nondiscrimination claim.
(Betsy Kelling)

Mc Allen Grace Brethren Church v. Salazar

764 F.3d 465 (5th Cir. 2014). The government does not satisfy the “strict scrutiny” test under the Religious Freedom Restoration Act (RFRA) if it does not produce evidence that it is using the “least restrictive means” in enforcing the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act against non-federally recognized tribes who use eagle feathers for religious purposes. The appellants, members of the Lipan Apache Tribe (“Tribe”), a non-federally recognized American Indian tribe, filed suit alleging that the enforcement of the Migratory Bird Treaty Act (the “Migratory Act”) and the Bald and Golden Eagle Protection Act (the “Eagle Protection Act”) violated both the Free Exercise Clause of the First Amendment of the United States Constitution and RFRA by substantially burdening the Tribe’s ability to participate in religious powwows, which required the use eagle feathers. The appellee was the Department of the Interior (“Department”), a federal executive agency tasked with enforcing the Migratory Act and the Eagle Protection Act. RFRA states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability . . . unless the Department demonstrates that the application of the burden to the person is — (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1 (2015). Here, the Department conceded that any regulation that prevents appellants from accessing eagle feathers substantially burdens appellants’ religious practice. As such, the United States Court of Appeals for the Fifth Circuit agreed with the Department’s presentation of two compelling interests: (1) protecting bald eagles in that they are a national symbol; and (2) maintaining Congress’ relationship with federally recognized Indian tribes, which arises from the government’s historical duties and from the Constitution. The Fifth Circuit then analyzed whether the Department’s enforcement of the regulations was the “least restrictive means.” The “least restrictive means” test is similar to the “narrowly tailored” test, however, it requires there be no alternative means to advance the government’s compelling interest. Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2780 (2014); Sherbert v. Verner, 374 U.S. 398, 407 (1963). If a challenger presents a less- restrictive alternative to the current government regulation, it is up to the government to prove that the compelling interest would not be advanced under the less-restrictive alternative. Burwell, 134 S.Ct. at 2801 (2014). The Tribe presented several alternatives to the current regulation including collecting molted feathers from zoos and the wild or operating tribal sponsored aviaries. The Department failed to provide evidence beyond speculation that changing the regulation would negatively affect their compelling interest. In arguing for the regulation, the Department claimed that (1) if more people were al- lowed to legally possess eagle feathers, it would be more difficult for law enforcement to prevent illegal possession; and (2) by allowing permits to non-federally recognized tribes, there would not be an efficient way to determine an applicant’s native heritage. The court found that the Department failed to present evidence explaining how restricting the Tribe’s access to eagle feathers would harm the government’s relationship with federal tribes. Moreover, it found that the Department’s evidence was insufficient in that it was based only on rulings from other circuits and there was no statistical data showing the number of non-Federally recognized tribes that would pursue eagle feathers if the regulation were to be amended. Speculation is not enough to satisfy the least restrictive means test. Under RFRA, in order to enforce the Migratory Act and Eagle Protection Act, the Department must provide statistical or other evidence that the current regulation uses the least restrictive means to accomplish the compelling interest presented.
(Garrett W. Hunkins)

Haight v. Thompson

763 F.3d 554 (6th Cir. 2014). An injunction, but not monetary damages, is appropriate relief for a claim brought under the Religious Land Use and Institutionalized Persons Act regarding the denial of an inmate’s traditional food items, sweat lodges, and access to clergy, unless the government can meet a test of strict scrutiny. Appellants, two groups of inmates on death row in a Kentucky prison (“Inmates”), appealed from summary judgments entered in the United States District Court for the Western District of Kentucky on their claims made under 42 U.S.C. § 2000cc-1 (2015), the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Appellees were prison officials (“Officials”) who had denied the Inmates’ re- quests for access to a sweat lodge, special traditional food items, and regular visitation with clergy. The Inmates attempted to pay for the construction of the lodge and purchase of the food items, but the Officials denied the requests. After exhausting their remedies under the administrative system, the Inmates filed suit and alleged violations of RLUIPA, as one group sought injunctions (for access to the sweat lodge and traditional food items) and the other group sought monetary damages to redress the exclusion from clergy visitation. RLUIPA provides "[n]o government shall impose a substantial burden on the reli- gious exercise of a person residing in or confined to [a prison]” with- out showing that such an action is necessary to “(1) further[] [] a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1 (2015). The United States Court of Appeals for the Sixth Circuit explained that the aim of RLUIPA is to guarantee religious rights beyond those protected by the United States Constitution, and held that denying the requests of the Inmates violated RLUIPA. The Officials offered no evidentiary support of “further[ing] [] a compelling governmental interest,” and made only vague claims that “security” would not allow for the accommodations and that such a practice would set a dangerous precedent for accommodating inmates. Although the United States Court of Appeals for the Eighth Circuit had held that refusing access to a sweat lodge did not violate RLUIPA, Fowler v. Crawford, 534 F.3d 931 (8th Cir. 2008), the Sixth Circuit distinguished the instant case based on the differing facts: The prison in Fowler had a long history of safety problems with allowing such religious activities and the inmates de- manded a specific location, building material, and number of uses per year. In contrast, the Inmates were willing to pay for the structure. The Sixth Circuit also noted how the Officials failed to offer evidence that other options were considered, which demonstrated that the Officials failed to create a barrier in “the least restrictive means possible.” Next, the court looked to whether the food offerings imposed a “substantial burden” on the “religious exercise” of the Inmates. Based on how a government manual excluded the requested food offerings, the Officials argued that denial of the food offerings was not a substantial burden on religious exercise. The Sixth Circuit disagreed, stating that RLUIPA uses a broad definition of “religious exercise” despite whether it is “compelled by, or central to, a system of religious belief.” Further, a government manual alone cannot provide a basis for rejecting a RLUIPA claim as non-substantial; that is, the government cannot define for itself what a substantial element of a religious practice is. Indeed, no branch of the government has the right to assess how central an element or practice is to a religion. As for setting a precedent of impossible accommodation, the court suggested limiting these claims in three ways: (1) challenging the sincerity of a prisoner’s religious belief, (2) showing that a “compelling government interest” is being protected in the “least restrictive way” possible, or (3) requesting that Congress modify RLUIPA to be more restrictive in defining these terms. Remedies for the potential RLUIPA violations found by the Sixth Circuit were discussed next. RLUIPA allows for “appropriate relief ” in private causes of action. 42 U.S.C. § 2000cc-2 (2015). The Sixth Circuit defined the language of “appropriate relief ” for RLUIPA violations to not include monetary damages, consistent with the precedent set forth in Sossamon v. Texas, 131 S.Ct. 1651 (2011). This was decided on two points: (1) Congress must be clear and unambiguous when imposing monetary damages upon the States, and (2) in the context of the statute, “appropriate” did not refer to money but rather injunctive relief. The clear-statement rule controls throughout every circuit, and the Commerce Clause of the United States Constitution does not permit monetary damages without a direct statement of intent by Congress. Chief Justice Cole concurred, adding that the application of the clear-statement rule was not necessary since the Commerce Clause argument was never raised at the district court level and that the statute failed to “unambiguously authorize” monetary damages.
(Robert Bruce)

Munn v. City of Ocean Springs

763 F.3d 437 (5th Cir. 2014). A city ordinance prohibiting noise that “annoys . . . a reasonable person of normal sensitivities” is not unconstitutionally vague because the ordinance sets forth a reasonable person, objective standard of enforcement that meets the standard of due process of law. The appellants were the Purple Pelican, a bar and nightclub in an entertainment district, and its president and manager, Stephen Munn (collectively, “Nightclub”). The Nightclub was issued a criminal citation, which eventually was dismissed; however, the Nightclub then filed suit to strike down Ocean Springs, Miss., Ordinance No. 14-2007 § 15-13.1 (“Ordinance”), which is the city’s noise ordinance. The appellee, Ocean Springs (“City”), was granted summary judgment by the United States District Court for the Southern District of Mississippi, which held that the Ordinance was not unconstitutionally vague. The United States Court of Appeals for the Fifth Circuit first used United States v. Williams, 553 U.S. 285, 304 (2008) to determine that the constitutionality of the Ordinance depended on the Due Process Clause and not on the First Amendment; therefore, to be constitutional, the test is whether the Ordinance sufficiently gives an understanding of what conduct is legal and what is illegal. The Nightclub relied heavily on Coates v. City of Cincinnati, 402 U.S. 611 (1971), which held that an anti-loitering statute prohibiting a group of loiters from behaving in a way that annoyed others did not set forth a standard of conduct to abide by and was, therefore, unconstitutionally vague. The Nightclub argued that Coates demonstrated that the term “annoys” is always unclear and cannot be enforced in a way that does not violate due process of law. The City relied on Grayned v. City of Rockford, 408 U.S. 104 (1972), which upheld a noise ordinance because, although there would be some level of subjective enforcement, the ordinance would invite mostly objective enforcement. Grayned recognized that it is especially difficult to put an objective standard on a noise ordinance, and some level of police judgment is required when enforcing the law. The Fifth Circuit disagreed with the Nightclub’s argument that the problem with the ordinance in Coates was the use of the term “annoys.” Instead, the Fifth Circuit determined that the Ordinance was unconstitutional because it tried to enforce a subjective standard that was based on the perspective of the passing individual and not a reasonable person. Moreover, the Fifth Circuit found support for this exact interpretation of Coates from two other non-binding, persuasive cases Kramer v. Price, 712 F.2d 174 (5th Cir. 1983) and Gaughan v. City of Cleveland, 212 Fed. App’x 405 (6th Cir. 2007). The Nightclub also relied on Tanner v. City of Va. Beach, 674 S.E.2d 848 (2009), which struck down a city ordinance because even when the term “annoys” is used with an objective standard of what annoys a reasonable person, police officers still have to make subjective determinations of the tolerance levels of reasonable per- sons. The Nightclub argued that the term “annoys” is too vague to give police officers any standard on how to make those determinations. The Fifth Circuit determined that even though some level of police judgment is required in enforcing the law, case precedents showed that this level of uncertainty is tolerable in the noise ordinance context, as long as the ordinance sets forth an objective standard. Although it was not the Fifth Circuit’s job to determine whether the Ordinance was properly enforced against the Nightclub, the court briefly mentioned the importance of familiarizing police officers with the reasonable person standard to avoid improper enforcement. Given that the Ordinance sets forth an objective, reasonable person standard, citizens of the City should be able to sufficiently determine what level of noise would constitute a crime. Consequently, the Fifth Circuit affirmed the district court’s judgment, holding that the City’s Ordinance was not unconstitutionally vague and, therefore, did not violate the Due Process Clause.
(Jessica Meara)

CEnergy-Glenmore Wind Farm v. Town of Glenmore

769 F.3d 485 (7th Cir. 2014). A town board’s delay in granting a developer’s application for a wind farm permit, to the developer’s financial detriment, does not violate the developer’s right to substantive due process because (1) the delay due to public opposition is not sufficiently arbitrary when it is due to public opposition, and (2) the developer failed to use available state remedies. Appellant, CEnergy-Glenmore Wind Farm #1 (“Developer”), appeals from the United States District Court for the Eastern District of Wisconsin, which held that the City’s delay on the permit in the face of strong public opposition did not shock the conscience. The district court further held that because the Developer did not use the available state remedies of pursuing permits under a local ordinance or a writ of mandamus, it cannot state a substantive due process claim. The appellee is the Town of Glenmore, Wisconsin, (“City”) which delayed the approval of the Developer’s applications for wind farm permits. After citizens at a town meeting became threatening towards board members, the City voted down their approval for the permits, but reinstated it a week later; however their final approval was past the Developer’s deadline. It was critical for the city to approve the permits in a timely manner, because the Developer was under contract with the public utilities company to obtain all city permits by a certain date. The Developer alleged it had vested property rights granted in the conditional use permit from the City to develop the wind farm. The Developer argued the City’s decision not to take action on the permits until after the contract deadline was meant to thwart the wind farm project, and that the delay was an arbitrary and egregious abuse of its authority that shocks the conscience, costing Developer more than $7 million in profits. The City argued its delay was initially due to its attorney needing more time to review all the information; and then the delay was due to public opposition. In order to be deemed arbitrary, a land-use decision must shock the conscience, and be arbitrary to the point of being egregious. Bettendorf St. Croix Cnty., 631 F.3d 421, 426 (7th Cir. 2011); City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 198 (2003). The United States Court of Appeals for the Seventh Circuit reasoned that popular opposition to a proposed land development plan is a rational and legitimate reason for a delay. The City’s delay resulting from the citizens’ threats did not shock the conscience, nor was it arbitrary to the point of egregiousness. While waiting for the City’s town board to give an approval for the Developer to submit its permit applications, the Developer did not alternatively proceed under the City’s ordinance to get permitting, nor did it seek a writ of mandamus to force the City to act. The Seventh Circuit stated that a plaintiff who ignores potential state law remedies cannot state a substantive due process claim based on a state-created property right. If a plaintiff could, procedural due process claims based on arbitrary deprivations of property could be restated as substantive due process claims even when a post-deprivation remedy was available. Kauth v. Hartford Ins. Co. of Illinois, 852 F.2d 951, 958 (7th Cir. 1988). The Seventh Circuit relied on Hudson v. Palmer, 468 U.S. 517 (1984), which states that a post- deprivation remedy satisfies due process. The Seventh Circuit believes a substantive due process claim has not been stated when a plaintiff complains he has been deprived of a state-created property interest without alleging an available state remedy is inadequate. Since the Developer did not use its option under state law to obtain building permits, nor pursue a writ of mandamus, it could not allege these remedies were inadequate. Recourse for an objectionable land-use decision must be made to the state, rather than federal, court. Federal courts are not zoning boards of appeal.
(Pamela Nagel Jorgensen)

Scheick v. Tecumsch Pub. Schs

766 F.3d 523 (6th Cir. 2014). An employee may recover under the Age Discrimination in Employment Act (ADEA) when an employer says on more than one occasion “they just want somebody younger,” because the employee’s age was the but-for cause of the employer’s decision not to renew a contract for his services. The appellant, Robert Scheick (age 56), was the principal of Tecumseh High School for six years when the appellee, Tecumseh Public Schools (TPS) decided not to renew his contract. Scheick believed that his contract had not been renewed because of his age and brought suit under the ADEA after receiving a right-to-sue letter from the United States Equal Employment Opportunity Commission (EEOC). First, the court said the ADEA prohibits an employer “to fail or refuse to hire or to discharge . . . or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis added). Under this statute’s “because of ” language, it is not enough for Scheick to show that age was a motivating factor in the termination. To support its conclusion, the United States Court of Appeals for the Sixth Circuit employed the two-prong test used for workplace discrimination, which provides that an employee must illustrate by a preponderance of the evidence (direct or circumstantial) that (2) age was the “but-for cause” of the employer’s decision. Gross v. FBL Fin. Servs. Inc., 557 U.S. 167 (2009). Next, the court adopted the McDonnell Douglas evidentiary framework used in Gross in order to determine whether Scheick had presented direct evidence regarding the discrimination remarks made by the superintendent, therefore entitling him to plead his case before a jury. Scheick alleged that the TPS made non-ambiguous statements to him on more than one occasion that constituted direct evidence. The statements submitted as evidence were: (1) “The Board wants you to retire”; (2) “They just want somebody younger”; (3) “They wanted someone younger”; and (4) forcefully suggesting a “buyout” option with Scheick on two occasions. TPS argued that the preceding statements are too ambiguous in nature to constitute a violation of the ADEA because: of who “they” referred to, what positions were being (1)   referred to, and whether these assertions reflected the intent of the decision maker. The court agreed that the first statement is not direct evidence of discrimination because “retirement” is not a valid inference for age (as opposed to either years of service or a desire that he leave the position voluntarily). However, the court found that the other three statements made by the superintendent are directly indicative of discrimination because it is obvious that the term “they” refers to the board and is therefore not ambiguous. Thus, these statements of evidence would require the conclusion that age was the “but-for cause” of the termination. Finally, the court clarified that even when direct evidence has been offered, it is necessary to look at the evidence as a whole to decide if a reasonable juror could find that the discrimination was the “but-for cause” before granting summary judgment. The court admitted that the burden of proof standard does not shift to the employer in ADEA actions, rejecting the precedent of recognizing the ab- rogation of direct evidence cases under the ADEA. Geiger v. Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009). The court concluded that Scheick had met his evidentiary burden, which was sufficient to allow a reasonable juror to find that Scheick’s age was the “but-for cause” in choosing not to renew his contract.
(Nicci Gudmens)

Weaving v. City of Hillsboro

763 F.3d 1106 (9th Cir. 2014). An employer should be allowed judgment as a matter of law on an employee’s claim that termination of his employment was in violation of the Americans with Disabilities Act (“ADA”) where a plaintiff ’s disability does not substantially limit the employee in a major life activity. The appellee, Matthew Weaving (“Employee”), was fired from his position as a sergeant with the Hillsboro Police Department (“HPD”) following severe interpersonal problems between him and other HPD employees even though he claimed the interpersonal problems were symptoms of his ADHD. The appellant, City of Hillsboro (“City”), appealed from a general verdict that the Employee was disabled and the City had discharged him because of his disability. Under the ADA, an employer cannot discriminate against a “qualified individual on the basis of disability.” 42 U.S.C. § 12112(a) (2015). To demonstrate a qualifying disability, the individual must show that in comparison to the general population, his performance in a major life activity is substantially limited. 29 C.F.R. § 1630.2( j)(1)(ii) (2014). The Employee claimed that evidence at trial demonstrated that he was substantially limited in two major life activities: (1) working and (2) interacting with others. Treating the work issue first, the United States Court of Appeals for the Ninth Circuit acknowledged that working is clearly a major life activity. However, the Ninth Circuit decided that the Employee’s recent promotion, recognition on the job for knowledge and competence, and successful development of ADHD coping mechanisms, demonstrated that the Employee was quite skilled and not substantially impaired in his ability to work as a police officer compared to the general population. On the second issue, the Ninth Circuit emphasized that the ability to interact with others concerns a recognized major life activity. However, the claimant’s inability to interact must be sufficiently severe in order to avoid the circumstance that “any cantankerous person will be deemed substantially limited in a major life activity.” McAlindin v. County of San Diego, 192 F.3d 1226, 1235 (9th Cir. 1999). The Ninth Circuit distinguished between the present case, where the Employee’s problem was in getting along with other people, and two successful disability claims where claimants were house- bound, barely functional, and therefore substantially impaired in their ability to interact with others. See id.; Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1060-1061 (9th Cir.2005). In this case, the Ninth Circuit found that Employee’s interpersonal problems were analogous to the cantankerous person because the Employee’s problem concerned his difficulty in getting along with people. As the Employee’s problems did not rise to the level of substantial limitation in either the work issue or the interaction issue, the Ninth Circuit reversed the lower court’s denial of City’s motion for judgment as a matter of law because no reasonable jury could find for the Employee. In his dissent, Judge Callahan brought up untreated facts to question the majority’s analysis and concluded that there was sufficient evidence to find that the Employee had a disability. For example, a former coworker’s testimony indicated that the Employee was difficult to interact with. Trial testimony revealed that an investigative official whose report was influential in the decision to terminate the Employee was biased against the Employee and his report contained inaccuracies and omissions. Another official’s report stated that the Employee was critically deficient in the area of emotional intelligence, and this deficiency was the foundation of his decision to terminate the Employee. In addition, the Employee’s physician and an examining psychologist testified that Employee clearly suffered from ADHD and his interpersonal problems were likely a result. The dissent countered the argument that Employee’s interpersonal problems did not sufficiently impair him by demonstrating the similarity between Employee’s condition and the plaintiff ’s condition in Head, where plaintiff ’s condition was sufficient to avoid summary judgment. According to this evidence, Judge Callahan concluded that granting summary judgment was erroneous because a reasonable jury could find for the Employee.
(Abigail Kawase)

N.W. v. Boone Cnty. Bd. of Educ

763 F.3d 611 (6th Cir. 2014). The Individuals with Disabilities Education Act (“IDEA”) requires reimbursement of a child’s private school tuition only when two requirements are proven: (1) the school district failed to provide “free appropriate public education” (“FAPE”) and (2) the child’s “stay-put” placement was approved by the school district. Claiming the school district’s transition plan failed to provide a FAPE and incorrectly determined the child’s stay-put placement, a nine-year-old boy (“N.W.”) diagnosed with autism filed suit in the federal district court. Opposing the reimbursement was the Boone County Board of Education (“district”). The district court ordered the district to reimburse N.W. after his parents removed him from district schools and placed him into a private school, finding that it was his “then-current educational placement” (“stay-put” placement). The district appealed, arguing that the IDEA prohibited reimbursement absent a finding that the district failed to provide a FAPE. The IDEA states that “[i]f the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, [2] a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment [3] if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child.” 20 U.S.C. § 1412(a)(10)(C)(ii). The United States Court of Appeals for the Sixth Circuit explained that the IDEA only requires reimbursement for the failure to provide a FAPE and implicitly bars a court from ordering a reimbursement for any other reason. In reaching this conclusion, the court relied heavily on School Committee of Burlington v. Department of Education of Massachusetts where the United States Supreme Court held that a parent acts at his own financial risk by unilaterally — without the school’s consent — changing the child’s educational placement during court proceedings. 471 U.S. 359, 373-74 (1985). N.W. also contended that he was entitled to reimbursement absent a showing that the district failed to provide a FAPE because his current educational placement was the private school and the IDEA’s “stay-put” provision is mandatory. The targeted provision of the IDEA mandates that a child remain in his or her “then-current educational placement” unless both parties agree otherwise, until the completion of the proceedings. 20 U.S.C. § 1412( j). However, the court relied on the Department of Education’s definition of “current education placement,” which states that a child’s educational placement is determined by the child’s individual education program (IEP) and is as close to the child’s home as possible. 34 C.F.R. § 300.116(b). Although the IDEA indicates that a child’s parent is involved in the decision, the school must approve of the placement decision in some way for it to be recognized by the “stay-put” provision. The court concluded that N.W. did not qualify for “stay-put” protection or reimbursement because his proper placement was not that of his current private school, but the last agreed upon educational facility in his IEP. The order mandating the district to reimburse N.W. was vacated.
(Taryn A. Nash)

EEOC v. Port Auth. of N.Y. & N.J.

768 F.3d 247 (2d Cir. 2014). A discrimination complaint will be dismissed for failure to state a claim under Twombly and Iqbal pleading standards when the complaint alleges conclusory facts that simply overlap in titles or classifications rather than establish nonconclusory facts such as common duties or content that will move the claim across the line from conceivable to plausible. The appellant, Equal Employment Opportunity Commission (“EEOC”), brought action against the appellee, Port Authority of New York and New Jersey (“Port Authority”), claiming that Port Authority violated the Equal Pay Act (EPA) by paying its female nonsupervisory attorneys at a lesser rate than their male counterparts for what the EEOC alleged was “equal work.” Specifically, the EEOC alleged that female attorneys were subject to the same educational, training, experience, and ability requirements as male attorneys, female and male attorneys had the same job code, evaluations were conducted under the same criteria for both male and female attorneys, and that all salary ranges were determined by the same formula. To prove an EPA violation, the plaintiff must demonstrate (1) that the employer pays different wages to employees of the opposite sex; (2) that the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) that the jobs are performed under similar working conditions. Fair Labor Standards Act of 1938, 29 U.S.C. § 206(d)(1) (2014). Although a plaintiff need not establish that her job is identical to a higher-paid position, the standard requires evidence that the jobs that are being compared are “substantially equal,” or share common duties or content. Id. This appeal followed from the United States District Court for the Southern District of New York granting judgment in favor of Port Authority’s motion to dismiss for failure to state a claim because the EEOC had not alleged a single nonconclusory fact supporting its assertion that the claimants and comparators jobs required “substantially equal” skill and effort. Thus, the EEOC’s allegations did not rise to the level of facial plausibility. Instead, the EEOC asserted generalized facts consistent with all attorneys to establish that the male and female attorneys’ jobs were substantially equal, such as having the same professional degree, working under time constraints and deadlines, using analytical and legal skills, determining their salaries by the same formula, that males and females were required to have the same experience, training, education, and ability, and that they were evaluated by the same criteria. However, these claims were insufficient to demonstrate a violation of the EPA because they were based on job titles and criteria instead of actual job requirements and performance. Moreover, the use of evaluative criteria speaks to a breadth of standards being used, and not to the issue of whether the attorneys being evaluated had varying workplace demands. The United States Court of Appeals for the Second Circuit commented that accepting such sweeping generalizations as adequate to state a claim under the EPA might permit lawsuits against any law firm — or, conceivably, any type of employer — that does not employ a lockstep pay model. Without more, these facts could not be read to raise the EEOC’s “substantially equal” work claim “above the speculative level.” Nonconclusory facts describing actual job requirements and performance, and common job duties and content are desired instead to raise a claim above the speculative level. The Second Circuit went on to distinguish that this holding is only applicable to cases where a single claimant wishes to claim that she performed “substantially equal” work compared to a higher-paid co-worker of the opposite sex but only asserts conclusory facts.
(Brooke Pollard)

Tracey v. State

152 So. 3d 504 (Fla. 2014). Government use of location signals emitting from an individual’s cell phone to implement location tracking in real time is a search within the scope of the Fourth Amendment, requiring a warrant and probable cause, because: (1) an individual has a subjective expectation of privacy in those signals and (2) such a subjective expectation of privacy is one that society is now prepared to recognize as objectively reasonable. The petitioner, Shawn Alvin Tracey (“Tracey”), challenged the Florida Court of Appeal’s holding that the police practice of using real time cell site location information (“CSLI”), without a warrant or probable cause, to track Tracey’s whereabouts on public roads as unconstitutional. The respondent, the State of Florida (“State”), supported the lower court’s ruling relying heavily on United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 705 (1984). Knotts and Karo declare that a person’s location on a public road is not subject to Fourth Amendment protection. CSLI data is primarily collected as a function of cellular service providers. Each subscribing cell phone emits electronic signals gathered by nearby cellular towers recording the phone’s location in real time, accumulating data for billing and other practical business purposes. Here, the State used real time CSLI from Tracey’s cell phone to pinpoint his location where they effectuated his arrest. The resulting search of Tracey’s vehicle revealed a kilogram of cocaine, the primary evidence used against Tracey at trial. The State argued its use of CSLI was outside the reach of Fourth Amendment protection because it concerned the government’s tracking of Tracey’s location on public roads. Resolving Fourth Amendment issues, the Supreme Court of Florida has uniformly held that application of the Fourth Amendment depends on whether the person invoking its protection can claim a justifiable, reasonable, or legitimate expectation of privacy that has been invaded by government action. The court utilized the two-prong “reasonable expectation of privacy” test the United States Supreme Court recognizes as the touchstone of Fourth Amendment analysis. Katz v. United States, 389 U.S. 347 (1967). First, the court must determine whether the person exhibited an actual expectation of privacy. Second, if the court finds the person had an actual expectation of privacy, it must consider whether that expectation is one that society is prepared to recognize as reasonable. When both prongs are satisfied protection of the Fourth Amendment is extended. Analyzing the facts under the Katz, the court held government use of real time CSLI is a search requiring a warrant and probable cause. Regarding the first prong, the court used a normative inquiry to align Tracey’s subjective expectation of privacy with the protections guaranteed by the Fourth Amendment. The court acknowledged Tracey had a subjective expectation of privacy in his location signals transmitted solely to enable the private and personal use of his cell phone, even on public roads. The court explained that Tracey did not voluntarily convey that information to the service provider for any purpose other than to enable use of his cell phone for its intended function. Thus, Tracey exhibited an actual expectation of privacy in his location information; similar to the actual expectation of privacy Katz exhibited in his private telephone call within a public telephone booth. Evaluating the second prong, the court recognized the inexorable and significant fact cell phones are indispensible to many people and are normally carried on one’s person. Emphasizing the ease in which cell phone tracking can invade the right to privacy in one’s home or other private areas, the court concluded this inadvertent risk is not worth imposing on society. The court held that society is now prepared to accept Tracey’s subjective expectation of privacy in location signals as objectively reasonable. Satisfying the “reasonable expectation of privacy” test, by meeting both prongs of Katz, the court extended Fourth Amendment protection to real-time CSLI and pronounced the State’s use of real time CSLI to track Tracey, absent a warrant and probable cause, constitutionally invalid. When CSLI tracking is truly justified, it is not an insurmountable task for the government to obtain a warrant based on probable cause before acquiring and utilizing this information. (Alexandria Laton)

State v. Adams

763 S.E.2d 341 (S.C. 2014). The Fourth Amendment protects against warrantless Global Positioning System (GPS) tracking by the police and will not be set aside due to minor traffic violations. The defendant is Alfred Adams, who was alleged to be involved in cocaine trafficking. An anonymous informant provided the North Charleston South Carolina Police Department (NCPD) with the usual route Adams would take to obtain his supply, and the officers placed a GPS device on his vehicle to confirm this information. The police officers failed to obtain a warrant for this device as required by the Fourth Amendment and S.C. Code Ann. § 17-30-140. The device indicated that Adams traveled to a location provided by the informant, where he was to pick up the drugs. During his return, a local police officer pulled behind Adams on the highway. After observing some minor traffic violations, including an improper lane change, the officer pulled him over. Adams was arrested for possession of 141 grams of cocaine with intent to distribute in a school zone. The lower court held that Adam’s traffic violations were “intervening criminal activities,” and as such, allowed the police to constitutionally gather any evidence of other criminal wrongdoings. In reviewing this decision, the South Carolina Supreme Court struck down the “intervening criminal activity” theory, observing that disregard for proper procedure and claiming traffic violations, as a cover, does not set aside Fourth Amendment protections. The state countered by arguing that the officers should be afforded the “good faith” exception, which allows for minor violations of police procedure where the officers were unaware of a controlling statute. The court held that while this exception holds true when a change in the law or precedent makes an officer’s actions invalid, here the only relevant state statute, § 17-130-40, expressly forbade the use of the GPS without a proper warrant. This statute, available to the officers for six years prior to the incident, precluded the officers’ claim of good faith. Without this exception, the GPS use by the local police force was found a violation of constitutional protections afforded by the Fourth Amendment of the United States Constitution. The court noted that this was a difficult decision, but they were bound by law and that “[i]n law, the ends do not justify the means.”
(Matt Branson)

Raynor v. State

99 A.3d 753 (Md. 2014). Police can test 13 loci of DNA, which is obtained in a public place, for identification purposes without violating the unreasonable search and seizure clause of the United States Constitution’s Fourth Amendment, because the test does not physically trespass a person’s body and does not reveal any personal characteristics. The appellant, Glen Joseph Raynor (“Suspect”), agreed to be interviewed at a police station where he was questioned about an unsolved rape. The Suspect declined to give a DNA sample, but after the interview was over, the police swabbed the Suspect’s armchair for genetic material. The DNA extracted matched blood samples collected at the scene of the rape, which was ultimately used to charge and convict the Suspect of the crime. The Suspect appealed the denial of a pre-trial motion to suppress the DNA analysis on the ground that it violated his Fourth Amendment’s right to be free from unreasonable searches and seizures by the government. An unreasonable search under the Fourth Amendment is when the government infringes an actual, subjective expectation of privacy of an item or place searched, and society would find that expectation reasonable. Walker v. State, 69 A.3d 1066, 1077 (Md. 2013). The Suspect conceded that the police’s acquisition of the DNA sample was constitutional, but he argued that the DNA analysis was not. Specifically, he argued that it was unconstitutional because (1) he had a subjective expectation of privacy that his DNA would not be tested when he declined to give a DNA sample; (2) the government’s access to the large amount of personal information in his DNA; (3) one has a higher expectation of privacy in DNA than fingerprints; and (4) society would find a reasonable expectation of privacy that any publicly exposed DNA would not be tested by the government for identification purposes. The Court of Appeals of Maryland did not contest the Suspect’s first argument — that he had a subjective expectation of privacy as demonstrated by his denial to be swabbed. On the other hand the court did not agree with the Suspect’s other three arguments on the ground that society would not find that the Suspect had a reasonable expectation of privacy. DNA is made of coding regions, which contain personal characteristics, and non-coding regions, which do not contain personal characteristics. Maryland v. King, 133 S. Ct. 1958, 1966-67 (2013). The Suspect’s second argument was disproved, because the 13 loci that are tested by the police for identification purposes are from the non-coding region of DNA. See Williamson v. State, 993 A.2d 626, 639 (Md. 2009). By only testing the non-coding region of DNA, the government did not have access to any of the Suspect’s personal information and, therefore, did not violate a reasonable expectation of privacy. The court recognized, contrary to the Suspect’s third contention, that the testing of the 13 loci is similar to the testing of fingerprints because the 13 loci only reveals a series of numbers that are unique to each person. See State v. Raines, 857 A.2d 19, 45-46 (Md. 2004). The court did not agree with the Suspect’s final argument, because the testing of the 13 loci does not physically trespass on or into a body. See Kyllo v. United States, 533 U.S. 27, 34 (2001). The Court of Appeals found that the police’s testing of the Suspect’s 13 loci was not an unreasonable search and seizure consistent with the Fourth Amendment, because society would not find an expectation of privacy when the government did not collect any personal information or physically trespass the Suspect’s body. The dissent would have found a Fourth Amendment violation not only in the testing of the Suspect’s 13 loci, but also in the police’s acquisition of his DNA. The police needed a warrant to obtain the Suspect’s DNA because he had not been charged with a violent crime unlike the arrestees in King, Williamson, and the other cases cited by the majority, where the 13 loci were acquired and tested in accordance with Maryland’s DNA Collection Act. Md. Code Ann. § 2-504(a)(3) (2014). Furthermore, the dissent advanced a theory that the Fourth Amendment requires a new approach to DNA testing, for society would agree that technological advancements that collect and harvest DNA, even without a physical invasion, amounts to an unreasonable search and seizure.
(Isaac Elyacharshuster)

Bartley v. Commonwealth

400 S.W.3d 714 (Ky. 2013). Representation of co-defendants by public defenders of the same office does not result in a Sixth Amendment violation of a person’s right to effective assistance of counsel where no specific adverse effect is presented. The appellant, Donna Bartley, challenged the lower court’s finding that there was no ineffective assistance of counsel and that disqualification due to a conflict of interest was not required. Appellee, the Commonwealth of Kentucky, brought criminal charges against appellant and co-defendant Rita Mitchell. Mitchell lived with Bartley and her three children in a mobile home in rural Kentucky. One of the children, K.B., was severely disabled. Bartley moved, leaving only Mitchell and K.B. in Tompkinsville under the premise that she would have the trailer moved to the family’s new location in Glasgow, KY. Upon foreclosure of the trailer by the bank, K.B. was found to be living in subhuman conditions and unable to help himself. Mitchell and Bartley’s conflicting testimony, concerning the number of Bartley’s visits and financial support with respect to K.B., became the point upon which Bartley’s claim for ineffective counsel and the appellate court’s subsequent ruling turned. Bartley’s claim was premised on an allegation of conflict of interest because co-defendant Mitchell was represented by an attorney from the same office as Bartley’s public defender. The Sixth Amendment guarantees the right to effective assistance of counsel in federal felony charges. This right was ex- tended to state felony charges in 1963. Gideon v. Wainwright, 372 U.S. 335 (1963). Kentucky statute, Ky. R. Crim. P. 8.30, mimics the Sixth Amendment as it is applied, by including that “no attorney shall be permitted at any stage of the proceedings to act as counsel for the defendant while at the same time engaged as counsel for an- other person or persons accused of the same offense or of offenses arising out of the same incident or series of related incidents.” The court in Kirkland v. Commonwealth ruled that a successful claim of conflict of interest under this statute requires the defendant to provide evidence exhibiting an adverse effect on counsel’s job performance. 53 S.W.3d 71 (Ky. 2001). This requirement is consistent with the “actual conflict” standard used by the U.S. Supreme Court in cases alleging a Sixth Amendment effective assistance of counsel violation. Under this standard, the mere existence of a potential conflict will not suffice, rather the actual conflict must materialize. The Supreme Court of Kentucky determined that Bartley must show that her counsel’s “strategy, tactics, or decision making” exhibited “some specific defect.” People v. Morales, 808 N.E.2d 510, 515 (Ill. 2004). In Morales, the Supreme Court of Illinois found that “bare and legally insufficient claim[s]” of conflicting duties to a witness, did not constitute ineffective counsel because of irrelevance of the facts. Id. at 515. Similarly, Bartley argued that this requirement was met when her counsel “put his foot on the brake” during the cross-examination of co-defendant Mitchell. The court reasoned that Bartley’s counsel was trying to establish distance between Mitchell and his client and was justifiably apprehensive to apply pressure to Mitchell in the cross-examination, given her record of inconsistent statements. The court also found that counsel feared that the co-defendant would retract her most recent affirmation that Bartley had not visited in two weeks, an affirmation that supported Bartley’s counsel’s defense strategy. The court concluded that Bartley failed to provide evidence that her counsel’s performance was adversely affected.
(Noah Ballard)

In re Judicial Campaign Complaint Against O’Toole

24 N.E.3d 1114 (Ohio 2014). A rule restricting the speech of a judicial candidate is un- constitutional where the language states the truth but is deceiving or misleading to a reasonable person because: (1) it “chills the exercise of legitimate First Amendment rights” and (2) undermines the state’s “interest in maintaining a competent and impartial judiciary.” Respondent Colleen Mary O’Toole was a judge on the Eleventh District Court of Appeals until she was defeated in the 2010 election. O’Toole chose to run again as a non-incumbent in 2012. During that campaign, she represented herself as a sitting judge in two ways. First, by wearing a name badge with the title of “Judge” listed after her name and second, by failing to include the end of her first term on her campaign website. O’Toole appealed the judicial commission’s decision holding that she violated a judicial rule and the resulting order to pay a one-thousand dollar fine, plus costs and attorney’s fees. O’Toole challenged the rule, which forbids a judicial candidate from “knowingly or recklessly conveying information about the candidate or the candidate’s opponent that is false or that, if true, would deceive or mislead a reasonable person.” Jud.Cond.R. 4.3(A). O’Toole asserted there was not enough evidence to prove her statements were untrue, deceptive, or misleading to a reasonable person and that the commission’s ruling for attorney’s fees was arbitrary and capricious. In making its ruling, the Supreme Court of Ohio first determined that it has the proper authority to rule on the conduct of judicial candidates. Second, by studying the language of the rule, the court recognized judicial speech may be restricted when it is false or when the speech is true yet misleading.

Because the rule is content based, strict scrutiny applies. Strict scrutiny lays a heavy burden on the government to show the regulation of the speech is rooted in a compelling state interest and the rule must be narrowly tailored to accomplish the interest. The state has many compelling reasons to regulate the judiciary, including the need to ensure the judiciary is fairly elected and to uphold its integrity. Ohio did not have binding precedent to consult on whether the rule was narrowly tailored and the least restrictive means to meet the interests of the state. The court then looked to two states with similar rules for assistance to analyze the case under strict scrutiny. Both Alabama and Michigan limited the rule to a specific mens rea and removed any reference to true but misleading speech. Agreeing with this analysis, the court upheld the mens rea of intentional or reckless statements, but struck down the second clause referring to true speech as overly broad. After severing the second clause, the court reapplied the rule to the commission’s ruling. The badge worn by O’Toole during the reelection campaign was a false statement because O’Toole was aware she was no longer a sitting judge. As to the second count, the court held it was not a violation for O’Toole to fail to list the date she left office on her campaign website because it was not a false representation. Finally, the court determined the fine and attorney’s fees were fair in light of the seriousness of the violation.
(Cara McLaughlin)