1. law, govt and politics

Supreme Court Update
Stephen McAllister
& Toby Crouse
May 28-29, 2015
University of Kansas School of Law
OT 2014: Preview of cases
KU Law Recent Developments In The Law CLE
May 28, 2015
Prof. Steve McAllister ([email protected]) and Toby Crouse ([email protected])
1.
Fourth Amendment – Officer mistake and individualized suspicion
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2.
RLUIPA – Prisoner rights
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3.
Holt v. Hobbs, 135 S. Ct. 853 (2015): Whether the Arkansas
Department of Correction’s grooming policy violates the Religious
Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §2000cc
et sec., to the extent that it prohibits petitioner from growing a onehalf-inch beard in accordance with his religious beliefs.
Notice of removal – Evidence of federal jurisdiction
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4.
Heien v. North Carolina, 135 S. Ct. 530 (2014): Whether a police
officer’s mistake of law can provide the individualized suspicion that
the Fourth Amendment requires to justify a traffic stop.
Dart v. Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct.
547 (2014): Whether a defendant seeking removal to federal court is
required to include evidence supporting federal jurisdiction in the
notice of removal, or is alleging the required “short and plain
statement of the grounds for removal” enough?
Water law
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Kansas v. Nebraska, 135 S. Ct. 1255 (2015):
KANSAS’ EXCEPTIONS
Kansas excepts to the Report Of The Special Master in two critical respects:
1.
The Court should reject the Master’s invitation to rewrite the
accounting procedures contained in the Final Settlement Stipulation
that the Court approved in its 2003 Decree. The Final Settlement
Stipulation was the result of lengthy, detailed, and unprecedented
negotiations in which all parties and the United States were intimately
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involved. There was no “mutual mistake” that warrants the
extraordinary step of this Court reforming the States’ agreement.
2.
The Court should augment the remedies the Master recommends for
Nebraska’s knowing violations of the Compact because the Master’s
recommendations are insufficient to ensure future compliance by
Nebraska.
A.
Specific injunctive relief - an order to comply with the Compact
and the Final Settlement Stipulation - enforceable in this Court
is warranted here.
B.
Disgorgement of a substantial portion of Nebraska’s gains from
its knowing compact violations is warranted here.
COLORADO’S EXCEPTION TO THE REPORT OF THE SPECIAL MASTER
The State of Colorado respectfully excepts to the Special Master’s
recommendation that the measure of damages may take into account
Nebraska’s gain.
NEBRASKA’S EXCEPTIONS
The State of Nebraska excepts to the Report of the Special Master as follows:
5.
1.
Nebraska excepts to the Special Master’s recommendation that, in
light of Nebraska’s violation of the Republican River Compact, Kansas
be awarded 1.8 million, over and above Kansas’ actual damages, which
“additional amount represents a disgorgement of a portion of the
amount by which Nebraska’s gain exceeds Kansas’ loss.” Final Report
at 179.
2.
Nebraska excepts to the Special Master’s conclusion that Nebraska
“knowingly failed” to comply with the Republican River Compact. Final
Report at 112.
Alleged juror dishonesty
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Warger v. Shauers, 135 S. Ct. 521 (2014): Whether Federal Rule of
Evidence 606(b) permits a party moving for a new trial based on juror
dishonesty during voir dire to introduce juror testimony about
statements made during deliberations that tend to show the alleged
dishonesty.
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6.
Statutory construction – 18 U.S.C. § 1519
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7.
Antitrust – State-action exception
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8.
Yates v. United States, 135 S. Ct. 1074 (2015): Whether Mr. Yates
was deprived of fair notice that destruction of fish would fall within the
purview of 18 U.S.C. § 1519, where the term “tangible object” is
ambiguous and undefined in the statute, and unlike the nouns
accompanying “tangible object” in section 1519, possesses no recordkeeping, documentary, or informational content or purpose?
North Carolina Board of Dental Examiners v. Federal Trade
Commission, 135 S. Ct. 1101 (2015): Whether, for purposes of the
state-action exemption from federal antitrust law, an official state
regulatory board created by state law may properly be treated as a
“private” actor simply because, pursuant to state law, a majority of the
board’s members are also market participants who are elected to their
official positions by other market participants.
First Amendment – Intent to threaten harm
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Elonis v. United States, No. 13-7451 (argued December 1, 2014):
Whether, consistent with the First Amendment and Virginia v. Black,
538 U.S. 343 (2003), conviction of threatening another person requires
proof of the defendant’s subjective intent to threaten, as required by
the Ninth Circuit and the supreme courts of Massachusetts, Rhode
Island, and Vermont; or whether it is enough to show that a
“reasonable person” would regard the statement as threatening, as
held by other federal courts of appeals and state courts of last resort.
In addition, the Court directed the parties to brief and argue the
following question: Whether as a matter of statutory interpretation,
conviction of threatening another person under 18 U.S.C. § 875(c)
requires proof of the defendant’s subjective intent to threaten.
9.
Separation of powers – Recognition of Jerusalem
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Zivotofsky v. Kerry, No. 13-628 (argued November 3, 2014): Whether
a federal statute that directs the Secretary of State, on request, to
record the birthplace of an American citizen born in Jerusalem as born
in “Israel” on a Consular Report of Birth Abroad and on a United
States passport is unconstitutional on the ground that the statute
“impermissibly infringes on the President’s exercise of the recognition
power reposing exclusively in him.”
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10.
Statutory construction – 18 U.S.C § 2113(e)
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11.
Pregnancy Discrimination Act – Accommodation
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12.
Whitfield v. United States, 135 S. Ct. 785 (2015): A conviction
under the federal bank robbery statute carries a maximum sentence of
20 years in prison, but no minimum sentence. 18 U.S.C. § 2113(a). If
the bank robber forces another person “to accompany him” during the
robbery or while in flight, however, that additional offense carries a
minimum sentence of ten years in prison and a maximum sentence of
life imprisonment. 18 U.S.C. § 2113(e). The question presented is
whether § 2113(e)’s forced-accompaniment offense requires proof of
more than a de minimis movement of the victim.
Young v. United Parcel Service, Inc., ___ S. Ct. ___ (Mar. 25,
2015): The Pregnancy Discrimination Act (“PDA”) provides that
“women affected by pregnancy, childbirth, or related medical
conditions shall be treated the same for all employment-related
purposes * * * as other persons not so affected but similar in their
ability or inability to work.” 42 U.S.C.§ 2000e(k). The question
presented is: Whether, and in what circumstances, an employer that
provides work accommodations to nonpregnant employees with work
limitations must provide work accommodations to pregnant employees
who are “similar in their ability or inability to work.”
Preemption - Natural Gas Act
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Oneok Inc. v. Learjet, No. 13-271 (argued January 12, 2015): The
Natural Gas Act occupies the field as to matters within its scope,
preempting state regulation directed at practices that affect the
wholesale natural gas market. Respondents brought state-law claims
against natural gas companies, seeking to regulate industry practices
that Respondents concede affected prices in the wholesale market. And
yet the Ninth Circuit held--in direct conflict with two state courts of
last resort--that Respondents’ Claims were not preempted because
Respondents allegedly were damaged when they bought natural gas in
retail sales, which fall outside federal jurisdiction. The question
presented is: Does the Natural Gas Act preempt state-law claims
challenging industry practices that directly affect the wholesale
natural gas market when those claims are asserted by litigants who
purchased gas in retail transactions?
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13.
Confrontation Clause – Child statements
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14.
Ohio v. Clark, No. 13-1352 (argued March 2, 2015): In all fifty States,
certain individuals-most often, teachers, social workers, and medical
professionals-have a mandatory duty to report suspected child abuse
that they notice in the course of their work. In this case, the Ohio
Supreme Court held both that this mandatory reporting duty turned
daycare teachers into "agents of the state for law-enforcement
purposes" and that a child's out-of-court statements to the teachers
qualified as "testimonial" under the Confrontation Clause. It did so
even though there was no police involvement in the encounter between
the teachers and child. Several other state supreme courts, by contrast,
have rejected arguments that these mandatory-reporting statutes turn
an individual subject to them into "law enforcement," and have held
instead that a child's statements to the individual were nontestimonial and thus not subject to the Confrontation Clause. The two
questions presented are:
1.
Does an individual's obligation to report suspected child abuse
make that individual an agent of law enforcement for purposes of
the Confrontation Clause?
2.
Do a child's out-of-court statements to a teacher in response to
the teacher's concerns about potential child abuse qualify as
"testimonial" statements subject to the Confrontation Clause?
Fourth Amendment – Canine sniff of vehicle
•
Rodriguez v. United States, No. 13-1176 (argued January 21, 2015):
This Court has held that, during an otherwise lawful traffic stop,
asking a driver to exit a vehicle, conducting a drug sniff with a trained
canine, or asking a few off-topic questions are "de minimis" intrusions
on personal liberty that do not require reasonable suspicion of criminal
activity in order to comport with the Fourth Amendment. This case
poses the question of whether the same rule applies after the
conclusion of the traffic stop, so that an officer may extend the alreadycompleted stop for a canine sniff without reasonable suspicion or other
lawful justification.
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15.
First Amendment – Judicial candidate solicitations
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16.
Fourth Amendment – Hotel registry
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17.
William-Yulee v. Florida Bar, No. 13-1499 (argued January 20,
2015): Whether a rule of judicial conduct that prohibits candidates for
judicial office from personally soliciting campaign funds violates the
First Amendment.
Los Angeles v. Patel, No. 13-1175 (March 3, 2015): 1. To resolve a
split between the Ninth and Sixth Circuits, are facial challenges to
ordinances and statutes permitted under the Fourth Amendment? 2.
To resolve a spilt between the Ninth Circuit and the Massachusetts
Supreme Court, does a hotel have an expectation of privacy under the
Fourth Amendment in a hotel guest registry where the guest supplied
information is mandated by law and that ordinance authorizes the
police to inspect the registry? If so, is the ordinance facially
unconstitutional under the Fourth Amendment unless it expressly
provides for pre-compliance judicial review before the police can
inspect the registry?
Title VII – Religious accommodation
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EEOC v. Abercrombie & Fitch Stores, No 14-86 (argued February
25, 2015): Title VII of the Civil Rights Act of 1964 makes it illegal for
an employer "to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's * * * religion." 42 U.S.C. 2000e-2(a)(l). "Religion"
includes "all aspects of religious observance and practice" unless "an
employer demonstrates that he is unable to reasonably accommodate"
a religious observance or practice "without undue hardship on the
conduct of the employer's business." 42 U.S.C. 2000e(j).
The question presented is whether an employer can be liable under
Title VII for refusing to hire an applicant or discharging an employee
based on a "religious observance and practice" only if the employer has
actual knowledge that a religious accommodation was required and the
employer's actual knowledge resulted from direct, explicit notice from
the applicant or employee.
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18.
Affordable Care Act – Tax-credit subsidies
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King v. Burwell, No. 14-114 (argued March 4, 2015): Section 36B of
the Internal Revenue Code, which was enacted as part of the Patient
Protection and Affordable Care Act ("ACA"), authorizes federal taxcredit subsidies for health insurance coverage that is purchased
through an "Exchange established by the State under section 1311" of
the ACA.
The question presented is whether the Internal Revenue Service
("IRS") may permissibly promulgate regulations to extend tax-credit
subsidies to coverage purchased through Exchanges established by the
federal government under section 1321 of the ACA.
19.
First Amendment – License Plates
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20.
Walker v. Texas Division, Sons of Confederate Veterens, No. 14144 (argued March 23, 2015): 1. Do the messages and symbols on
state-issued specialty license plates qualify as government speech
immune from any requirement of viewpoint neutrality? 2. Has Texas
engaged in "viewpoint discrimination" by rejecting the license-plate
design proposed by the Sons of Confederate Veterans, when Texas has
not issued any license plate that portrays the confederacy or the
confederate battle flag in a negative or critical light?
Fourteenth Amendment – Same-sex Marriage
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DeBoer v. Snyder, No. 14-571 (argued April 28, 2015): 1. Does the
Fourteenth Amendment require a State to License a marriage between
two people of the same sex? 2. Does the Fourteenth Amendment
require a state to recognize a marriage between two people of the same
sex when their marriage was lawfully licensed and performed out-ofstate?
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