Civil Rights Bulletin Dec 2015 - Feb 2016

The following is a compendium of research materials and case law that may be of interest to our AG offices working on affirmative and defensive civil rights matters. Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute expresses a view as to the accuracy of any listed articles nor as to the position expounded by the authors of any hyperlinked articles.

FEDERAL CASE LAW

U.S. SUPREME COURT – Oral Arguments Held*

*Summaries of the below-referenced U.S. Supreme Court cases have been largely taken from the NAAG Supreme Court Report – written and published by Dan Schweitzer, Director of the NAAG Center for Supreme Court Advocacy.

Green v. Donahoe, 760 F.3d 1135 (10th Cir. Colo., 2014), cert. granted 135 S. Ct. 1892 (U.S. 2015)

The Court will resolve whether the filing period for a constructive-discharge claim under federal employment discrimination law begins to run when the employee resigns or at the time of the employer’s last allegedly discriminatory act. The constructive-discharge doctrine protects employees who resign due to “unendurable working conditions.” Such employees are treated as though they were fired by the employer and are entitled to the same remedies available to formally discharged employees under Title VII and other federal antidiscrimination laws. Under those laws, a formally fired federal employee must initiate the administrative process within 45 days from “the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action” to bring such charges. 29 C.F.R. §1614.105(a)(1). (The time is longer for private-sector employees.) But when does that 45-day period begin to run in constructive-discharge cases?

Petitioner Marvin Green, an African-American postmaster in Colorado, filed a formal charge with the Postal Service’s Equal Employment Opportunity office alleging racial discrimination. The Postal Service later charged Green with misconduct in handling the mail—including one allegation that would be a criminal offense. The Postal Service placed Green on “Emergency Placement in Off-Duty Status” and suspended his pay. Green eventually entered into an agreement with the Postal Service under which his emergency placement ended, but he would either have to retire or relocate to Wyoming with a lower salary. Green retired and then filed suit in district court against the Postmaster General, alleging unlawful retaliation under Title VII. The district court dismissed the suit, finding that Green’s signing of the agreement trigged the 45-day filing period and that Green’s claim was therefore time-barred. The Tenth Circuit affirmed, holding that the filing period for constructive-discharge claims begins to run from the date of the employer’s last discriminatory act. 760 F.3d 1135. Relying on Delaware State College v. Ricks, 449 U.S. 250 (1980), the Tenth Circuit explained that the proper focus is the time of the discriminatory acts, not when the consequences of the acts become most painful, i.e., the date of resignation.

Green argues in his petition that “‘Congress legislates against the standard rule that the limitations period commences when the plaintiff has a complete and present cause of action’”—and “an employee must actually resign to have a valid claim for constructive discharge.” He adds that the Tenth Circuit’s rule is unworkable, requiring “a nuanced inquiry at the threshold” to determine when “an employer’s conduct r[ose] to the level of a discriminatory act.” A clear rule is especially appropriate here, Green insists, because Title VII relies on “‘laypersons, rather than lawyers, . . . to initiate the process.’” Green notes that the circuits are divided 5-3 on the issue, with the Tenth Circuit in the minority. The Solicitor General, in opposing certiorari, argued that all but one of the cases Green relies on to establish a circuit split are “hostile work environment” cases decided before National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). And Morgan drew a distinction, for statute of limitations purposes, between “hostile work environment” claims—which by “[t]heir very nature involve[ ] repeated conduct”—and claims based on discrete acts. Under Morgan, employees may challenge the entire hostile work environment as long as “any act that is part of the hostile work environment” occurred within the limitation period. “But,” says the Solicitor General, that “rationale . . . may not apply in other cases in which the constructive discharge is triggered by a discrete act, rather than the cumulative effect of a series of prior acts.”

Oral argument for the case was held on November 30, 2015, and audio is available here.

Evenwel v. Perry, 2014 U.S. Dist. LEXIS 156192 (W.D. Tex., Nov. 5, 2014), cert. granted 135 S. Ct. 2349 (U.S. 2015)

At issue is whether the “one person, one vote” rule requires legislative districts to have roughly equal populations or (as plaintiff/appellants contend) roughly equal numbers of voters. In 2013, the Texas Legislature adopted a Senate reapportionment plan known as Plan S172. A year later, the two plaintiff-appellants filed suit alleging that the plan’s apportionment violates the Equal Protection Clause’s “one person, one vote” requirement. They acknowledged that Plan S172’s total deviation from perfectly equal population across districts is 8.04%, which falls below the 10% deviation need to make out a prima facie case. But they alleged that, when measured by voters, their two districts deviated from an ideal Senate district by between 31% and 49%. (A district may have a total population roughly equal to another district but far fewer eligible voters because it has far more children, aliens, prisoners, ex-felons, temporary military personnel, and so on.) The three-judge district court rejected the claim. The court noted that “the Supreme Court has generally used total population as the metric of comparison.” And it quoted the Court’s statement in Burns v. Richardson, 384 U.S. 73, 92 (1966), that the decision about the apportionment base “involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.”

The plaintiff-appellants point to Justice Thomas’ dissent from the denial of certiorari in Chen v. City of Houston, 121 S. Ct. 2020 (2001), which stated that the Court has “never determined the relevant ‘population’ that States and localities must equally distribute among their districts.” They also point to a dissenting opinion by Judge Kozinski in Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1991), in which he concluded that voter population is the correct benchmark. He stated that “at the core of one person one vote is the principle of electoral equality, not that of equality of representation.” In his view, the Equal Protection Clause “protects a right belonging to the individual elector and the key question is whether the votes of some electors are materially undercounted because of the manner in which districts are apportioned.” The plaintiff-appellants agree, maintaining that Reynolds v. Sims, 377 U.S. 533 (1964), establishes that “this equal-protection right . . . ensures that the vote of any one voter once cast is accorded equal weight relative to every other voter.” They disagree that the choice is properly left to the states: the Court established long ago that the “one person, one vote” issue is not a political question; and “Burns cannot fairly be read as resolving an issue that it went out of its way to note remains unresolved.”

Texas points to the Court’s statements in Reynolds that the Constitution requires that “both houses of a bicameral state legislature . . . be apportioned [substantially] on a population basis,” and that reapportionment be primarily a matter for states to resolve through “legislative consideration and determination.” It disagrees that Burns did not speak to this issue, noting that in addressing whether Hawaii could exclude certain residents (military personnel and other transients) Burns stated that “[t]he decision to include or exclude any such [non-voter population] involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” Texas adds that, “as a practical matter, most apportionment plans use total population, not voter population,” and that no court has ever held that such an approach is unconstitutional.

Oral argument for the case was held on December 8, 2015, and audio is available here.

Harris v. Ariz. Indep. Redistricting Comm'n, 993 F. Supp. 2d 1042, 2014 U.S. Dist. LEXIS 59227 (D. Ariz., 2014), cert. granted 135 S. Ct. 2926 (U.S. 2015)

Having just upheld the constitutionality of the Arizona Independent Redistricting Commission (AIRC), the Court will now address whether the state legislative map it drew based on the 2010 census is constitutional. Specifically, the appellants allege that the map violated the one-person, one-vote principle by intentionally overpopulating Republican districts and underpopulating Democratic districts for partisan gain and/or to obtain preclearance by the Department of Justice. The plaintiff/appellants focus on two aspects of the state legislative map. First, as the district court dissenting judge put it, “[o]f 30 legislative districts, the 18 with population deviation greater than ±2% from ideal population correlate perfectly with Democratic Party advantage.” Second, they pointed to three “Hispanic-influence” districts that were under-populated by about 71,000 voters, which “relegated” the same number of voters to “over-populated, non-Hispanic-white, Republican-plurality districts.” After a one-week trial, a divided three-judge district court rejected their claims.

As to the AIRC’s motivations, a majority of the court’s judges concluded that (1) “[c]reation of these districts” and “deviations from perfect population equality” were primarily caused by “the Commission’s good-faith efforts to comply with the Voting Rights Act” and obtain preclearance from DOJ, though (2) “some of the commissioners were motivated in part in some of the linedrawing decisions by a desire to improve Democratic prospects in the affected districts.” A majority of the court further concluded that (1) obtaining preclearance is a “legitimate consideration” that justifies “minor population deviations”; and (2) “plaintiffs have not carried their burden to demonstrate that partisanship predominated over other legitimate factors.”

Plaintiff/appellants argue that “[o]n the whole, the purpose [of the population deviations] was to dilute Republican votes and amplify Democratic votes.” They are not asserting a partisan gerrymandering claim, however. Their claim is that neither partisanship nor a desire to obtain preclearance can justify population deviations as high as those present here, which are as high as 9%. They argue that, although the Court has held that a plaintiff cannot make out a prima facie case of invidious discrimination by pointing to a population deviation under 10%, “this Court has never established an absolute safe-harbor for arbitrary or discriminatory practices.” Plaintiff/appellants rely on Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga.), aff’d, 542 U.S. 947 (2004), where the Court summarily affirmed a district court ruling that struck down a redistricting plan that used a population deviation of just under 10% for partisan purposes. They further contend that obtaining Section 5 preclearance cannot justify the population deviation because (1) under Shelby County v. Holder, 133 S. Ct. 2612 (2013), Section 5 is no longer enforceable; (2) the Voting Rights Act cannot justify violating the one-person, one-vote mandate; and (3) the three districts at issue were not, in fact, “minority, ability-to-elect districts.” The AIRC counters that the district court found as a matter of fact that compliance with the Voting Rights Act—not partisanship—was its predominant motive, and the Court has long held that compliance with the Voting Rights Act is a legitimate reason for minor deviations from perfect voter equality.

Oral argument for the case was held on December 8, 2015, and audio is available here.

Fisher v. University of Texas at Austin, 738 F.3d 633 (5th Cir. 2014), cert. granted 136 S. Ct. 533 (U.S. 2015)

For previously discussed summaries on Fisher v. University of Texas, see prior Civil Rights Bulletins here.

The Court will review a Fifth Circuit decision holding, on remand, that the University of Texas at Austin’s manner of taking race into account in its undergraduate admissions decisions does not violate the Equal Protection Clause. Under state law, the University (UT) is required to admit any applicant who graduates in the top 10% of a Texas high-school class. (This is known as the Top Ten Percent Plan.) In determining which students outside the top 10% are admitted, the school looks at an Academic Index that combines high-school class rank with standardized test scores, and a Personal Achievement Index (PAI) that considers other factors such as leadership, extracurricular activities, work experience, “special circumstances,” etc. A state law adopted in 2004 requires that race be added as an explicit factor in PAI scoring. Petitioner Abigail Fisher filed suit alleging that she was denied admission to UT under an admissions policy that violated the Equal Protection Clause. The Fifth Circuit affirmed a district court’s ruling that UT’s use of race was constitutional. The Supreme Court vacated and remanded, holding that the Fifth Circuit erred when it granted deference to UT’s good-faith judgment “that its program was narrowly tailored to obtain the educational benefits of diversity.” On remand, following additional briefing and oral argument, the Fifth Circuit (by a 2-1 vote) again upheld the University’s admissions policy. 758 F.3d 633.

The Fifth Circuit’s starting point was Grutter v. Bollinger, 539 U.S. 306 (2003), which reaffirmed that having a diverse student body is a compelling governmental interest and that a university may take race into account if it does so in a holistic manner. The court acknowledged that, thanks to the Top Ten Percent Plan and UT’s outreach efforts, the percentage of minority students at UT returned to where it had been before Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) held that the school’s prior affirmative action program violated equal protection. However, the Fifth Circuit found that the Top Ten Percent Plan admitted students who tended to have lower test scores than students admitted outside the Plan. because, the court found, the “Plan gains diversity from a fundamental weakness in the Texas secondary education system,” namely, the “de facto segregation of schools in Texas.” The Plan leads to admission of the “top decile of high schools” that are “highly segregated, underfunded, and underperforming.” While those students’ achievement “is to be commended,” “other students are left out—those who fell outside their high school’s top ten percent but excelled in unique ways that would enrich the diversity of UT Austin’s educational experience.” These students “could bring a perspective not captured by admissions along the sole dimension of class rank,” such as “the experience of being a minority in a majority-white or majority-minority school and succeeding in that environment.” The court therefore rejected Fisher’s contention that the Top Ten Percent Plan achieved the “critical mass” of minority students needed for diversity, finding that critical mass cannot depend on “numerical metrics” alone. The court concluded that “to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the education experience.”

Fisher argues that the Fifth Circuit “failed to apply traditional strict scrutiny,” and instead applied “what amounts to a rational-basis analysis.” She maintains that UT long justified including racial preferences in the PAI calculation as necessary to ensure greater racial diversity at the classroom level. Yet, on remand, the Fifth Circuit accepted “UT’s newfound interest in enrolling a sufficient number of minorities from ‘integrated’ high schools with more favorable socio-economic backgrounds.” She insists that “UT’s decision to rely exclusively on a rationale that was invented years after [she] applied and was rejected from UT alone should have resulted in a judgment in her favor.” Beyond that, she argues that “UT could point to no record evidence, let alone strong evidence, to substantiate its asserted unmet need for ‘qualitative’ diversity.” She faults the Fifth Circuit for “‘ventur[ing] far beyond the summary judgment record’” and “conduct[ing] its own research in an attempt to engineer a factual basis for UT’s ‘qualitative’ diversity goal.” Fisher also asserts that a “qualitative” diversity interest is too imprecise and amorphous to satisfy strict scrutiny; depends on improper assumptions about minorities; and (so far as the record shows) could have been met through the Top Ten Percent Plan.

Oral argument for the case was held on December 9, 2015, and audio is available here.

Heffernan v. City of Paterson, 777 F.3d 147 (3d Cir. N.J. 2015), cert. granted 136 S. Ct. 29 (U.S. 2015)

This case is being included for those who advise state employment and human resource agencies.

The Court will address whether the First Amendment bars the government from demoting a public employee based on a supervisor’s mistaken perception that the employee supports a political candidate. Petitioner Jeffrey Heffernan worked for the Paterson, New Jersey, Police Department as a detective in the office of the Chief of Police. Although Heffernan did not live in Paterson and thus was ineligible to vote there, his bedridden mother lived in Paterson and supported a mayoral candidate who was challenging the incumbent. She asked Heffernan to get her a lawn sign supporting her preferred candidate. A fellow police officer saw Heffernan retrieving the sign from the challenger’s campaign site. The next day he was demoted from detective to patrol officer. The police chief informed Heffernan that the transfer was due to his support of the mayor’s challenger, which violated office policy. Heffernan disclaimed supporting the challenger and said he was merely obtaining the lawn sign as a favor to his mother. A few months later, Heffernan brought a Section 1983 suit for retaliatory demotion in violation of his freedom of speech and association rights. The district court granted the government summary judgment, ruling that Heffernan had no cause of action based on his actual speech because he admitted he did not actually campaign for or support the mayoral challenger. The district court also rejected Heffernan’s perceived-association theory, ruling that Third Circuit precedent forecloses a First Amendment retaliation claim premised on an employer’s mistaken belief as to an employee’s political association. The Third Circuit affirmed. 777 F.3d 147.

As to the perceived-association claim, the Third Circuit reasoned that “it is not ‘a violation of the Constitution for a government employer to [discipline] an employee based upon substantively incorrect information.’” Further, “‘a [First Amendment] claim depends on [First Amendment protected conduct] and there was none in this case.’” The city in its brief in opposition echoes that reasoning, stating that “an employee cannot recover under Section 1983 on the theory that he was retaliated against for exercising a First Amendment right if he did not in fact exercise a First Amendment right.” Heffernan asserts that the courts of appeals are split 3-1 on whether the government is free to demote a public employee based on a supervisor’s mistaken belief as to the employee’s political association, with the Third Circuit standing alone in immunizing the government from liability. On the merits, he argues that the Third Circuit’s approach will drastically curtail public employees’ First Amendment rights because almost anything can be interpreted by watchful coworkers as an act of political affiliation. “Any other conclusion would yield the strange and frightening rule . . ., which rewards the worst-behaving government supervisors with immunity from constitutional challenge, and which chills an enormous amount of political association.”

Oral argument for the case was held on January 19, 2015, and audio is available here.

FEDERAL CIRCUIT CASES—DECIDED

King v. Morgan, 807 F.3d 154 (6th Cir. Ohio 2015)

This case is included for those who defend against habeas petitions on behalf of the state.

In King v. Morgan, the Sixth Circuit decided that habeas petitioners—after a full resentencing and the new judgement that goes with it—may challenge their undisturbed conviction without triggering the “second or successive requirement” of the Antiterrorism and Effective Death Penalty Act (AEDPA). King, 807 F.3dat 155. The court determined that the second or successive counts start anew. Id.

In 2004, King was found guilty of two counts of murder and sentenced to twenty-one years to life. Id. at 156. In 2006, he filed his first habeas petition and was denied relief.In 2009, upon King’s request, the state trial court vacated his sentence because it failed to include any mandatory post-release control measures. King subsequently was resentenced to thirty-three years to life because the court imposed consecutive sentences as opposed to concurrent ones. Id. After the court entered a new “Judgment Entry of Conviction and Sentence,” King filed another habeas petition, which was dismissed by the district court for being second or successive. Id. at 156.

The AEDPA of 1996 severely limits a petitioner’s right to file a second or successive habeas petition in federal court. Id. A federal appeals court may authorize a district court to consider a second or successive petition from a petitioner in custody from a state court judgment, only with respect to claims not presented in a prior petition and not previously available because they rest on new law or new set of facts. 28 U.S.C. § 2254(a). The court followed the judgment-based approach in Magwood v. Patterson, 561 US 320 (2010), to determine whether King’s second petition was the first challenge to a new judgment. King, 807 F.3d at 157. The Court in Magwood stated that a petitioner’s habeas application challenged a new judgment for the first time, and, therefore, that intervening development resets the application count and prevents it from being second or successive. The reasoning from Magwood applies to all new judgments, including new convictions. Id.

Ultimately the Court decided that—in accordance with every circuit but one—inmates are permitted to challenge their undisturbed conviction after a resentencing without triggering the second or successive requirements in the AEDPA. Id.

Villarreal v. R.J. Reynolds Tobacco Co., 806 F.3d 1288 (11th Cir. Ga. 2015)

Whether a job applicant’s ADEA disparate impact suit is allowed under Section 4(a)(2).

In this case of first impression for the Eleventh Circuit, the court held that section 4(a)(2) of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(2), authorizes disparate impact claims by applicants for employment because the EEOC has reasonably and consistently interpreted the statute to cover those claims. Villarreal,806 F.3dat 1290. The Court also decided the under the specific facts found here, the employee was entitled to equitable tolling of the ADEA’s limitation period.

In 2007, Mr. Villarreal applied for a position with R.J. Reynolds (Employer) online and never received any response. More than two years later, he filed a claim with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination. After the EEOC declined to take further action, Mr. Villarreal filed a federal suit claiming disparate impact under the ADEA. Id. The district court granted the Employer’s motion to dismiss with regards to the disparate impact claim and dismissed all claims prior to 2009 as untimely because the ADEA requires charges to be filed within 180 days of the discriminatory act. Id. at 1291.

Regarding the first issue on whether the ADEA authorizes disparate impact claims, the Eleventh Circuit reversed and decided that it does permit people such protection when applying for jobs and is not just isolated to current employees. Id. at 1291. In Smith v. City of Jackson, Miss., 544 U.S. 228, (2005), the Supreme Court held the ADEA authorizes disparate impact claims for current employees but did not answer whether job applicants may bring a claim as well. After finding the statutory language of section (4)(a) of the ADEA to be ambiguous, the court deferred to the EEOC’s interpretation. Villarreal, 806 F.3dat 1293. The current EEOC regulation on disparate impact claims does not distinguish from prospective and current employees. Id. at 1299; see 29 U.S.C § 628. The regulation extends disparate impact claims liability to all “individuals within the age group.” Id.

On the second issue concerning tolling, following the ruling in Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975), the court decided the employee was entitled to such relief. Id. at 1304. In employment discrimination cases, the limitation period is equitably tolled “until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Id.

Ultimately, the court decided that section 4(a)(2) of the ADEA authorizes disparate impact claims by job applicants even though the statute is unclear. The EEOC has consistently and reasonably interpreted the statute to allow such claims; therefore, the court deferred to the EEOC’s reading of the statute. Id. at 1290.

Reid v. Griffin, 808 F.3d 1191 (8th Cir. Ark. 2015)

This case involves a Section 1983 claim where the inmate was refused GID hormone-replacement therapy.

The Eighth Circuit affirmed summary judgment from a 42 U.S.C. § 1983 claim on appeal, agreeing with the district court that claims against the defendants were barred by sovereign immunity.

Andrew Reid is an inmate at the Varner Super Max Unit in the Arkansas Department of Corrections (ADC) and identifies as a female. Reid filed a 42 U.S.C § 1983 action, alleging deliberate indifference to her serious medical needs when the defendants refused to provide hormone replacement therapy for her gender identity disorder (GID). Reid, 808 F.3dat 1192. Reid alleged she sought treatment from ADC doctors two years before filing the complaint. After attempting to castrate herself, she met with doctors while in recovery who decided she did not meet the standard for GID.Months later, she succeeded in castrating herself and then brought the complaint. Id.

Citing Murphy v. Arkansas, 127 F.3d 750 (8th Cir. 1997), which held that a section 1983 claim against a state official (when acting in one’s official capacity) is barred either by the Eleventh Amendment or where the state actor is not a “person” capable of being sued, the court agreed with the district court and held that claims against the defendants were barred by sovereign and qualified immunity. Id. at 1192. The court also stated, from viewing the facts in a light most favorable to Reid, she could not establish an Eighth Amendment claim because she could not prove “she suffered from an objectively serious medical need and that prison officials actual knew of, but deliberately disregarded that need.” Meuir v. Greene Cty. Jail Emps., 487 F3d. 1115, 1118 (8th Cir. 2007). The court explained how numerous health officials evaluated Reid but none diagnosed her with GID and her disagreement with these diagnoses is not actionable under section 1983. Reid, 808 F.3dat 1193.

Black v. Wigington, 2016 U.S. App. LEXIS 1057 (11th Cir. Ga. Jan. 22, 2016)

This case involves a Section 1983 claim and official, qualified, and sovereign immunity.

While attempting to execute an arrest warrant for a Mr. Wilson at his last known address, two police deputies searched the trailer of Amy and Ernst Black. The deputies entered the unoccupied trailer under the mistaken belief of exigent circumstances, after seeing cuts through the screen by the door knob. Black, 2016 U.S. App. LEXIS 1057 at *3. Shortly after observing large amounts of contraband in plain view, the deputies contacted their supervisor who arrived and proceeded to obtain a search warrant. During this time the Blacks returned to their trailer and were arrested for possession of the contraband.

Ernst Black spent more than a month in the county jail, run by the sheriff’s department and then Sherriff Jeff Wigington. While incarcerated, Ernst injured his back and was placed in a booking cell to be monitored more closely. Inmates in booking cells did not receive the same treatment as those in the general population, such as their ability to shower without permission, watch television, or exercise or mingle in common areas. Id. at *4. The district attorney then prosecuted the Blacks for possession but dropped the charges because the evidence was suppressed as an illegal search. The superior court noted that, at the time of the search, the deputies had no reason to believe Mr. Wilson was actually inside the trailer and there were no exigent circumstance since the secluded trailer was silent. Id. at *5.

The Blacks then filed a civil suit where remaining claims were for trespass against the deputies, malicious prosecution against the deputies and the investigator, and a Title II of the Disabilities Act claim against the sheriff. The district court rejected all defendants’ claims for official, qualified, or sovereign immunity. Id. at *7. On appeal, the Eleventh Circuit decided the deputies and investigators were entitled to immunity but the sheriff was not.

The deputies were entitled to immunity from trespass because they did not act with “actual malice” or “actual intent to cause injury.” Id. at *8. Their conduct did not raise an inference of actual malice under Georgia law because “deliberate intention to do a wrongful act” is required. Id. at *10. The deputies consistently stated that they entered due to exigent circumstances of a burglary. The court noted that, although they were likely misguided, their actions did not show malice under Georgia law.

The deputies and investigators were entitled to qualified immunity on the malicious prosecution charge because the contraband found in the home provided probable cause to arrest. It did not matter how the evidence was seized because the exclusionary rule does not apply in civil cases. Id. at 12. Because the exclusionary rule does not apply, there was also probable cause for the arrest warrant. Therefore, there was no “violation of the plaintiffs Fourth Amendment right to be free from unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). The court joined its sister circuits and held that the exclusionary rule does not apply in civil suits against police officers. Black, 2016 U.S. App. LEXIS 1057 at *14-15.

The sheriff was not entitled to sovereign immunity from the claim under Title II of the Disabilities Act. Id. at *20. Title II of the Disabilities Act prohibits a “public entity” from denying “services, programs, or activities” to a person on account of his disability. 42 U.S.C. § 12132. In his official capacity as the head of the county jail, Sherriff Wigington was acting as an arm of the state. The Eleventh Amendment ordinarily prohibits a citizen from suing an arm of the state in federal court. Purcell ex rel. Estate of Morgan Toombs Cty., 400 F.3d 1313, 1325 (11th Cir. 2005), Edelman v. Jordan, 415 U.S. 651, 662 (1974). However, Congress abrogated sovereign immunity for conduct that violates Title II and the Equal Protection Clause. Tennessee v. Lane, 541 U.S. 509, 518 (2004). The Blacks also claimed the sheriff’s conduct violated the Equal Protection Clause as being irrational, disability discrimination. Black, 2016 U.S. App. LEXIS 1057 at *19. The court reviewed the Black’s abrogation argument de novo as required by Nat’l Ass’n of Bds. Of Pharmacy v. Bd. Of Regents of the Univ. of Sys. Of Ga., 633 F.3d 1297, 1313 (11th Cir. 2011) and held that the claim was not wholly insubstantial or frivolous; therefore, the sheriff was not entitled to sovereign immunity.

Nat'l Fedn. of the Blind v. United Airlines, Inc., 2016 U.S. App. LEXIS 1101 (9th Cir. Cal. Jan. 19, 2016)

This case considers whether claims brought under state law are preempted by federal statutes governing air transportation.

The Ninth Circuit affirmed the district court’s dismissal of a class action lawsuit brought by the National Federation of the Blind (the Federation) against United Airlines (United). The Federation alleged that United’s use of automated kiosks, inaccessible for blind travelers, violated California antidiscrimination laws. The court affirmed the dismissal for a number of reasons. Although the Federation’s state-law claims were not expressly preempted under the Airline Deregulation Act (ADA) because the kiosks did not qualify as a “service” under §41713(b)(1), the state-law claims were impliedly field preempted by the Air Carrier Access Act of 1986 (ACAA) and 14 C.F.R. § 382.57. Second, the court found that the DOT occupies the field of kiosk accessibility and Section 382.57 regulates that field.

United’s automated ticketing kiosks are found throughout California and require user responses to visual prompts. A blind traveler could not use the computer touchscreen without assistance from a sighted person. The Federation claimed that this “excludes the blind from full and equal access” to the kiosks in violation of California law. Id. at *5. United moved to dismiss on preemption grounds claiming that express preemption under the ADA, 49 U.S.C §41713(b)(1), implied preemption under the ACAA and its regulations, and implied preemption under the ACAA conflicted with policy objectives in implementing regulations.

The court ruled the claims were not expressly preempted under the ADA. Id. at *20. Under the ADA, “service” refers to the “prices, schedules, origins and destinations of point to point transportation of passengers, cargo, or mail” and Congress defined “service” in the public utility sense. Id. at *14; see Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998). Under the court’s interpretation of section 41713 (b)(1), the Federation’s claims did not relate to a service because the kiosks are not prices, schedules, origins or destinations of point to point transportation of cargo, passengers, or mail. Further, the court found kiosks are not “services” in the public utility sense of the word. Nat’l Fedn. 2016 U.S. App. LEXIS at *14.

Next, the court found three reasons why the Federation’s claims were impliedly field preempted by 14 C.F.R. §382.57. The FAA’s savings clause did not preserve the Federation’s state-law claim, the DOT occupies the field of kiosk accessibility, and Section 382.57 pervasively and comprehensively regulates the field of kiosk accessibility. Id. at *16. The statute at issue involved the ACAA in which an amendment to the Federal Aviation Act (FAA) states that “an air carrier… may not discriminate against an otherwise qualified individual on the ground that the individual has a physical or mental impairment that substantially limits one or more major life activities.” 49 U.S.C § 41705(a)(1). Section 40113(a) of the FAA also authorizes the Secretary of Transportation to promulgate regulations implementing the ACAA.

First, the court rejected the Federation’s argument that the state-law claims were preserved by the combined effects of the FAA saving clause and ADA express preemption clause. Following Geier v. Am. Honda Motor Co., 529 U.S. 861, 869–72 (2000), the court ruled there is no special burden required if a statute has both clauses extending beyond the ordinary preemption principles. Id. at *28. Without any specific indication that Congress sought to preserve all state-law claims not expressly preempted under the ADA, ordinary preemption principles apply.

Second, the court found that the DOT occupies the field of kiosk accessibility and Section 382.57 regulates that field. Id. at *42. “The essential field preemption inquiry is whether the density and detail of federal regulation merits the inference that any state regulation within the same field will necessarily interfere with the federal regulatory scheme.” Id. at *33. The court first defined the relevant regulatory field and then determined the scope of the federal regulation in that field. Section 382.57 goes into extensive detail with “extreme precision” on the regulation of kiosks, which speaks directly to the concerns in the Federation’s claims. Therefore, the DOT regulation occupied the field of kiosk accessibility.

Finally, the court found that the DOT meant to pre-empt the claims at issue here and it was within the DOT’s delegated authority to do so. Also, section 382.57 is “covered by the FAA’s general authorization that the Secretary may take actions . . . . considered necessary to carry out the FAA’s Air Commerce and Safety Provisions including . . . prescribing regulations, standards, and procedures, and issuing orders.” Gilstrap v. United Air Lines, Inc., 709 F.3d 995 (9th Cir. 2013). The FAA regulates airlines’ interactions with their customers who have disabilities, as well as airline safety. Therefore, Congress authorized DOT to create regulations that deal directly with airline customer interaction, like section385.57.

FEDERAL DISTRICT CASES – PENDING

North Carolina voter identification laws questioned.

Complaint in Phillip Randolph Inst., et. al v. Kim Strach et. al, 1:2015cv01063 (M.D. N.C. Dec.15, 2015)

A complaint has been filed and trial conducted concerning North Carolina’s voter identification law requirements, set to be used in the March presidential primary. A number of civil rights organizations and voters have alleged violations of the National Voter Registration Act of 1993, 52 U.S.C. §20501 et seq. and that voters have been deprived of the full opportunity to register and vote. The voter ID requirements were included in a bill passed by North Carolina’s legislature that passed shortly after the Supreme Court decided Shelby County v. Holder, 133 S. Ct. 2612 (U.S. 2013). The law reduced the number of days of early voting, prohibited people from registering and voting on the same day, stopped ballots cast in the wrong precinct from being counted, and ended the practice of pre-registering teenagers before they turned 18. The trial ended on February 1, 2016 and a decision has yet to be rendered.

North Carolina enacts controversial religious freedom law.

Complaint in ​Ansley et. al v. State of North Carolina, 1:2015cv00274 (W.D. N.C. Dec. 9, 2015)

Three couples filed a complaint in the federal district court in North Carolina asking for declaratory judgment over a religious freedom law, Senate Bill 2 (SB2), for violating the United States Constitution. Specifically, they are claiming violations of the Establishment Clause of the First Amendment and Equal Protection and Due Process Clauses under the Fourteenth Amendment. Senate Bill 2 provides for magistrates to cite a “sincerely held religious objection” to same sex marriages and opt out of performing such marriages. The bill was vetoed by the governor, but lawmakers overrode the veto to push the bill through passage. The complaint alleges three claims, including: 1) a First Amendment – Establishment Clause Violation, 2) a Fourteenth Amendment – Equal Protection Violation, and 3) a Fourteenth Amendment – Due Process Violation.

STATE COURT CASES

Dickson v. Rucho, 2015 N.C. LEXIS 1281 (N.C. Dec. 18, 2015)

North Carolina Supreme Court upholds congressional and legislative redistricting plan.

Plaintiffs here challenged the legality of North Carolina’s congressional and legislative redistricting plans on statutory grounds and under the Equal Protection Clause of the United States and North Carolina Constitutions. This is not the first time this redistricting case has been before the North Carolina Supreme Court. Previously, a three judge panel reviewed the redistricting plans and concluded that they were permissible. On plaintiff’s direct appeal, the North Carolina Supreme Court affirmed the panel’s ruling. Dickson v. Rucho, 367 N.C. 542, 766 S.E.2d 238 (2014). The United States Supreme Court then vacated that decision and remanded it in light of its decision in Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (U.S. 2015).

The North Carolina Supreme Court reconsidered in light of Alabama and again affirmed the panel’s ruling. The court held the redistricting plans did not violate the Equal Protection Clause of the Fourteenth Amendment as it did not impermissibly classify individuals based upon their race. Rucho, 2015 N.C. LEXIS 1281, at *98. The court looked to two sets of voting districts challenged by the plaintiffs, 26 districts drawn to comply with the federal Voting Rights Act of 1965 (VRA), and four non-VRA districts.

As to the first set drawn for VRA compliance, the court ruled the three-judge panel erred when it applied strict scrutiny prematurely. Id. at *4. However, the court determined that the error did not prejudice the plaintiffs because the districts survived the most demanding level of review. The panel found there was a compelling governmental interest in creating districts, which was avoiding liability under sections 2 and 5 of the VRA, 52 U.S.C.S. §§ 10301 and 10304, and the court agreed. Id. at *52.

The second set of districts was challenged by plaintiffs as being drawn by result of racial gerrymandering. Id. at *83. The court reviewed the panel’s fact specific analysis and ultimately agreed that race was not a predominant motive in the creation of the districts. Id. at *85. Because race was not a dominant factor, the court concluded the panel’s application of the rational basis test was appropriate. Id. at *88. The court held “the enacted House and Senate plans, as well as federal congressional plan, satisfy state and federal constitutional and statutory requirements, and, specifically, that the three-judge panel’s decision fully complies with the Supreme Court’s decision in Alabama.Id. at *98.

State of Nebraska v. Bain, 292 Neb. 398 (Neb. 2016)

This case involves a Sixth Amendment violation when the prosecution gains access to defendant’s confidential trial strategy.

After a jury trial, Bain was convicted of four felonies against his former wife, including kidnapping, first degree sexual assault, second degree assault, and making terroristic threats. On appeal, he argued that the state violated his Sixth Amendment right to confidential communication with his counsel because at least five prosecutors had possession of his confidential trial strategy before his trial. The trial court failed to hold an evidentiary hearing on the issue of state possession of the confidential information. The Nebraska Supreme Court vacated Bain’s conviction and held a rebuttable presumption of a Sixth Amendment violation arose because of the state’s possession of confidential trial strategy.

As an initial matter, the court rejected the state’s argument that Bain’s Sixth Amendment claim must fail because he did not raise it at the trial court. The Sixth Amendment guarantees effective assistance of counsel and courts have recognized two unrelated Sixth Amendment violations that have the potential to deprive a defendant of effective counsel: a defense counsel’s conflict of interest and government intrusion into defendant’s confidential communication. Id. at 404.

First, to ensure a Sixth Amendment right is free from conflict, the trial court is required to hold a hearing and inquire into defense counsel’s potential conflict of interest when they know or reasonably should know a particular conflict exists. Citing Wood v. Georgia, 450 U.S. 261 (1981), the court stated that an appellate court has discretion to consider the issue of a potential defense counsel conflict. The trial court had a duty to inquire because a potential conflict was apparent. This is still the case even if the defendant did not raise the issue at trial court. Id.at 405.

As to the second issue, the court recognized the importance regarding privacy of communication with counsel. Government interference into the confidential relationship between a defendant and his or her counsel can lead to a Sixth Amendment violation. Therefore, the court concluded that the principles governing appellate review for potential conflicts of interest also apply to disclosure of privileged communication to the state. Id. at 406.

Next, the Court determined that the prosecution’s possession of Bain’s confidential trial strategy was a presumptive violation of his Sixth Amendment rights and required an evidentiary hearing. Citing common threads in the Supreme Court, federal circuit, and state appellate court decisions, the court reasoned that a majority of courts found possession of confidential information to be inherently prejudicial. Id. at 417. The court held a presumption of prejudice arises when the state obtains a defendant’s confidential trial strategy but that presumption is rebuttable, at least when the state did not deliberately intrude into the attorney client relationship. Id. at 418. The court was persuaded by the Ninth Circuit’s adoption of its Kastigar requirements for potential Sixth Amendment violations, but adopted a different standard of proof. Kastigar v. United States, 406 U.S. 441 (1972).

The court decided that clear and convincing evidence is the appropriate standard of proof. If the state obtains a confidential trial strategy, it must prove by clear and convincing evidence that the defendant was not prejudiced by the disclosure. Bain, 292 Neb. at 421. The court reasoned that the need to protect a defendant’s constitutional rights and society’s interest in ensuring that criminal trials are not tainted by confidential disclosures dictated the decision in this case.

Finally, the court held that, when a court is presented with evidence that the state has become privy to a defendant’s confidential trial strategy, it must sua sponte conduct an evidentiary hearing. In this hearing, the state is required to prove that the disclosure did not prejudice the defendant and the the defendant must be given an opportunity to challenge the state’s proof. This format will “ensure a defendant’s right to effective representation is not infected by disclosures of confidential communications that threaten that right.” Id. at 422.

State v. Pigg (In re M.K.T.), 2016 OK 4, 0 (Okla. 2016)

The district court ordered the transfer of S.A.W, a minor child, from one foster home to another in compliance with the Indian Child Welfare Act (ICWA), the Oklahoma Indian Child Welfare Act, and the best interest of the child standard. The foster mother, natural father, and state appealed. After reviewing the matter, the court held that, when a tribe fails to provide timely temporary foster care with an ICWA-compliant home and an ICWA-noncompliant family seeks permanent placement, the trial court should consider the harm to the child resulting from a tribe’s untimely motion to move the child to an ICWA-compliant home. Pigg, 2016 OK 4, at *P 0. Further, the proper standard for showing a need for an ICWA-noncompliant child placement was clear and convincing evidence, and the evidence presented by appellants was enough to satisfy that burden. The court held the circumstances of this case did not warrant reversal of the judge’s order based on 10A O.S. § 1-4-812 (concerning Oklahoma law as it relates to determinations on foster care), as appellants did not show the requirements for relinquishment of membership in the Cherokee Nation. Id. at *P 97.

Boyd v. BNSF Ry. Co., 2016 Minn. LEXIS 23 (Minn. Jan. 27, 2016)

The appeal here arose from Terrance Boyd’s lawsuit in Minnesota against his former employer, BNSF Railway Company (BNSF). Boyd brought a claim under the Federal Employer’s Liability Act (FELA) after being injured on the job. Boyd made a settlement offer that was refused by BSNF, but he later obtained a more favorable award and jury verdict. The district court ordered BNSF to pay double costs under Minn. R. Civ. P. 68.03 (b)(2), which provides additional costs if a defendant rejects a settlement offer and the relief is less favorable to the defendant than the rejected settlement. The court of appeals affirmed the double costs. BNSF appealed to the Minnesota Supreme Court arguing that FELA preempts Rule 68.03(b)(2).

The first issue decided was whether FELA preempts section 68.03(b)(2) of Minnesota’s civil procedure rules. Implied field preemption occurs when congressional legislation has so occupied the field of an area of law that there is no room for state legislation. Arizona v. United States, 132 S. Ct. 2492 (U.S. 2012). The Supreme Court has held that FELA occupies the field of railroad employees’ personal injury claims against their employers in interstate commerce. Mich. Cent. R.R. v. Vreeland, 227 U.S. 59, 66 (1913). Congress’ express intent was to supersede all legislation in that subject area. Boyd, 2016 Minn. LEXIS 23 at *6. However, state courts have concurrent jurisdiction over FELA claims; therefore, FELA preempts substantive law but not state procedural law in state court FELA actions. Id.

The Supreme Court defined the substantive procedural test in the two-step analysis of Monessen Southwestern Railway v. Morgan, 486 U.S. 330 (1988). The first step is to determine whether state law is substantive or procedural. If substantive, the second step is to determine whether federal law authorizes application of state law in a FELA case. Monessen, 486 U.S.at 336-39. Here, the court determined that the court of appeals erred by applying the preemption analysis from Felder v. Casey, 487 U.S. 131 (1988). The Monessen analysis applies when analyzing whether a state law can be applied in a state court FELA action, which is the case here. Boyd, 2016 Minn. LEXIS 23 at *9.

Next, the court applied the first step of Monessen and determined that the rule being challenged is substantive. The court recognized that no federal court has addressed whether FELA pre-empts a state cost-doubling rule. Id. at *11. Applying Rule 68.03(b)(2) in this case would increase BNSF’s liability beyond Boyd’s actual costs and therefore create a disparity in FELA cases based on solely whether the claim is brought in state or federal court. Focusing on uniformity between state and federal FELA cases, the court decided that Rule 68.03(b)(2) is substantive. Id. at *12.

After determining that Rule 68.03 (b)(2) is substantive, the second step of Monessen required the court to decide whether federal law allows double costs in FELA actions. The first step is to look at the text of FELA, however, it is silent on the issue. Monessen then requires the court to look to common law. “The state of the common law when FELA was enacted indicates that Congress did not intend for plaintiffs to recover double costs. Moreover, Congress has rejected efforts to create plaintiffs right to double costs under federal law.” Id. at *16. When FELA was enacted, there was no right to double costs and Congress’ actions make it clear that they did not intend to make it available to plaintiffs. Therefore, the court concluded that federal law does not authorize double cost recovery in a state court FELA action. Id.


Jeanette Manning is the Editor of the Civil Rights Bulletin and may be reached at 202-326-6258. The Civil Rights Bulletin is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail jmanning@naag.org.

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