September 28th, 2017
This morning the Supreme Court issued orders from its September 25 conference, adding 11 new cases (for a total of nine additional hours of argument) to its merits docket for the term. The highest-profile grant came in Janus v. American Federation of State, Municipal and County Employees, a challenge to the fees paid by public-sector employees who are not members of the union that represents them. The justices have already considered the question presented by the case twice without resolving it, but are almost certain to do so during this go-round – with potentially serious implications for the union.
When the justices review the case of Mark Janus, an Illinois state employee, they will not necessarily be writing on a blank slate. In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that, even if they cannot be required to pay fees that a union would use for political activity, like union organizing, public-sector employees can be required to pay a fee to cover the costs of contract negotiations. But Janus argued that even requiring him to pay the more limited fee violates his First Amendment rights because issues related to contract negotiations – like salaries, pensions and benefits for government employees – are inherently political. Therefore, he contends, his fee is going to support speech that is intended to affect the government’s policies, even if he disagrees with it. The U.S. Court of Appeals for the 7th Circuit rejected Janus’ argument, holding that it lacked the power to overrule the Supreme Court’s decision in Abood. But, Janus told the justices in his petition for review, they do have that power and should exercise it here.
The justices did not reach the union-fees issue the first time they considered it, in the 2014 case Harris v. Quinn; instead, they ruled that the employees in that case – home-health-care workers who were paid by the state – were not “true” public employees. They returned to the question again two terms ago and heard oral argument in January 2016, but they deadlocked after the February 13, 2016, death of Justice Antonin Scalia. With Justice Neil Gorsuch now on the bench, the justices are expected to decide the issue once and for all.
Another one of today’s grants, Encino Motorcars v. Navarro, is making a return trip to the Supreme Court. In 2016, the Supreme Court threw out a decision by the U.S. Court of Appeals for the 9th Circuit, which had concluded that “service advisors” at car dealerships were not covered by an exemption in the Fair Labor Standards Act from overtime for “any salesman” “primarily engaged in selling or servicing automobiles.” The court in that case ruled that the 9th Circuit should not have deferred to a Department of Labor regulation because the department had not provided a sufficient explanation for its decision to reverse course from its earlier position treating service advisors as exempt. The justices sent the case back to the 9th Circuit, ordering it to interpret the FLSA “without placing controlling weight on” the DOL regulation. The 9th Circuit once again ruled that service advisors were not exempt from overtime, but now the Supreme Court will review that decision.
The Fifth Amendment’s “self-incrimination clause” provides that no one “shall be compelled in any criminal case to be a witness against himself.” In City of Hays, Kansas v. Vogt, the justices will consider the scope of that clause – specifically, whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.
While working for the city of Hays, Matthew Vogt applied for a job as a police officer in another city. As part of his agreement with the new employer, Vogt informed the Hays police department that he had kept a knife that he had acquired on the job. Using his statements, the Hays police department found “an audio recording which captured the circumstances of how Vogt came into possession of the knife,” and the state eventually charged Vogt with two felonies. The state held a probable cause hearing – at which, Vogt says, his statements about the knife were “used against him.”
The charges were dismissed, but Vogt filed a federal civil-rights lawsuit in which he argued that the city and four officers (along with his would-be employer, which had withdrawn its offer) had violated his Fifth Amendment rights. The district court granted the defendants’ motion to dismiss Vogt’s claims, but (as relevant here) the U.S. Court of Appeals for the 10th Circuit reversed. It acknowledged that the Supreme Court had not yet weighed in on “the precise moment when a ‘criminal case’ commences” for purposes of the self-incrimination clause. But it reasoned that “the right against self-incrimination is more than a trial right,” so that it is “violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing.” The city asked the Supreme Court to weigh in, which it agreed today to do – with Justice Neil Gorsuch, who sat on the 10th Circuit before joining the court – recused.
In Collins v. Virginia, the justices have agreed to clarify the scope of the “automobile exception” to the warrant requirement – specifically, whether it applies to a car parked on private property, close to a home. The case arose when officers looking for a motorcyclist who had eluded them saw a picture of a motorcycle on petitioner Ryan Collins’ Facebook page, found the house where Collins spent at least several nights each week, and located the motorcycle under a tarp toward the back of the driveway, near the house. A police officer walked into the driveway and removed the tarp to find the motorcycle’s Vehicle Identification Number and license tag, from which he learned that the motorcycle was stolen. When Collins was charged with receiving stolen property, he countered that evidence regarding the motorcycle should be suppressed because the police officer had entered the area around his house without a warrant, in violation of the Fourth Amendment.
The state courts rejected his argument. Although the state conceded that the police officer’s actions constituted a search under the Fourth Amendment, for which a warrant would normally be required, the Supreme Court of Virginia concluded that the “automobile exception” applied because the motorcycle was “readily mobile” and the police officer had “several reasons to believe the motorcycle was contraband.” This was true, the court continued, even though the motorcycle was on private property. At Collins’ request, now the Supreme Court will weigh in.
The Fourth Amendment is at the center of another case the justices agreed to review today: Byrd v. United States. The case arose when Terrence Byrd’s girlfriend rented a car, but did not include him on the rental agreement. On the same evening, Byrd was pulled over for a traffic violation. When police searched the car, they found 49 bricks of heroin and body armor. Byrd was arrested and charged with possession of body armor by a felon, as well as possession of heroin with intent to distribute it. At trial, he argued that the heroin and body armor could not be used against him because the search violated the Fourth Amendment. The district court disagreed, reasoning that Byrd did not have any expectation of privacy in the rental car because “he was not a party to the rental agreement and he did not pay for the rental.” The U.S. Court of Appeals for the 3rd Circuit affirmed, prompting Byrd to go to the Supreme Court.
In McCoy v. Louisiana, the justices will consider the case of Robert McCoy, who was convicted of first-degree murder for the shooting deaths of his estranged wife’s son, mother and step-father. After firing his public defender, McCoy was represented by Larry English, an attorney paid by his parents. As with his public defender, McCoy maintained his innocence in meetings with English and “emphatically opposed” English’s proposal to concede that McCoy was guilty in the hope that he would be spared the death penalty. McCoy attempted to remove English and represent himself, but the trial court rejected his request on the ground that it came too late: His trial was only a few days away.
When the trial began, English did indeed concede McCoy’s guilt, over interruptions from McCoy. McCoy was convicted and sentenced to death. He appealed (among other things) English’s concession of guilt, arguing that it violated his constitutional right to have the effective assistance of an attorney. The Louisiana Supreme Court denied his appeal, but now the Supreme Court will consider his claim.
In Rosales-Mireles v. United States, the Supreme Court will weigh in on whether the U.S. Court of Appeals for the 5th Circuit applied too harsh a standard in determining whether to correct a plain error by the district court. The petitioner in the case, Florencio Rosales-Mireles, pleaded guilty to re-entering the United States and was sentenced to 78 months in prison. On appeal, he argued that the district court had calculated his sentence wrong, and the federal government agreed. However, the 5th Circuit declined to correct the error, explaining that the kind of errors that would “seriously affect the fairness, integrity or public reputation of judicial proceedings” are “ones that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge” – a standard that Rosales-Mireles cannot, in its view, meet. Rosales-Mireles went to the Supreme Court, arguing that the 5th Circuit’s standard is too high; today the justices granted his petition for review.
A trio of new cases – Dalmazzi v. United States, consolidated with Cox v. United States and Ortiz v. United States for one hour of oral argument – raises interesting questions arising out of the service of active-duty military officers on the U.S. Court of Military Commission Review, an intermediate appellate court for military commissions. For nearly 150 years, Congress has (subject to limited exceptions) barred active-duty military officers from holding another, civilian post within the executive branch. The petitioners in these cases served in the Air Force until they were charged with violating various provisions of the Uniform Code of Military Justice. Their cases went to the U.S. Air Force Court of Criminal Appeals, where their panels included judges who were also serving on the CMCR. The service members challenged those judges’ continued service on the AFCCA, arguing that, because of their service on the CMCR, they should no longer be members of the military and could not review the service-members’ cases. In Ortiz’s case, the court rejected that claim on the merits, while the other service-members’ claims were deemed moot because the president had not yet signed the judges’ CMCR commissions when the decisions against them were issued. The Supreme Court today agreed to review the service members’ claims; it also directed the service members in two of the three cases (Dalmazzi and Cox) to brief and argue whether the Supreme Court has jurisdiction to review their cases.
In 2015, in Gelboim v. Bank of America, the Supreme Court ruled that when a district court dismisses the only claim in a case that has been consolidated with other actions for pretrial proceedings in multidistrict litigation, the district court’s order is final and appealable, even if there are still claims pending in other cases in the multidistrict litigation. In Hall v. Hall, a case arising out of a family dispute over property in the U.S. Virgin Islands, the Supreme Court has agreed to resolve a four-way split among the courts of appeals regarding whether the same rule announced in Gelboim also applies to cases consolidated in single-district litigation. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the lawyers for the petitioner in Gelboim, but I am not affiliated with the firm.]
Today’s grants are likely to be argued in either January or February. The justices are expected to issue more orders from the September 25 conference – which are likely to mostly be denials of review – on Monday morning at 9:30.
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