SUPREME COURT WATCH

By Lani L. Williams

Lani L. Williams is an associate counsel with the International Municipal Lawyers Association in Washington, D.C.

Religious Displays on Public Property

The Supreme Court recently decided two cases involving Ten Commandments displays on public property. SeeMcCreary County, Kentucky v. ACLU of Kentucky, 125 S. Ct. 2722 (2005) (affirming the test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971), and finding that the county’s display violated the Establishment Clause); and Van Orden v. Perry, 125 S. Ct. 2854 (2005) (holding Texas’ display did not violate the Establishment Clause, the plurality questioned the continuing utility of the Lemon test). The Court’sdecisions emphasize religious display cases will be intensely fact driven and legal frameworks are as confusing as ever.

Subsequent lower court decisions highlight the importance of paying close attention to the facts in Ten Commandments display cases. As of this writing, three appellate courts have issued opinions involving Ten Commandment monuments on public property. SeeAmerican Civil Liberties Union of Kentucky v. Mercer County, Kentucky, No. 03-5142, 2005 WL 3466545 (6th Cir. Dec. 20, 2005); ACLU v. City of Plattsmouth, 419 F.3d 772 (8th Cir. 2005); O’Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005).

The Sixth Circuit released its opinion in Mercer County just in time for the holidays. Of particular note in this case is the fact that the display in the Mercer County courthouse was identical “in all material respects” to the third display in McCreary County. Noting that “context is crucial,” Mercer County, 2005 WL 3466545, at *10, the court differentiated this case from McCreary County on several points. The court acknowledged continued confusion as to the application and viability of the Lemon test, concluding, “[t]hus, we remain in Establishment Clause purgatory.” Id. Ultimately, the court held the display in this case survived constitutional scrutiny.

In City of Plattsmouth, a divided en banc Eighth Circuit held Plattsmouth’s Ten Commandments monument did not violate the Establishment Clause. The majority relied on Van Orden to support its factual analysis and declined to apply the Lemon test, while the minority drew its support from McCreary County. The majority noted the display was in a park that had many recreational items, including benches with memorial designations. The minority specifically noted that the monument was without anything that suggested a secular or historical message. No dispute existed as to the factual elements of the display; the judges differing opinions arose solely from the individual prisms through which they viewed the displays.

The Tenth Circuit has issued two opinions since McCreary and Van Orden. In O’Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005), the court used the Lemon test to determine that a monument erected on university grounds did not violate the Establishment Clause. The court remanded Society of Separationists v. Pleasant Grove City, 416 F.3d 1239 (10th Cir. 2005), after determining neither it nor the district court had a sufficient record on which to base a decision. “Given the myriad factual considerations dictated by the Court in Van Orden and McCreary, and the undeveloped record before us, we are unable to determine whether such facts may be developed by the parties as may allow them to proceed.” Id. at 1240.

In addition to the federal appellate court decisions, several district courts have issued decisions citing McCreary and Van Orden. In Card v. City of Everett, 386 F. Supp. 2d 1171 (W.D. Wash. 2005), the district court found the display at issue, though “borderline,” did not violate the Establishment Clause. This court also noted context is the key to determining the validity of any religious display. In Twombly v. City of Fargo, 388 F. Supp. 2d 983 (D.N.D. 2005), the district court refused to apply the Lemon test, while stating, “It is, perhaps, no understatement to note at the outset of this discussion that the current state of Establishment Clause jurisprudence is both widely debated and criticized.” Id. at 986. Similarly, in Russelburg v. Gibson County, Indiana, No. 3:03-CV-149-RLY-WGH, 2005 WL 2175527 (S.D. Ind. Sept. 7, 2005), the district court found no Establishment Clause violation, while acknowledging that “[e]ven the Justices of the Supreme Court recognize that there is no perfect or consistent way to test a public display that contains religious features against the prohibitions of the Establishment Clause.” Id. at *2.

While the lower courts have uniformly found the Ten Commandments displays before them do not violate the Establishment Clause, practitioners should be cautious both about the facts in their particular cases and about whether a particular court will or will not apply the Lemon test. There is no clear direction as to when a court should apply the Lemon test, which means that judges will make this decision largely based on their individual perspectives. While there may not seem to be much cause for concern at this time, a recent statement by a judge in California highlights the possible difficulties ahead:

As last term’s cases . . . demonstrate, the distinction [between government actions endorsing religion and those that do not] is utterly standardless, and ultimate resolution depends on the shifting, subjective sensibilities of any five members of the High Court, leaving those of us who work in the vineyard without guidance.

Newdow v. The Congress of the United States of America, 383 F. Supp. 2d 1229, 1244 n.22 (E.D. Cal. 2005) (internal citations omitted). Practitioners are well advised to proceed cautiously in this area.

2005 Term

Several cases on the Court’s 2005 Term are of interest to state and local governments. The cases are noted below.

Economic Development/Taxes

Cuno v. Daimler Chrysler Corp , 386 F.3d 738 (6th Cir. 2004), cert. granted, 74 U.S.L.W. 3199 ( U.S. Sept. 27, 2005) (No. 04–1724). Issues: (1) Whether Ohio’s investment tax credit violates the Commerce Clause; (2) whether the dormant Commerce Clause allows a state to attempt to attract new business investment by offering credits against the state’s general corporate franchise or income tax, when the amount of the credit is based on the amount of a business’s new investment in the state; and (3) whether respondents have standing to challenge Ohio’s investment tax credit.

Employment Cases

Arbaugh v. Y & H Corp., d/b/a The Moonlight Cafe , 380 F.3d 219 (5th Cir. 2004), cert. granted, 73 U.S.L.W. 3671 ( U.S. May 16, 2005) (No. 04–0944). Issue: Does Section 701(b) of Title VII limit the subject matter jurisdiction of the federal courts, or does it only raise an issue going to the merits of a Title VII claim?

Ceballos v. Garcetti, 361 F.3d 1168 (9th Cir. 2004), cert. granted, 73 U.S.L.W. 3513 ( U.S. Feb. 28, 2005) (No. 04–0473). Issue: (1) Should a public employee’s purely job-related speech, expressed strictly pursuant to the duties of employment, be cloaked with First Amendment protection simply because it touches on a matter of public concern, or should First Amendment protection also require the speech to be engaged in “as a citizen,” in accordance with this Court’s holdings in Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983)?

IBP, Inc. v. Alvarez/Tum v. Barber Foods, Inc. , 126 S. Ct. 514 (2005). On November 8, 2005, the Court issued a unanimous opinion holding that companies must pay hourly wage workers for the time it takes to change into protective clothing and safety gear.

Environment/Clean Water Act

Carabell v. U.S. Army Corps of Engineers , 391 F.3d 704 (6th Cir. 2004), cert. granted, 74 U.S.L.W. 3228 ( U.S. Oct. 11, 2005) (No. 04–1384), consolidated with Rapanos v. United States, 376 F.3d 629 (6th Cir. 2004), cert. granted, 74 U.S.L.W. 3228 ( U.S. Oct. 11, 2005) (No. 04-1034). Issues: (1) Does the Clean Water Act extend to wetlands that are hydrologically isolated from any of the “waters of the United States”; (2) do the limits on Congress’s authority to regulate interstate commerce preclude an interpretation of the Clean Water Act that would extend federal authority to wetlands that are hydrologically isolated from any of the “waters of the United States”; (3) does the Clean Water Act prohibition on unpermitted discharges to “navigable waters” extend to nonnavigable wetlands that do not even abut a navigable water; and (4) does extension of Clean Water Act jurisdiction to every intrastate wetland with any sort of hydrological connection to navigable waters, no matter how tenuous or remote the connection, exceed Congress’s constitutional power to regulate commerce among the states?

S. D. Warren Co. v. Maine Bd. of Environmental Protection , 868 A.2d 210 ( Me. 2005), cert. granted, 74 U.S.L.W. 3228 ( U.S. Oct. 11, 2005)(No. 04–1527). Issue: Does the mere flow of water through an existing dam constitute a “discharge” under section 401, 33 U.S.C. § 1341, of the Clean Water Act, despite this Court’s holding last year in Miccosukee that a discharge requires the addition of water from a distinct body of water?

Police Cases

California v. Samson , No. A102394, 2004 WL 2307111 ( Cal. Ct. App. Oct. 14, 2004), cert. granted, 74 U.S.L.W. 3199 ( U.S. Sept. 27, 2005) (No. 04–9728). Issue: Does the Fourth Amendment prohibit police from conducting a warrantless search of a person who is subject to a parole search condition, when there is no suspicion of criminal wrongdoing and the sole reason for the search is that the person is on parole?

Georgia v. Randolph , 604 S.E.2d 835 ( Ga. 2004), cert. granted, 73 U.S.L.W. 3619 ( U.S. Apr. 18, 2005) (No. 04–1067). Issue: Should this Court grant certiorari to resolve the conflict among federal and state courts on whether an occupant may give law enforcement valid consent to search the common areas of the premises shared with another, even though the other occupant is present and objects to the search?

Maryland v. Blake , 849 A.2d 410 ( Md. 2004), cert. granted, 73 U.S.L.W. 3619 ( U.S. Apr. 18, 2005)(No. 04–373). Issue: When a police officer improperly communicates with a suspect after invocation of the suspect’s right to counsel, does Edwards v. Arizona, 451 U.S. 477 (1981), permit consideration of curative measures by the police, or other intervening circumstances, to conclude that a suspect later initiated communication with the police?

Michigan v. Hudson , No. 246403, 2004 WL 1366947 (Mich. Ct. App. June 17, 2004) (unpublished), cert. granted, 73 U.S.L.W. 3749 ( U.S. June 27, 2005) (No. 04–1360). Issue: Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a Fourth Amendment “knock and announce” violation, or is the evidence subject to suppression after such violations?

Oregon v. Sanchez-Llamas , 108 P.3d 573 (Or. 2005), cert. granted, 74 U.S.L.W. 3287 ( U.S. Nov. 7, 2005) (No. 04–10566), consolidated withBustillo v. Johnson, __ Va. ___ (2004)(unreported), cert. granted, 74 U.S.L.W. 3287 ( U.S. Nov. 7, 2005) (No. 05–51). Issues: (1) Does the Vienna Convention convey individual rights of consular notification and access to a foreign detainee enforceable in the courts of the United States; (2) does the state’s failure to notify a foreign detainee of his rights under the Vienna Convention result in the suppression of his statements to police; and (3) whether, contrary to the International Court of Justice’s interpretation of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 100-101, state courts may refuse to consider violations of Article 36 of that treaty because of a procedural bar or because the treaty does not create individually enforceable rights.

United States v. Grubbs, 337 F.3d 1072 (9th Cir. 2004), cert. granted, 74 U.S.L.W. 3199 ( U.S. Sept. 27, 2005) (No. 04–1414). Issue: Whether the Fourth Amendment requires suppression of evidence when officers conduct a search under an anticipatory warrant after the warrant’s triggering condition is satisfied, but the triggering condition is not set forth either in the warrant itself or in an affidavit that is both incorporated into the warrant and shown to the person whose property is being searched.

Property/Taxes

Jones v. Flowers , No. 04–449, 2004 WL 2609800 ( Ark. Nov. 18, 2004), cert. granted, 74 U.S.L.W. 3199 ( U.S. Sept. 27, 2005) (No. 04–1477). Issue: When mailed notice of a tax sale or property forfeiture is returned undelivered, does due process require the government to make any additional effort to locate the owner before taking the property?

Religious Freedom

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft , 389 F.3d 973 (10th Cir. 2004), cert. granted sub nom. Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 73 U.S.L.W. 3619 ( U.S. Apr. 18, 2005) (No. 04–1084). Issue: Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq., requires the government to permit the importation, distribution, possession, and use of a Schedule I hallucinogenic controlled substance, when Congress has found that the substance has a high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate an international treaty.

School District Case

Schaffer v. Weast , 126 S. Ct. 528 (2005). The Supreme Court recently held the burden of persuasion in an Individuals with Disabilities Education Act case lies with the party seeking relief.

Sovereign Immunity

Zurich Ins. Co. v. Chatham County, Georgia , 129 Fed. Appx. 602 (11th Cir. Jan. 28, 2005) (Table), cert. granted, 74 U.S.L.W. 3228 ( U.S. Oct. 11, 2005) (No. 04–1618). Issue: Whether an entity that does not qualify as an “arm of the State” for Eleventh Amendment purposes can nonetheless assert sovereign immunity as a defense to an admiralty suit?

State Cases

Goodman v. Ray , 120 Fed. Appx. 785 (11th Cir. 2004) (unpublished), cert. granted sub nomUnited States v. Georgia, 73 U.S.L.W. 3671 ( U.S. May 16, 2005) (No. 04–1203), and Goodman v. Georgia (unpublished), cert. granted, 73 U.S.L.W. 3671 ( U.S. May 16, 2005) (No. 04–1236). Issues: (1) Whether Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131 to 12165, is a proper exercise of Congress’s power under Section 5 of the Fourteenth Amendment, as applied to the administration of prison systems; and (2) whether, and to what extent, Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131 et seq., validly abrogates state sovereign immunity for suits by prisoners with disabilities challenging discrimination by state-operated prisons, a question on which the courts of appeals are in conflict.

Oregon v. Ashcroft , 368 F.3d 1118 (9th Cir. 2004), cert. granted sub nom. Gonzales v. Oregon, 73 U.S.L.W. 3494 ( U.S. Feb 22, 2005) (No. 04–623). Issue: Whether the Attorney General has permissibly construed the Controlled Substances Act, 21 U.S.C. §§ 801 et seq., and its implementing regulations to prohibit the distribution of federally controlled substances for the purpose of facilitating an individual’s suicide, regardless of a state law purporting to authorize such distribution.

Planning Public Service: Making Service Part of the Workplace Is Good for the Profession and the Public

By Michael S. Greco

President, American Bar Association

Most lawyers feel a responsibility to the public, but lawyers today are facing the more rigorous demands of modern practice, which deplete time and energy for pro bono and public service work. Lawyers are frustrated, while the public’s need for legal services remains severe.

I have appointed the Commission on the Renaissance of Idealism in the Legal Profession to develop policies and practices that would enable lawyers to do more pro bono and public service. It already has created the Pro Bono and Public Service Best Practices Resource Guide, an online clearinghouse of pro bono and public service programs that lets lawyers learn from others’ experiences and submit their own for others’ benefit.

As ABA president, I have asked lawyers to do more pro bono and public service, but I am not asking lawyers to do it alone. I urge you to visit www.abanet.org/renaissance, use the best practices, and share your own.