The National Attorneys General Training & Research Institute
Civil Rights Bulletin Oct - Nov 2015
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—CERTIORARI GRANTED
Eighth Amendment Protection Afforded in Capital Offense Cases
The Supreme Court granted certiorari in three cases (Kansas v. Gleason, Montgomery v. Louisiana, and Hurst v. Florida), arising in different contexts but all concerning constitutional protections afforded under the Eighth Amendment in capital cases.
Affirmative Jury Instruction on Mitigating Circumstances in Capital Offense Cases
Kansas v. Gleason, No. 14-452 [329 P.3d 1102 (Kan. July 18, 2014)]
The Supreme Court will decide whether the Eighth Amendment mandates that a jury in a capital case be instructed affirmatively at sentencing that mitigating circumstances are not required to be proven beyond a reasonable doubt or whether the Eighth Amendment is satisfied where the jury instructions make clear that a jury must individually assess and weigh any mitigating circumstances. Oral arguments were held before the Court on October 7, 2015.
The pertinent facts of the case involve Respondent Sidney Gleason, who was convicted of capital murder and sentenced to death for his participation in the killing of two individuals who were potential witnesses against him in a prior felony case. During the sentencing proceeding, the jury was instructed on aggravating and mitigating circumstances concerning Gleason and his crimes. After considering the presented aggravating and mitigating circumstances, the jury unanimously voted for a death sentence. The jury concluded that the State proved the existence of all four aggravating circumstances beyond a reasonable doubt.
On appeal, the Kansas Supreme Court reversed Gleason’s death sentence after concluding that the jury instructions lacked clarity as to the required burden of proof when determining the impact of mitigating circumstances. Specifically, the court found that the offered instruction was confusing for the jury to assess the necessary burden of proof when weighing mitigating circumstances versus aggravating circumstances.
In reaching this decision, the Kansas Supreme Court acknowledged the U.S. Supreme Court holding in Walton v. Arizona, 497 U.S. 639 (1990). In Walton, the Court held that a defendant’s constitutional right in a capital case has still been protected where the burden of proving mitigating circumstances is placed on the accused seeking leniency from a jury, so long as the State does not attempt to or actually lessen its burden in proving aggravating circumstances. According to Petitioners, however, the Kansas Supreme Court ignored the Walton ruling and instead required an affirmative jury instruction regarding the degree of proof for mitigating circumstances.
Kansas also deemed relevant the holding in Kansas v. Marsh, 548 U.S. 163 (2006), which states that, “States are free to determine the manner in which a jury may consider mitigating evidence.” Accordingly, Kansas noted that the Supreme Court has previously held that Eighth Amendment jurisprudence should not be interpreted as creating constitutional requirements regarding how a jury should be instructed on mitigating circumstances. A reversal of the Kansas Supreme Court decision is very important to the State of Kansas because absent such action, Kansas asserts that the sentences of two-thirds of its convicted persons awaiting a death sentence will be invalidated. Respondent argues conversely, inter alia, that no controversy involving the Eighth Amendment exists in this case, and although the Kansas Supreme Court discussed the Eighth Amendment, it did not ultimately base its final ruling on it. Additionally, respondent claims that the Kansas Supreme Court properly reached its decision by distinguishing Gleason’s case from the Walton decision because the Kansas capital punishment scheme differs from the statute at issue in Walton.
Juveniles Sentenced to Life without Parole
Montgomery v. Louisiana, No. 14-280
The Court has been asked to decide whether its decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), which held that sentencing juveniles to life without parole is unconstitutional, should be applied retroactively to currently incarcerated persons serving life sentences who were juveniles at the time of conviction. Upon granting certiorari, the Court asked the parties to address an additional question as to whether the Court has jurisdiction to decide if the Louisiana Supreme Court correctly refused to retroactively apply Miller. Oral arguments were held on October 13, 2015.
Pertinent facts involve Petitioner Henry Montgomery who has been incarcerated since 1963. At the age of seventeen, he was convicted and sentenced to death for murder. His conviction was later reversed on grounds of undue community prejudice for which a new trial was granted. During the second trial, the jury returned a guilty verdict without capital punishment, and he was instead sentenced to life in prison. In light of the Miller decision, Montgomery moved for the Louisiana State District Court to correct his sentence. The district court denied his request, and his writ to the Louisiana Supreme Court was also denied.
The Louisiana Supreme Court denied Montgomery’s motion, holding that the Miller decision does not apply retroactively and that he had not overcome the general bar to retroactivity on collateral review required by Teague v. Lane, 489 U.S. 288 (1989). The Court in Teague held that, in order for a new rule to apply retroactively on collateral review, one of the two exceptions must first be met. The first exception applies when a new rule completely removes a particular punishment from a list that can be constitutionally imposed on a class of defendants. The second applies to “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” The Louisiana Supreme Court held that the first exception was not met because Miller only bars sentences made mandatory by a sentencing scheme and does not categorically bar all life sentences for juveniles. The Court held that the second exception did not apply because the holding in Miller does not qualify as a “watershed rule.”
Oral arguments at the Supreme Court for the case can be heard here.
Intellectual Incapacity in Jury Determinations of Capital Cases
Hurst v. Florida, No. 14-7505 [147 So. 3d 435 (Fla. 2014)]
In Hurst, the Supreme Court granted certiorari to determine whether Florida’s death penalty scheme violates the Sixth and Eighth Amendments in light of its decision in Ring v. Arizona, 536 U.S. 584 (2002). Petitioner Hurst was convicted of first degree murder and sentenced to death in May 1998. At trial, Hurst presented evidence intending to prove that he suffered from neurological problems caused by fetal alcohol syndrome. He also offered lay witnesses and medical experts to testify on his behalf regarding his limited intellectual capacity. A jury voted 7-5, recommending a death sentence even after considering his diminished capacity and mental mitigation claims. Petitioner Hurst argued that the jury was improperly instructed and that, if it found that he suffered from an intellectual disability, the jury would have been required to recommend life instead of a death sentence. On appeal, the Florida Supreme Court rejected Hurst’s argument, finding that a defendant has no right to a jury determination of whether he or she has limited intellectual incapacity.
In Ring, the Supreme Court held that capital defendants are entitled to a jury determination of any fact where the legislature conditions an increase in the maximum punishment. The Florida Supreme Court rejected claims that Ring applied to Florida’s capital sentencing scheme. It noted that the United States Supreme Court has not mandated specific procedures for making a “mental retardation” determination in a capital sentencing context.
Oral arguments can be heard here.
FEDERAL CIRCUIT CASES—DECIDED
Claims of Fair Housing Act Violations from Predatory Loans
The Eleventh Circuit has permitted the City of Miami to proceed in its separate lawsuits against three major banks: Bank of America Corp., Citigroup, Inc., and Wells Fargo & Co. The City alleges that the three banks have engaged in redlining and targeting minorities with high risk, predatory loans. For the sake of brevity and because the three cases involve the City of Miami and the same factual allegations, arguments, and rationale are alleged, only the lawsuit against Bank of America, Corp. is summarized. However, specific reference and hyperlinks to the remaining lawsuits again Citigroup and Wells Fargo are included after the summary.
In City of Miami v. Bank of America Corp., the Eleventh Circuit held that, pursuant to the Fair Housing Act (FHA), Miami has standing to proceed in its lawsuit against the Bank of America (Bank). The lawsuit claims that the Bank violated the FHA by engaging in a decade-long pattern of discriminatory practices against minority groups resulting in economic harm to the city. Specifically, the city alleges that the bank intentionally discriminated against black and Latino borrowers through redlining and reverse redlining because these groups were offered high risk loans with burdensome and highly exploitive terms unlike similarly situated white borrowers. Without addressing the merits of the claims against it, the Bank argued that Miami does not have Article III standing or statutory standing.
The district court dismissed the city’s claims with prejudice on three grounds, including that the city lacked statutory standing under the FHA; that the city had failed to adequately plead that the bank’s conduct proximately caused the resulting harm in the city; and that claim was time barred by the statute of limitations had passed. The Eleventh Circuit disagreed with all three of the lower court’s findings, allowing the lawsuit to proceed. However, the Eleventh Circuit disagreed with all three of the lower court’s findings, allowing the lawsuit to proceed. As to the unjust enrichment claim, however, the city lost after the court found, inter alia, that the Bank did not confer a direct benefit that it was not otherwise entitled to receive under Florida law.
The appellate court then laid out the prevailing constitutional standard permitting standing under Article III of the Constitution involving the claim that the lawsuit fell outside the FHA’s scope with respect to its zone of interest, noting that the plaintiff must allege: (i) an injury in fact that is concrete, particularized, and actual or imminent and (ii) a causal connection between the injury and the conduct complained of, such that injury is fairly traceable to the challenged action of the defendant; and (iii) that a favorable judicial decision will likely redress the injury. Finding that plaintiff met this standard at this juncture, the Eleventh Circuit permitted the city to proceed preliminarily. As to the zone of interest claim, the court concluded that the district court applied a too limiting and stringent a test and wrongly applied the proximate cause test. Instead, the Eleventh Circuit determined that the zone of interest “extends as broadly as permitted under Article III of the Constitution,” which includes the city’s claim.
The Eleventh Circuit’s decision focused essentially on the procedural requirements to satisfy standards that would either permit or prohibit the city from proceeding on their claims at this juncture. In particular, the court found that the city had properly and sufficiently pled facts in its complaint warranting continued action on the proximate clause claim, that Article III of the Constitution permits the City to proceed on its zone of interest claim, and that the city has standing to bring its lawsuit. With respect to the statute of limitations argument, the Eleventh Circuit found that, because the district court erred as to the claims on proximate cause and the zone of interest claims, it remanded the matter with guidance to the lower court on how to interpret the continuing violation doctrine. The court instructed that the district court must assess whether the city could remedy any deficiencies related to the continuing violation doctrine, particularly in instances where a plaintiff seeks to redress time-barred claims when at least one discriminatory act occurred during the statutory period.
The decisions in Citigroup, Inc., and Wells Fargo & Co. may be found by clicking on the hyperlinks below.
Attorney’s Fees in Redistricting Case
After Shelby County prevailed in a case against the U.S. Government challenging the constitutionality of Section 4 of the Voting Rights Act (Act), the county sought attorneys’ fees under the Act’s fee-shifting provision. The district court denied attorneys’ fees after finding that the county’s success from the lawsuit did not further any of Congress’s stated objectives concerning when it is appropriate to award attorneys’ fees.
In affirming the district court’s decision, the appellate court noted that Section 14(e) of the Voting Rights Act allows an award of fees to any party who prevails in an “action or proceeding to enforce the voting guarantees of the Fourteenth or Fifteenth Amendment.” The criteria pertaining to the receipt of attorneys’ fees and whether a party is even entitled to receive the fees are found in statutory provisions. The Supreme Court, however, included an additional prerequisite for the winning party to show that the decision advances the notions that Congress intended when it created these fee-shifting provisions. The purpose of awarding these fees to is to encourage private litigants to pursue civil rights claims while simultaneously reducing or protecting them against the costs of litigation.
Since the county’s win in its lawsuit did not advance Congress’s purpose, the court upheld the lower court’s decision in denying attorneys’ fees.
Constructive Discharge in Adverse Employment Action
The Sixth Circuit reaffirmed that a constructive discharge claim could be used to show an adverse employment action under the American with Disabilities Act (ADA). Plaintiff Hurtt worked for International Services, Inc. (ISI) as a traveling salesman. Hurtt suffered from anxiety and depression that resulted in him requesting leave under the Family and Medical Leave Act (FMLA), in part, for which he suffered due to his travel schedule. Immediately following this request, ISI terminated an aspect of his pay—made retroactive to his start date—involving a $70,000.00 draw. (If his commission did not exceed $70,000.00, he owed ISI the difference.) Instead, ISI placed him on a commission-only salary. Hurtt subsequently quit and commenced a disability discrimination action against ISI.
Hurtt argued that he was constructively discharged due to disability discrimination, but ISI claimed that no genuine issues of material fact existed because Hurtt voluntarily quit and it was not required to accommodate a request for a change in a work travel schedule. The district court granted summary judgment in favor of ISI, relying upon the holding in Regan v. Faurecia, 679 F.3d 475 (6th Cir. 2012).
Under the ADA, claims brought without direct evidence are evaluated under the McDonnell-Douglas burden-shifting framework in which the plaintiff must establish a prima facie case showing that: (i) he or she is disabled; (ii) otherwise qualified for the position, with or without reasonable accommodation; (iii) suffered an adverse employment decision; (iv) the employer knew or had reason to know of the plaintiff's disability; and (v) the position remained open while the employer sought other applicants or the disabled individual was replaced. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). After a plaintiff establishes a prima facie case, the burden shifts to thedefendant to show that there was a legally sufficient and non-discriminatory reason for the adverse employment action. If the employer offers a legitimate reason, then the burden shifts back to the employee to prove that the action was a pretext for discrimination.
On appeal, the Sixth Circuit reversed and remanded the case. Under the facts of the instant case, the Sixth Circuit concluded that the district court improperly applied its decision in Regan. Instead, the Court held that Hurtt had met all three factors necessary to establish a prima facie case for constructive discharge, including that his employer deliberately created intolerable working conditions, as perceived by a reasonable person, that his employer did so with the intention of forcing him to quit, and that Hurt did in fact quit.
Reverse Discrimination under Title VII
Gregory Rahn, a white male, filed a lawsuit in federal district court alleging reverse discrimination when the Board of Trustees at Northern Illinois University failed to hire him for an assistant professorship and, instead, hired a minority applicant. Applicants were first evaluated by a committee on which Rahn’s wife served. In determining the three top candidates, the committee used a metric for voting. In the lawsuit, Rahn alleged that the dean of the College of Engineering, stated that he would hire a minority candidate over a white candidate.
The district court granted summary judgment in favor of the Board. On appeal, the Seventh Circuit applied the standard a plaintiff must show in order to prevail under racial discrimination lawsuits, including the need to offer direct or circumstantial evidence that would allow a jury to infer an adverse employment action was motivated by discrimination. It held that the overheard statement of a board member regarding his preference for a minority candidate did not suffice as direct evidence because the statement did not serve as the basis to deny Rahn the position. The court also stated that the evidence, even viewed as circumstantial, would not survive summary judgment because Rahn did not provide evidence that the denial was pretextual or that the comments were directed at white candidates. Additionally, the person ultimately hired for the position received more votes than Rahn and was determined to be more qualified by the Board. Thus, the court affirmed the district court’s grant of summary judgment in favor of the college.
FEDERAL DISTRICT CASES—DECIDED
Prisoners’ Illness Elicits Eighth Amendment and Racial Discrimination Claims
Several current and former inmates brought a class action lawsuit against Pleasant Valley State Prison in California after they contracted an infection known as Valley Fever. They alleged six causes of action, including violation of the Eighth Amendment, deprivation of equal protection, a 42 U.S.C. § 1983 claim that prison officials failed to act and displayed deliberate indifference, racial discrimination, and a couple of negligence claims. The inmates claimed they were unconstitutionally exposed to an unreasonable risk that resulted in them contracting Valley Fever.
A magistrate judge issued findings and recommendations about which both parties filed objections and responses. The district court adopted the magistrate judge’s findings, though occasionally on different grounds.
Focusing on the pertinent alleged Eighth Amendment civil rights violation, the court addressed the broader issue of whether inmates had a constitutional right to be free from jail officials’ unreasonably exposing them to substantial risks of Valley Fever. Relying on precedent from circuit courts, the court considered various components associated with illnesses, such as the level of exposure; health risks presented by that exposure; whether that exposure is a risk society is willing to tolerate; whether the appropriate prison officials knew of and understood the health risks posed by that exposure; and the reasonableness of the prison officials’ response to those risks, if any. Defendants argued, inter alia, that they were entitled to qualified immunity protection and that they did not state a sufficient deliberate indifference or racial discrimination claim. Ultimately, the court determined that defendants were entitled to qualified immunity protection and their motion for judgment on the pleadings was granted on the Eighth Amendment claims. In upholding the magistrate judge’s findings, the court agreed that the plaintiffs’ claim regarding racial discrimination may go forward. Scientific evidence has shown that African-Americans are ten times more likely to contract Valley Fever; thus, the claim that officials should not have incarcerated African-American defendants in areas where Valley Fever is present, may be heard.
Elected Public Official Exception under Title VII
In a case of first impression, the district court addressed whether a constable who was appointed to a traditionally elected position qualifies as an employee under the “elected public official” exception under Title VII. Robert Lloyd applied and was selected for an interview to fill an interim county constable position with the Williamson County Commissioners’ Court. During his interview, Commissioners asked questions about his political and religious views. Lloyd filed a complaint against the Commissioners and Williamson County, arguing that it was unlawful to not be hired for a position because of religious and moral beliefs. The Commissioners and County argued that there was insufficient evidence to establish the claim and that they were entitled to qualified immunity. The Magistrate Judge issued findings recommending that the court grant summary judgment to the Commissioners in their individual capacity but grant summary judgment to Lloyd for his claims against Williamson County.
Title VII’s definition of an employee has four exceptions: (i) an official elected by qualified voters; (ii) a person chosen by an elected officer to be on the officer’s personal staff, (iii) an appointee on the policy making level; and (iv) an immediate adviser with respect to the exercise of constitutional or legal powers of office. The Court noted that Title VII was silent as to the meanings of the exceptions to an “employee.” Reviewing the legislative history to interpret the meaning of an “elected public official” under Title VII resulted in the court concluding that the exception was narrow and left to the discretion of voters in an election. The district court then looked to the Southern District of New York, which previously used the same interpretation to hold that an elected state judge who was barred from recertification due to his age was not an elected official under Title VII since the recertification process did not require an election. The Second Circuit reversed the decision finding that New York Supreme Court justices are in fact elected officials. The court distinguished Lloyd from the plaintiff in that case because Lloyd had not been elected by voters.
The District Court concluded that Lloyd did not fall within the “elected public official” exception under Title VII and affirmed the Magistrate Judge’s recommendation.
OTHER FEDERAL ACTIONS
U.S. Department of Justice, Fact Sheet on Proposed Agreement over Oregon Supported Employment (September 8, 2015)
Information regarding this fact sheet has been provided for those who may advise state officials on the ADA. The U.S. Department of Justice (DOJ) entered into a proposed settlement to resolve a class action lawsuit challenging a state funded and administered employment service system. DOJ intervened in a lawsuit, alleging that the State of Oregon violated the ADA by unnecessarily placing people with developmental disabilities in, or at risk of entering, sheltered workshops instead of integrated jobs in the community. Sheltered workshops are segregated facilities that exclusively or primarily employ people with disabilities. It is alleged that people with disabilities who work in sheltered workshops have little or no contact with non-disabled persons. They allegedly also earn wages that are well below minimum wage. The U.S. Supreme Court in a seminal case, Olmstead v. L.C., 527 U.S. 581 (1999), held that the ADA affords individuals with disabilities the right to receive services in the most integrated setting that is appropriate to their needs. The objective of the seven-year DOJ settlement is to ensure and encourage that working-age adults with intellectual and developmental disabilities in segregated, sheltered workshops have improved opportunities to work in more traditional job settings with more competitive wages.
Department of Justice, Williams Consent Decree (August 31, 2015)
This consent decree is noted for members who advise individuals or agencies on housing discrimination matters. The U.S. District Court for the Southern District of Illinois has approved a settlement in which the owners of the Williams Trailer Court mobile home park have agreed to pay $75,000 for violations of the FHA. The owners agreed to settle following racial discrimination allegations and otherwise against African American families and families with children by refusing to rent to them. As part of the settlement, defendants will pay $45,000 into a settlement fund and $30,000 in civil penalties.
State Case Law
STATE COURT CASES—DECIDED
Business Necessity Standard for Medical Examinations
The Nebraska Supreme Court adopted a new legal standard regarding the business necessity of requiring medical examinations in disputed discrimination claims. Plaintiff Lenard Arens alleged that he had suffered from work-related accidents that ultimately affected his ability to do his job to a certain extent and also required that he have written instructions because of mental impairments caused by the accidents. He also alleged that NEBCO, Inc. (NEBCO), his employer, was aware of his disabilities but still terminated him for violating conditions of employment that did not apply to employees without disabilities.
Arens argued that the trial court improperly excluded evidence that was crucial to this claim. He claimed that his proposed evidence would have shown that NEBCO’s reasons for its adverse employment action against him were pretextual as a matter of law. He moved for a directed verdict on his claim that NEBCO discriminated against him by requiring a complete medical examination in order to continue working. He argued that the court erred in overruling his motion because the medical examinations were unlawful discrimination under the Nebraska Fair Employment Practice Act (Act).
Under the Act, a covered employer is prohibited from failing or refusing to hire, to discharge, or harass an individual, or otherwise discriminate against any individuals in respect to compensation, terms, conditions, or privileges of employment. Arens claimed that the required medical examination was a violation, and it was used to preclude him from working. Nebraska’s provisions pertaining to discriminatory medical examinations mirror the ADA. The court examined how federal courts interpreted the ADA with respect to discriminatory medical examinations. The court concluded that once an employee has begun performing a job, actual performance is the best measure and noted that medical examinations should rarely to be used to measure the performance of employees. Additionally, the court highlighted that requiring a medical examination as a business necessity creates a high burden for the employer to overcome.
In order to demonstrate a business necessity requiring an employee to submit to a medical examination under the Nebraska code, an employer has the burden of showing that: (1) the business necessity is vital to the business, (2) it has a legitimate, nondiscriminatory reason to doubt the employee’s ability to perform the essential functions of his or her duties, and (3) the examination is no broader than necessary. The court noted that this test is objective and adopted the federal holding concerning similarly situated employees. Going forward, a court will consider whether an employer requires similarly situated employees to submit to medical examinations in determining whether such tests are a business necessity. The employer must have a legitimate reason to doubt the plaintiff’s ability to perform the essential functions of the job.
The Nebraska Supreme Court declined to decide whether Arens was entitled to a directed verdict. Instead, it remanded the case directing the court to apply the newly adopted legal standard.
New York Attorney General Scheiderman reached a settlement agreement with Evans Bank forviolations of the FHA. General Scheiderman brought a lawsuit against Evans Bank on behalf of the State, alleging that the bank engaged in redlining practices. Specifically, the State alleged that Evans Bank denied mortgages to African American neighborhoods and excluded it’s “trade area” from the predominantly African American neighborhoods in Buffalo. As a result of the settlement agreement, Evans Bank agreed to revise its consumer loan policy, provide $100,000 for a special financing program, include the African-American neighborhoods that previously were excluded in their “trade area” and invest $200,000 in marketing to this area, and provide a grant to the City of Buffalo to promote home ownership. A copy of the original complaint may be found here.
Federal Notices and Regulations
Paroling, Recommitting and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes
Information regarding this final notice is included in this month’s Civil Rights Bulletin to assist those members who may provide legal advice to parole, probation, and other law enforcement officials. Although this rule is local and specific to the District of Columbia, it can provide guidance if a particular state is considering making changes to its policies concerning parole/probation and revocation hearings. Following a notice of proposed rulemaking, the U.S. Parole Commission is revising its rules concerning decisions to revoke terms of supervision without a revocation hearing and to allow for a releasee charged with administrative violations or specific misdemeanor crimes to apply for a prison sanction of eight months or less. If the releasee applies for a sanction, the Commission may approve a revocation decision that includes no more than eight months of imprisonment without using its normal guidelines for decision-making. The new rule became effective on September 2, 2015.
Criminal Restitution Orders
This rule was included for members who may advise victims of crime or advise law enforcement official agencies. The Federal Retirement Thrift Investment Board issued a final rule on September 1, 2015 pertaining to procedures for processing criminal restitution orders. An enforcement letter from DOJ stating that restitution has been ordered under the Mandatory Victims Restitution Act is now required. Also, a judgment ordering restitution under the Mandatory Victims Restitution Act is now required to be treated as a final judgment.
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 firstname.lastname@example.org.