January oral arguments include two First Amendment cases (determining whether a regulation is “content-based” and the constitutionality of restrictions on judges soliciting campaign contributions), two discrimination cases (the powers of the EEOC and whether disparate impact claims may be brought under the Fair Housing Act), government fraud, and whether police may extend a lawful traffic stop while they investigate a hunch for which they have no probable cause.
Monday, January 12
An important First Amendment question is presented in Reed v. Town of Gilbert, involving the line between content-based and content-neutral legislation. Many municipalities try to regulate signs posted in public view, apparently out of concern that outdated signs could clutter the community. Gilbert, Arizona, distinguishes among signs for specific events (which can only be posted for 12 hours before through 1 hour after the event), electoral campaign signs (which can be posted up to 60 days before and until 15 days after the election on which the candidate or ballot measure appears), and ideological signs (which can be left up indefinitely). The regulation is being challenged by the Good News Community Church, which wanted to advertise the hours and location of its services. The City did not fine them, but warned them that their signs were in violation because they were posted outside the window for signs involving specific events.
Doctrinally, since there is no indication that the church was being treated differently based on the religious content, the primary issue is whether this is a content-based restriction. As a general rule, government may not treat some speech differently than others because of the content of what is being communicated. This relates to but is broader than viewpoint discrimination, at least according to many advocates, because the goal is to prevent government from creating a hierarchy of speech. Nevertheless, the courts below upheld the legislation because there was no indication that it was designed to suppress discussion of any ideas or viewpoints. The Supreme Court will have to decide if the usual prohibition on content discrimination applies when government wants to make this sort of distinction among types of signs.
The second argument today is a more technical issue of regulation of the natural gas market. Nevertheless, if you’re attending the First Amendment case, you might consider staying for the second argument, so take a look at the Solicitor General’s brief to get a sense of the issues.
Tuesday, January 13
Kellogg Brown & Root Services v. U.S. ex rel. Carter is a little arcane, but may be of interest to some of you. The False Claims Act allows a private individual to file a lawsuit on behalf of the government if the U.S. has been defrauded; if successful, the “relator” (that’s the rel. in “U.S. ex rel. ___” in the case caption) gets to keep a portion of the funds. To get this benefit, you have to be the “first to file,” but in this case, another lawsuit had already been filed but was then dismissed on technical grounds. So the first question in this case is whether an individual can stand as the relator even if they weren’t “first,” if there nevertheless is no other pending lawsuit. Beyond that, the case was filed after the statute of limitations ran, but the Wartime Suspension of Limitations Act sets aside the statute of limitations for claims of fraud against the government when the U.S. “is at war.” So are we “at war” despite the lack of a declaration of war, and does that Act apply to private plaintiffs who are acting as relator in government fraud cases?
The Equal Employment Opportunity Commission (EEOC) investigates claims of unlawful discrimination. If it finds a violation, it is required to enter into mediation with the company before filing a lawsuit, but it apparently has complete discretion to accept or reject settlement, with no guidance or standards specified in the laws empowering the EEOC. Here, the company (which was accused of sex discrimination) argued that the filing of a federal lawsuit was improper because the earlier conciliation efforts were not pursued “in good faith” by the Commission. The trial court agreed, but the Circuit held that in the absence of legislative standards for what the Commission must do during conciliation, it would be improper for the courts to question the agency’s assertion that it had mediated in good faith. The case is Mach Mining v. EEOC.
[Cases on Wednesday are not recommended for the casual observer. The Court is closed on Monday the 19th in observance of Martin Luther King Day.]
Tuesday, January 20
The first case this morning, Armstrong v. Exceptional Child Center, Inc., involves the enforceability of the Medicare provision requiring providers to be reimbursed at rates that “bear reasonable relationship” to the costs. The provider documents cost increases, but the state refused to raise the reimbursement rate because of budget concerns. The law does not specify that the provider can sue over this, but the Ninth Circuit found an implied “private right of action,” which is a doctrine that the Court generally has been limiting in recent years. Arguments will be somewhat technical, but it’s an important issue. Read the summary here and follow the link for more.
An interesting case involving the First Amendment and judicial conduct is the second case to be argued today. Although federal judges are appointed for life, judges at all levels in many states must run for office in a general election; in fact, the great majority of states require at least some of their judges to be elected. To try to maintain judicial independence, a number of states have enacted laws or state bar rules of professional conduct that permit campaign committees for judges but prohibit the judge from personally soliciting contributions. But that is, of course, a direct restriction on speech. The case, Williams-Yulee v. Florida Bar, also will have implications for campaign finance laws beyond judicial elections.
Wednesday, January 21
It looks like the Supreme Court will at last decide whether or not “disparate impact” claims may be brought under the Fair Housing Act. The court had accepted two cases involving this issue earlier, back in 2011 and again earlier this term, but both settled before oral arguments. The FHA prohibits denial of housing to a person “because of race, color, religion, sex, familial status, or national origin.” Certainly, any form of individualized, intentional discrimination would be “because of” the person’s protected status and therefore illegal; this is termed “disparate treatment.” But what about policies that are facially neutral as to status but in reality will almost always be obstacles for members of a certain demographic? Does enforcing a policy that has a “disparate impact” constitute denial of housing “because of” race or other protected status?
This case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, involves the allocation of tax credits and the impact on housing voucher programs. Ordinarily, landlords are legally entitled to decline to accept Section 8 housing vouchers, under which the government pays part of the rent for low-income renters — only landlords who have received a tax credit must accept vouchers. The state agency allocated most tax credits in predominantly non-white neighborhoods. The effect of that policy is that white neighborhoods have comparatively few landlords who are required to accept housing vouchers. This frustrated the community group that works for racial and socioeconomic integration, which filed suit alleging that the tax credit allocation policy had a disparate impact on minorities who were seeking housing in historically white neighborhoods. Follow the link for a more thorough discussion of the case and importance of the disparate impact doctrine.
Today’s second case, Rodriguez v. US, involves dog-sniff searches after a traffic stop. The commands of the 4th Amendment mean that warrantless searches and seizures are suspect, but the Court has found that it is not unconstitutionally “unreasonable” for police to stop drivers without a warrant if they have probable cause that a crime is being committed. The question is whether police can continue to “seize” a driver after the officer has finished the stop that had probable cause (e.g., has or should have finished writing the speeding ticket) in order to do something like wait for a canine to arrive and search for drugs based on a “hunch” (not arising to probable cause). The Court has held that searches and questioning that prolong the driver’s time being held beyond what is needed for the crime that justified the stop initially are permissible, even without further probable cause, if the further invasion of liberty is “de minimis.” The result has been lower courts struggling to figure out how many minutes is de minimis and how many is too long to require a driver to wait while the officer seeks to satisfy a hunch. The Court is loathe to set arbitrary lines like number of minutes, so it will be interesting to see how it deals with the apparent need for a clear line; it has accepted cert. on the question of whether there even should be a “de minimis” exception to the probable cause requirement.