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A Preview of the 2014 Supreme Court Term

The 2014 Supreme Court Term already appears likely to make history as the first Term where the big story is the case(s) the Court chose not to hear. As you no doubt know, the Court denied all seven cert petitions seeking review of court of appeals decisions striking down state bans on same-sex marriage. Perhaps the Sixth Circuit will uphold the bans in Kentucky, Michigan, Ohio, and Tennessee; en banc review will be quickly denied or not sought; and the Court will grant certiorari by mid-January. If that doesn’t happen, though, the blockbuster case Supreme Court watchers were counting on for this Term will not come to pass.

The Court still might agree to review the Fifth Circuit decision allowing Texas’s new abortion laws to go into effect. (These laws require doctors performing abortions to have admitting privileges at a local hospital and require abortion clinics to comply with the minimum standards of ambulatory surgical centers.) If not, we will be left with a Term that has some important but not monumental cases, and too many cases like Gelboim v. Bank of America Corp., which asks the eternal question, “Whether and in what circumstances is the dismissal of an action that has been consolidated with other suits immediately appealable.”

That said, the 47 cases pending as of Oct. 13 on the Court’s docket contain much to interest the state attorney general community. Here are some thoughts on what’s in store.

Another Slow Year for Criminal Law

I noted last year how few habeas corpus cases the Court heard last Term. Here we go again. So far, the Court has agreed to hear just one habeas corpus case — and a fairly minor one that addresses whether a prisoner who obtained habeas relief in the district court must file a cross-appeal or obtain a certificate of appealability to obtain relief in the court of appeals on a different ground. On the first Monday of October, however, the Court summarily reversed a Ninth Circuit decision granting habeas relief — something it did not do once in the 2013 Term. So maybe the Court is ready to resume policing lower courts’ compliance with the Antiterrorism and Effective Death Penalty Act (AEDPA).

Meanwhile, on the criminal procedure front, the Court is hearing only three cases, albeit interesting ones. In Heien v. North Carolina, the Court will decide whether a police officer violates the Fourth Amendment when he stops a suspect on suspicion of committing a crime — but it turns out the officer got the law wrong. The officer stopped Heien for unlawfully driving with a broken brake light, which eventually led to a search of the car and the discovery of illegal drugs. It turns out, however, that it is legal to drive in North Carolina with a broken brake light. The confusing state statute makes it unlawful only to drive with two broken brake lights. The North Carolina Supreme Court upheld the stop, reasoning that the officer’s mistake of law was reasonable and the Fourth Amendment requires only that seizures be reasonable.

Rodriguez v. United States is another Fourth Amendment case arising from a traffic stop. This time, the officer stopped a car for driving erratically. After the officer issued a written warning, he instructed the driver to step out of the car. Soon another officer arrived with a drug-detection dog. The officer walked that dog along the outside of the car; and on the second walk-around the dog alerted to the presence of drugs, which were soon found in the car. But does the Fourth Amendment allow an officer to extend a traffic stop to conduct a dog sniff? The Eighth Circuit held that the seven- to eight-minute delay was “de minimis” and did not “unreasonably prolong the stop.” The decision in this case could affect thousands of traffic stops each year.

Finally, the Court will wade into the Confrontation Clause when it takes up Ohio v. Clark. The Court revolutionized Confrontation Clause doctrine in Crawford v. Washington (2004) when it held that the Clause bars the introduction of “testimonial” out-of-court statements unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. That led to a series of cases addressing whether particular out-of-court statements were testimonial and therefore subject to that rule. In Davis v. Washington (2006) the Court held that when the primary purpose of an interrogation by a law-enforcement officer is “creating an out-of-court substitute for trial testimony,” the statements are testimonial.

Ohio v. Clark asks whether that test applies to a statement elicited by a daycare teacher who, upon seeing red marks and welts on the face of a 3-year-old boy in her class, asked “what happened?” and “who did this?” The boy answered, “Dee,” which is the nickname of his stepfather. The prosecution introduced that statement at trial (through the testimony of two daycare teachers), and the stepfather was convicted of several child-abuse related offenses. The Ohio Supreme overturned the conviction, holding that (1) the daycare teachers are law-enforcement agents because state law requires them to report suspected child abuse; (2) this means the primary-purpose test of Davis v. Washington applies; and (3) the boy’s statements were “testimonial” under that test because, since “no ongoing emergency existed,” the primary purpose of the teachers’ questions was to identify the perpetrator. Ohio argues that it was wrong to treat these teachers as though they were law-enforcement agents, and that the teachers were plainly not acting with a primary eye toward a future prosecution.

Civil Rights Come to the Fore

On the civil side, no subject has a larger place on the Court’s docket than civil rights. The Court is hearing six civil rights cases, ranging from the rights of prisoners to grow beards to the accommodations employers must provide pregnant employees. States (or their officers or agencies) are parties in three of the six cases.

Alabama Legislative Black Caucus v. Alabama addresses whether Alabama’s most recent state legislative redistricting plan constitutes an unconstitutional racial gerrymander. The plaintiffs argue that it does because the drafters of the plan allegedly insisted that — to comply with Section 5 of the Voting Rights Act (which still applied at the time) — the black population percentage in each majority-black district could not be reduced, even if that population was 60-70 percent. According to the plaintiffs, that led the drafters to intentionally “pack” large numbers of black voters into majority-black districts and diminish the influence of black voters in minority-white districts. Alabama argues that the three-judge district court correctly rejected that argument as contrary to the facts. Indeed, says Alabama, “the plans are not consistently different from the plans that the plaintiffs in this litigation proposed during the legislative process.” The particular districts’ shapes and populations, it argues, stemmed mainly from the planners’ use of a 2 percent population deviation, the planners’ desire to change districts as little as possible, protecting incumbents, and the concentration of blacks in specific parts of the state.

The Court has already heard argument in Holt v. Hobbs, the prison beard case. A Muslim prisoner in Arkansas asked the state to accommodate his religious faith by allowing him to grow a ½-inch beard, even though the state prison has a statewide policy banning all beards (except for ¼-inch beards when medically necessary). He claimed an entitlement to that accommodation under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which, similar to the Religious Freedom Restoration Act at issue in Hobby Lobby, bars state prisons from burdening prisoners’ religious exercise unless the burden furthers a compelling governmental interest by the least restrictive means. The state insists that its ban on beards is necessary for prison security.

Arkansas has a hard row to hoe here because 43 other states, plus the federal Bureau of Prisons, allow prisoners to grow beards. Beyond the facts of this case, though, the more important issue may be how the Court reconciles RLUIPA’s strict-scrutiny standard with the principle — set out in Cutter v. Wilkinson (2005) — that courts should give prison officials deference, even under RLUIPA. At oral argument, the Justices seemed skeptical of Arkansas’ need for the ban on beards but receptive to its argument that courts applying RLUIPA should grant some measure of deference to prison officials’ assessment of security risks.

The third state civil rights case is Texas Department of Community Affairs v. Inclusive Communities Project. This case will give the Court its third opportunity to resolve whether disparate-impact claims are cognizable under the Fair Housing Act. The Court granted certiorari to answer that question in Township of Mt. Holly v. Mt. Holly Gardens Citizens in Action, Inc. (2013) and Magner v. Gallagher (2012), but both of those cases settled before oral argument. All of the 11 or so federal courts of appeals to have addressed the issue have held that disparate-impact claims are cognizable under the Fair Housing Act. The Court’s willingness to grant certiorari nonetheless therefore suggests that at least four Justices believe the lower courts may have erred. But do five?

Free Speech for Assaulters, Churches, and Judges

The Roberts Court is known for being protective of free speech, having struck down numerous campaign finance laws, a federal law banning depictions of animal cruelty, a tort judgment against protestors at a military funeral, among other laws. The Court looks primed to continue that trend, having agreed to review three cases in which the speakers lost in the lower courts.

Elonis v. United States involves a man (Elonis) who wrote Facebook posts in which he threatened his ex-wife, former co-workers, and others. Federal prosecutors charged him with the federal crime of “transmit[ting] in interstate or foreign commerce any communication containing . . . any threat to injure the person of another.” Elonis contends that, under the First Amendment, he may not be convicted of threatening another person unless he subjectively intended to threaten that person. The lower courts disagreed, holding that he could be convicted if a “reasonable person” would regard his statements as threatening. The Court will review those holdings and also address whether the federal statute, “as a matter of statutory interpretation, . . . requires proof of the defendant’s subjective intent to threaten.”

In January the Court will hear argument in Reed v. Town of Gilbert, Arizona. The Town of Gilbert has a Sign Code that limits the size of temporary signs displayed outdoors and how long the signs may be displayed. For example, a sign displayed by petitioners ─ a church and its pastor ─ promoting church services must be no more than 6 square feet and displayed for no longer than 12 hours before the event. Signs posted for political or ideological purposes or by homeowners’ associations, however, can be larger and posted for a longer time. The Ninth Circuit upheld the Sign Code, finding that it is not content-based because the town lacked a discriminatory motive. The United States takes a middle ground as amicus, arguing that the code is subject to intermediate scrutiny (because it is “premised on the content-neutral rationales of promoting safety and aesthetics”), but that it does not survive such scrutiny because those rationales do not justify the differential treatment between the church signs and the other signs.

Finally, the Court recently granted certiorari in Williams-Yulee v. Florida Bar to address “[w]hether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.” Nearly all of the 39 states that select or retain judges by popular vote have such a rule. The courts that have upheld these personal-solicitation bans have found them narrowly tailored to serve the state’s compelling interest in preserving the integrity of the judiciary. Williams-Yulee, a candidate for county court judge in a Florida county, argues that the ban is overbroad because it bans speech — such as mass mailings and speeches to large groups — that do not raise a risk of future biased treatment by the judge; and that the ban is underinclusive because it allows the judge’s campaign committee to solicit donations.

All in all, even absent a blockbuster case (so far), this will be an important and interesting Term. On top of the cases discussed above, state attorneys general offices will be arguing three tax cases in the Court, as well as a case on the important federalism question whether the Supremacy Clause creates private rights of action. In addition, the Court will resolve whether the president has the exclusive power to recognize foreign states and whether a state violates the Elections Clause by using an independent commission to adopt congressional districts. And the Court will be adding 20 to 25 more cases to its docket over the next few months. It will be the rare state attorney whose work will not be affected by a decision to be issued this Term.

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Doug Peterson, Nebraska Attorney General

Doug Peterson is the attorney general of Nebraska.