U.S. Supreme Court cases of interest in the 2018-2019 term

By Lindsey Bailey, AAC General Counsel

Oct. 1, 2018 marked the beginning of the U.S. Supreme Court’s 2018-2019 term, the first without former Justice Anthony Kennedy. Kennedy, often a swing-vote in key decisions, was replaced by an expectedly more conservative Justice Brett Kavanaugh. This is the second change in the makeup of the court in the last two years, with Justice Neil Gorsuch being appointed to succeed the late Justice Antonin Scalia in April 2017. This article will provide a brief synopsis of some key cases the Court has already granted or is expected to grant review during this term.

The American Legion v. American Humanist Ass’n/Maryland-National Capital Park and Planning Comm’n v. American Humanist Ass’n — In this case the Court will address religiously-associated displays on government property, an issue with widely inconsistent rulings across the country. This case involves a 40-foot, 93-year old memorial in the shape of a cross dedicated to those who died in World War I located at a three-way intersection in Bladensburg, Maryland. The Fourth Circuit ruled that the cross, due to its size and prominence did violate the First Amendment’s prohibition against the establishment of a state religion. The Court will hear this case and provide some much-needed clarity to the issue of when and how religiously-affiliated displays may and may not be placed on government-owned properties.

Weyerhaeuser Co. v. U.S. Fish and Wildlife Service — In 2010, the US Fish and Wildlife Service designated over 1,500 acres of land in Louisiana owned by Weyerhaeuser and others as “critical habitat” for the endangered dusty gopher frog, although the area had not been inhabited by the frogs for decades, and in fact, would not be a viable habitat for the species without numerous costly restorations. The Endangered Species Act allows designation as “critical habitat,” even if the area is not inhabited by a species if it is deemed “essential to the conservation of the species.” The “critical habitat” designation comes with federal regulations and restrictions that would inhibit the landowners’ plans for the commercial and residential development of their property, as well as cost up to an estimated $34 million to make the changes necessary for a suitable habitat for the species. The landowners ask the Supreme Court to rule that the Act does not allow for privately-owned land to be designated as “critical habitat” when it is neither currently habitat for a species nor essential to the species’ conservation.

Knick v. Township of Scott, PA — The Township passed an ordinance requiring all property that is used as a cemetery, whether private or public, to be open and accessible to the public in the daytime. It allowed enforcement agents to enter property to inspect whether a cemetery exists, and to charge up to $600 in fines for violations. Agents entered Knick’s property and found what they believed to be grave markers, and issued her a notice of violation of the ordinance. Knick filed a complaint in state court for the unlawful taking of her property, but the state court refused to rule since she had not initiated an inverse-condemnation proceeding against the Township. Federal Courts also refused to hear her claims that the ordinance violated the Fourth Amendment’s prohibition against unreasonable search and seizure for lack of standing and ripeness. Knick now asks the Court to overrule precedent set in Williamson County Regional Planning Comm’n v. Hamilton Bank in 1985, that property owners must exhaust state remedies before a federal constitutional claim may be heard in federal court.

Virginia Uranium, Inc. v. Warren — The Atomic Energy Act of 1946 placed authority over nuclear radiological safety with the federal government, with states being free to regulate other nuclear power-related activities. In 1982, Virginia banned uranium mining while health and safety studies were conducted. Virginia Uranium argues that the state’s ban on mining is preempted by the 1946 Act’s designation of authority over radiological safety concerns to the federal government. Lower courts have upheld the state’s ban, and Virginia Uranium asks the Supreme Court to rule that the 1946 Act preempts Virginia’s state laws related to radiological safety.

Gundy v. United States — Article I of the U.S. Constitution grants Congress all federal legislative power and prohibits the delegation of legislative functions to the Executive branch. Exceptions have been upheld so long as Congress provides a guiding “intelligible principle” for the agency to exercise its discretion. When Congress passed the Sex Offender Registry and Notification Act (SORNA) in 2006, it delegated to the Attorney General’s office the authority to determine whether and how to apply the registration requirements to SORNA retroactively to those convicted of sex offenses before SORNA was passed. Gundy is a sex offender convicted before the passage of SORNA who was charged with failing to register as a sex offender upon his release in 2012. Gundy argues that Congress’s delegation of authority to the Attorney General of whether and how to apply SORNA retroactively was a delegation of legislative power to an executive office in violation of Article I.

Timbs v. Indiana — While the Bill of Rights originally protected U.S. citizens from actions of the federal government, since the 1920s the Court has found certain amendments also apply against state governments through the Due Process Clause of the Fourteenth Amendment, including the rights to free speech/exercise of religion, freedom from unreasonable search and seizure, prohibiting the taking of property without just compensation, and freedom from excessive bail and cruel and unusual punishment. However, the Court has never ruled that the Eighth Amendment’s prohibition against excessive fines applies to the states. Timbs pleaded guilty to dealing heroin, a charge with possible fines of up to $10,000. The court ordered that he pay $1,200 in court costs, but no fines. Indiana has sought the civil forfeiture of Timbs’ Land Rover valued around $40,000. Timbs asks the Court to find that the forfeiture would be “grossly disproportionate” to the fine the court could have imposed, and prohibit the forfeiture by applying the excessive fines clause of the Eighth Amendment against the state.

Gamble v. United States – The Fifth Amendment’s prohibition against Double Jeopardy does not allow any person to be tried twice for the same offense, but in 1959, the Court found that since states and federal government are separately sovereign, this prohibition does not apply to charges for the same offense brought by state and federal governments separately. Gamble, a felon charged with possession of a handgun was sentenced to one year by the state and 46 months plus three years’ probation under a federal charge. Gamble argues to the Court that his dual convictions violate the original intent of the Double Jeopardy clause of the Fifth Amendment.

There are a couple of other cases worth noting that have pending petitions of certiorari filed with the Supreme Court, that are likely to be heard this term. Andersen v. Planned Parenthood of Kansas and Mid-Missouri/Gee v. Planned Parenthood of Gulf Coast are consolidated cases coming from the Fifth and Tenth Circuit Courts of Appeal, both addressing the issue of whether a state terminating their Medicaid agreements with Planned Parenthood is a violation of an individual’s right to choose their own healthcare provider. In the Eighth Circuit, the court upheld Arkansas’s cancellation of their agreement with Planned Parenthood, concluding that federal Medicaid law created no individual entitlement that is enforceable in court, and that it was not clear that an individual has the right to challenge a state’s disqualification of a health provider. The courts in the Fifth and Tenth Circuit disagreed, holding that federal Medicaid law requires states to allow Medicaid recipients to choose their healthcare providers. The split circuits make this case likely to be taken up by the Supreme Court.

Second, the Court is likely to hear arguments in Altitude Express Inc. v. Zarda. This is another split circuit case, with the issue being whether Title VII of the Civil Rights Act of 1964 protects employees from employer discrimination based on sexual orientation. In 1989, the Supreme Court ruled that Title VII protects employees from employer discrimination based on gender stereotyping. The courts in the Seventh and Second Circuit Courts of Appeal have ruled that gender-stereotyping and sexual-orientation discrimination should be treated similarly, both prohibited types of employer-discrimination. However, the Eleventh Circuit reached the opposite conclusion. The split circuits make this a likely case for the Supreme Court to consider.

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