The National Attorneys General Training & Research Institute

The National Attorneys General Training & Research Institute The National Attorneys General Training & Research Institute

Civil Rights Bulletin March - August 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 materials nor as to the position expounded by the authors of any hyperlinked and referenced materials.

U.S. Supreme Court*

*Summaries of Supreme Court cases and certiorari petitions are taken from the NAGTRI Supreme Court Report – written and published by Dan Schweitzer, Director of NAAG Center for Supreme Court Advocacy.


V.L. v. E.L., 194 L. Ed. 2d 92 (U.S. 2016)

Through a unanimous, per curiam opinion, the Court summarily reversed an Alabama Supreme Court decision refusing to recognize a Georgia court judgment allowing a woman (V.L.) to adopt children she was raising with her same-sex partner (E.L., the birth mother). After the two women ended their relationship while living in Alabama, V.L. filed a petition in Alabama state court seeking custody or visitation rights as an adoptive parent. On appellate review, the Alabama Supreme Court held that it was not required to accord full faith and credit to the Georgia judgment of adoption because that court lacked subject-matter jurisdiction to enter the adoption judgment. That is so, the court reasoned, because Georgia law allows a third party to adopt a child only if the birth parent surrenders parental rights, which did not happen here. In reversing, the U.S. Supreme Court explained that “[t]he Georgia judgment appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary.” In short, the Alabama Supreme Court disagreed with the Georgia court on the merits, which is not a proper basis for denying full faith and credit to the Georgia court’s judgment.

Evenwel v. Abbott, 578 U.S. 2349 (2016)

The “one person, one vote” rule requires states to draw legislative districts with roughly equal populations. Without dissent, the Court held, “based on constitutional history, th[e] Court’s decisions, and longstanding practice, that a State may draw its legislative districts based on total population” — rejecting appellants’ contention that states must draw their districts to contain a roughly equal number of eligible voters. The Court emphasized the choice by the Framers and then the drafters of the Fourteenth Amendment to allocate seats in the House of Representatives based on states’ total population. Emphasizing that the allocation of House seats reflects an approach to “representation,” the Court stated that “[i]t cannot be that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis.” The Court added that it is not resolving whether a state may “draw districts to equalize voter-eligible population rather than total population.”

Woods v. Etherton, 578 US 1149 (2016)

Through a unanimous per curiam opinion, the Court summarily reversed a Sixth Circuit decision that had granted habeas corpus relief to the respondent. The Sixth Circuit ruled that respondent’s appellate counsel was ineffective for failing to assert that trial counsel was ineffective for not levying a Confrontation Clause objection to the admission of the anonymous tip that led to his arrest. Applying the Antiterrorism and Effective Death Penalty Act of 1996, the Court ruled that a “fairminded jurist” could have concluded that the contents of the tip were not admitted for their truth; and “that the failure to raise such a claim was not due to incompetence but because the facts of the tip were uncontested and in any event consistent with [respondent’s] defense.”

Fisher v. University of Texas at Austin, 136 S. Ct. 2189 (2016)

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

By a 5-3 vote, the Court held 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. The University is required to admit any applicant who graduates in the top 10% of a Texas high-school class; this accounts for about 75% of the freshman class. In determining which students outside the top 10% are admitted, the school holistically assesses the candidates, treating race as a relevant factor. Rejecting a challenge to the latter use of race, the Court held that the University “articulated concrete and precise goals” (such as “provid[ing] an ‘academic environment’ that offers a ‘robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders’”); the University concluded in good faith based on careful study that the Top Ten Percent Plan alone did not produce the needed diversity; and the record shows that none of petitioner’s “proposed alternatives” — including increasing the number of students admitted under the Top Ten Percent Plan — “was a workable means for the University to attain the benefits of diversity it sought.”

Williams v. Pennsylvania, 136 S. Ct. 1988 (2016)

By a 5-3 vote, the Court held that a capital defendant’s due process rights were violated when one of the state supreme court justices hearing his state habeas appeal had been the district attorney at the time of the initial prosecution and had approved the decision to pursue capital punishment. The Court ruled that “under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.” The Court found that test met here because there is not “any doubt that [the justice] had a significant role in” the decision to seek the death penalty. The Court further found that “an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote.” (The state high court had unanimously rejected the defendant’s claim.)

Ross v. Blake, 136 S. Ct. 1850 (2016)

The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C §1983], or any other Federal law, by a prisoner . . . until such administrative remedies as available are exhausted.” The Court unanimously held that the Fourth Circuit erred when it created “an unwritten ‘special circumstances’ exception to that provision,” for “when a prisoner ‘reasonably’ — even though mistakenly — ‘believed that he had sufficiently exhausted his remedies.’” The Court ruled that the PLRA’s exhaustion provision “contains one significant qualifier: the remedies must be ‘available’ to the prisoner. . . . But aside from that exception, the PLRA’s text suggests no limits on an inmate’s obligation to exhaust — irrespective of any ‘special circumstances.’” The Court went on to explain that an administrative procedure is not “available” when “it operates as a simple dead end — with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; where the “administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use”; and “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” The Court remanded so that the lower courts can consider respondent’s claim that, given the “bewildering” nature of Maryland’s grievance process, he did not have “an ‘available’ administrative remedy to exhaust” here.

United States v. Texas, 195 L.Ed.2d 638 (2016)

Through a one-line opinion, the Court affirmed the Fifth Circuit’s judgment by an equally divided Court. The Fifth Circuit had upheld a preliminary nationwide injunction barring implementation of the President’s “Guidance” that the Department of Homeland Security defer action on the deportation of more than four million aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents. Texas and 25 other states filed suit challenging the program.

Utah v. Strieff, 136 S. Ct. 2056 (2016)

This case involved evidence seized incident to a lawful arrest on an outstanding arrest warrant where the warrant was discovered during an investigatory stop later found to be unlawful (because the officer lacked reasonable suspicion to conduct the stop). By a 5-3 vote, the Court held that the evidence did not need to be suppressed “because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.” In reaching that decision, the Court found “it especially significant” that the officer, in initiating the unlawful stop, “was at most negligent”; “there is no evidence that [the] illegal stop reflected flagrantly unlawful police misconduct.”

Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)

By a 5-3 vote, the Court invalidated a Texas law that requires any doctor performing an abortion to hold admitting privileges at a local hospital and requires all abortion clinics to comply with standards applicable to ambulatory surgical centers. After holding that res judicata does not bar plaintiffs’ challenge to either requirement, the Court held that when a court applies the “undue burden” standard set out in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” The Court then found, based largely on the district court’s factual findings, that “there was no significant health-related problem that the [admitting-privilege requirement] helped to cure,” yet it “places a ‘substantial obstacle in the path of a woman’s choice’” by causing “the closure of half of Texas’ clinics, or thereabouts,” which “meant fewer doctors, longer waiting times, and increased crowding.” As to the surgical-center requirement, the Court found that it “does not benefit patients and is not necessary,” while “further reduc[ing] the number of abortion facilities.” Responding to the contention that the remaining clinics can handle the load, the Court stated that, “in the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities.”

Wittman v. Personhuballah,578 U.S. 998_(2016)

The Court held that the appellants — 10 current and former Republican members of Congress — lack standing to appeal a three-judge district court ruling that Virginia Congressional District 3 is the product of an unconstitutional racial gerrymander. The Commonwealth of Virginia, after defending the plan at trial, declined to defend the plan on appeal to the Court. The Court found that only three of the 10 appellants now claim to have standing; that one of them is no longer running in his former district; and that the other two have not provided evidence that an alternative to the originally enacted plan will reduce their chances of reelection.

Green v. Brennan, 136 S. Ct. 1769 (2016)

By a 7-1 vote (with Justice Alito filing an opinion concurring in the judgment), the Court held that the statute of limitations for a constructive discharge claim under Title VII begins running only when the employee resigns. Under Title VII, employees who “resign because of unendurable working conditions” are entitled to the same remedies as employees who are formally discharged in violation of the statute. Federal law also provides that, before a federal civil servant can file suit under Title VII, he must “initiate contact” with the EEOC “within 45 days of the date of the matter alleged to be discriminatory.” The Court ruled that “the ‘matter alleged to be discriminatory’ includes the employee’s resignation.” It therefore rejected the Tenth Circuit’s conclusion that the “matter alleged to be discriminatory” includes only the federal employer’s discriminatory actions that prompted the later resignation.

CRST Van Expedited, Inc. v. Equal Employment Opportunity Comm'n, 136 S. Ct. 1642 (2016)

Under Title VII, the “prevailing party” may be awarded attorney’s fees. The Court unanimously held that a defendant can be a prevailing party even absent a favorable ruling on the merits — that is, a win on a non-merits ground can suffice. The Court therefore reversed an Eighth Circuit decision holding that petitioner was not a prevailing party because it won based not on the merits but because the EEOC failed to satisfy its statutory obligation to investigate the claim and attempt conciliation.

SCOTUS — Petitions Granted

Moore v. Texas, No. 15-797 (June 6, 2016)

In response to a petition from a capital defendant, the Court will determine whether prohibiting the use of current medical standards on intellectual disability in determining whether an individual may be executed violates the Eighth Amendment and the Court’s own precedent. Petitioner asserts that the Texas Court of Criminal Appeals (CCA) erred when it held that whether a capital defendant is intellectually disabled should be determined by applying Texas’ legal definition of intellectual disability set forth in a 1992 CCA decision, rather than by applying (as the state habeas court did) professional medical associations’ current definitions of intellectual disability.

Buck v. Davis, No. 15-8049 (June 6, 2016)

This petition in another Texas capital case asks whether the Fifth Circuit erred when it denied a Certificate of Appealability to a capital inmate who sought “to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an ‘expert’ who testified that [he] was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing.” The petition argues, among other things, that the circuits are divided on the standard for granting COAs and on the standard for granting relief under Federal Rule of Civil Procedure 60(b).

Fry v. Napoleon Community Schools, No. 15-497 (June 28, 2016)

The Handicapped Children’s Protection Act of 1986 amended the Individuals with Disabilities Education Act (IDEA) to reaffirm that the IDEA is not the exclusive means of seeking relief for claims alleging the violation of rights to special education. One of its provisions, 20 U.S.C. §1415(l), provides that “before the filing of a civil action under such [other federal laws] seeking relief that is also available under this subchapter, the [administrative] procedures under [the IDEA] shall be exhausted.” The question presented is whether that exhaustion requirement applies “in a suit, brought under the Americans with Disabilities Act and the Rehabilitation Act, that seeks damages — a remedy that is not available under the IDEA.” The Sixth Circuit held that it does, reasoning that a contrary interpretation would allow plaintiffs to “evade” the IDEA exhaustion requirement “simply by ‘appending a claim for damages.’”

Jennings v. Rodriguez, No. 15-1204 (June 20, 2016)

The Court will review a Ninth Circuit decision holding that inadmissible aliens who arrive at our Nation’s borders and certain criminal and terrorist aliens — whom federal law says must be detained, without a bond hearing, during proceedings to remove them from the country, 8 U.S.C. §§1225(b), (c) — must be afforded bond hearings, with the possibility of release into the United States, if their detention lasts more than six months. The Court will also review another aspect of the Ninth Circuit’s decision, which held that at those bond hearings (and bond hearings for other aliens) the government must prove by clear and convincing evidence that the alien is a flight risk or a danger to the community and must automatically hold bond hearings every six months.

McCrory v. Harris, No. 15-1262 (June 27, 2016)

The Court noted probable jurisdiction to review a three-judge district court decision holding that two North Carolina congressional districts are unconstitutional racial gerrymanders. The state asserts that the district court made an array of errors, including wrongly rejecting its “evidence that politics completely explained” one of the two districts and wrongly “presum[ing] racial predominance as to [the other district] based solely on the fact that the State drew [it] at the 50% BVAP level to foreclose vote dilution claims under Section 2” of the Voting Rights Act.

Bethune-Hill v. Virginia State Board of Elections, No. 15-680 (June 6, 2016)

The Court noted probable jurisdiction to review a racial gerrymandering case from Virginia. In 2011, the Virginia legislature redrew its districts. Based on the premise that a certain number of districts should comprise at least 55% minority populations, twelve of the new districts were minority majority. The Court will assess whether race was the “predominant factor” in drafting the districts and will determine the constitutionality of the state’s new districts.

Lynch v. Morales-Santana, No. 15-1191 (June 28, 2016)

In order for a United States citizen who has a child abroad with a non-U.S. citizen to transmit his or her citizenship to the foreign-born child, the U.S.-citizen parent must have been physically present in the United States for a particular period of time prior to the child’s birth. The questions presented are: (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of equal protection, and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent in the absence of any express statutory authority to do so.

Bank of America Corp. v. City of Miami, No. 15-1111 (June 28, 2016)

The Fair Housing Act grants a private cause of action to persons “aggrieved” by a violation of the statute. The Court will review an Eleventh Circuit decision holding that (1) the Act does not impose a zone-of-interests requirement more stringent than the injury-in-fact requirement of Article III; and (2) the City of Miami is an “aggrieved person” under the Act based on its claim that petitioners, residential mortgage lenders, engaged in discriminatory lending practices, which led to neighborhood blight, which led to decreased tax revenue and increased cost of services.

Ivy v. Morath, No. 15-486 (June 28, 2016)

Title II of the Americans with Disabilities Act prohibits state agencies from denying access to their programs and services to individuals based on their disabilities. This case involves a Title II claim brought by a group of hearing-impaired individuals against the Texas Education Agency alleging that they were unable to obtain a driver’s license because none of the private driver-education schools could accommodate their disability. The Court will resolve whether the Texas agency’s involvement in the driver-education process is sufficient to make Title II applicable to a denial of access by the privately run driver-education schools.

Federal Case Law

Circuit Court – Decided

Voting Rights in Puerto Rico

Colón-Marrero v. Vélez, 2016 U.S. App. LEXIS 1684 (1st Cir. Feb. 1, 2016)

The court examined whether federal law prohibits Puerto Rico from removing individuals from its active voter registry for the office of Resident Commissioner based solely upon their failure to vote in one general election. The First Circuit affirmed the lower court’s holding that exclusion of Puerto Rico from the Voter Registration Act’s restrictive prerequisites to voter deactivation was not a denial of equal protection. The court reasoned that there were significant differences from state elections because Puerto Rico voted on a single non-voting federal official only once every four years. However, the Help America Vote Act (HAVA) did prohibit Puerto Rico from removing voters from its active voter registry for its only federal elective position based solely on a voter’s failure to vote in one general election. The court stated that HAVA expressly applies to Puerto Rico and prohibited removal unless the voters failed to vote in two preceding consecutive general federal elections. Finally, the court noted that HAVA provided voters with specific, enforceable voting rights and imposed binding obligations on state officials. Moreover, the voters had a private right of action to enforce HAVA under 42 U.S.C.S §1983.

Employment Discrimination Suits by Independent Contractors

Flynn v. Distinctive Home Care, Inc., 2016 U.S. App. LEXIS 1696 (5th Cir. Feb. 1, 2016)

The primary issue in this case was whether section 504 of the Rehabilitation Act permits employment discrimination suits by independent contractors. The plaintiff worked as a pediatrician for the defendant which contracted to provide medical services to the Air Force in Texas. She alleged that her dismissal was brought about after she reported her diagnosis of Asperger’s Syndrome and was refused reasonable accommodation for her disability. Noting circuit splits, the district court granted summary judgment to the defendant holding that section 504 was not available to the plaintiff because she was an independent contractor.

On appeal, the Fifth Circuit, noting that this was a case of first impression, reversed that decision. The court ruled that section 504 of the Rehabilitation Act permits employment discrimination suits by independent contractors. The court looked first at the applicable statute. Section 504 broadly prohibits employment discrimination against disabled persons in federally assisted programs or activities, but not in the private sector. The American with Disabilities Act (ADA) acts as a-gap filler for private sector employees, and Title I prohibits employment discrimination.

The court then determined that section 504(d) of the Rehabilitation Act does not incorporate the limitation in Title I of the ADA which prohibits employment discrimination suits brought by independent contractors. The court cited to similar decisions in the Ninth and Tenth Circuits. Fleming v. Yuma Reg'l Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009); Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 969-75 (10th Cir. 2002) (holding that the Rehabilitation Act does not incorporate the ADA's requirement that the employer have "fifteen or more employees"). The court also looked to the language of section 504(a) which specifically authorizes discrimination suits against “any program or activity receiving Federal financial assistance.” Employee-employer language from Title I of the ADA conflicts with the plain language of the Rehabilitation Act and therefore cannot be incorporated as a limitation.

Fourth Amendment Due Process Violations Involving Certain Drugs in Lethal Injection Cases

Jordan v. Fisher, 2016 U.S. App. LEXIS 2293 (5th Cir. Feb. 10, 2016)

Prisoners awaiting execution in Mississippi brought a 42 U.S.C. §1983 claim seeking an injunction to prevent the state from conducting executions. The prisoners asserted that the State's intention to use pentobarbital or midazolam violated the Fourteenth Amendment's Due Process Clause. The district court granted the broad injunction. However, the Fifth Circuit vacated the injunction and remanded because the prisoners did not show they were likely to establish a violation of procedural or substantive due process rights. Specifically, they did not show that the state's proposed method of execution violated the procedural protections of the Fourteenth Amendment because it failed to conform to the pertinent state law, Miss. Code Ann. § 99-19-51.

The court first turned to discussing whether the state’s decision to use the drug violated the prisoner’s procedural due process right to liberty. The prisoners argued they had a liberty interest under section 99-19-51, which prevents the state from conducting executions using any drug other than “an ultra-short acting barbiturate or other similar drug” as the first drug in a three-drug cocktail. The court reasoned that, even if the revised injection protocol does not conform to section 99-19-51, a “mere error of state law is not a denial of due process.” Swarthout v. Cooke, 562 U.S. 216 (2011). To establish a liberty interest, the prisoners were required to show that execution with pentobarbital or midazolam would “impose atypical and significant hardship” on them beyond the norm for those facing execution. Sandin v. Conner, 515 U.S. 484 (1995). Such recognition has rarely been recognized and, in this case, the State’s statutory requirements and injection protocols are not atypical when compared to other states.

The court then turned to the substantive due process claim concerning whether the State’s intention to execute in a manner, other than described in section 99-19-51, “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 846 (1998). The Supreme Court’s test for a substantive due process claim prohibits “only the most egregious official conduct” and will rarely come into play. The court stated the prisoners relied on irrelevant precedent of Hicks v. Oklahoma for their substantive due process claim. 447 U.S. 343 (1980).

For those reasons, the court determined the prisoners did not demonstrate a substantial likelihood of success on the merits and the lower court abused its discretion in granting the injunction.

Maryland’s absentee ballot program violated the Americans with Disabilities Act and the Rehabilitation Act because it required voters to mark a hardcopy ballot by hand.

Nat'l Fed’n of the Blind v. Lamone, 2016 U.S. App. LEXIS 2238 (4th Cir.. Feb. 9, 2016)

Maryland law, Elec. Law section 9-304, allows absentee ballot voting as long as a voter obtains a blank hardcopy ballot by mail, fax, or by downloading and printing one online. The hardcopy must then be marked by hand, signed, and returned via mail or hand-delivered to the voter’s local election board. Disabled Maryland voters and the National Federation of the Blind sued state election officials under Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act. The plaintiffs successfully alleged that making hardcopy ballots by hand without assistance is impossible for voters with various disabilities; therefore, they were denied meaningful access to absentee voting. The Fourth Circuit upheld a lower court ruling requiring the state to make an accessible online ballot-making tool available to blind voters who wished to vote by absentee ballots.

The circuit court affirmed because the pertinent Maryland law did not provide disabled persons an opportunity to participate in a manner afforded to others, since the program did not permit them to mark their ballots without assistance and essentially required disabled persons to rely on the assistance of others to vote by absentee ballot. The court decided that Maryland’s argument—that their voting system should be viewed holistically with regards to Title II of the ADA—was wrong and overbroad.

After determining the absentee ballot system was the appropriate subject for ADA analysis, the court held that the state government did not provide disabled voters with meaningful access to the absentee ballot program. It agreed with the district court that the absentee program did not provide disabled individuals the “opportunity to participate… equal to that afforded to others” as it was clear most voters could mark their absentee ballots without assistance. 28 C.F.R. § 35.130(b)(1)(ii). Finally the court determined the plaintiffs proposed a reasonable modification to the challenged public program that would afford them the meaningful access they sought, as required by the ADA. See, e.g., Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 464 (4th Cir. 2012). The plaintiff’s proposed online ballot marking tool—which was used by the state in 2012 without any incident—was reasonably secure and reasonably accessible to disabled voters.

"Hispanic" is considered a "race" for purposes of a 42 U.S.C. § 1981 and Title VII discrimination claim.

Village of Freeport v. Barrella, 2016 U.S. App. LEXIS 2629 (2d Cir. Feb. 16, 2016)

Christopher Barrella sued the city and the mayor, Andrew Hardwick, under 42 U.S.C. §1981 and Title VII of the Civil Rights Act of 1964, alleging that Hardwick did not appoint him chief of police because he was a white Italian-American, and that Hardwick instead appointed a less-qualified Hispanic person, Miguel Bermudez. Barrella claimed discrimination based on ethnicity, specifically Hispanic ancestry or lack thereof. Bermudez was the assistant chief of police, had no college degree, and scored lowest of the top 3 candidates on the chief of police promotional examination. Barrella had a master’s degree in criminal justice and a law degree, scored highest on the promotional examination, and spent more time “in rank” as a lieutenant than Bermudez. After a five day trial, the jury rendered a verdict in favor of Barrella, finding that Hardwick had intentionally discriminated based on race. Hardwick appealed.

The court first stated the meaning of the word race in Title VII was a question of law, not one of fact as the district court determined. Citing the Supreme Court and Second Circuit, the court asserted that Hispanic does in fact comprise a distinct race for the purposes of a Section 1981 claim. Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988) (en banc). However, the issue regarding whether Hispanic constitutes a race for Title VII purposes was yet to be resolved in the Second Circuit.

The court then decided that under Title VII, as with a Section 1981 claim, race encompasses ethnicity. Therefore, a plaintiff who alleges employment discrimination based on Hispanic ethnicity, or lack thereof, may state a claim of racial discrimination within the meaning of Title VII. The court gave two reasons for its decision. First, because Title VII and Section 1981 claims are analyzed identically in other respects, the court saw no reason why the same approach should not be taken when defining race for purposes of the statutes. Second, the Second Circuit has repeatedly assumed that claims of discrimination based on Hispanic ancestry are cognizable racial discrimination claims under Title VII, even though that had not been expressly held.

Lastly, the court found that Rule 701(b) of the Federal Rules of Evidence were violated when the district court allowed two witnesses to give lay opinions speculating on Hardwick’s motives for his personnel decisions. Citing the case as “factually very close,” the court deemed the district court’s error to be sufficiently prejudicial to warrant a new trial.

The court affirmed the judgment of the district court to deny defendant’s motions for judgment as a matter of law, but found prejudicial error in the district court’s decision to permit lay testimony on Hardwick’s reasons for not appointing Barrella. The court vacated the judgment and remanded for a new trial.

Prison Litigation: 42 U.S.C Section 1983 claim, alleging violations under the Eighth & Fourteenth Amendments, the Americans with Disabilities Act, and the Rehabilitation Act

Spencer v. Wenerowicz, 2016 U.S. App. LEXIS 2794 (3d Cir. Feb. 18, 2016)

Ravana Spencer, a pro se litigant, appealed an order from the district court granting defendant’s motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Spencer brought the original action pursuant to 42 U.S.C. §1983, alleging the defendants (Department of Correction employees) violated his Eighth and Fourteenth Amendment rights under the U.S. Constitution, the Americans with Disabilities Act, the Rehabilitation Act, and various state laws. Spencer was a prisoner in the state’s Secure Residential Treatment Unit (SRTU). The SRTU was a mental health program for inmates who had multiple placements in restricted housing units because of behavior attributed to mental illness. Spencer claimed this placement was discriminatory based on his mental health issues and that he was being treated differently than inmates in other housing units. He alleged that he did not have adequate access to laundry services, commissary, library privileges, or the property room, and received inadequate food and medical care as a result of discrimination based on his mental health issues.

The Third Circuit affirmed the district court’s dismissal of Spencer’s complaint based upon his failure to exhaust administrative remedies and agreed with the district court’s “well-reasoned opinion.” The Prison Litigation Reform Act requires a prisoner to properly exhaust all available administrative remedies at the prison before bringing an action in federal court regarding prison conditions. See 42 U.S.C. §1997e(a); Woodford v. Ngo, 548 U.S. 81 (2006). It was uncontested that Spencer did not initiate any administrative grievance process with respect to the claims, and, therefore, the court affirmed the dismissal.

Eleventh Circuit decision on mixed motive sex discrimination claims based upon circumstantial evidence and filed pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Section 1983

Quigg v. Thomas Cnty. Sch. Dist., 2016 U.S. App. LEXIS 3007 (11th Cir. Feb. 22, 2016)

The primary issue in this case is the proper standard for summary judgment in a mixed motive sex discrimination case. Linda Quigg filed suit, claiming that the Thomas County School District and five members of the School District’s governing board discriminated and retaliated against her, in violation of Title VII of the Civil Rights act of 1964, 42 U.S.C.§ 2000e et. seq., and 42 U.S.C.§ 1983, when they refused to renew her employment contact and filed an ethics complaint against her. The district court granted the defendants’ motion for summary judgment to the District and the Board on all claims, and Quigg appealed.

The Eleventh Circuit reversed in part, finding that the court improperly granted summary judgment with regard to the claims against certain district and board members. Quigg’s Title VII and Section 1983 mixed motive sex discrimination claims were based on the refusal to renew her contract. Mixed motive and single motive discrimination are different theories to show discrimination, as opposed to distinct causes of action. They serve as alternative causation standards for proving discrimination. It was determined that mixed motive cases can be established with direct or circumstantial evidence.

Here, Quigg based her claim on circumstantial evidence, and, on appeal, she successfully argued McDonnell Douglas was not the proper summary judgment framework for her claim. McDonnell Douglas v. Green, 411 U.S. 792 (1973). In accordance with a majority of other circuits, the Eleventh Circuit rejected the McDonnell Douglas framework when deciding mixed motive discrimination claims based on circumstantial evidence. The court held the proper framework was that articulated in White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008). The White court held that, “to survive a defendant’s motion for summary judgment a . . . plaintiff asserting a mixed motive claim need only produce evidence sufficient to convince a jury that: 1) the defendant took an adverse employment action against the plaintiff; and 2) a protected characteristic was a motivating factor for the defendant’s adverse employment action.”

The court gave three reasons for adopting the White framework. First, the court briefly discussed recent legal developments that led to the emergence of circumstantial evidence-based mixed motive claims in the Eleventh Circuit. Two Supreme Court cases stated the issue should be left to the lower courts to resolve. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Second, the court examined the McDonnell Douglas framework and decided it was not appropriate in the mixed-motive context. =It stated the “framework is fatally inconsistent with the mixed motive theory of discrimination because the framework is predicated on proof of a single, true reason for an adverse action.” Finally, the court identified the White framework as the appropriate summary judgment standard. The White framework is consistent with the mixed motive theory of discrimination because it requires the court to determine whether the “plaintiff has presented sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that the protected characteristic was a motivating factor for an adverse employment decision.” Desert Palace, 539 U.S. at 101.

In a Title VII of the Civil Rights Act of 1964 retaliation claim, the same “reasonable belief” standard applies to third party witnesses involved in an internal investigation.

EEOC v. Rite Way Service, Inc., 819 F.3d 235 (5th Cir. 2016)

The Equal Employment Opportunity Commission (EEOC) brought an anti-retaliation case on behalf of Mekeva Tennort. Tennort observed multiple alleged sexual harassments incidents by her supervisor against a fellow co-worker. Tennort complied with the investigation concerning the alleged discrimination of her co-worker and completed a written report. Ultimately, she was promptly terminated following the completion of the investigation, transfer of the old supervisor, and replacement of a new supervisor.

The court noted well settled law that a plaintiff contending they were retaliated against for reporting employment discrimination does not have to show the discrimination rose to the level of a Title VII violation but only that she must have a reasonable belief that it did. See generally Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. Unit A Sept. 1981). Here, the court reversed summary judgment in favor of the defendant and decided that the same “reasonable belief” standard applies equally to third parties who cooperate in an internal investigation. Even if the one incident the claimant witnessed would not by itself constitute harassment as a legal matter, the circumstances may tilt into a “gray area,” which is sufficient for a jury to decide the issue. The court remanded the case for further proceedings as there were genuine disputes as to material facts.

Academic Institution: Student’s complaint alleges sufficient facts to state a plausible First Amendment retaliation claim.

O'Brien v. Welty, 818 F.3d 920 (9th Cir. Cal. 2016)

PlaintiffNeil O’Brien was recognized as an outspoken conservative student who was critical of faculty and his academic institution. The pertinent incident that led to O’Brien filing suit stemmed from his disapproval with an article in a campus newsletter posted by the Latin American Studies Department. O’Brien confronted two faculty members and videotaped his interaction with them. Appearing without an appointment but apparently remaining calm during the interaction, both faculty members refused to comment and called campus police. The university subsequently disciplined O’Brien for harassment and intimidation, in violation of the school’s code of conduct.

The court determined that O’Brien’s behavior as described in the complaint could be considered “harassment” or “intimidation” and threatening under an objective reasonableness standard. Noting that O’Brien could lawfully be subject to discipline for his actions because the school’s code of conduct was reasonable and a viewpoint neutral regulation, it still ruled that his case could move forward on his theory of unconstitutional retaliation.

The court concluded that O’Brien’s complaint plausibly supported a First Amendment retaliation claim to survive a motion for summary judgment because the alleged facts claim that he that he engaged in protected speech and conduct leading up to the confrontation with faculty members and that the university engaged in actions that may have impeded his ability to exercise his constitutionally protected rights. The court found that sufficient facts had been pled to show a retaliation claim because the allegations could reasonably support a conclusion that the university disagreed with O’Brien’s expressed political views and sought to punish and muzzle him in retaliation for his expression of those views. O’Brien’s other constitutional claims were waived for failing to argue them sufficiently on appeal.

Transgender Discrimination: Bathroom policy claiming violation of Title IX of the Education and Amendments Act of 1972 and Equal Protection Clause of the Constitution.

G. G. v. Gloucester Cnty. Sch. Bd., 2016 U.S. App. LEXIS 7026 (4th Cir. Va. Apr. 19, 2016)

This appeal focused on whether Title IX of the Education and Amendments Act of 1972 requires schools to provide transgender students access to restrooms consistent with their gender identity. G.G. is a transgender boy at Gloucester High School. G.G. was born a female but has been diagnosed with gender dysphoria and identifies as a male. With permission from school officials, G.G. used the male restroom for seven weeks before elevated interest from the community led to complaints. Soon afterwards, the board enacted a policy requiring students to use the bathroom that corresponds to their biological gender and students with gender identity issues to use an alternative private facility. G.G. avoided the restrooms at school and alleged that the policy caused stigma and exclusion, along with psychological and physical harm. G.G. filed suit and sought an injunction, claiming discrimination based on Title IX and the Equal Protection Clause of the Constitution. Both actions were dismissed by the district court.

First, the Fourth Circuit reversed the lower court decision granting a motion to dismiss the Title IX claim based on a Department of Education (DOE) opinion letter. The January 2015 DOE letter stated if schools opt to separate students in bathrooms and locker rooms on the basis of sex, they must “treat transgender students consistent with their gender identity.” The court concluded the DOE’s interpretation of 34 C.F.R. section 106.33, as it relates to restroom access by transgender individuals “is entitled to Auer deference and is to be accorded controlling weight in this case.” Auer v. Robbins, 519 U.S. 452, (1997).

Additionally, the Fourth Circuit reversed the lower court’s decision to deny the preliminary injunction and held that the district court abused its discretion without considering the plaintiff’s proffered evidence. Agreeing with seven sister circuits, the court ruled that excluded hearsay evidence should have been considered, recognizing that the rules of evidence are relaxed in preliminary injunction hearings. The court found that the district court evaluated plaintiff’s evidence against a stricter evidentiary standard than what is required in preliminary injunction proceedings to prevent harm before a full trial on the merits. The Fourth Circuit remanded the case to the district court for re-consideration in light of the proper evidentiary standard they set forth in the opinion.

Update on Transgender Discrimination Bathroom Policy.

To provide an update to the aforementioned case, a federal judge in Texas issued a nationwide injunction barring the federal government from taking any action against school districts that choose not to follow the Obama administration’s guidance regarding transgender bathroom (and other facilities such as locker rooms) policies in schools. Various states sought a preliminary injunction, challenging the administration’s interpretation of Title IX concerning whether the law includes discrimination based upon gender identity. The court granted the injunction, recognizing the delicate balancing test that is required in protecting students’ rights and that of personal privacy when using facilities at schools. The court also made clear that states that do not want to be covered by the injunction can easily avoid its application through use of state law that recognizes the permissive nature of the authorization of separate facilities provision on the basis of sex, pursuant to Title IX’s implementing regulations under 34 C.F.R. § 106.33. The injunction, although nationwide, only applies to those states whose laws direct separation as noted by the court, and the order does not interfere with litigation pending in other federal courts. A copy of the preliminary injunction can be found here.

States have standing to sue the EEOC over Enforcement Guidance.

Texas v. EEOC, No. 14-10949, 2016 U.S. App. LEXIS 11735 (5th Cir. June 27, 2016)

The EEOC issued Enforcement Guidance asserting that a categorical ban on hiring felons violates Title VII if it disproportionately impacts minorities and “the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.” Texas filed suit against the EEOC, alleging that the Guidance is a binding, substantive interpretation of Title VII that violates the Administrative Procedure Act (APA). The district court granted the EEOC’s motion to dismiss on jurisdictional grounds. In a 2-1 decision, the Fifth Circuit reversed. The court held that the state suffered a concrete injury either from incurring significant costs in determining whether a hiring ban led to disparate impact or from being pressured to change state law. Additionally, the Fifth Circuit held the Guidance to be a final action subject to judicial review. Although the Guidance only authorized the EEOC to investigate state hiring bans and refer them to the U.S. Attorney General, the EEOC was committed to following the Guidance standards in its enforcement decisions. In dissent, Judge Higginbotham argued that the challenge was not ripe, Texas lacked a concrete injury, and the Guidance is not a “final agency action” under the APA.

A statute benefiting veterans who were state residents at time of enlistment is ruled constitutional.

Harris v. Hahn, No. 15-20105, 2016 U.S. App. LEXIS 11532 (5th Cir. June 23, 2016)

The Hazlewood Act grants public university tuition waivers to certain veterans who enlisted in Texas or were Texas residents at the time of enlistment. Tex. Educ. Code section 54.341. Plaintiff Keith Harris, a current Texas resident and United States Army veteran, enlisted in the Army as an eighteen-year-old Georgia resident. However, he applied for Hazlewood Act benefits as a veteran and Texas resident, was denied, and sued, claiming that the statute violated the Fourteenth Amendment. The district judge granted summary judgment in Harris’s favor, but the Fifth Circuit reversed. The court held that the Hazlewood Act rationally incentivized pre-military behavior, such as finishing high school or enlisting in the military and therefore did not violate the Equal Protection Clause. It also held that the Act did not infringe upon a constitutional right to travel, since it did not penalize people entering Texas.

Moreover, the Act’s residency requirement was justified because the benefit could be received in Texas and subsequently enjoyed elsewhere later. The court also noted specifically that it was not inclined to interfere with Texas’ sovereign power to regulate its education system unless it had clearer instructions and an interpretation from the Supreme Court of constitutional violations allegedly imposed by the Hazlewood Act.

Preemption: Arizona identity theft law and the Federal Immigration Reform and Control Act (IRCA).

Puente Ariz. v. Arpaio, 821 F.3d 1098 (9th Cir. Ariz. 2016)

An immigrant advocacy organization, Puente Arizona, along with individual unauthorized aliens and taxpayers of Maricopa County, challenged provisions of Arizona’s identity theft laws which prohibit using a false identity to obtain employment. Puente Arizona argued that the Federal Immigration Reform and Control Act established a “comprehensive framework” for regulating the employment of unauthorized aliens, and, therefore, Arizona’s employment-related identity theft laws were facially preempted.

In 2007, Arizona passed the “Legal Arizona Workers Act,” which amended Arizona’s aggravated identity theft statute that prohibits using the information of another (real or fictitious) person “with the intent to obtain employment.” Then, in 2008, Arizona passed the “Employment of Unauthorized Aliens” bill which expanded Arizona’s general identity theft statute to also reach employment-related identity theft. These bills were passed in response to the growing and well-documented problem of identity theft in Arizona. The district court found that the laws were facially preempted by federal immigration policy and granted a preliminary injunction preventing the Arizona government defendants from enforcing the challenged provisions. The Ninth Circuit reversed the district court and held that, although there was tension between the federal scheme and some applications of Arizona’s identity theft laws, the tension was not enough to rise to the level of a clear and manifest purpose to preempt the identity theft laws in their entirety.

The Ninth Circuit stated that one cannot ascertain whether identity theft laws undermine federal immigration policy by looking solely at the text itself. It is essential to study the law’s application from which conflicts arise. Additionally, the court held that Congress could not have intended to preempt the state from sanctioning crimes that protect citizens of the state under Arizona’s traditional police powers without intruding on federal immigration policy. The court noted that, despite the legislative history, Congress did not intend to preempt state criminal statutes like the identity theft laws. Accordingly, the Court held that Puente did not meet its burden of showing a clear and manifest purpose to completely preempt the identity theft laws, thus being unable to argue that every application is unconstitutional. The Ninth Circuit vacated the district court’s preliminary injunction and reversed its finding that Puente’s facial challenge is likely to succeed on the merits.

District Court Cases – Decided

Religious Freedom Law: Allegations it violates First and Fourteenth Amendments.

Barber v. Bryant, No. 3:16-CV-417-CWR-LRA, 2016 U.S. Dist. LEXIS 86120 (S.D. Miss. June 30, 2016)

Following the Supreme Court’s decision in Obergefell v. Hodges, the Mississippi legislature passed the Protecting Freedom of Conscience from Government Discrimination Act, referred to as HB 1523. The law allowed people with certain religious beliefs to deny service to LGBT individuals. Members of certain religious groups and LGBT groups, as well as some LGBT individuals, challenged the constitutionality of the law. After examining both contemporary and historical context, the district judge concluded that HB 1523 violated both the Due Process Clause of the Fourteenth Amendment and the Establishment Clause of the First Amendment. HB 1523 granted “special privileges” to citizens with certain beliefs, and “[t]he First Amendment prohibits states from putting their thumb on the scales in this way.” Finding the law’s denominational preferences “suspect,” the court determined that HB 1523 failed to satisfy strict scrutiny. Moreover, the court found that the law failed the rational basis test, stating specifically, “[u]nder the guise of providing additional protection for religious exercise, it creates a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity.” The court granted plaintiffs’ motion and issued an order enjoining defendants, their agents, and/or servants from enacting or enforcing HB 1523.

Voter Identification Law: Not a Violation of Section 2 of the Voting Rights Act.

Lee v. Virginia State Board of Elections, 2016 U.S. Dist. LEXIS 67707 (E.D. Va. May 19, 2016)

This suit challenged the constitutionality of a Virginia voter identification law. The statutory provision requires voters in the Commonwealth of Virginia to present a form of statutorily-approved identification in order to vote. Voters who are unable to produce valid identification are permitted to cast a provisional ballot which must be cured by the Friday succeeding the November election. The plaintiffs assert that the photo identification requirement for voting adversely impacts minority voters in violation of Section 2 of the Voting Rights Act, as well as the First, Fourteenth, Fifteenth, and Twenty-Sixth Amendments. Plaintiffs further claim there is no rational basis for the adoption of the law and, given the history of discrimination in Virginia, it must have been adopted for the purpose of suppressing minority votes. The defendants assert that the voter identification law resulted in very few individuals being unable to cast a vote during the 2014 election cycle. Further, the defendants claim that the burden imposed by the law has a fairly even effect on individuals of all ages, races, and nationalities.

The district court held that Virginia created a scheme of laws to accommodate all people in their right to vote, and, therefore, Virginia has provided all of its citizens with an equal opportunity to participate in the electoral process. Further, the court found that plaintiffs did not meet their burden of proof in showing that the voter identification law, either on its face or in its enactment, contravened the Voting Rights Act or the First, Fourteenth, Fifteenth, or Twenty-Sixth Amendments. Utilizing a preponderance of the evidence standard, the court opined that the testimonial record showed that the Virginia Legislature did not pass the law with the intention of suppressing the minority and young people vote.

Voter Identification Laws: Violation of the National Voter Registration Act of 1993.

Fish v. Kobach, 2016 U.S. Dist. LEXIS 68727 (D. Kan. May 25, 2016)

The suit challenged a Kansas voter identification law. The law required documentary proof of citizenship for those who registered to vote in federal elections through their driver’s license application or renewal process. The plaintiffs assert that the documentary proof of citizenship requirement and a related regulation are preempted by the National Voter Registration Act of 1993 (NVA), violate 42 U.S.C. §1983, and are unconstitutional under the Elections Clause and Privileges and Immunities Clause of the United States Constitution. The plaintiffs sought a preliminary injunction barring Kansas from enforcing the law that requires voters to provide proof of citizenship when they apply to register to vote at the same time they apply for or renew a driver’s license. The defendants each raised subject matter jurisdiction challenges in their responses to the motion for preliminary injunction on the basis of lack of standing and Eleventh Amendment immunity.

The district court held that, under the heightened preliminary injunction standard, the plaintiffs sustained their burden of making a strong showing that they are likely to succeed on the merits of their claim. Plaintiffs could likely show the Kansas law violates the NVA specific provision that a motor voter registration application can require only the minimum amount of information necessary to enable state officials to assess an applicant’s eligibility to vote and that they would suffer irreparable harm without an injunction.

District Court Cases – Pending

Discrimination based upon sexual orientation and retaliation.

EEOC v. Scott Medical Health Center, P.C., (W.D. Pa., No. 2:16-cv-00225-CB, filed March 1, 2016)

EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc. ("IFCO"), (D. Md., No. 1:16-cv-00595-RDB, filed March 1, 2016)

The Equal Employment Opportunity Commission announced it filed two “groundbreaking” cases, on behalf of a gay male and lesbian female. According to the complaint, the male was subjected to “various antigay epithets” and “highly offensive comments about his sexuality and sex life.” Additionally, the EEOC alleges the company knew of and failed to stop the harassment, which forced the man to quit his job. In the other case, a female employee was taunted by a supervisor for her sexual orientation and fired after complaining about the harassment. Both cases allege discrimination in violation of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 based upon sex and retaliation. The EEOC has never filed a suit on behalf of a gay worker, but it has for transgender persons. The lawsuits demonstrate additional action that the EEOC will take to pursue sexual orientation discrimination as a cause of action under Title VII.

State Supreme Court

Batson v. Kennedy Challenge: Preemptory challenges neutrality as to race and gender.

Ray-Simmons v. State, 2016 Md. LEXIS 85 (Md. Feb. 22, 2016)

The petitioners were jointly tried before a jury on charges of first degree murder, conspiracy to commit murder, and handgun offenses. The petitioners were acquitted of the first degree murder charges but found guilty and sentenced for second degree murder, conspiracy to commit murder, and the gun charges. After the convictions were affirmed, the Maryland Court of Appeals granted petitioners’ writs of certiorari to determine whether a successful Batson challenge had been raised. Batson v. Kentucky, 476 U.S. 79 (1986). In response to an allegation of racial and gender discrimination in the exercise of a preemptory challenge, the prosecutor stated that she intended to replace a stricken African American male juror with another African American male. The court determined that the State failed to provide a specific explanation for each challenged strike which was neutral.

The court then proceeded to go through the standard and three-step process as outlined in Batson on how appellate courts are to review trial court decisions—that the party making the challenge must make a prima facie showing that the opposing party’s preemptory challenge was exercised on one or more constitutionally prohibited basis; that the burden shifts to the proponent of the strike produce a reasonably specific explanation for the strike that it is race, gender, and ethnically neutral (and that the explanation has to be neutral but does not have to be persuasive or plausible); and whether the opponent of the strike has proved purposeful racial discrimination. Persuasiveness and justification become relevant at the third step.

In the instant case, the petitioners showed a prima facie case of a Batson violation because the State used all five preemptory challenges on five lower educated African-American males. Further, the prosecutor’s response from the challenge automatically moved the inquiry to the second step once an explanation was offered by stating that she intended to replace the juror with another black male. The burden was then on the State to give a sufficiently clear and specific, race and gender neutral explanation. The State failed to do so. The prosecutor’s response to replace a black male with another was clearly not race and gender neutral, and race was improperly a factor in her decision. The court found there was a Batson violation and granted a new trial.

Cruel and Unusual Punishment and Double Jeopardy Clauses of the United States and Ohio Constitutions do not bar the state from carrying out a second attempted execution.

State v. Broom, 2016-Ohio-1028 (Ohio Mar. 16, 2016)

The court was tasked with answering whether a second attempt to carry out an execution after a prior failed attempt to insert a catheter during the originally scheduled execution violates the Cruel and Unusual Punishment and Double Jeopardy Clauses of the U.S. and Ohio Constitutions. Appellant Rommell Brown was convicted of felony-murder and he was subsequently sentenced to death. Brown’s first scheduled execution took place in 2009 and was halted after a series of failed attempts to insert a catheter and access a vein for injection.

Facts relevant to appellant’s claim of cruel and unusual punishment include the following: the medical team attempted to properly insert a catheter for about 45 minutes, took a 20-25 minute break and then continued for another 35-40 minutes. Brown was stuck at least 18 times and likely many more as the medical team withdrew the catheter part way and then reinserted it at a different angle in a procedure known as “fishing.” Members of the medical team inserted needles into already swollen and bruised sites and attempted to access veins in Browns hands, ankles, and elbows causing him to scream in pain.

Brown filed a petition for post-conviction relief claiming another attempt to execute him would be unconstitutional. The trial court denied the petition without conducting an evidentiary hearing and held there was no constitutional violation. An appellate court affirmed and Brown appealed to the Ohio Supreme Court on three issues: 1) another execution is barred by the Cruel and Unusual Punishment Clauses of the U.S. and Ohio Constitutions; 2) another execution would violate the Double Jeopardy Clauses of the U.S. and Ohio Constitutions; and 3) the lower court denied Brown due process of law when he was denied a discovery hearing.

Broom claimed the pain and anguish from the first attempted execution and the lack of guaranteed success for the second execution made another attempt cruel and unusual. The court agreed with lower court and determined, based on Resweber, that there was no per se prohibition against a second execution attempt based on the Cruel and Unusual Punishment Clause of the Eighth Amendment. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459. (1947). The pain and emotional trauma Broom already experienced was not the type of torture prohibited by the Eighth Amendment.

The court determined a second execution attempt would not violate the Double Jeopardy clause since it has no application to multiple execution attempts. Citing section 2949.22 of the Ohio law, which states “the process begins with the application of legal drugs,” the court ruled the execution had never commenced. Broom’s punishment was death. Until the lethal drugs flowed through the tubes, Broom had not been punished. When the preparatory actions were unsuccessful, the state halted the execution, and the sentence therefore was not completed. It was undisputed that no drugs ever entered Broom’s body; therefore, there was no Fifth Amendment violation.

Finally the court determined that appellant was not denied due process because post-conviction relief is a collateral, civil attack on a criminal judgment. State v. Steffen, 70 Ohio St.3d 399, 410 (1994). A petitioner only has those rights designated by statute, and relief is not a constitutional right. The Ohio Supreme Court has not ruled that there is a right to discovery in post-conviction proceedings. The relevant Ohio statute is silent on the issue, leaving the decision to grant or deny discovery to the discretion of the trial court. The court ruled there was no evidence that the trial court abused its discretion in this case.

Ex-Felon Claims of Voter Disenfranchisement

Griffin v. Pate, 15-1661, 2016 Iowa Sup. LEXIS 79 (June 30, 2016)

Under the Iowa constitution, a “person adjudged mentally incompetent to vote or a person convicted of any infamous crime shall not be entitled to the privilege of an elector.” In 1994, the Iowa legislature enacted a statute defining an infamous crime as any felony. Plaintiff, Kelli Jo Griffin, is an Iowa resident who was convicted in 2008 of a nonviolent drug offense, a class C felony. After completing her sentence of five years’ probation, Griffin registered to vote in 2013. She was charged with perjury and subsequently acquitted by a jury. Following this acquittal, Griffin filed a petition asking the court to declare that her felony conviction did not disqualify her from voting. She also sought an injunction and a writ of mandamus recognizing her right to vote. The Iowa district court rejected Griffin’s claim that her offense fell outside the “infamous crime” category and also her claim that the re-enfranchisement process violated her due process rights under the Iowa constitution. In a 4-3 decision, the Iowa Supreme Court affirmed.

Other State News

Voting Rights – Automatic Registration

Illinois Senate Bill 2134 provides for an opt-out system of voter registration, where eligible citizens are automatically registered unless they take action to opt out. Proponents of the bill hope it will allow greater access to voting for eligible citizens and generate more voter turnout. Those more cautious of the legislation cite the possibility of hindering the department of motor vehicle by creating additional expenses to educate employees on election law.

Similar bills are being considered in about two dozen states. California passed a similar law last fall, while Oregon is being closely watched as it enacted similar legislation on January 1, 2016. The Oregon “Motor Voter Act”, created by House Bill 2177, makes voter registration automatic through an opt-out process. Eligible Oregonians receive a mailing from the Oregon Elections Division explaining they have three options - 1) Do nothing and be registered as non-affiliate; 2) choose a political party by returning the card; or 3) use the card to opt-out and decline to register to vote.

Passage of Single-Sex Multiple Occupancy Bathroom & Changing Facilities Law

North Carolina House Bill 2, or HB2, was passed following a Charlotte ordinance that extended some rights to gay or transgendered persons. HB2 sets statewide definitions of classes of people who are protected against discrimination, such as race, religion, color, national origin, age, handicap or biological sex as designated on a person’s birth certificate. Transgender people who have not taken surgical or legal steps to change the gender on their birth certificates have no legal right, under state law, to use public restrooms of the gender which they identify. The law also nullifies local ordinances around the state that would expand protections for the LBGT community.

Two civil rights groups and three individuals have filed a lawsuit against the bill. The complaint states that the bill which bans transgender people from accessing restrooms and other facilities consistent with their gender identity and blocks local governments from protecting lesbian, gay, bisexual, and transgender people against discrimination in a wide variety of settings. The complaint may be found here.

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

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