This morning the Supreme Court issued orders from its September 25 conference, adding 11 new cases (for a total of nine additional hours of argument) to its merits docket for the term. The highest-profile grant came in Janus v. American Federation of State, Municipal and County Employees, a challenge to the fees paid by public-sector […]
This morning the Supreme Court issued orders from its September 25 conference, adding 11 new cases (for a total of nine additional hours of argument) to its merits docket for the term. The highest-profile grant came in Janus v. American Federation of State, Municipal and County Employees, a challenge to the fees paid by public-sector employees who are not members of the union that represents them. The justices have already considered the question presented by the case twice without resolving it, but are almost certain to do so during this go-round – with potentially serious implications for the union.
When the justices review the case of Mark Janus, an Illinois state employee, they will not necessarily be writing on a blank slate. In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that, even if they cannot be required to pay fees that a union would use for political activity, like union organizing, public-sector employees can be required to pay a fee to cover the costs of contract negotiations. But Janus argued that even requiring him to pay the more limited fee violates his First Amendment rights because issues related to contract negotiations – like salaries, pensions and benefits for government employees – are inherently political. Therefore, he contends, his fee is going to support speech that is intended to affect the government’s policies, even if he disagrees with it. The U.S. Court of Appeals for the 7th Circuit rejected Janus’ argument, holding that it lacked the power to overrule the Supreme Court’s decision in Abood. But, Janus told the justices in his petition for review, they do have that power and should exercise it here.
The justices did not reach the union-fees issue the first time they considered it, in the 2014 case Harris v. Quinn; instead, they ruled that the employees in that case – home-health-care workers who were paid by the state – were not “true” public employees. They returned to the question again two terms ago and heard oral argument in January 2016, but they deadlocked after the February 13, 2016, death of Justice Antonin Scalia. With Justice Neil Gorsuch now on the bench, the justices are expected to decide the issue once and for all.
Another one of today’s grants, Encino Motorcars v. Navarro, is making a return trip to the Supreme Court. In 2016, the Supreme Court threw out a decision by the U.S. Court of Appeals for the 9th Circuit, which had concluded that “service advisors” at car dealerships were not covered by an exemption in the Fair Labor Standards Act from overtime for “any salesman” “primarily engaged in selling or servicing automobiles.” The court in that case ruled that the 9th Circuit should not have deferred to a Department of Labor regulation because the department had not provided a sufficient explanation for its decision to reverse course from its earlier position treating service advisors as exempt. The justices sent the case back to the 9th Circuit, ordering it to interpret the FLSA “without placing controlling weight on” the DOL regulation. The 9th Circuit once again ruled that service advisors were not exempt from overtime, but now the Supreme Court will review that decision.
The Fifth Amendment’s “self-incrimination clause” provides that no one “shall be compelled in any criminal case to be a witness against himself.” In City of Hays, Kansas v. Vogt, the justices will consider the scope of that clause – specifically, whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.
While working for the city of Hays, Matthew Vogt applied for a job as a police officer in another city. As part of his agreement with the new employer, Vogt informed the Hays police department that he had kept a knife that he had acquired on the job. Using his statements, the Hays police department found “an audio recording which captured the circumstances of how Vogt came into possession of the knife,” and the state eventually charged Vogt with two felonies. The state held a probable cause hearing – at which, Vogt says, his statements about the knife were “used against him.”
The charges were dismissed, but Vogt filed a federal civil-rights lawsuit in which he argued that the city and four officers (along with his would-be employer, which had withdrawn its offer) had violated his Fifth Amendment rights. The district court granted the defendants’ motion to dismiss Vogt’s claims, but (as relevant here) the U.S. Court of Appeals for the 10th Circuit reversed. It acknowledged that the Supreme Court had not yet weighed in on “the precise moment when a ‘criminal case’ commences” for purposes of the self-incrimination clause. But it reasoned that “the right against self-incrimination is more than a trial right,” so that it is “violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing.” The city asked the Supreme Court to weigh in, which it agreed today to do – with Justice Neil Gorsuch, who sat on the 10th Circuit before joining the court – recused.
In Collins v. Virginia, the justices have agreed to clarify the scope of the “automobile exception” to the warrant requirement – specifically, whether it applies to a car parked on private property, close to a home. The case arose when officers looking for a motorcyclist who had eluded them saw a picture of a motorcycle on petitioner Ryan Collins’ Facebook page, found the house where Collins spent at least several nights each week, and located the motorcycle under a tarp toward the back of the driveway, near the house. A police officer walked into the driveway and removed the tarp to find the motorcycle’s Vehicle Identification Number and license tag, from which he learned that the motorcycle was stolen. When Collins was charged with receiving stolen property, he countered that evidence regarding the motorcycle should be suppressed because the police officer had entered the area around his house without a warrant, in violation of the Fourth Amendment.
The state courts rejected his argument. Although the state conceded that the police officer’s actions constituted a search under the Fourth Amendment, for which a warrant would normally be required, the Supreme Court of Virginia concluded that the “automobile exception” applied because the motorcycle was “readily mobile” and the police officer had “several reasons to believe the motorcycle was contraband.” This was true, the court continued, even though the motorcycle was on private property. At Collins’ request, now the Supreme Court will weigh in.
Other grants on today’s list include
- Dalmazzi v. United States, consolidated with Cox v. United States and Ortiz v. United States: Challenges to the service of military officers as appellate judges on Guantanamo military commission;
- Hall v. Hall: Whether a final judgment in one case triggers the appeals clock for that case in single-district consolidated cases;
- Byrd v. United States: Expectations of privacy in rental car for someone who is not an authorized driver;
- Rosales-Mireles v. United States: Standard for the court of appeals to correct a plain error;
- McCoy v. Louisiana: Whether it is unconstitutional for defense counsel to concede a defendant’s guilt over the defendant’s objection.
Today’s grants are likely to be argued in either January or February. The justices are expected to issue more orders from the September 25 conference – which are likely to mostly be denials of review – on Monday morning at 9:30.
This post was originally published at Howe on the Court.