Selected Cases From The United States Supreme Court Term. Pupilage 6

Transcription

1 Thurgood Marshall Inn of Court May 27, 2015 Phoenix, Arizona Selected Cases From The United States Supreme Court Term Pupilage 6

2 Overview Discussion limited to selected cases, pending or issued, from the United States Supreme Court term. No more than 6 minutes 30 seconds per case. Questions throughout, but subject to the 6 minutes 30 seconds per case limit. So, this is the speed round

3 Williams-Yulee v. Florida Bar, 2015 WL (Apr. 29, 2015) Sam Thumma Rejects First Amendment challenge to Florida Code of Judicial Conduct canon stating judicial candidates shall not personally solicit campaign funds... but may establish committees of responsible persons to raise money for judicial election campaigns.

4 Williams-Yulee v. Florida Bar, 2015 WL (Apr. 29, 2015) Sam Thumma C.J. Roberts wrote court s opinion (joined by JJ. Breyer, Sotomayor and Kagan, and Ginsburg in all but Part II). A State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest.

5 Williams-Yulee v. Florida Bar, 2015 WL (Apr. 29, 2015) Sam Thumma Court s opinion (Cont d) Canon advances the State s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.

6 Williams-Yulee v. Florida Bar, 2015 WL (Apr. 29, 2015) Sam Thumma Court s opinion (Cont d) Rejects argument that canon was over- and under-inclusive and, therefore, not the least restrictive means, adding canon must be narrowly tailored, not perfectly tailored. A State s decision to elect judges does not compel it to compromise public confidence in their integrity.

7 Williams-Yulee v. Florida Bar, 2015 WL (Apr. 29, 2015) Sam Thumma J. Breyer concurred, viewing cases referring to tiers of scrutiny as guidelines... not tests to be mechanically applied. J. Ginsburg (joined by J. Breyer in part) concurred, stating strict scrutiny did not apply and adding States have substantial latitude... to enact campaign-finance rules geared toward judicial elections.

8 Williams-Yulee v. Florida Bar, 2015 WL (Apr. 29, 2015) Sam Thumma J. Scalia (joined by J. Thomas) dissented. First paragraph from J. Scalia s dissent states: An ethics canon adopted by the Florida Supreme Court bans a candidate in a judicial election from asking anyone, under any circumstances, for a contribution to his campaign.

9 Williams-Yulee v. Florida Bar, 2015 WL (Apr. 29, 2015) Sam Thumma First paragraph from J. Scalia s dissent continued: Faithful application of our precedents would have made short work of this wildly disproportionate restriction upon speech. Intent upon upholding the Canon, however, the Court flattens one settled First Amendment principle after another.

10 Williams-Yulee v. Florida Bar, 2015 WL (Apr. 29, 2015) Sam Thumma J. Kennedy dissented separately to underscore the irony in the Court s having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate s own speech is at issue. J. Alito dissented separately, largely agreeing with other dissents, adding the canon is about as narrowly tailored as a burlap bag.

11 Perez/Nickols v. Mortgage Bankers Ass n, 135 S. Ct (March 9, 2015) Diane Mihalsky Rejects the requirement that a federal agency must engage in notice-andcomment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation, regardless of whether the regulated party relied on the interpretation.

12 Perez v. Mortgage Bankers Ass n/ Nickols v. Mortgage Bankers Ass n Diane Mihalsky The issue presented was whether mortgage loan officers qualified for an administrative exemption from the requirement imposed by the Department of Labor ( DOL ) to pay overtime wages to employees who worked more than 40 hours per week. association, filed suit.

13 Perez v. Mortgage Bankers Ass n/ Nickols v. Mortgage Bankers Ass n Diane Mihalsky After the DOL interpreted regulations promulgated under the Fair Labor Standards Act to make mortgage loan officers exempt employees, it reversed its position. The Mortgage Bankers Association, a national trade association, filed suit.

14 Perez v. Mortgage Bankers Ass n/ Nickols v. Mortgage Bankers Ass n Diane Mihalsky The D.C. District Court denied MBA s motion for summary judgment because it found that under the Paralyzed Veterans case, MBA had failed to establish that it relied on the former policy.

15 Perez v. Mortgage Bankers Ass n/ Nickols v. Mortgage Bankers Ass n Diane Mihalsky J. Sotomayor write the court s opinion ( joined by C.J. Roberts, J.J. Kennedy, Ginsburg, Breyer, Kagan, and Alito except for Part III-B; J.J. Scalia and Thomas filed opinions concurring in the judgment). Section 4 of the Administrative Procedure Act ( APA ), 5 U.S.C. 551(5), specifically exempts interpretative rules from notice-andcomment requirements.

16 Perez v. Mortgage Bankers Ass n/ Nickols v. Mortgage Bankers Ass n Diane Mihalsky Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretative rule.

17 Perez v. Mortgage Bankers Ass n/ Nickols v. Mortgage Bankers Ass n Diane Mihalsky [T]he right to notice and an opportunity to comment when an agency changes its interpretation of one of the regulations it enforces may be a wise policy. Or it may not. Regardless, imposing such an obligation is the responsibility of Congress or the administrative agencies, not the courts.

18 Perez v. Mortgage Bankers Ass n/ Nickols v. Mortgage Bankers Ass n Diane Mihalsky There may be times when an agency s decision to issue in interpretative rule, rather than a legislative rule, is driven primarily by a desire to skirt notice-andcomment provisions. But such regulated entities are not without recourse in such situations. Quite the opposite. The APA contains a variety of constraints on agency decisionmaking the arbitrary and capricious standard being among the most notable.

19 Reed v. Gilbert Pat Irvine Docket No Argued January 12, 2015 Not yet decided Opinion below: 707 F.3d 1057 (9 th Cir. 2013)

20 Reed v. Gilbert Pat Irvine

21 Reed v. Gilbert Pat Irvine

22 Reed v. Gilbert Pat Irvine Issue: Whether the Town of Gilbert's mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code's differential treatment of petitioners' religious signs. Lower courts held town ordinance valid time, place and manner restrictions.

23 Reed v. Gilbert Pat Irvine Are facially content-based restrictions on speech constitutional if they are made without discriminatory motive. What level of scrutiny applies to restrictions that distinguish between different types of noncommercial speech; strict or intermediate.

24 Zivotofsky v. Kerry (not yet decided) Phil Ortega Should Israel be listed as a place of birth on a passport? Zivotofsky, born in Jerusalem to US citizen parents, has Jerusalem listed as place of birth on passport, not Israel Big question Should the Legislative or Executive branch have the authority to recognize (officially accept) the existence of a foreign nation

25 Zivotofsky v. Kerry Phil Ortega State Dept. F.A.M. directs the listing of Jerusalem on passport Congress enacted law - directs Sec. of State to list Israel as place of birth upon request (Pres. Bush signed but opposed) Zivotofsky made request, was denied, and filed suit D.C., Dist. Of Columbia and C.O.A dismissed because of political question

26 Zivotofsky v. Kerry Phil Ortega U.S. Supreme Court reversed (132 S.Ct. 1421) holding action not barred under political question doctrine and remanded to C.O.A. for determination on the constitutional issue of recognition power On remand, C.O.A. held President has exclusive power to recognize, and the law infringed on that power (725 F.3d 197)

27 Zivotofsky position Zivotofsky v. Kerry Phil Ortega Power of recognition is shared power Citing 1818 S.C. decision that said the court must examine legislative and executive departments view of new foreign governments after a civil war Analyzing post-ratification history State Dept. needs Congress permission to act in field of passport controls 1856 Congress authorized Sec. of State to grant and issue passports and has passed subsequent laws

28 Zivotofsky v. Kerry Phil Ortega Members of Senate/House amicus briefs S.C. has recognized Congress plenary authority over passports Passport wording is identification, not recognition of foreign state

29 State Dept. position Zivotofsky v. Kerry Phil Ortega Pres. power derived from Article II receive Ambassadors and other public Ministers No provision granting Congress power to participate in recognition decisions Focused on effect identification would have on foreign affairs Recognition of Israel would put Pres. in conflicting stance in its sensitive diplomatic efforts regarding the Middle East and undermine his credibility

30 Zivotofsky v. Kerry Phil Ortega Highlights from Oral Argument Predictions Kagan, Sotomayor, Ginsburg, Breyer favor Sec. of State s position Alito, Roberts, Scalia, Thomas favor Zivotofsky/Congress position Kennedy -???

31 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins Pregnancy Anti-Discrimination Act Specifies that Title VII s prohibition against sex-based discrimination encompasses discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions. [W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes as other people not so affected but similar in their ability or inability to work. 42 U.S.C. 2000e(k).

32 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins But what happens when some similarlysituated people receive accommodations, but others do not?

33 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins

34 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins UPS Collective Bargaining Agreement allows for temporary alternative assignments for employees unable to perform their normal work assignments due to: On-the-job injuries ADA-recognized permanent disabilities Lost DOT certifications

35 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins Peggy sues! Claim for disparate treatment under Title VII and the Pregnancy Discrimination Act Two ways to state claim for disparate treatment Direct Evidence Burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

36 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins McDonnell Douglas Burden Shifting Establish prima facie case of discrimination by showing: Membership in minority class Applied for job and was otherwise qualified Rejected Employer continued to look for person with same qualifications

37 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins Peggy s Argument: Whenever an employer accommodates only a subset of workers with disabling conditions, a court should find a Title VII violation if pregnant workers who are similar in the ability to work do not receive the same [accommodation] even if still other non-pregnant workers do not receive accommodations. UPS s Argument [C]ourts compare the accommodations an employer provides to pregnant women with the accommodations it provides to others within a facially neutral category (such a those with offthe-job injuries) to determine whether Title VII was violated.

38 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins So did UPS illegally discriminate against Peggy Young when it refused to give her accommodations for her pregnancyrelated disability? We still don t know.

39 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins SCOTUS rejects both parties arguments No most-favored nation status for pregnancy But PDA means more than just Pregnant Women are covered by Title VII Establishes a framework to analyze claims under the Pregnancy Discrimination Act Finds that Peggy stated a prima facie case, sends back to Fourth Circuit for analysis

40 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins Stating prima facie case under PDA: Status in a protected class (pregnancy) Sought accommodation No accommodation was given Employer gave accommodation to others similar in their ability or inability to work.

41 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins Employer may then seek to justify its refusal to accommodate the plaintiff by relying on legitimate, non-discriminatory reasons for denying her accommodation. Cost and convenience are not sufficient Plaintiff may then respond by showing that the proffered reason was pretextual

42 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins [T]he plaintiff may reach a jury on this issue by providing sufficient evidence that the employer s policies impose a significant burden on pregnant workers, and that the employer s legitimate, nondiscriminatory reasons are not sufficiently strong to justify the burden, but rather when considered along with the burden imposed give rise to an inference of intentional discrimination.

43 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins Why do we care? Provides framework that will make it easier for women to state a claim for discrimination while they are pregnant U.S. has some of the least protective employment laws for pregnant women in the industrialized world

44 Young v. United Postal Service, Inc., 135 S. Ct (2015) Blaire Hawkins But keep in mind Public opinion may be obviating the need for stronger legal protections Congress has changed the statutory definition of disability under the ADA that should include most temporary disabilities resulting from pregnancy

45 Facts Rodriguez v. United States, 135 S. Ct (2015) John Walker Bright-line rule v. de minimus Illinois v. Caballes, 543 U.S. 405 (2005) How we got to Rodriguez K-9 sniff search allowed without any reason to believe criminal activity afoot But what about after the traffic investigation?

46 Rodriguez v. United States, 135 S. Ct (2015) John Walker A Split Among U.S. Circuit Courts De Minimis 8th & 3rd Circuits U.S. v. $404, in U.S. Currency, 182 F.3d 643 (8 th Cir. 1999) Case by case basis based on reasonableness. Drawing a bright line is not workable Bright-Line Balance of Courts Rodriguez rationale (6-3)

47 Walker v. Texas Division, Sons of Confederate Veterans, Inc. Rachel Metelits Proposed design illustrated by the Texas Department of Motor Vehicles

48 Walker v. Texas Division, Sons of Confederate Veterans, Inc. Rachel Metelits BACKGROUND August Texas Division of Sons of Confederate Veterans (SCV) submitted license plate application to the Texas Department of Transportation (DOT) December DOT s panel denied SCV s application October March April SCV makes application to the Texas Department of Motor Vehicles Board Public comment begins Board deadlocks November Board unanimously rejects

49 Walker v. Texas Division, Sons of Confederate Veterans, Inc. Rachel Metelits PROCEDURAL HISTORY: SCV sued in federal district court under 42 U.S.C. 1983, asserting violations of its rights under the First and Fourteenth Amendments. Both parties moved for summary judgment, and the district court granted the Board s motion. SCV appealed to the Fifth Circuit. The Fifth Circuit reversed and remanded. The Supreme Court granted the Board s petition for writ of certiorari.

50 Walker v. Texas Division, Sons of Confederate Veterans, Inc. Rachel Metelits First issue: Whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality

51 Walker v. Texas Division, Sons of Confederate Veterans, Inc. Rachel Metelits Second issue: Whether Texas engaged in viewpoint discrimination by rejecting the licenseplate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light

52 Walker v. Texas Division, Sons of Confederate Veterans, Inc. Rachel Metelits Oral arguments heard on March 23, 2015

53 Warger v. Shauers, 135 S. Ct. 521 (2014) Terri Zimmerman Plaintiff in civil accident case challenged defense verdict, claiming jury foreperson disclosed, during deliberations, story of her child causing an accident that would have ruined her life if she had been sued. Juror did not disclose this information in voir dire. USSC affirms ruling barring consideration of such evidence, holding Fed. R. Evid. 606(b) applies to all inquiries into the verdict, including voir dire.

54 Warger v. Shauers, 135 S. Ct. 521 (2014) Terri Zimmerman Comparing Ariz. and Fed. R. Evid. 606 Fed. R. Evid. 606(b) applies to civil and criminal cases. Ariz. R. Evid. 606(b) limited to civil cases. Ariz. R. Crim. P. 24.1(c)(3) & (d) applies to criminal verdicts and is arguably broader than 606(b) as it includes specific events (e.g., verdict by lot and voir dire irregularities) inadmissible under federal case law.

55 Questions