Diary

The Supreme Court's February Sitting Docket

The US Supreme Court continues to hear oral arguments in cases despite having only eight Justices after the death of Justice Scalia last year.  Trump has promised to name a replacement in the first week of February which, if all goes well, would have that nominee confirmed and commissioned in time for the April sitting.

The February sitting begins on February 21st and ends on March 1st.  The following is a summary of the cases scheduled for oral argument.

Tuesday, February 21st

Hernandez vs. Mesa– This is perhaps their most interesting case this sitting.  Sergio Hernandez was a 15-year-old Mexican citizen who was playing a game near the El Paso-Juarez, Mexico border crossing.  Apparently, it is common for Mexican children to dare one another to run across a culvert, touch the US border fence and run back.  On this particular day, Hernandez and his friends were caught by Border Patrol agent Jesus Mesa who ordered the kids to stop.  Hernandez ignored the order and ran behind a concrete column that supported a rail crossing that spanned the culvert and the border.  The column was on the Mexican side of the invisible border.  Mesa shot and killed Hernandez.

Initially, the Border Patrol stated that the group of boys surrounded and threatened Mesa, but subsequent video on cell phones revealed that was not the case.  The Justice Department could not investigate the matter because Hernandez was not a US citizen, nor was he on US soil.  Mexico could not investigate because the US refused extradition of Mesa.  That left the Border Patrol to issue any discipline after investigation.

The parents of Hernandez sued Mesa in District Court in Texas.  Those charges were summarily dismissed by the court stating that one’s constitutional rights against the use of deadly force stop at the border.  Appeal to the Fifth Circuit led to a series of confusing decisions over whether the Fourth or the Fifth Amendment applied.  The 5-judge panel concluded the Fourth applied and sided with the District Court.  An en banc hearing decided that the Fifth applied and that Mesa was afforded qualified immunity for his actions.

The most troubling aspect to this case is that a previous decision- Boumediene vs. Bush– rejected the formalistic view that constitutional rights cease at the border and can be applied on an extraterritorial basis dependent on the specific facts of the incident.  As an aside, it does not help that the Border Patrol has attempted to hide other incidents of the shooting of unarmed victims attempting to cross the border.

The United States Supreme Court is not a trier of facts in these cases and it would appear that the lower courts, through their dismissal of the case, refused to even hear the facts of the case given their interpretation of the law.  Although there may be disagreement regarding Boumediene in the execution of the war on terrorism, one would have to conclude that its basic findings are controlling in this case.  They may very well allow the Hernandez family to have their day in court.

McLane Co. vs. EEOC-  McClane is a major distribution company operating nationwide.  They have a policy that upon returning from a medical leave of absence, employees take a test to determine whether they can handle the physical demands of their job.  One such employee in Phoenix failed the test on three occasions and then sued, through the EEOC, claiming gender discrimination.

The use of the test is not questioned here.  Instead, the power of the EEOC to issue subpoenas- a power granted by Congress- and whether it can extend beyond the case at hand is the issue.  In this particular case, the EEOC issued a nationwide subpoena into McClane’s practices regarding the test.  In other words, the scope of their investigation expanded far beyond the particular complaint in Phoenix to a nationwide, systemic investigation.

Unfortunately for the Ninth Circuit, which upheld the EEOC subpoena, they are the only Circuit Court to interpret the law in this manner as eight other circuits interpret the subpoena power differently.

Wednesday, February 22nd

Kindred Nursing Centers vs. Clark– this case tests state attempts to circumvent certain aspects of the national Federal Arbitration Act.  Recently, the Court has waded heavily into arbitration disputes especially those that favor arbitration (which seems to the be the preferred method of resolving disputes under the FAA) over civil suits in state or federal courts.  The majority of these cases have fell on the side of the FAA.

Monday, February 27th

Packingham vs. North Carolina- Lester Packingham is a registered sex offender in North Carolina.  Under amendments to their law that required inclusion on a central registry, North Carolina passed a law in 2008 making it a felony for registrants to access any website that facilitates social interactions.  The North Carolina legislature was reacting to well-publicized instances of sexual predators using social media sites to prey upon victims.

Packingham was convicted in 2002 at the age of 21 for “taking indecent liberties” with a minor.  He served a sentence plus supervised release and was placed on the registry.  He was convicted under the 2008 amendment in 2010 for posting on Facebook, in response to a driving violation dismissed by the court, “God is great.”  A Durham police officer came across the posting, made the connection to Packingham and the rest is history.

Making a 1st Amendment Free Speech claim, the North Carolina Court of Appeals overturned his conviction and ruled the law unconstitutional.  However, the North Carolina supreme court reversed the lower court, reinstated the conviction and ruled the law constitutional stating that the state’s interest in protecting minors was correctly weighed against the potential First Amendment concerns.

Given the explosion of social media sites and minor access to them, one can understand North Carolina’s concerns when it comes to sexual predators- convicted and potential.  However, the legislature’s “ounce of prevention” theory is transformed into two tons of prevention.  One cannot see the US Supreme Court upholding this law and there will likely be remand.  As part of the investigation, Packingham’s computer and thumb drives were seized and there was no evidence whatsoever of anything nefarious.

Perhaps a happy compromise can be reached legislatively where those on the sex registry must disclose their presence on social media sites and allow authorities to monitor their activity on these sites.  The truly nefarious will obviously circumvent these requirements and it those who should be prosecuted.  Stating “God is great” on Facebook by a registered sex registrant is certainly not nefarious.

Esquivel-Quintana vs. Lynch-  Juan Esquivel-Quintana is a lawful permanent US resident.  In 2009, at the age of 20, he was convicted under California law for having sex with his 16-year-old girlfriend.  The sex was consensual.  However, because the age difference was greater than three years at the time and the girl was under the age of 18 at the time, California classified it as an aggravated felony.

While charges were pending, the Ninth Circuit declared that the law under which he was convicted did not constitute “sexual abuse of a minor.”  The petitioner later moved to Michigan after pleading no contest to the charges.  While in Michigan, he was arrested by immigration as they moved for deportation based on the California charges.  The Immigration Judge ruled that the deportation proceedings could continue since Michigan is in the Sixth Circuit and not bound by a decision of the Ninth Circuit.

In effect, the Supreme Court is tasked with being a referee in the difference of opinions between Circuits.

Tuesday, February 28th

Dean vs. United States-  This is a case about sentencing and a court’s discretion in meting out consecutive terms.  Although complicated, it would appear Mr. Dean is grasping at straws.

Wednesday, March 1st

Coventry Health Care of Missouri vs. Nevils:  This case asks whether federal law preempts state laws that prevent reimbursement under the Federal Employees Health Benefits Act’s contracts.  A complicated case likely to lull those in attendance into a state of stupor.

The Court has not announced their remaining calendar of cases for oral argument yet.