Thursday, June 30, 2016

Limited duration property improvements for disabled child may violate Fair Housing Act

The Second Circuit holds that a town in western New York may have violated the Fair Housing Act after it gave homeowners a chance to modify their property to accommodate their disabled child but required them to eliminate the improvements once the child stops living there.

The case is Austin v. Town of Farmington, decided on June 21. When plaintiffs moved to the town with their severely disabled son, they ran into zoning restrictions. The problem was the parents wanted to install a fence to keep the child within the yard, and an above-ground pool that would provide aquatic therapy. The town granted plaintiffs a variance and allowed them to put up the fence and pool. The catch was that the fence and pool must be removed from the property after the child stopped living at the property, or when plaintiffs sold the property. It cost the family over $30,000 to put in the fence, pool and deck. They then sued the town under the Fair Housing Act.

At first glance, I did not see the legal issue here, and there is not much case law governing disputes like this. The town granted plaintiffs the accommodation when they moved in. But while the town does not want the variance to run with the land -- allowing later occupants to enjoy the improvements -- plaintiffs want to avoid the cost of tearing down the improvements. They also want to capture the increase in value of the property caused by the modifications if they ever sell the property. The Second Circuit (Winter, Raggi and Droney) says a juror "might find that a restoration requirement in some circumstances so burdens a party wanting to modify a property to accommodate a disabled person that it amounts to a refusal of a reasonable accommodation."

As always in reasonable accommodation cases, the issue of "reasonableness" is complicated, with balancing factors that often require a full evidentiary record. When you draft a law that turns on "reasonableness," you are asking for a lawsuit. Here is how the Court of Appeals sums up the competing interests and balancing factors:

Applied to the context of land-use regulations, relevant factors may include the purposes of the restriction, the strength of the Town’s interest in the land-use regulation at issue, the need for uniformity, the effect of allowing later landowners without a disability to enjoy the lack of a restriction on pools, decks, and fences, while all their neighbors are subject to it, the likelihood that a permanent variance will cause other landowners subject to the regulation to seek similar variances, etc.

Balanced against those factors is the cost of removal –- again, whether out of pocket or in a reduced sale price. We say no more because there are undoubtedly a host of relevant factors looking in both directions to be considered. Moreover, we do not want to make gratuitous statements that may seem to address other of the multitude of land-use regulations, e.g. historic landmarking, etc.

Tuesday, June 28, 2016

Company can fire employees for refusing to sit for interviews arising from AG investigation

This employment dispute asks whether an employer had cause to fire two employees who did not comply with an order to explain themselves in the context of a government investigation into possible criminal conduct.

The case is Gilman v. Marsh & McLennan, decided on June 16. The State Attorney General was investigating whether insurance brokers were steering clients toward particular insurance carriers. Marsh & McLennan hired a law firm to conduct an internal investigation into all of this. Plaintiffs were to be interviewed in this internal investigation. The AG's office then shifted its investigation into an alleged bid-rigging scheme involving Marsh and several insurance carriers. After people at AIG pleaded guilty to bid-rigging and identified plaintiffs as co-conspirators, plaintiffs were directed to sit for interviews and threatened with termination if they failed to comply with that directive. Meanwhile, the State Attorney General told management that it would forego criminal prosecution of the company if it cooperated with the investigation. Plaintiffs refused to sit for interviews. One was fired; the other resigned and was denied certain post-retirement benefits "for cause."

The Court of Appeals (Jacobs, Kearse and Winter) says plaintiffs were fired for-cause because they disobeyed a lawful order  from management. The order was lawful because the employer was entitled to seek information from its employees about possible job-related criminal conduct. True, the employees may have had the personal right not to sit for these interviews. But management has rights, too.

The Court reasons:

Marsh’s demands placed Gilman and McNenney in the tough position of choosing between employment and incrimination (assuming of course the truth of the allegations). But though Gilman and McNenney “may have possessed the personal rights to [not sit for interviews], that does not immunize [them] from all collateral consequences that come from [those] act[s],” including leaving Marsh “with no practical option other than to remove [them].” “[T]here would be a complete breakdown in the regulation of many areas of business if employers did not carry most of the load of keeping their employees in line and have the sanction of discharge for refusal to answer what is essential to that end.” Marsh had to use the “sanction of discharge for refusal to answer,” id., because in the absence of an exculpatory explanation, Marsh needed to assume the worst: that the bid‐rigging allegations were true and that Marsh was vicariously liable for their criminal conduct.

Monday, June 27, 2016

Supremes strike down DOL overtime regulation for auto dealerships

The Fair Labor Standards Act is the law that requires employers to pay you minimum wage and overtime if you work more than 40 hours a week. The overtime rule has a zillion exceptions, however. This case from the Supreme Court looks at one of them and holds that the U.S. Department of Labor lacked any legal authority to rewrite the rules governing overtime pay for service advisors  who work at car dealerships.

The case is Encino Motorcars v. Navarro, decided on June 20. This case is a little boring, so let's spruce it up. The second you step foot into the parking lot at an auto dealership, a salesman will come-a-running in the hopes that you buy a car that will grant him a commission so he can feed his family. This case does not involve overtime for the salesmen. After you buy the car and it starts to fall apart because someone cut corners at the factory in Detroit or Japan, you have to return to the dealership to get it fixed. If you have a warranty or there is a recall, you have taken the car to the right place. Otherwise, as George Costanza once said, noting the excessive charges for dealership repairs, you'd have to be out of your mind to bring your car to a dealer. But the repair people have to make a living, too. This case involves the repair people, specifically the service advisors.

In 1966, Congress said there is no overtime requirement for "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements or aircraft." The Department of Labor then issued regulations to enforce that law in 1970. That rule defined "salesman" to mean employees who are primarily engaged in making sales or obtaining orders or contracts for the sale of vehicles. The regulation also excluded service advisors -- who sell repair and maintenance services but not vehicles -- from the minimum wage requirements, which meant the dealerships could deny them overtime. In 2011, the DOL issued a new set of rules that said "salesman" only covers people who sell vehicles. In this case, service advisors sued to recover lost wages. The lower court said service advisors are no longer covered under the exemption, which means they can enjoy full FLSA protection and get their overtime. The employer appeals, claiming service advisors should still be exempt, consistent with the law passed in 1966; they argued the 2011 regulation is illegitimate.

A word or two about administrative law. When Congress passes a law, an executive agency like the Department of Labor, Department of Education, etc., has to issue regulations that help us to interpret and apply the law. This is what we call the bureaucracy. The regulations have to be consistent with the laws, to ensure that the agencies are not in essence writing up new laws. A good regulation fills in the blanks left by a vague law while remaining consistent with the law's aims. Since the regulators are not elected, they have to comply the Supreme Court's guidelines in the Chevron decision from 1984, which says the regulations have to be rational and consistent with Congressional intent.

The 2011 regulation in this case is not legitimate, the Supreme Court says, because it rewrote prior rules that the industry had relied on for years but did not provide any "reasoned explanation" for the change of course. This means the regulation is stricken and the case has to be decided under the law as written in 1966. More broadly, the Court is telling executive agencies to do a better job in explaining themselves when they rewrite rules that were in place for years and that the industry had relied upon.

Sunday, June 26, 2016

Another exception to the exclusionary rule

As the Supreme Court winds down another term, the focus is on immigration, affirmative action and abortion. We tend to overlook the other cases that also impact our lives and could result in your being thrown in the slammer.

The case is Utah v. Streiff, decided on June 20. Under the exclusionary rule, if the police conduct an unlawful search and find something illegal, that illegal find cannot be used against you in court. We call it the "fruit of the poisonous tree." But there are exceptions to the exclusionary rule, and this case highlights one of them. Along the way, Justice Sotomayor dissents and tells us what Justice Thomas's majority decision means for the real world.

It all started when the police got a tip about a house that was the site of narcotics activity. The police followed one guy out of the house and approached him. That was Strieff. In the parking lot at the nearby convenience store, the police asked him for ID. The police relayed Strieff's information to a dispatcher, who found there was an outstanding warrant on a traffic violation. Strieff was arrested on that warrant, and in searching him incident to that arrest (normal police procedure), they found drug paraphernalia. Problem was, the initial stop of Strieff was illegal because there was no reasonable suspicion for it. The drug paraphernalia was the fruit of the poisonous stop. But that does not mean it cannot be used against him.

The 5-3 majority notes the exclusionary rule doesn't count in certain instances: (1) if the evidence would have been found through an independent source other than the guy who was stopped, (2) if the evidence would have been found even without the unconstitutional stop (the inevitable discovery rule) and (3) the attenuation rule, which says that "evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that 'the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained."

Strieff gets nailed on the attenuation exception. The Court holds for the first time that the attenuation doctrine applies when the illegal stop results in the police discovery of a valid warrant against the defendant, and the arrest from that warrant reveals something illegal. As Justice Thomas puts it, the issue is whether "the discovery of a valid arrest warrant is a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff's person." The answer is yes. And another exception to the exclusionary rule is on the books.

Justice Sotomayor dissents, noting that outstanding warrants are common, particularly for traffic offenses, and that rulings like this have real-life consequences for people, including humiliating arrests that can include intrusive body searches and more incarceration:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer's violation of your Fourth Amendment rights. Do not be soothed by the opinion's technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

. . .

Writing only for myself, and drawing on my professional experiences, I would add that unlawful "stops" have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers' use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.
Most remarkable for me is the dissent's reference to recent literature about the high rates for incarceration for minority groups. Justice Sotomayor writes:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone's dignity can be violated in this manner. See M. Gottschalk, Caught 119-138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95-136 (2010). For generations, black and brown parents have given their children "the talk"— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are "isolated." They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner's Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

Thursday, June 23, 2016

Counsel's error in summation at rape trial not enough to win habeas petition

If you handle criminal cases, you know there is a good chance that your client will attack the quality of your representation if the jury finds him guilty. The inmate may file a habeas corpus petition in federal court and claim "ineffective assistance of counsel." These petitions usually fail. But sometimes the petition is a close call. This case is one of them.

The case is Gillespe v. Uhler, a summary order decided on June 21. This was a rape trial. The victim said she was raped at around 11:46 p.m. In summation, defendant's lawyer said the time stamp on the surveillance video at the bagel store (where it happened) was 11:44 p.m. In fact, the time stamp said it was 11:46 p.m. Those two minutes would have made all the difference between guilt and innocence. Also, counsel said the victim had vaginal lacerations even though the prosecution's medical expert said on cross-examination that there were no such lacerations. That statement in summation supported the prosecution's theory of the case.

So did defense counsel provide ineffective assistance of counsel? Kind of. The State appellate court did affirm the conviction. Federal courts have to defer to State court rulings, even on constitutional claims like ineffective assistance of counsel. You win the habeas petition only if the State appellate court had unreasonably applied settled constitutional standards. The State courts can get it wrong on constitutional matters so long as they don't really blow it.

The State court did not really blow it here. While the government admits that defense counsel made mistakes in summation, it argues that the State appellate court was within its discretion to uphold the conviction anyway. There was testimony that the surveillance footage when defendant left the bagel store said 11:46 p.m. While the manager of the bagel store said the time stamp may have been off by two minutes, the jury did not have credit the accuracy of the time stamp, so it was able to find that defendant left the store at 11:44 p.m. after all. So the lawyer's statement in summation did not necessarily prejudice the defendant's case. As for the vaginal laceration statement in summation, the prosecution's medical expert said there were no vaginal lacerations. Since the jury was instruction that summations are not evidence, the State appellate court did not irrationally affirm the guilty verdict.

Wednesday, June 22, 2016

Good loving gone bad

The New Haven Fire Department was last in the news a few years ago when white firefighters won their case in the U.S. Supreme Court because the department threw out their test scores. That was the case involving Sonia Sotomayor, forcing her to explain why she ruled against the plaintiffs in what was actually a very complicated case under the civil rights laws. This New Haven firefighters case involves a bad romantic relationship that cost this guy his job.

The case is Crenshaw v. City of New Haven, a summary order decided on June 21. Crenshaw dated a woman named Townsend while he was studying to become a fireman. He was on the certified list for a position. When the relationship ended, Williams said bad stuff 'bout Crenshaw, like he had threatened to kill fire commissioners because he had been previously denied a position with the department. While the City made plaintiff a conditional offer of employment, he failed the background check after Townsend bad-mouthed Crenshaw to the hiring people in order to prevent Crenshaw from getting the job. The City also discovered that plaintiff was not forthcoming about prior drug use and his outstanding debts.

The Court of Appeals (Pooler, Sack and Lynch) says Crenshaw has no case. To the uninitiated, plaintiff got the shaft. His best claim is under the due process clause, but these cases are very difficult to win, as any plaintiffs' civil rights lawyer will tell you. Plaintiff did not have a concrete right to the position, only a unilateral expectation for the position, so there is no property interest. That's been the legal standard since at least 1972. While you can bring a "loss of reputation" claim under the due process claim (these are known as "stigma plus" claims), the federal courts have made it so difficult to win these cases that you probably should not even show up for oral argument. Crenshaw loses the stigma-plus claim because the City made no stigmatizing claims about him in denying him the position, and nothing bad was said about him in public to cause any stigma. While Townsend sent an anonymous letter to the City about Crenshaw, the City did not repeat these false statements or make them public. So while Crenshaw got a raw deal, the Constitution sometimes provides no relief for a raw deal.

This case includes a footnote with a good practice tip. The lawyer's brief said that plaintiff incorporated all the arguments that he made in his district court memorandum of law. This may have been done in an exercise of caution, but the Court of Appeals doesn't like this because any good arguments should be in the appellate brief. The appellate court does not want to be rummaging through the file looking for the lower court brief. Any arguments that were in the district court brief but not in the appellate brief are waived, the Court says.

Monday, June 13, 2016

Can the trial court order the discharged jury back to the courtroom?

This Supreme Court case asks the question: what does a trial judge do when the case is over and the jury is on its way out the courthouse and the judge realizes something is wrong with the verdict? Do you call the jury back for additional deliberations? Is the jury allowed to head out the door, never to be seen or heard from again? If so, does the judge declare a mistrial and order a new trial?

The case is Dietz v. Bouldon, decided by the Supreme Court on June 9. This was a personal injury case that went to trial in Montana. The defendant admitted liability and said he was responsible for the $10,136 in medical expenses. The jury had to decide of the defendant had to pay out any other damages. But the jury returned a verdict of $0.00 for the plaintiff. The judge then thanked the jury for its services and told them they were discharged. Moments later, however, the judge realized the jury had blown it. It could not award no money if the defendant had stipulated to pay the $10,136 in medical costs. So the jurors were intercepted as they were leaving the building and ordered to continue deliberating, which they did, awarding plaintiff $15,000 in damages. The defendant appeals, arguing that the jury cannot bring the jury back after they are discharged.

The Federal Rules of Civil Procedure have provisions for nearly every conceivable procedural event that can happen in a lawsuit. But it says nothing about what to do when the jury is discharged and someone realizes they are not finished with their service because something went wrong with the verdict. So the Supreme Court has to apply old fashioned horse-sense in this case. It decides by 6-2 vote that the judge in this case properly exercised his discretion in bringing the jury back. Nothing in the rules prevented the judge from doing this, and the courts have inherent authority to ensure that justice is done. In order to bring the jury back after discharge, the court has to ensure that none of the parties are prejudiced by this maneuver, that is, that the jury was not exposed to any information in the courthouse hallways (such as passing conversations about the case or text messages or the losing party screaming about the unfair verdict in the hallway) that might further affect its view of the case. If the judge is satisfied that the jurors did not see or hear anything about the case and the jurors are brought back to the courtroom quickly. Writing for the majority, Justice Sotomayor says:

In this case, the Supreme Court says the trial judge did not abuse his discretion in returning the jury to the trial. "Only one juror may have left the courthouse, apparently to retrieve a hotel receipt. The jurors did not speak to any person about the case after discharge. There is no indication in the record that this run-of-the-mill civil case—where the parties agreed that the defendant was liable and disputed damages only—generated any kind of emotional reaction or electronic exchanges or searches that could have tainted the jury. There was no apparent potential for prejudice by recalling the jury here."