In 2011, Wisconsin adopted a plan for state legislative district boundaries under which elections to the Wisconsin State Legislature were held in 2012, 2014, and 2016. Plaintiffs in the underlying District Court case are 12 registered Democrats who allege that the redistricting plan intentionally diluted the voting strength of Democratic voters and therefore constitutes unconstitutional partisan gerrymandering. A divided three judge panel for the District Court of the Western District of Wisconsin agreed with the Plaintiffs and invalidated the redistricting plan. The Supreme Court prevented enforcement of the District Court’s ruling and consented to hear the case on the merits and postponed its decision regarding jurisdiction until after such hearing. The questions presented on appeal are (1) “[d]id the district court violate , 541 U.S. 267 (2004), when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis;” (2) “[d]id the district court violate when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles;” (3) “[d]id the District Court violate by adopting a watered-down version of the partisan gerrymandering test employed by the plurality in , 478 U.S. 109 (1986);” (4) [a]re Defendants entitled, at a minimum, to present additional evidence showing that they would have prevailed under the District Court's test, which the court announced only after the record had closed;” and (5) “[a]re partisan-gerrymandering claims justiciable.”
On June 23, 2018, the Court issued a unanimous opinion in which it determined that the Plaintiff’s had not shown that they had sufficient standing to bring suit and remanded the case to the District Court to permit them to present evidence to cure this defect in their case. As noted by Justice Kagan in her concurrence, the Court held that a plaintiff asserting a partisan gerrymandering claim must show that they reside in a “packed or cracked” voting district in order to establish that they have standing to bring suit. This means that in order for a Plaintiff to have standing in a partisan gerrymandering case, they must show that they reside in a district which has been designed to enhance the voting capability of a particular party or that the changes to the district in which they reside were designed to dilute a party’s voting efficacy by splitting its voters amongst districts in which they are a minority. If you would like to view the Supreme Court’s opinion in this case, please go to https://www.supremecourt.gov/opinions/17pdf/16-1161_dc8f.pdf.
In 2012, the Supreme Court ordered the District Court for the Western District of Texas to draw interim maps for the State of Texas 2012 elections which did not violate the Constitution or the Voting Rights Act Perry v. Perez, 565 U.S. 388 (2012). The District Court followed this command and placed Texas under a court ordered remedial plan, H309, for the 2012 elections. This was done due to allegations related to gerrymandering in relation to the redistricting plan passed by the Texas Legislature in 2011. In 2013, The Texas Legislature repealed their 2011 Plan and enacted Plan H358, which the Appellants contend is largely unchanged from H309. The District Court then permitted the Plaintiffs in the original District Court case to amend their claims to include allegations related to Plan H358. After 4 years of litigation in the District Court, which Appellant contends was related to both the defunct 2011 Plan and Plan H358, the District Court found that Texas had engaged in racial gerrymandering in Plan H358 and invalidated it. The questions posed are (1) whether the District Court issued an appealable interlocutory injunction when it invalidated Texas’ duly enacted redistricting plan and ordered the parties to appear at a remedial hearing to redraw state congressional districts unless the governor called a special legislative session to redraw the congressional map within three days; (2) whether the Texas legislature acted with an unlawful purpose when it enacted a redistricting plan originally imposed by the District Court to remedy any potential constitutional and statutory defects in a prior legislative plan that was repealed without ever having taken effect; (3) whether the Texas legislature engaged in intentional vote dilution when it adopted Congressional District 27 in 2013 after the District Court found, in 2012, that CD27 did not support a plausible claim of racially discriminatory purpose and did not dilute Hispanic voting strength because it was not possible to create an additional Hispanic opportunity district in the region; and (4) whether the Texas legislature engaged in racial gerrymandering in Congressional District 35 when it simply adopted the district unchanged as part of the court-ordered remedial plan. On June 25, 2018, the Court issued a 5-4 opinion in which it determined that the District Court had applied the incorrect standard when it required the 2013 Texas Legislature to prove that it had cured the taint of gerrymandering in the 2011 plan through its adoption of Plan H358.
To begin, the Court determined that the District Court had improperly placed the burden of proof regarding the adoption of the majority of H358 on the 2013 Texas Legislature, instead of requiring the challengers to H358 to show that gerrymandering had occurred. Upon finding that the District Court had improperly invalidated the adoption of most of H358, the Court turned to the four districts which were invalidated on violations of §2 of the Voting Rights Act.
Regarding three of these four districts, the Court determined that the District Court had failed to apply the test established in Thornburg v. Gingles, which requires plaintiffs who allege that impermissible gerrymandering occurred based on race to show (1) the existence of a geographically packed minority population sufficient to constitute a majority in a single-member district, (2) political cohesion amongst the minority group, and (3) bloc voting by the majority within the district to defeat the minority’s preference. Following this showing, a Plaintiff must prove that the district lines dilute the votes of the minority population. In the instant matter, the challengers to H358 failed to show that Latino voters in CD 27 could have been included in a Latino opportunity district rather than CD 27, and failed to show that any alternative plan to HD34 and HD 32 (a Latino opportunity district and a regular district which make up the entirety of Nueces County) could enhance the ability of minority voters to elect candidates of their choice.
In relation to the final district HD90, the court found that impermissible gerrymandering based on race had occurred. This was largely because the Texas Legislature engaged in a juggling act regarding the inclusion of the city of Como (predominantly African American) and the inclusion or exclusion of a number of smaller Latino populations from the district. Because the Texas Legislature failed to show that its decisions regarding HD90, which it admits were predominantly based on race, were narrowly tailored to meet the requirements of §2 of the Voting Rights Act, this district was facially impermissible. If you would like to view the Supreme Court’s opinion in this case, please go to https://www.supremecourt.gov/opinions/17pdf/17-586_o7kq.pdf.
In July of 2012, a same sex couple, Charlie Craig and David Mullins, solicited Masterpiece Cakeshop to make a cake for their wedding. At the time, same sex marriage was prohibited in Colorado. The owner of Masterpiece Cakeshop, Jack C. Phillips, refused to design the wedding cake for the couple citing religious reasons. Craig and Mullins filed a complaint with the Colorado Office of Administrative Courts alleging that Masterpiece Cakeshop had discriminated against them in a place of public accommodation due to their sexual orientation, a violation of the Colorado Anti-discriminatory Act (CADA). The administrative law judge (ALJ) decided in favor of Craig and Mullins, and required Masterpiece Cakeshop to take remedial measures and file quarterly compliance reports. On appeal, a three judge panel of the Colorado Court of Appeals unanimously found in favor of the order issued by the ALJ and determined that (1) the CADA did not permit Masterpiece Cakeshop to refuse to design a wedding cake for Craig and Mullins; (2) that no violation of Masterpiece Cakeshop’s First Amendment Right to Free Speech had occurred, (3) that the CADA and the order did not violate the right to religious exercise under the Colorado Constitution, and (4) denied the validity of Masterpiece Cakeshop’s remaining issues related to procedural matters and the scope of the ALJ’s authority. The question presented on appeal is “[w]hether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment." On June 4, 2018, in a 7-2 opinion, found that Colorado had not weighed the owner of Masterpiece Cakeshop’s religious objections in a manner which reflected a that their decision was consistent with the requirements of religious neutrality established in Church of Lukumi Babalu Aye v. City of Hialeah. In the case of Church of Lukumi Babalu Aye, the Supreme Court determined that a regulation banning ritualized animal sacrifice was in violation of the Free Exercise Clause, as it was enacted in an attempt to regulate the practice of Santeria within the City of Hialeah. Noting that the decision was made “because of” and not “in spite of” the practice of Santeria, the Supreme Court concluded that the regulation was unconstitutional because it did not exhibit neutrality towards the free practice of religion. In the instant case, the Supreme Court found that Colorado had expressed animosity towards Phillips’ religious beliefs in making its determinations and, in keeping with its decision in Church of Lukumi Babalu Aye, stated that Colorado’s application of the CADA violated Phillip’s right to the free practice of religion. If you would like to view the Supreme Court’s opinion in this case, please go to https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf.
Minnesota Statute § 211B.11 prohibits the wearing of a political badge, political button, or other political insignia at or about a polling place on primary or election day and was interpreted broadly to encompass a range of materials designed to influence or impact voting. If a person refused to remove or the political item, the election judge was required to record their name and address for potential misdemeanor prosecution. At issue is an allegation that the blanket prohibition on political insignia and logos violated an individual’s right to free speech. The Eighth Circuit Court of Appeals upheld the lower court’s ruling that Minnesota Statute § 211B.11 was not an unconstitutional restriction of the right to free speech under the First Amendment, that polling places are nonpublic forums, and that the state had a legitimate interest in maintaining peace, order, and decorum at the polling place in order to preserve the integrity of the election process. The question posed to the Supreme Court was “[i]s Minnesota Statute Section 211B.ll, which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment.” On June 14, in a 7-2 opinion, the Court reversed the opinion of the Eighth Circuit Court of Appeals and stated that, while the State had a right to prohibit certain apparel at a polling place, it must articulate a sensible basis regarding what is and is not permissible. As Minnesota had not sufficiently defined which clothing was or was not permissible, and provided the opportunity for abuse, it was an impermissible restriction on its citizens’ First Amendment Rights. If you would like to view the Supreme Court’s opinion in this case, please go to https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf.
In 2013, Florida filed a complaint against Georgia alleging that its use of the Apalachicola-Chattahoochee-Flint (ACF) River Basin was inequitable. In 2014, the Supreme Court granted Florida permission to file a complaint and appointed a Special Master to investigate the case, based on Florida’s claims of widespread environmental, ecological, and economic harm caused by Georgia’s use of the ACF River Basin. Florida and Georgia further disagreed regarding the Army Corps of Engineer’s rules regarding the Corps’ water storage reserves and the flow of water from said reserves. On February 16, 2017, the Special Master submitted his final report, recommending that the Supreme Court deny Florida’s request for relief in that any relief which Florida would receive from Georgia would be insufficient given the high degree of control that the Army Corps of Engineers exercises over the ACF River Basin. Florida has submitted exceptions to the Special Master’s findings, arguing that the Supreme Court should decline to adopt said findings as the Special Master used a heightened standard for establishing redressability; improperly concluded that after establishing injury, Florida was still required to prove redressability; improperly stated that the Army Corps of Engineers' discretion in its operations precludes redressability; failed to address how Florida’s injuries would be redressed, regardless of how the Corps exercised discretion; and a number of other flaws in the Special Master’s analysis. On June 27, 2018, the Court determined that the Special Master had applied too strict a standard in concluding that Florida failed to meet its burden of demonstrating that the Court can eventually fashion an effective equitable decree, and remanded the case to the Special Master with instructions regarding the appropriate standards to apply. If you would like to view the Supreme Court’s ruling, on Florida’s Motion, please go to https://www.supremecourt.gov/opinions/17pdf/142%20orig_h3ci.pdf.
National Voter Registration Act
The State of Ohio maintains a process referred to as the Ohio Supplemental Process (OSP), under which a registered voter who has been inactive for a period of two years due to either not voting, not filing a change of address with a state agency, or not filing for a voter’s registration card was sent a confirmation of address letter by the county voter registration office, and subsequently removed from the voter rolls if they did not either register to vote or respond to the notice within four years. The A. Philip Randolph Institute, the Northeast Ohio Coalition for the Homeless, and Larry Harmon (an Ohio resident who failed to respond to the notice and was subsequently removed from the voter rolls), filed suit claiming that the OSP violated provisions of the National Voter Registration Act. The District Court upheld the OSP, stating that to require Ohio to coach individuals who had moved to another state on how to register in that state “defied logic” and further stated that the voters were not merely removed for inactivity but also for failing to respond to the notice. On appeal, the Sixth Circuit reversed the District Court’s decision and found that as failure to vote was one of the triggers which began the process of removing a voter from registration, the entirety of the OSP was in violation of the National Voter Registration Act. The question presented before the Supreme Court was “whether 52 U.S.C. § 20507 permits Ohio's list-maintenance process, which uses a registered voter's inactivity as a reason to send a confirmation notice to that voter under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002.” On June 11, 2018, in a 5-4 decision, the Court determined that the OSP was a lawful means of removing registrants from Ohio’s list of registered voters, and not a violation of the National Voter’s Registration Act. Specifically, the Court found that Ohio was removing registrants on the permissible ground of a change of residence, that the National Voter’s Registration Act did not contain a “reliable indicator” prerequisite prior to sending a confirmation of address letter, and that the OSP met the standard of “reasonableness” as described in the National Voter’s Registration Act. If you would like to view the Supreme Court’s opinion in this case, please go to https://www.supremecourt.gov/opinions/17pdf/16-980_f2q3.pdf.
State Sales Tax - Internet
South Dakota, like every other state, has a sales tax, and has regularly assessed that tax on goods sold within its borders. As internet sales become increasingly common, South Dakota noticed that its revenue from sales tax has decreased between $48 and $58 million annually. In an attempt to stem the erosion of its revenues, the South Dakota Legislature enacted S. 106 “An Act to provide for the collection of sales taxes from certain remote sellers, to establish certain Legislative findings, and to declare an emergency” (hereinafter referred to as the “Act”). The Respondents in this case are a number of large internet retailers including Wayfair, Inc., Overstock.com, Inc., and Newegg, Inc. upon whom South Dakota attempted to enforce the Act by requiring the collection and payment of sales tax for goods sold by these companies and delivered to various locations within South Dakota. None of the Respondents operated or owned physical locations within South Dakota’s borders at the inception of this suit.
Prior to the Court’s decision in this case, the Court’s decision in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), was applied to internet sales. In Quill, the Court required that the business required to collect sales tax have a physical presence within a state in order for the state to require the business to collect and remit sales tax. As noted by the Court, Quill was decided several years prior to advent of internet retail and has been harshly criticized since its announcement.
While not making a determination on the validity of the Act, the Court determined that the physical presence requirement is an extraordinary imposition created solely by the judiciary on the State’s authority to collect taxes and noted that forty-one States, two Territories, and the District of Columbia joined together to filed an Amici Curiae brief asking the Court to overturn its decision in Quill. Recognizing that the physical presence standard set forth in Quill is no longer applicable given the proliferation of computer retail, the Court, in a 5-4 decision, overturned the physical presence requirement stated in Quill, stating that all that is required to tax a business is a “substantial nexus” with the taxing State. Noting that the Act had numerous factors suggesting that it was designed to prevent discrimination or undue burdens on interstate commerce, the Court went on to vacate the opinion of the South Dakota Supreme Court, and remanded the case to the South Dakota Supreme Court for further proceedings to determine whether or not the Act unduly infringed upon the Article 1 Section 8 Clause 3 of the United States Constitution, commonly referred to as the Commerce Clause.
This case springs from SolarCity’s allegation that the Salt River Project Agricultural Improvement and Power District was attempting to entrench its monopoly on power provision by setting prices unfavorable to solar power providers. The Power District immediately moved to dismiss the case under the state-action immunity doctrine. The District Court denied the motion, citing uncertainties about the Power District’s authority, and the Power District appealed. The Ninth Circuit Court of Appeals denied the Power District’s appeal and joined the Fourth and Sixth Circuits holding that a defendant may not invoke the collateral-order doctrine to immediately appeal the rejection of a state-action immunity defense. The question presented to the Supreme Court was “[w]hether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.” The parties jointly consented to the dismissal of this case on Mar. 20, 2018, and the matter was dismissed on Mar. 22, 2018.
On December 20, 2012, The Township of Scott enacted a local ordinance related to the maintenance of cemeteries and burial places. Knick, the Plaintiff in the case before the District Court, raised a number of claims against the Township related to alleged harm she suffered as a result of the ordinance. The District Court dismissed Knick’s claims as she had failed to exhaust state remedies as a property owner prior to raising federal takings claims, a requirement first addressed in Williamson County Regional Planning v. Hamilton Bank, 473 U.S. 172 (1985). On appeal the 9th Circuit affirmed the District Court’s ruling. The questions presented to the Supreme Court are (1) “[w]hether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims;” and (2) “[w]hether Williamson County’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County, as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.” Oral argument has not yet been scheduled for this case. Adjudication of this case is still pending.
Age Discrimination Employment Act (ADEA)
No. 17-587, cert. granted February 26, 2018.
Appeal of 859 F.3d 1168 (9th Cir. 2017)
Two employees, John Guido and Dennis Rankin were hired in 2000 by the Mount Lemmon Fire District. They were the two oldest full-time employees when they were terminated on June 15, 2009. Both employees filed separate age discrimination charges before the Equal Employment Opportunity Commission, which ruled in both of their favors, finding that the Fire District had committed age discrimination under the Age Discrimination in Employment Act (ADEA). Guido and Rankin then filed suit in the District Court. The District Court granted summary judgment for the Fire District and found that the Fire District did not qualify as an employer under the ADEA. The 9th Circuit reversed stating that the 20 employee minimum did not apply to the determination of whether or not a political subdivision qualified as an employer. The question presented to the Supreme Court is “[w]hether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the U.S. Court of Appeals for the 9th Circuit held in this case.” Oral argument has not yet been scheduled for this case. Adjudication of this case is still pending.
In 2006, Lozman towed his house-boat into a marina operated by the city of Riviera Beach, and in doing so became a citizen of the city. Soon after, Lozman became a harsh critic of the city’s policies, and filed a lawsuit alleging that the City Council’s approval of an agreement violated Florida’s Sunshine Laws, which require that certain decisions be made at public meetings. In June of 2006, the city held a closed-door session to discuss, amongst other things, Lozman’s public meetings suit. At this meeting a councilmember suggested using the City’s resources to intimidate Lozman. The City contends that no plan of retaliation was ever formulated. In November of 2006, Lozman was arrested and removed from a public meeting after he began discussing the arrest of a former county official and an official of the City of West Palm Beach during a public comments session. These comments were unrelated to the meeting. Lozman was then removed from the meeting in handcuffs and processed at the local police station. After reviewing the matter, a State Prosecutor found that there was probable cause to arrest Lozman, however declined to pursue criminal prosecution.
Following this incident, Lozman filed a suit alleging harassment in violation of 42 U.S.C. § 1983 for this and numerous other incidents ranging from a City official telling him to muzzle his dog to an admiralty suit the City brought against his houseboat. Following a total of nineteen days of trial, the jury found in favor of the City for all claims. Originally, the District Court for the Southern District of Florida instructed the jury that Lozman must show that no probable cause existed for his arrest, and permitted the jury to determine whether probable cause existed. After the return of the jury verdict, Lozman appealed, and the Court of Appeals for the Eleventh Circuit affirmed the District Court’s ruling, but noted that the District Court erred when it required that the jury find that the arresting officer and not the City harbored the retaliatory animus, but found that such error was harmless.
The question presented to the Supreme Court was in regards to the appropriateness of the lower courts’ determination that probable cause served as an absolute bar to a finding that a retaliatory arrest was committed by the City. Lozman stated that the appropriate test for determining whether the City retaliated against him was stated in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977), which was a civil case in which one of the listed reasons for the termination of a teacher’s employment was the teacher’s engagement in protected speech. In Mt. Healthy, the Board of Education was required to show that it would have terminated the teacher’s employment even without the retaliatory reason that it provided. The City contends that the applicable standard should be the one set forth in Hartman v. Moore, 547 U.S. 250 (2006), which states that a Plaintiff cannot sustain a claim that an arrest was retaliatory when probable cause existed for the arrest.
In analyzing the circumstances of this case, the Supreme Court noted that this is a decision of narrow application, and seemingly unique as the city itself is the Defendant in the suit as opposed to the arresting officer or another law enforcement entity, which is more typical in retaliatory arrest cases. Additionally, the Court indicates that additional considerations were necessary due to the activity that Lozman was engaged in at the time of his arrest, specifically addressing the City Council during a public meeting. In the end, the Court concluded that Mt. Healthy provided the appropriate standard and vacated and remanded the case to the Eleventh Circuit. Noting that this ruling does not necessarily entitle Lozman to relief or a new trial, the Court indicated that the Eleventh Circuit may wish to consider (1) whether a reasonable jury could conclude that the City actually formed a retaliatory policy to intimidate Lozman during the 2006 closed door session, (2) whether any reasonable juror could conclude that Lozman’s arrest constituted an official act by the City, and (3) whether under Mt. Healthy, the City has proved that it would have arrested Lozman regardless of any retaliatory animus.
No. 16-1466, Decided June 27, 2018
Appeal of 851 F.3d 746 (7th Cir. 2017)
Under Illinois law, public employees are permitted to unionize, and if the majority of public employees within a bargaining unit vote to be represented by a union, that union becomes the exclusive representative of the bargaining unit to the exclusion of other unions, attorneys or other representatives, and the employees themselves. Non-members of the union are required to pay an agency fee which in the present matter was equal to approximately 78.06 of full union membership.
Janus, the Petitioner in this case, was a public employee who was represented by a public sector Union. He had consistently refused to join the union and brought suit questioning the constitutionality of the laws which authorized the imposition of agency fees.
In 1977, the case of Abood v. Detroit Board of Education, upheld a similar law which required the payment of agency fees to a union by a public sector employee. The decision in Abood noted that non-members could be reaping the benefits of union representation and expressed that the States had an interest in promoting “labor peace.” Noting a departure from this line of thinking, the Court references its recent decisions in Knox v. Service Employees, and Harris, supra, which make reference to the questionable justifications for the decision in Abood and decline to extend it beyond the parameters which it squarely controls.
After discussing the various concerns of the Court related to the right to free speech guaranteed under the First Amendment to the Constitution of the United States, the Court concluded that the imposition of agency fees by a Union on non-member public sector employees is a violation of their right to free speech, and expressly overruled its decision in Abood.